Mohd. Jahangir @ Viya @ Chottu vs State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 2123 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision: 22nd April, 2010

+CRL.M.B.NO.318/2010 & CRL. APPEAL NO. 241/2010



MOHD. JAHANGIR @ [email protected]                               ....APPELLANT

                                   Through:        Ms. Nandita Rao, Advocate

                                          VERSUS

STATE (GOVT. OF NCT OF DELHI)                            ....RESPONDENT

                                  Through:         Mr. Lovkesh Sawhney, APP



CORAM:

HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.    Whether the Reporters of local papers
      may be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be
      reported in the Digest?

AJIT BHARIHOKE,J. (ORAL)

1. The appellant, Mohd. Jahangir, 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

Gajanand, on which the accused person namely Mohd Jahangir and Anil

got there accomplice freed from him and immediately thereafter,

Gajanand 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 Jahangir 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 fell

on the ground and his intestines 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. The appellant has filed a jail petition bearing Crl. M. No. 2605/2010

duly attested by Superintendent, Jail, Tihar on 24.11.2009 under Section

7A of the Juvenile justice (Care and protection of Children) Act, 2000 for

conducting ossification test of the appellant claiming that he was a

juvenile on the date of commission of offence i.e. 11.6.2004 as such this

case was required to be dealt with under the provisions of juvenile Justice

Act.

6. Vide orders dated 8th March, 2010, we directed the Jail

Superintendent to have conducted the ossification test of the appellant

and to submit a report in this regard. Pursuant to the said direction, the

report of ossification test has been received from Deen Dayal Upadhayay

Hospital, which indicates that according to radiological evidence, the age

of the appellant is more than 20 years but less than 22 years as on 16 th

March, 2010. Calculating the age of the appellant on the basis of the

report, even if he is taken to be 22 years of age on 16th March, 2010, on

the date of occurrence i.e. 22nd June, 2004, he was around 16 years of

age. Thus, it is clear that the appellant was a minor i.e. below 18 years

on the date of commission of offence.

7. 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.

8. 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."

9. 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 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, the appellant has already undergone sentence of more than 5 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 appeals of co-accused Anil and Gajanand

were also partly accepted by a Division Bench of this Court as they were

also minor on the date of commission of the offence.

14. The appeal is partly accepted and order on sentence is modified

accordingly.

15. The appellant is in jail. He be released forthwith if not required in

any other case.

16. The application and the appeal stand disposed of.

A.K. SIKRI, J.

AJIT BHARIHOKE,J

APRIL 22, 2010 gg