Sartaz vs State

$~1
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CRL.A.No.281/2010

%            Judgment delivered on:23rd September,2011

        SARTAZ                                   ..... Appellant
                            Through Mr. Jayendra Sevada, Adv.

                   versus

        STATE                                    ..... Respondent
                            Through Ms. Rajdipa Behura, APP

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may       be allowed
        to see the judgment?                            NO
     2. To be referred to Reporter or not?              NO
     3. Whether the judgment should be reported         NO
        in the Digest?

SURESH KAIT, J. (Oral)

1. On 05.08.2011 following order was passed :

"1. On 25.07.2011 the ld. Counsel for the appellant had raised the issue of juvenility and he has filed a School Leaving Certificate issued by "Maktab Afzal Ullum No.2, Lawar, Merrut, UP" in the name of the appellant Sartaj, wherein, his date of birth is mentioned as 01.08.1984. Whereas, the date of the incident was 01.01.2001.

2. Ld. Counsel for the appellant has drawn the attention of this Court to page 16 of the paper book which is the Order on Sentence dated 06.02.2010, wherein, in para 2, the learned CRL.A.No.281/2010 Page 1 of 6 Trial Judge has mentioned the age of the appellant as 26 years, i.e., on day of pronouncing the sentence.

3. Pursuant to the order dated 25.07.2011, the I.O. has verified the authenticity of the School Leaving Certificate issued from the aforesaid school. As per the report of the I.O., the certificate is correctly issued from the aforesaid school. Further, it is pointed out that on the date of birth there is a interpolation between the date of birth, i.e., from 5.8.94/74 to 1984.

4. Ld. Counsel for the appellant has produced a ration card of the appellant. A bare perusal of the same reveals that the age of Sartaj is mentioned as 21 years as on 10.09.2005.

5. If I just believe the school register, the initial date seems to be 5.8.94/74. Both the years cannot be the year of birth of the appellant from any imagination.

6. Further, I note from this register, on the same page there are six interpolations in the date of birth of the other students. Therefore, it cannot be said that this interpolation against the date of birth of the appellant is intentional and that the appellant wants to take advantage of the said interpolation.

7. Even as per the prosecution case the age of the petitioner is 26 years as on 06.02.2010. Therefore, on the date of sentence, i.e., 04.02.2011, he was 26 years old, and on the date of the incident he was just 16 years old, therefore, from all the angles his age comes under 18 years on the date of incidence.

8. Section 7-A(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides that 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 CRL.A.No.281/2010 Page 2 of 6 determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating this age as nearly as may be.

9. It is further provided that, a claim of juvenility may be raised before any Court and it shall be recognized 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 there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

10. In my opinion, a bare perusal of Section 7-A shows that an enquiry is required, where a claim of juvenility is raised at any stage and the age of the person is mentioned more than the age claimed by the petitioner. In the present case, the age of the appellant is taken from the prosecution itself which indicates the age of the appellant as 18 years. Therefore, in these circumstances, no further enquiry is required in the present case.

11. Still, in the present petition I deem it appropriate to have ossification report of the appellant.

12. I, therefore, direct the jail authorities to get ossification done from any Government hospital within two weeks and file report thereof.

13. Renotify on 23rd September, 2011."

2. Ld. counsel for the appellant has pointed out that the date of incident has wrongly been noted in order dated 05.08.2011 as 01.01.2001 whereas the date of incident is 19.02.2001. I, ordered accordingly.

3. Vide order dated 11.08.2011 the sentence of the appellant was suspended till the disposal of the appeal.

4. Vide order dated 05.08.2011 the jail authorities were directed to get the ossification done of the appellant from any Government hospital. The jail authorities had submitted the ossification report. I note from the ossification report dated 05.09.2011 where the age of the appellant is shows as 22-25 years. Undisputedly, the incident took place on 19.02.2001 and in the order of sentence dated 06.02.2010, the age of the appellant has been recorded as 26 years old.

The prosecution has presumed the age of the appellant as around 17 years of age, which is under 18. Even as per the aforesaid ossification report the appellant is under 18 years of age at the time of incident.

5. Ld. Counsel for the appellant submits that while maintaining the conviction of the appellant, and he being declared juvenile, sentence of the appellant be reduced to the period already undergone. He further submits that benefit of Section 19 and Section 20 of Juvenile Justice (Care and Protection of Children) Act, 2000 be given to the CRL.A.No.281/2010 Page 4 of 6 appellant.

6. I find force in the submission of ld. counsel for the appellant, therefore, while maintaining the conviction I modify the order of sentence dated 06.02.2010 to the extent already undergone. Since the appellant has been declared juvenile, needless to state that he is entitled to benefit of Section 19 and Section 20 of Juvenile Justice (Care and Protection of Children) Act, 2000.

7. The sentence of the appellant was suspended vide order dated 11.08.2011. Pursuant to that the appellant has been released on bail.

8. In these circumstances, bail bond and surety bond of the appellant are discharged.

9. Copy of this judgment be sent to Superintendent, Tihar for his record.

10. Crl.A.281/2010 is partially allowed.

Crl.M.A.8519/2011 In view of the order passed in Crl.A.281/2010 this CRL.A.No.281/2010 Page 5 of 6 application is dismissed as infructuous.

SURESH KAIT, J September 23, 2011 vld CRL.A.No.281/2010 Page 6 of 6