Gajanand @ Gajju vs The State (Delhi Admn.)
2009 Latest Caselaw 5118 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Date of decision: 10.12.2009


+                         CRL. A. No 101 of 2009


GAJANAND @ GAJJU                                  ...APPELLANT
                          Through:     Ms Purnima Sethi, Advocate.


                                Versus


THE STATE (DELHI ADMN.)                            ...RESPONDENT
                    Through:           Mr. Sunil Sharma, Advocate.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE AJIT BHARIHOKE

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                     No
        reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant, Gajanand @ Gajju, has been convicted and

sentenced in Sessions Case No.72/2006 arising out of FIR

No.296/2004 registered at P.S. Kirti Nagar for having

committed the offence punishable under Sections 302/34

and 392/34 IPC and for offence u/s 302/34 was sentenced

to undergo rigorous imprisonment for life and to pay a

fine of Rs 2,000/- and in default of payment of fine to

further undergo simple imprisonment for a period of one

year. For offence under section 392/34 IPC he was ________________________________________________________________________

sentenced to undergo rigorous imprisonment for seven

years and also pay a fine of Rs 1000/- and in default of

payment of fine to undergo simple imprisonment for a

period of one year. The appellant was also entitled to

benefit u/s 428 Cr.P.C.

2. The case of the prosecution is that on 11.6.2004 at about

2.45 p.m. accused persons namely Gajanand, Anil, Mohd

Jahangir committed robbery of wrist watch, ration card

and Rs 50/- from Ram Chander. Ram Chander informed

his brother Nankai (deceased) about the said incident on

which both of them went to catch the culprits. Accused

persons were seen going towards Nehru Camp. Ram

chander and his brother ran to catch hold of the

offenders. The deceased could grab one of the accused

Gajananad, on which the accused person namely Mohd

Jhangir and Anil got there accomplice freed from him and

immediately thereafter, Gajananad took out a dagger

from his pocket and threatened Ram chander and Nankai

to be killed. Deceased not being afraid of, still made an

attempt to catch hold of the accused persons on which

Mohd Jehangir and Anil caught hold of the deceased from

both of his arms and started beating him. Both the

accused persons then exhorted to Gajanand to kill

Nankai, on which Gajanand stabbed Nankai with a dagger

6-7 times on chest, stomach and arms. The stabbing was

so powerful that Nankai well on the ground and his

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interstines came out. Nankai died on the spot. Ct

Mahinder and Ct Lachu Singh who were on patrolling duty

apprehended the accused persons along with the dagger.

3. The appellant aggrieved by the impugned judgment of

conviction dated 30.7.2008 and order of sentence of

31.7.2008, has preferred the present appeal.

4. During the course of arguments, learned counsel for the

appellant, on instructions from the appellant, has not

pressed the grounds of appeal against conviction. He,

however, has submitted that the appellant was a juvenile

in terms of Section 2 (k) of The Juvenile Justice (Care and

Protection of Children) Act, 2000, wherein it is provided

that a „juvenile‟ or a „child‟ means a person who has not

completed eighteenth year of age. Thus, he is entitled to

be dealt with under the provisions of The Juvenile Justice

(Care and Protection of Children) Act, 2000.

5. On the 7.10.2009, when the case came up for hearing the

learned counsel for the appellant stated that the

appellant was under 18 years of age on the date of

commission of the offence and hence prayed that an

ossification test be carried out on the appellant. The

appellant who was also present and he stated that he had

studied for a couple of months in a Government school in

Kirti Nagar. On this, we directed the respondents to locate

the school where the appellant had studied and thereby

to verify his date of birth from the records of the school

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and also an ossification test to be carried out on the

appellant

6. On the next date of hearing i. e 05.11.2009 a status

report was filed in which it was stated that the family

members of the appellant had no knowledge about the

said school and hence the date of birth of the appellant

could not be verified. The ossification test was also not

carried out till then.

7. However subsequently ossification test was carried out on

the appellant on 16.11.2009, and the report has been

placed before us. We have perused the report of the

ossification test carried out at Deen Dayal Upadhya

Hospital (DDU), New Delhi. In terms of the report, the

panel of doctors opined the age of the appellant between

20-22 years on the date of ossification test. Since the

incident is of 22.6.2004, the appellant would be of age

16+ and thus would definitely be under 18 years of age

on the date of the incident

8. Learned counsel for the appellant has taken us through

the scheme of The Juvenile Justice (Care and Protection of

Children) Act, 2000 and submitted that Section 2(k) of the

Act has expanded the definition of juvenile by increasing

the age from 16 years to 18 years. He has submitted that

Section 7-A(1) of the Act provides for the procedure to be

followed when the claim of juvenility is raised before any

court and Section 7-A(2) provides that if the court finds a

person to be juvenile on the day of commission of ________________________________________________________________________

offence, it shall forward the juvenile to the Board for

passing appropriate order and the sentence if any passed

by a court shall be deemed to have no effect. He has also

drawn our attention to Section 20 of the Act which deals

with the pending cases of the persons who are covered

under the definition of juvenile because of the definition

of juvenile under Section 2(k) of the Act increasing the

age from 16 to 18 years, and submitted that in view of

the aforesaid provisions of the Act, the order of sentence

awarding life imprisonment to the appellant is uncalled

for and it needs to be modified.

9. In order to appreciate the submissions of learned counsel

for the appellant, it would be useful to reproduce Section

7-A of The Juvenile Justice (Care and Protection of

Children) Act, 2000, which is as follows:

"7-A 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 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 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-

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section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect."

From a perusal of Section 7-A of The Juvenile Justice (Care

and Protection of Children) Act, 2000, it transpires that as

per clause (1), whenever a claim of juvenility is raised

before any Court, the Court shall make an inquiry and

take such evidence as may be necessary 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 precise age as nearly as possible.

10. Section 20 of The Juvenile Justice (Care and

Protection of Children) Act, 2000 provides for the

procedure to be followed in respect of pending cases

pertaining to the juveniles in any court in any area on the

date on which the Act comes into force in that area. It

provides that such pending cases against the juvenile

shall continue in the said courts as if this Act has 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 juvenile,

forward the case to the Board which shall pass

appropriate orders in respect of that juvenile in

accordance with the provisions of the Act.

11. Since the appellant has conceded his pleas against

the impugned judgment of conviction on merits, we

dismiss the appeal to that extent. So far as the appeal

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against the order of sentence is concerned, we have

already concluded above that the appellant was a juvenile

on the date of commission of offence as his age then was

less than 18 years. Clause 2 of Section 7-A and Section

20 of The Juvenile Justice (Care and Protection of

Children) Act, 2000 provides that if the Court finds a

person to be juvenile in terms of definition under Section

2(k) of the Act on the date of commission of offence, it

shall forward the juvenile to the Juvenile Justice Board for

passing appropriate orders, and the sentence if any,

awarded by a Court shall be deemed to have no effect.

The import of this provision is that sentence awarded by

the learned trial Judge in terms of the impugned order of

sentence will have no effect and the matter has to be

referred to the Juvenile Justice Board for passing

appropriate orders. We may, however, note that as per

Section 15 of The Juvenile Justice (Care and Protection of

Children) Act, 2000, the maximum period for which a

juvenile can be sent to a Special Home is three years. As

per the nominal roll of the appellant has undergone a

sentence of more than 4 years, meaning thereby that the

appellant has already served the maximum period of

three (3) years.

12. In view of the fact that the appellant has suffered

incarceration for the maximum period of detention in

Special Home permissible under The Juvenile Justice (Care

and Protection of Children) Act, 2000, we do not deem it ________________________________________________________________________

appropriate to refer the matter back to the Juvenile

Justice Board for passing appropriate orders and direct

formal release of the appellant in the present appeal.

13. We may note that the appeal of co-accused Anil was

also partly accepted by a Division Bench of this Hon‟ble

Court as he was also a minor on the date of commission

of the offence

14. The appeal is partly accepted and order on

sentence is modified accordingly.

15. Bail-cum-surety bonds of the appellant stand

discharged.

SANJAY KISHAN KAUL, J.

DECEMBER 10, 2009                                   AJIT BHARIHOKE, J.
ud

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