Kuldeep Pandey vs The State
2009 Latest Caselaw 4871 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI



%                                           Date of decision: 27.11.2009


+                              CRL. A. No.549 of 2009


KULDEEP PANDEY                                                   ...APPELLANT

                               Through:        Mr.O.N.Sharma, Advocate.


                                         Versus


THE STATE                                                     ...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, Kuldeep Pandey, has been convicted and

sentenced in Sessions Case No.21/2008 arising out of FIR

No.819/2000 registered at P.S. SP Badli for having

committed the offence punishable under Sections 302/34,

IPC and sentenced to undergo imprisonment for life and to

pay a fine of Rs 5,000/-. In default of payment of fine, the

convict person shall further undergo simple imprisonment

for a period of six months.

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2. The case of the prosecution is that on 22.12.2000 a dead

body was found lying in Telephone Exchange Wali Galinear

New Telephone Exchange, Badli Extension and the

information about the same was conveyed by Ct Prakash

Singh to police station SP Badli. which was recorded vide DD

No 7A and was entrusted to SI Sanjiv Kumar. On reaching

the spot he found a dead body was lying in a naked

condition with injuries on both sides of the body. Since the

dead body could not be identified, the SI put the said body

in a tempo and was taken to the nearby jhuggies in S.P

Badli. On reaching one of the jhuggies, one Gangaram

identified the dead body to be that of his son Puran. The

said body was also identified by Mohal Lal and Kali Charan

to be that of his nephew Puran. Insp Balbir Singh who had

taken over the investigation of the matter recorded the

statement of these three witneses in which they stated that

the deceased was sitting outside his jhuggi, when his two of

his friends namely Kuldeep Pandey and Amarjeet Mishra

came and took the deceased on the pretext that they were

going to attend a party one of their common friends in

Jahangir puri. They left at around 8 p.m. and the deceased

took the wallet of his father and a wrist watch along with

him. Since he did not return the night and they all had also

made efforts to trace him, but since now they have seen his

body they now know that he was murdered.

3. On 23-12-00 SI Niraj Kumar apprehended the accused

Kuldeep pandey from near his house upon a secret ___________________________________________________________________________________

information which was received and upon the information

then given by Kuldeep Pandey, the other accused Amarjeet

Mishra was also been arrested. Thereafter they stated to

have murdered the deceased because on an earlier

occasion he had misbehaved with the sister of Kuldeep

Pandey and when they confronted him as to why he did it,

he stated that it was the other way round, it was she who

was attracted to him. On hearing this they both got furious

and murdered Puran upon hitting him with stones and

bricks. Also the wrist watch and the purse of the deceased

was recovered from their possession.

4. The appellant aggrieved by the impugned judgment of

conviction dated 27.1.2009 and order of sentence of

30.01.2009, has preferred the present appeal.

5. 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.

6. On 28.7.2009 an application was moved by the appellant for

determining his age as he stated that he was a minor at the

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time of commission of the offence on which notice was

issued.On the next date of hearing i.e 14.09.2009 the

learned counsel for the appellant stated that the appellant

has studied in a "Nagar Nigam School at Molarband and was

admitted in the year of 1988-89 and we directed the IO to

verify the same. On the next date the counsel for the

appellant also stated that he was younger to his two

married sisters and has studied in the same school as the

younger sister, and the age of the younger sister can be

taken help of, in determining the age of the appellant.

7. Subsequently on 25.11.2009 a verification report was

submitted in terms of which it was stated that Kuldeep

Pandey was a student of Jai Bharti Public School and

according to the principal of the school who gave a

statement to the effect that the date of birth of Kuldeep

Pandey is 17-11-1984 and also further stated that there was

no documentary proof since the parents of the appellant

only gave a oral statement regarding his date of birth when

they got him admitted to the said school. The verification

report is supported by the statement of the principal of the

said school, the attested photocopy of the admission form

and the school leaving certificate along with attested

photocopy of admission register of school

8. Since the incident is of 22.10.2000, the appellant would be

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

age on the date of the incident

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9. 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.

10. 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-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."

11. 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.

12. 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

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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.

13. 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 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 about 9 years, meaning thereby that the

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appellant has already served the maximum period of three

(3) years.

14. 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.

15. The appeal is partly accepted and order on sentence is

modified accordingly.

16. Bail-cum-surety bonds of the appellant stand discharged.

17. A copy of this Order be expeditiously sent to the

Superintendent of the concerned jail for compliance.

SANJAY KISHAN KAUL, J.

NOVEMBER 27, 2009                                   AJIT BHARIHOKE, J.
ud

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