Allahabad High Court
Sanjay vs State Of U.P. on 15 April, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:55005-DB
Court No. - 45
Case :- CRIMINAL APPEAL No. - 3362 of 2006
Appellant :- 'S'
Respondent :- State of U.P.
Counsel for Appellant :- Havaldar Verma,Noor Mohammad,Noor Muhammad,S.N. Pandey,Santosh Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Shri Santosh Singh, learned counsel for the appellant and Sri L. D. Rajbhar, learned A.G.A.-I for the State and perused the lower Court record.
2. The present appeal arises from the judgment and order dated 29.04.2006 passed by Shri Shriprakash, learned Additional Sessions Judge, Court No. 6, Ghaziabad in Sessions Trial No. 1052 of 2002 (State of U.P. Vs. 'V' and others), arising out of Case Crime No. 114 of 2002, under Sections 302/34, 376(2)(g), 201/34 I.P.C., Police Station Dhaulana, District Ghaziabad, whereby the accused-appellant has been convicted and awarded sentence under Section 302 read with Section 34 I.P.C. to undergo for rigorous imprisonment for life along with fine of Rs. 10,000/- and in default in payment of fine to further undergo for additional imprisonment of one year, under Section 376(2)(g) I.P.C. to undergo rigorous imprisonment for life along with fine of Rs. 10,000/- and in default in payment of fine to further undergo for additional imprisonment of one year, and under Section 201 read with Section 34 I.P.C. to undergo rigorous imprisonment for seven years along with fine of Rs. 5,000/- and in default in payment of fine to further undergo for additional imprisonment of six months.
3. The prosecution story emerged on the F.I.R. in Case Crime No. 61 of 2002, P.S. Dhaulana, District Ghaziabad. It is dated 25.6.2002. In that, it was narrated by the first informant 'O' (P.W.-1 at the trial) that his grand-daughter 'R' went missing on 24.6.2002. On launching a search for 'R', his son 'Y' learnt that 'R' had been done to death by 'V' and the present appellant 'S'. On that information given by the accused, the dead body of the deceased was dug out from the courtyard of their house.
4. During investigation, the under garments of the deceased as also of the appellant's were recovered. 'Panchayatnama' was prepared and autopsy was also prepared by Dr. Santosh Chand Agrawal. It is dated 25.6.2002 and is Ex.Ka.-2 at the trial. Upon investigation being completed, charge-sheet was submitted. The case was committed for trial to the court of session. At the trial, the appellant was charged on following counts:
प्रथम- यह कि दिनांक 24.6.02 को आपने आपमें से 'V' के घर में स्थित ग्राम खैंगोडा थाना धौलना जि० गाजियाबाद में समय 5 बज शाम से लेकर रात्रि के 2.30 बजे के बीच वादी की पोती 'R' उम्र करीब 8 वर्ष नाबालिग के साथ बारी-बारी से उसकी इच्छा के विरूद्ध बलात्कार किया और इस प्रकार आपने धारा 376 (2) (g) भा०दं०वि० अंतर्गत दंडनीय अराध किया जो कि इस न्यायालय के प्रसंज्ञान में है।
द्वितीय- यह कि उक्त तिथि, समय व स्थान पर आप लोगों के द्वारा 'R' के साथ बलात्कार करने के उपरांत सामान्य उद्देश्य की पूर्ति में उसका गला दबा कर हत्या कर दी और इस प्रकार आपने धारा 302 सपठित धारा 34 भा०दं०सं० के अंतर्गत दंडनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
तृतीय- यह कि उक्त तिथि समय व स्थान पर आप लोगों के द्वारा 'R' के साथ बलात्कार करके उसकी ला दबा कर हत्या करने के उपरांत हत्या का सबूत नष्ट करने की नीयत से शव को आपने आप में से 'V' के घर में ही गड्ढा खोद कर दबा दिया और इस प्रकार आपने धारा 201 सपठित 34 भा०दं०वि० के अंतर्गत दंडनीय अपराध किया जो कि इस न्यायालय के प्रसंज्ञान में है।
5. Besides the documentary evidence, the prosecution led oral evidence of five witnesses - (i) first informant 'O' (P.W.-1); (ii) villager Virendra Singh (P.W.-2); (iii) doctor who conducted autopsy, namely, Dr. S.C. Agrawal (P.W.-3); (iv) S.I. Govind Singh Rawat (P.W.-4) and, 'Y' (P.W.5) father of the victim 'R'.
6. The present appeal was filed in the year, 2006. It has remained pending for almost 19 years. The appellant was never enlarged on bail. Thus, according to the Custody Certificate dated 03.05.2017 annexed to the Supplementary Affidavit dated 14.09.2023, the appellant had remained confined (in all) for 14 years, 10 months and 07 days on the date of issuance of that Custody Certificate. Almost eight more years have passed. Thus, the appellant has remained confined for almost 23 years.
7. By means of the Supplementary Affidavit noted above, it has been further brought to the notice of the Court that on 27.04.2017 by an order passed by the Juvenile Justice Board, Agra on Misc. Application No. 90/17 (State Vs. 'S'), the date of birth of the appellant- 'S' was determined to be 11.03.1985. The occurrence giving rise to the present appeal is of date 24.06.2002. Thus, the appellant would have been less than 18 years on the date of occurrence.
8. Other things apart, it was necessary to be considered if the appellant has been proceeded as an adult at the trial considering his age to be below 18 years on the date of occurrence, and also its consequences.
9. In the first place, that exercise was not conducted. Reasons for that are not relevant to be examined at this belated stage. Prima facie, that defence remained to be tested in accordance with the law, at the trial stage. At the same time, it is now on record that the appellant was under age on the date of occurrence.
10. By the last order, we required the learned A.G.A. to obtain instructions to ascertain if the order passed by the Juvenile Justice Board, Agra had been challenged before any forum, by any party.
11. Today, Shri L. D. Rajbhar states that the order dated 27.04.2017 has attained finality. Therefore, the issue of age of appellant-'S' is no longer an issue in dispute.
12. On merits of the conviction, Shri Santosh Singh, learned counsel for the appellant states, in the proven facts the appellant no longer desires to seriously contest the order of conviction.
13. The occurrence is of date 24.6.2002. On that date, the operating law for juvenile was The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act'). Clearly, the present appellant was a juvenile in conflict with law as defined under Section 2(l) of the Act. Section 7-A of the Act was introduced, in the year 2006, the year when the trial came to be concluded. The appeal has remained pending before this Court for more than 18 years. In the meantime, upon earlier order, the appellant has been adjudged juvenile by the Juvenile Justice Board, Agra. That order attained finality. Section 15 of the Act provides for orders to be passed regarding juvenile in conflict with the law- that existed upto 22.8.2006, i.e., even up to the date of the impugned order passed by learned court below and thereafter. In the event of juvenile being between 17 to 18 years of age, he may be sent to special home for two years. In any case, Section 16 of the Act prohibits award of death sentence or life sentence to a juvenile. Then, Section 17 of the Act may not allow for any proceeding to arise against the juvenile under the Cr.P.C. Also, Section 18 of the Act may not allow for joint proceeding against a juvenile and another accused who may not be a juvenile. Further, no disqualification may attach to the juvenile for reason of any conviction. Last, Section 20 of the Act would commend reference to the Juvenile Justice Board on the issue of sentence even where conviction may be maintained.
14. On facts, the First Information Report was lodged promptly on 25.06.2002 at about 3:40 a.m., whereas the occurrence took place on 24.06.2002 at about 5:00 p.m. when 'X' went missing. The dead body of the deceased 'R' was recovered in the night. It had been buried inside the house of the co-accused 'V'. It was recovered on the joint pointing out of the co-accused 'V' and the present appellant 'S'. The undergarments of the victim 'R', of the present appellant 'S' as also of the co-accused 'V' were also recovered. The first informant 'O' was examined as P.W.1. He is the grandfather of 'R'. He proved that he learnt of the occurrence from the younger brother of 'R' namely 'P'. He also proved that the appellant 'S' and the co-accused 'V' admitted to the occurrence. Both the present appellant and the co-accused 'V' were close relatives of 'O'. Thus, both had access to 'R' being her near relatives. No doubt emerged during his cross-examination. 'Y' father of 'R' was also examined as P.W.5. He also reiterated narration of occurrence as also discovery of the dead body of 'R', as narrated by 'O' (P.W.1). Also, one Virendra Singh (P.W.2) was examined. He is an independent witness. He corroborated the evidence led by 'O' (P.W.1) as to the manner in which the dead body of 'R' was recovered at the pointing out by 'V' and 'S'. Both as to disappearance of 'R' and also as to the time of recovery of her dead body, no discrepancy emerged. Dr. Santosh Chand Agrawal, the surgeon who conducted autopsy on the dead body of 'R' was examined as P.W.3. He proved injuries as also the cause of death. Other formal witnesses were also examined. They proved the registration of case and the investigation.
15. Serious doubt was raised by the appellant, 'S' as to the credibility of the prosecution evidence, in the statement recorded under Section 313 Cr.P.C.
16. We have perused the order passed by the learned trial Court. It has considered the material and evidence on record and thereafter returned finding of fact that the occurrence was caused by the present appellant specially in view of the fact that the dead body of the victim 'R' was recovered from inside the house of co-accused 'V' on the joint pointing out by him and the appellant 'S'. In view of the fact that the discovery was made as soon as after the occurrence and there is no reason to disbelieve the same, the conclusion of conviction may not warrant any interference by this Court.
17. In the backdrop of law that exists, we find, interest of justice may not be met entirely, in terms of the law contained in the Act, if applied strictly. It is so because the stage to subject the appellant 'S' to proceedings by the Juvenile Justice Board, has passed. Similarly, against the sentence awarded by the learned court below, the appellant 'S' has remained confined for almost 23 years. In face of provisions of the Act prohibiting such heavy sentence, the stage and need to refer the matter to Juvenile Justice Board, at this stage, also does not exist.
18. Consequently, while confirming the conviction, the Court is left with no option but to provide that the appellant 'S' be released forthwith without any disqualification of the conviction order. This we provide in terms of protection granted to the appellant 'S' in terms of Section 20 of the Act.
19. In view of the above, in the interest of justice, the appeal is allowed in part. The order of conviction is sustained, keeping in view of the order dated 27.04.2017 passed by the Juvenile Justice Board considering to him to be the juvenile on the date of occurrence in view of provisions of Juvenile Justice (Care and Protection of Children) Act, 2007.
20. Office is directed to correct the case records of this appeal to disclose the name of the appellant as 'S' only.
Order Date :- 15.4.2025
Mustaqeem.
(Dr. Gautam Chowdhary, J.) (S. D. Singh, J.)
