Page 1

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1551 of 2007  

Subodh Nath and Anr.                              …… Appellants

Versus

State of Tripura                                                …..  Respondent

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article  

136  of  the  Constitution  against  the  judgment  dated  

08.06.2005 of  the Gauhati  High Court,  Agartala  Bench,  in  

Criminal Appeal No. 22 of 2004.

2. The facts very briefly are that on 09.10.1998, Ashutosh  

took out his cows for  grazing but did not return home till  

dusk and his cousin, Kripesh, along with others searched for  

Ashutosh  but  could  not  find  him.   On  the  next  day

Page 2

(10.10.1998) at about 8.30 a.m., he again went out looking  

for Ashutosh and found his dead body with injuries lying in a  

jungle  at  Nalia  Tilla.   Kripesh  then  lodged  an  FIR  at  the  

Panisagar Police Station and the police registered a case and  

held an inquest  over  the dead body of  the deceased.   In  

course of the investigation, the police apprehended Pranajit,  

who was working as a labourer under Ashutosh and Kripesh,  

from District Cachar and brought him to Dharamnagar and  

during  interrogation  Pranajit  disclosed  that  Ashutosh  had  

been killed by the two appellants.  The statement of Pranajit  

was also recorded under Section 164 of the Code of Criminal  

Procedure, 1973 (for short ‘Cr.P.C.’) and on completion of the  

investigation,  the  police  filed  charge-sheet  against  the  

appellants.  

3. At  the  trial,  the  prosecution  examined  a  total  of  19  

witnesses.  Kripesh, the informant, was examined as PW-1,  

Patal, the elder brother of Pranajit, was examined as PW-2  

and  he  stated  that  PW-13  had  disclosed  to  him that  the  

appellants assaulted the deceased by an axe and a  lathi.  

Pranajit was examined as PW-13 and he has stated that he  

2

Page 3

had gone along with the deceased to graze cows at Nalia  

Tilla and the appellant no.1 had dealt an axe blow on the  

deceased while the appellant no.2 dealt a lathi blow on him.  

The  appellants  did  not  produce  any  evidence  in  their  

defence.   The  trial  court  convicted  the  appellants  under  

Section 302 read with Section 34 of the Indian Penal Code,  

1860  (for  short  ‘the  IPC’)  and  sentenced  them  to  

imprisonment  for  life  and a fine of  Rs.5000/-  each and in  

default, to undergo further imprisonment for a period of one  

year.  The appellants filed Criminal Appeal No. 22 of 2004  

before the High Court, but by the impugned judgment the  

High  Court  maintained  the  conviction  and  sentence  and  

dismissed the appeal.   

4. Mr.  Lalit  Chauhan,  learned counsel  appearing for  the  

appellants, submitted that on 09.10.1998 when the offence  

was alleged to  have been committed,  the appellant  no.2,  

Paritosh, was less than 18 years of age and was, therefore, a  

juvenile within the meaning of Section 2(k) of the Juvenile  

Justice (Care and Protection of Children) Act, 2000 (for short  

‘the  2000  Act’).   He  relied  on  the  copy  of  the  primary  

3

Page 4

education  certificate  issued  by  the  Teacher-in-charge  of  

West Bilthai S.B. School, Dharmanagar, Tripura (N), to show  

that the date of birth of the appellant no.2 was 28.05.1983.  

He submitted that accordingly his age was about 16 years on  

09.10.1998, the date on which the offence was committed.  

He  submitted  that  the  trial  court  and  the  High  Court,  

however, took the view that the provisions of the 2000 Act  

would  not  apply  to  the  offence  which  was  committed  on  

09.10.1998 and instead the provisions of Juvenile Justice Act,  

1986 (for short ‘the 1986 Act’) would apply and under the  

1986 Act  only a person who is  shown to be less than 16  

years of age at the time of the commission of the offence is  

a juvenile and it was satisfactorily proved that the appellant  

no.2 was 16 years of age on the date of commission of the  

offence.    He  submitted  that  in  Hari  Ram  v.  State  of  

Rajasthan and Another  [(2009) 13 SCC 211], this Court has  

taken a view that all persons who were below the age of 18  

years on the date of commission of the offence would have  

to  be  treated  as  juveniles  by  virtue  of  the  2000  Act  as  

amended by the Amendment  Act  of  2006.   He submitted  

4

Page 5

that, therefore, the appeal of appellant no.2 will have to be  

allowed and the impugned judgment of the High Court  qua  

appellant no.2 will have to be set aside.   

5. Regarding  the  appeal  of  the  appellant  no.1,  Mr.  

Chauhan submitted that his conviction is based on the sole  

testimony  of  PW-13,  but  PW-13  ought  not  to  have  been  

believed  because  he  had  ran  away  from  the  place  of  

occurrence in North Tripura district, where he was working  

as  a  labourer,  to  the  Cachar  district  and  he  was  thus  a  

suspect.  He cited the decision of this Court in Badri v. State  

of Rajasthan  [(1976) 1 SCC 442] in which it has been held  

that in case of a witness who is neither wholly reliable nor  

whole unreliable, the Court must be circumspect and has to  

look  for  corroboration  in  material  particulars  by  reliable  

testimony, direct or circumstantial.  He also relied on  Lallu  

Manjhi and Another v. State of Jharkhand (AIR 2003 SC 854)  

in which similarly the need to look for corroboration where  

the  evidence  was  neither  wholly  reliable  nor  wholly  

unreliable was again emphasized.   

5

Page 6

6. Mr.  Chauhan next  pointed out  some discrepancies  in  

the evidence of PW-2 and PW-13.  He pointed out that PW-2  

had stated in his evidence that PW-13 had told him that the  

appellant  no.1  (Subodh)  had  restrained  him  and  had  

threatened him if he disclosed it to anyone that he had dealt  

an axe blow on the deceased.  PW-13, on the other hand,  

has not said that the appellant no.1 (Subodh) had restrained  

him and threatened him, but has only said that the appellant  

no.2  (Paritosh)  ran  after  him.   He  also  pointed  out  

discrepancies  in  the  evidence  of  PW-1  and  PW-13.   He  

submitted  that  while  PW-1  has  stated  that  PW-13  had  

accompanied him to  search for  the  deceased,  PW-13 had  

stated that he never accompanied PW-1 to search for the  

dead  body  of  the  deceased.   He  also  pointed  out  some  

discrepancies  in  the  evidence  of  PW-2  and  PW-19,  the  

Investigation Officer.  He finally submitted that in this case  

the weapons with which the deceased was alleged to have  

been killed by the appellants have not been recovered nor  

any motive of the appellants to kill the deceased proved.  He  

argued  that  this  is  a  clear  case  in  which  the  appellants  

6

Page 7

should have been acquitted of the charge under Section 302  

read with Section 34 of the IPC.  

7. In reply, Mr. Rituraj Biswas, learned counsel appearing  

for the State of Tripura, relied on the decision of this Court in  

Pratap Singh v.  State of Jharkhand and Another  [(2005) 3  

SCC  551]  to  submit  that  the  appellant  no.2  was  not  

protected by the 2000 Act and was liable to be punished for  

the offence under Section 302 read with Section 34 of the  

IPC being more than 16 years of age when the offence was  

committed.  He submitted that, therefore, this Court should  

not disturb the conviction of the appellant no.2 by the trial  

court as well as by the High Court only on the ground that he  

was entitld to the benefit of the 2000 Act.   

8. Regarding  the  appellant  no.1,  Mr.  Biswas  submitted  

that it is not correct as contended by the learned counsel for  

the appellants that the weapons with which the deceased  

was killed by the appellants have not been recovered.  He  

referred to the evidence of PW-19, the Investigating Officer,  

as well as the inquest report, Ext. P-2, to show that pursuant  

7

Page 8

to the disclosure made by the appellants, one blood stained  

wooden stick measuring three feet in length was found at a  

distance of two feet to the left side of the deceased’s head, a  

wooden stick of about two and half feet was found nearby  

the place where the head of the deceased was lying and one  

takkal  dao was lying at a distance of two feet to the right  

side of the place where the deceased’s head was lying.  Mr.  

Biswas submitted that PW-13 had clearly stated that on the  

date  of  the incident,  he  and the deceased went  to  graze  

cows at about 2.00 p.m. in the rubber garden and at about  

4.00 p.m., the appellants went there and they were armed  

with  an  axe,  lathi and gun and that  while  appellant  no.1  

dealt an axe blow on the deceased, appellant no.2 started  

assaulting him with a stick and thereafter the appellant no.1  

took  a  gun  from the  jungle  and  shot  the  deceased.   He  

submitted that there is some corroboration of what PW-13  

has stated before the court by PW-6 who has stated in his  

evidence that on the date of the incident at about 1.30 p.m.  

he found the deceased and the appellants grazing cows in  

Nallia  Tilla.   He  submitted  that  PW-6  also  identified  the  

8

Page 9

appellants in the court.  He cited the decision of this Court in  

Suresh Chandra Bahri, etc. v. State of Bihar (AIR 1994 2420)  

in which it has been held that when a confessional statement  

of disclosure made by the accused is confirmed by recovery  

of incriminating articles, there is a reason to believe that the  

disclosure statement was true and the evidence led in that  

behalf is also worthy of credence.   

9. We  have  considered  the  submissions  of  the  learned  

counsel  for  the  parties  with  regard  to  the  appeal  of  the  

appellant no.2 and we find that the High Court has held in  

Para 28 of the impugned judgment that Paritosh (appellant  

no.2) is satisfactorily shown to be 16 years of age at the time  

of the alleged occurrence, i.e., on 09.10.1998, and he was  

not a juvenile under the 1986 Act.  The questions that we  

have  to  decide  in  the  appeal  of  the  appellant  no.2  are  

whether the appellant no.2 was entitled to claim that he was  

a juvenile as defined in the 2000 Act, and whether his claim  

to  juvenility  has  to  be  decided  in  accordance  with  the  

provisions of the 2000 Act, as amended from time to time  

and the rules made thereunder.  Sections 7A and 20 of the  

9

Page 10

2000 Act,  which are relevant for  deciding these questions  

are quoted hereinbelow:  

“Section 7A.  Procedure to be followed  when  claim  of  juvenility  is  raised  before any court. - (1) Whenever a claim  of juvenility is raised before any court or a  court  is  of  the  opinion  that  an  accused  person  was  a  juvenile  on  the  date  of  commission of the offence, the court shall  make  an  inquiry,  take  such  evidence  as  may be necessary (but not an affidavit) so  as  to  determine the age of  such person,  and  shall  record  a  finding  whether  the  person  is  a  juvenile  or  a  child  or  not,  stating his age as nearly as may be: Provided that a claim of juvenility may be  raised  before  any  court  and  it  shall  be  recognised at  any stage,  even after  final  disposal of the case, and such claim shall  be determined in terms of the provisions  contained in this Act and the rules made  thereunder, even if the juvenile has ceased  to  be  so  on  or  before  the  date  of  commencement of this Act. (2)  If  the  court  finds  a  person  to  be  a  juvenile on the date of commission of the  offence  under  sub-section  (1),  it  shall  forward  the  juvenile  to  the  Board  for  passing appropriate  orders  and  the  sentence,  if  any, passed by a court shall be deemed to  have no effect.  

Section  20.   Special  provision  in  respect  of  pending  cases.-  Notwithstanding anything contained in this  

10

Page 11

Act, all proceedings in respect of a juvenile  pending in  any court  in  any area on the  date on which this Act comes into force in  that area, shall be continued in that court  as if this Act had not been passed and if  the  court  finds  that  the  juvenile  has  committed an offence, it shall record such  finding  and  instead  of  passing  any  sentence in respect of the juvenile, forward  the juvenile to the Board which shall pass  orders  in  respect  of  that  juvenile  in  accordance with the provisions of this Act  as if it had been satisfied on inquiry under  this Act that a juvenile has committed the  offence.

Provided that the Board may, for any  adequate  and  special  reason  to  be  mentioned  in  the  order,  review the  case  and pass appropriate order in the interest  of such juvenile.

Explanation.—  In  all  pending  cases  including  trial,  revision,  appeal  or  any  other criminal proceedings in respect of a  juvenile in conflict with law, in any court,  the  determination  of  juvenility  of  such  a  juvenile shall  be in terms of clause (l)  of  section 2, even if the juvenile ceases to be  so  on  or  before  the  date  of  commencement  of  this  Act  and  the  provisions of this Act shall apply as if the  said  provisions  had been in  force,  for  all  purposes  and at  all  material  times  when  the alleged offence was committed.”

10. Section 7A and the proviso and the Explanation in the  

aforesaid  Section  20  quoted  above  were  inserted  by  the  

11

Page 12

Amendment Act of 2006, w.e.f. 22.08.2006 and before the  

insertion of the Section 7A and proviso and the Explanation  

in Section 20, this Court delivered the judgment in  Pratap  

Singh  v.  State  of  Jharkhand  and  Another (supra)  on  

12.02.2005 cited by Mr. Biswas.  The judgment of this Court  

in  Pratap Singh v.  State of Jharkhand and Another (supra)  

therefore is of no assistance to decide this matter.  After the  

insertion of Section 7A and the proviso and explanation in  

Section  20  in  the  2000  Act,  this  Court  delivered  the  

judgment  in  Hari  Ram v.  State  of  Rajasthan  and  Another  

(supra).    The  facts  of  this  case  were  that  the  accused  

committed the offences punishable under Sections 148, 302,  

149, 325/149 and 323/149 of the IPC on 30.11.1998.  The  

date of birth of the accused was 17.10.1982.  The medical  

examination of the accused conducted by the Medical Board  

indicated  his  age  to  be  between  16-17  years  when  he  

committed the offence on 30.11.1998.  The High Court held  

that on the date of the incident the accused was about 16  

years of age and was not a juvenile under the 2000 Act and  

the provisions of 2000 Act were, therefore, not applicable to  

12

Page 13

him.  This Court set aside the order of the High Court and  

held that the accused had not attained the age of 18 years  

on  the  date  of  the  commission  of  the  offence  and  was  

entitled to the benefit of the 2000 Act, as if the provisions of  

Section  2(k)  thereof  had  always  been  in  existence  even  

during the operation of the 1986 Act by virtue of Section 20  

of the 2000 Act as amended by the Amendment Act of 2006  

and  accordingly  remitted  the  case  of  the  accused  to  the  

Juvenile Justice Board, Ajmer, for disposal in accordance with  

law.  Considering the aforesaid judgment of this Court in Hari  

Ram  v.  State  of  Rajasthan  and  Another (supra)  and  the  

provisions  of  Section  7A  and  20  of  the  2000  Act  and  

considering that the appellant no.2 is below 18 years of age  

as per his birth certificate, the impugned judgment of the  

High Court qua the appellant no.2 will have to be set aside  

and  the  case  will  have  to  be  remitted  to  the  concerned  

Juvenile Justice Board, of North Tripura district for disposal of  

his case in accordance with the provisions of the said Act.  

11. Regarding the appeal of the appellant no.1, PW-13, who  

was working as a daily labourer under the deceased and PW-

13

Page 14

1, has clearly stated that he accompanied the deceased for  

grazing cows to the rubber garden at 2.00 p.m. on the date  

of the incident and at about 4.00 p.m., the appellant no.1  

along with appellant no.2 went there armed with axe, lathi  

and gun and the deceased directed PW-13 to bring the cows  

so that they could proceed towards their house, but at that  

moment appellant no.1 dealt an axe blow on the deceased  

and thereafter he took out a gun from the jungle near the  

place of occurrence and shot at the victim and on seeing the  

incident he tried to run away from the place of occurrence.  

PW-13 has further stated that he returned home and had not  

disclosed  to  anyone  about  the  incident  because  he  was  

afraid of the appellants.  PW-13 has further stated that on  

the next day in the morning he went to the house of PW-2  

and  narrated  the  story  to  him  and  being  afraid  of  the  

appellants,  he left for Cachar and he was arrested by the  

appellants  and  brought  to  Panisagar  and  thereafter  he  

narrated the entire story to the police officer.   

12. We  are  not  persuaded  by  learned  counsel  for  the  

appellants to take a view that the evidence of PW-3 was not  

14

Page 15

reliable as he was a suspect and had ran away to Cachar.  As  

has  been  explained  by  PW-13  himself,  he  left  for  Cachar  

because of his fear of the appellants who had threatened  

him with dire consequences if he disclosed the incident to  

anyone.  At any rate, we find that the evidence of PW-13 is  

supported by the evidence of PW-6 who has stated that on  

the  date  of  the  incident  he  had  found  the  deceased  and  

appellants grazing cows in Nallia Tilla at around 1.30 p.m.  

Moreover, the evidence of the Investigating Officer (PW-19)  

read with inquest report (Ext. P-2) prepared by him shows  

that  there  were  injuries  on  the  dead  body  of  deceased  

caused by an axe and a gun.  PW-19 has also stated that he  

recovered  handle  of  the  axe  near  the  dead  body  of  the  

deceased  and  he  seized  the  handle  of  the  axe  after  

preparing a seizure list in presence of the witnesses.  Thus,  

the  evidence  of  PW-13  is  corroborated  by  material  

particulars by reliable testimony, direct and circumstantial.

13. Once we find that the eye witness account of PW-13 is  

corroborated  by  material  particulars  and  is  reliable,  we  

cannot discard his evidence only on the ground that there  

15

Page 16

are some discrepancies in the evidence of PW-1, PW-2, PW-

13 and    PW-19.  As has been held by this Court in State of  

Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752], in  

the  deposition  of  witnesses  there  are  always  normal  

discrepancies due to normal  errors  of  observation,  loss of  

memory, mental disposition of the witnesses and the like.  

Unless,  therefore,  the  discrepancies  are  “material  

discrepancies” so as to create a reasonable doubt about the  

credibility  of  the witnesses,  the Court  will  not  discard the  

evidence  of  the  witnesses.   Learned  counsel  for  the  

appellants is right that the prosecution has not been able to  

establish  the  motive  of  the  appellant  no.1  to  kill  the  

deceased  but  as  there  is  direct  evidence  of  the  accused  

having committed the offence, motive becomes irrelevant.  

Motive becomes relevant as an additional circumstance in a  

case  where  prosecution  seeks  to  prove  the  guilt  by  

circumstantial evidence only.  

14. In the result, we hold that the appellant no.1 was guilty  

of  the  offence  under  Section  302  of  the  IPC  and  we  

accordingly dismiss the appeal of the appellant no.1.  We,  

16

Page 17

however, allow the appeal of the appellant no.2, set aside  

the impugned judgment of the High Court and the judgment  

of the trial court qua the appellant no.2 and remit the matter  

to  the  Juvenile  Justice  Board  of  North  Tripura  district  for  

disposal in accordance with the 2000 Act within four months  

of receipt of a copy of this judgment.

     .……………………….J.                                                                (A. K. Patnaik)

………………………..J.                                                                (H. L. Gokhale) New Delhi, March 19, 2013.    

17