Anand Kumar @ Beeru & Ors vs State
2011 Latest Caselaw 5923 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of decision: 05.12.2011

+                   Crl.M.A. No. 11892/2011 in CRL.A. 772/2008

    ANAND KUMAR @ BEERU & ORS                                          ..... Appellants

                            Through : Mr. Javed Hashmi, Advocate

                                             versus

    STATE                                                              ..... Respondent

Through : Ms.Richa Kapoor, APP for the State.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE G.P. MITTAL

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. The present order will dispose of an application by the appellant Anand @ Beeru; he had claimed to be a juvenile and had moved an application under Section 7-A of the Juvenile Justice Act. On 13.04.2010, this Court had issued notice and directed a report from the trial court after due enquiry into whether the said appellant Anand was in fact a juvenile.

2. On 12.01.2011 this Court had heard submissions of the parties and considered the report furnished by learned ADJ. The report dated 01.09.2010 had concluded that the appellant was not a juvenile on the date of the incident i.e. 01.05.2000. On the 12.01.2011 this Court had taken note of a contention that the appellant Anand was none other than Kaushal Kumar and that the signatures on the

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 1 driving licence produced during the enquiry ought to be compared with the specimen signature with his (Anand's) specimen signatures. The specimen signatures of Anand were taken on 22.02.2011 by the Registrar of this Court and forwarded under sealed cover to CFSL for comparison with his signatures on the driving licence, the original of which had been annexed. The appellant's father (who deposed as CW-3) had produced the original driving licence issued in favour of one Kaushal Kumar.

3. The enquiry report had considered various materials and the depositions of six court witnesses including the appellant's father (CW-3). These included the material produced during the trial such as the statement recorded under Section 313 Cr.P.C. by the appellant, his disclosure and personal search memos, the arrest memo, the seizure memo, proceedings relating to test identification etc. On an over-all consideration of all these, the Trial Court in its report stated that during the entire trial proceedings, Anand had answered to that description and had never taken the plea that he was Kaushal Kumar or contended that his date of birth was 21.07.1982. The Trial Court's report, pertinently states in this regard is as follows:

"vii) The Service Record of the father of convict namely Bhagirath Prasad who is the employee of ITI and presently posed at Dhirpur Branch has been verified, which report forms a part of the report of the investigating officer at page no.7 and 9, which reveals that no entry has been made in his service record showing the name of present convict Anand Kumar @ Beeru. Bhagirath Prasad has been examined as CW-3 and he has stated that he had six children of which one daughter had expired.

viii) The date of birth record from the MCD which is Ex. CW6/A has also been got verified and it is evident that the entry in the record in the nae of Kaushal Kumar was made on the basis of information Form filled-up by mid-wife (Dai) showing the date of birth of Kushal Kumar as 21.7.1982, and this Kaushal Kumar is the fifth child of Bhagirath Prasad, whereas according to CW3, Bhagirath Prasad, the convict Anand Kumar @ Beeru is

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 2 his last/sixth child. No explanation is forthcoming with regard to the aforesaid discrepancy.

ix) Lastly, during the course of inquiry, a detailed statement of convict Anand Kumar @ Beeru had been recorded wherein he was asked if he could recollect and give the details of any of his school teacher or classmate which he has refused. This was done so that the identity of the accused i.e. whether he was Kaushal Kumar of Anand could be cross checked and established from his school teachers and classmates but the applicant did not give any such details and therefore, no independent inquiry could be made

4. The Trial Court also stated as follows

"Thirdly, the convict has also placed his reliance upon his driving licence which bears the name of Kushal Kumar and his photographs but the verification report from the Authority shows that at the time of issuance of this license in the name of Kaushal Kumar, the thumb impression of Kaushal Kumar has not been taken in the record of the Authority, which is mandatory. Had the thumb impression of Kaushal Kumar been found in the record of the Authority, the actual identity of Kaushal Kumar could have been established. It appears that this driving licence was prepared later in the name of Kaushal Kumar and the thumb impressions were deliberately not given to avoid being caught (an adverse inference is liable to be drawn).

In view of the aforesaid, I hereby conclude that the date of birth of Kaushal Kumar is 21.7.1982 but the convict Anand Kumar has failed to prove that the said date of birth certificate belongs to him or that he is actually known as Kaushal Kumar. Rather the material which has come on record gives rise to suspicion that Kaushal Kumar and Anand Kumar (convict before this court) are one and the same person. It appears that the convict Anand Kumar @ Beeru is trying to pass off the date of birth of Kaushal Kumr as his own by impersonating as such."

5. Pursuant to the directions of this Court dated 12.01.2011 the report of the CFSL dated 25.02.2011 was prepared. This compared the signature on the driving licence, the questioned signature marked as Q-1 No.P01092003187867 issued to Kaushal Kumar and the admitted hand-writing of the appellant. The result of the examination indicated was as follows:

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 3 "Handwriting evidence points to the writer of the specimen English signature marked S-1 attributed to Anand Kumar @ Beeru @ Kaushal Kumar being the person responsible for writing the questioned English signature (scanned) marked as Q-1."

6. We have heard counsel for the parties. Learned APP submitted that even though the CFSL report now favours the appellant, this Court should be slow in concluding that he was a juvenile on the date of the incident. It was submitted that in the entire duration of the trial, the appellant never claimed that he was Kaushal Kumar and always answered the description of Anand. Furthermore the appellant's father a public servant never disclosed that Kaushal Kumar and Anand were the same individual. Having regard to these facts, the Court ought not to place reliance on the hand-writing report, to conclude that the appellant was a juvenile.

7. The testimony of CW-6 Shri R.K. Gupta, Sub-Registrar, Central Record Room (Birth & Death) discloses that his office maintained a record about the birth of one Kaushal Kumar as 21.07.1982. This child was the son of CW-3, the appellant's father. The entry was marked during the enquiry as Ex.PW-6/A. The service record of the appellant's father Ex. PW-5/L (Colly) contains a family pension scheme document in which the last entry pertains to one Kaushal Kumar. Significantly the appellant Anand's name does not figure in this document at all. This MCD document is the copy of the family pension scheme form dated 26.05.1992; in that the age of Kaushal Kumar is shown as 11 years. Apart from Kaushal Kumar, Bhagirath Prasad, CW-3 had two other sons Amaranth who was then aged 17 years and Than Singh @ Raju who was aged 15 years. CW-3 interestingly in his statement mentioned that names of all his children had been entered in the service record. The Police verification of the driving licence (issued on 04.09.2003) has been produced as Ex. CW-5/K. It clearly states that the

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 4 fingerprints of the applicant Kaushal Kumar were not available in the file. What is most important is that the authenticity of this document has not been disputed; the concerned department did not tell the Police during the course of investigation that the document was forged.

8. On an over all consideration of the materials what transpires is that even though Anand @ Beeru answered that description for the entire duration of the trial, he was apparently also known as Kaushal Kumar. The genuineness of the documents filed by his father with his employer, a public agency cannot be doubted. No attempt was made in this regard. The family pension scheme document does not contain any description of Anand as the son of the appellant. Concededly the last offspring of Bhagirath Prasad was Kaushal Kumar. If the Court were to take into consideration the statement of CW-5, who, during the course of his testimony deposed having become aware of certain additional information and requested that an opportunity to further confirm if in fact Kaushal Kumar and Anand were the same, the confirmation by CFSL about the hand- writing on the driving licence leaves no doubt as to the true identity of Anand @ Beeru as none other than Kaushal Kumar whose date of birth was 21.07.1982. The driving licence reflects this date of birth. Likewise the deposition of PW-6 and Ex. PW6/A confirm this.

9. In view of the above facts, this Court is of the opinion that the appellant Anand @ Beeru @ Kaushal Kumar was a juvenile, being less than 18 years of age on the date of incident i.e. 01.05.2000, -he was about three months short of his 18 th birthday and thus clearly a juvenile. In terms of Section 7A(2) of the Juvenile Justice Act, the impugned judgment so far as he is concerned is deemed to have no effect. Although technically the Court would have to order a fresh enquiry in terms of the other provisions, particularly Sections 15 and 20, at the same time no

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 5 useful purpose would be served since he has already undergone detention for the maximum period permissible under the Act stipulated under Section 15 (1)(g) of the Act.

10. In view of the above discussions, the appeal so far as it concerns Anand @ Beeru @ Kaushal Kumar has to succeed; his conviction is set aside. The application Crl. M.A. 11892/2011 is allowed. The appeal to the extent it concerns Anand @ Beeru @ Kaushal Kumar, is therefore, allowed.

Crl.A.772/2008

The appeal shall be listed before Court for directions, as regards other Appellants on 2nd February, 2012.

S. RAVINDRA BHAT (JUDGE)

G.P.MITTAL (JUDGE) December 05, 2011

Crl.M.A. No.11892/2011 in Crl.A. No.772/2008 Page 6