Mukesh vs State Of Delhi
2011 Latest Caselaw 6089 Del

       THE HIGH COURT OF DELHI AT NEW DELHI


%                                Judgment delivered on: December 13, 2011

+      CRL.A. 360/1997


MUKESH                                                       ..... Appellant

                        Versus

STATE OF DELHI                                              ..... Respondent

Advocates who appeared in this case:-

For the Appellant    :    Mr A.J. Bhambhani, Amicus Curiae with Ms Nisha
                          Bhambhani
For the Respondent   :    Mr Pavan Narang, APP



CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MS JUSTICE VEENA BIRBAL

BADAR DURREZ AHMED, J (oral)

1. This appeal is directed against the judgment dated 01.09.1997 delivered by the learned Additional Sessions Judge, Shahdara, Delhi, in Sessions Case No. 54/96 arising out of FIR No.108/89, under Section 302/34 IPC, registered at Police Station Seelampur. By virtue of the impugned judgment, the present appellant was found guilty of the offence punishable under Section 302/34 IPC. By the order on sentence dated 02.09.1997, the appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of ` 1000/- and in default of

payment of fine, he was to further undergo rigorous imprisonment for one month.

2. During the pendency of the appeal, at the time when the matter was taken up for final hearing, Mr Bhambhani, the learned counsel appearing on behalf of the appellant drew our attention to the statement made by the appellant under Section 313 Cr.P.C which was recorded on 20.03.1997 wherein the age of the appellant was recorded as 25 years. Similarly, Mr Bhambhani, also drew our attention to the impugned order on sentence where, again, the age of the appellant has been described as " young man of 25 years of age". We enquired from the learned counsel for the appellant as to what was the age given in the arrest memo and thereupon we found that the arrest memo does not mention the age of the appellant at the time of the arrest.

3. In this backdrop, as noticed in our order dated 08.08.2011, it was submitted by Mr Bhambhani that in all likelihood, the appellant would be a juvenile within the meaning of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act) on the date of the incident. He requested for some time to produce documentary evidence in support of the plea of the appellant's juvenility.

4. However, as noticed in our order dated 21.10.2011, Mr Bhambhani submitted that the appellant did not have any documents with him which were in the nature of the documents specified in Rule 12(3)(a) of the

Juvenile Justice (Care and Protection of Children) Rules, 2007. The relevant rule reads as under:-

"12. Procedure to be followed in determination of age.

xxxx xxxx xxxx xxxx

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i),(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if, considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

And while passing orders in such case shall, after taking into consideration such evidence as may be

available, or the medical opinion , as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

5. Consequently, the only course of action left before this Court was to seek the medical opinion of a duly constituted Medical Board in order to determine the age of the appellant. Thus, by virtue of our order dated 21.10.2011, we had directed the Medical Superintendent, All India Institute of Medical Sciences (AIIMS) to constitute a Medical Board to examine the appellant and to submit the opinion of the Medical Board to this Court.

6. Thereafter, the appellant was taken to AIIMS for medical examination before the Medical Board. The Medical Board consisted of the following:

"1. Dr. T.Millo - Chairperson Addl. Professor, Deptt. of Forensic Medicine

2. Dr. Ashu Sethi Bhalla - Member Addl. Professor, Deptt. of Radio-Diagnosis

3. Dr. Ajay Logani, - Member Assoc. Professor CDER -

4. Dr. R.Harsvardhan - Member Secy."

Department of Hospital Administration

7. The opinion of the Medical Board is dated 15.11.2011 and is at pages 73-74 of the paper book. The opinion of the Medical Board is as under:-

"OPINION:

After going through the findings of physical, dental and radiological examinations we are of the considered opinion that the age of the applicant is between 36 to 45 years on the date of examination i.e. 31.10.2011."

8. From the said medical opinion it is apparent that the exact age of the appellant could not be determined and that is why the Medical Board has given the range of 36 to 45 years as on 31.10.2011.

9. We must recall, at this stage, that Rule 12(3) of the said Rules specifically stipulates that in case the exact assessment of the age cannot be done, the Court may, if necessary, give the benefit to the child or juvenile by considering his/her age on the lower side within the margin of one year. In the present case, the range of the age of the appellant as opined by the Medical Board extends from 36 to 45 years as on 31.10.2011. If we take the lower end of the range, the age of the appellant would be 36 years as on 31.10.2011. Consequently, the age of the appellant as on the date of the incident (21.03.1989) would be approximately 13 years and 5 months. Extrapolating further, the age of the appellant on this basis, in the year 1997 when his statement under Section 313 Cr.P.C was recorded and when the order on sentence was passed, would be approximately 22 years. This is less than the age of 25 years, as recorded in the said statement and the order on sentence. Even if the age of 25 years as on 1997 is taken, the appellant would have still been less than 18 years old on the date of the incident i.e., 21.03.1989.

We may further point out that in 1997, the said Act and the said Rules had not been introduced and at that point of time a juvenile was one who had not attained the age of 16 years as per the Juvenile Justice Act, 1986 which was subsequently repealed by virtue of Section 69 of the said Act. It is perhaps, for that reason that the appellant was not regarded as a juvenile in the course of his trial. Anyhow, in view of the medical opinion mentioned above, the appellant would have to be regarded as a juvenile inasmuch as he would have been less than 18 years old on the date of the incident i.e., 21.03.1989.

10. It is, therefore, clear that the appellant would have to be regarded as a juvenile within the meaning of Section 2(k) of the said Act and would, therefore, have to be given the benefit of the provisions of the same. As per the nominal roll dated 12.12.2011, the appellant has been in judicial custody for a period of 2 years 6 months and 21 days as on 26.07.2011. Thereafter, he was released on bail and his sentence had been suspended. In fact, the sentence of the appellant had been suspended earlier also and he had been released on bail on 16.01.1998, but as he was not available on the date when the appeal was taken up for hearing, pursuant to the issuance of non-bailable warrants, he was once again arrested on 13.07.2011 and he remained in custody for 14 days upto 26.07.2011. By virtue of an order of this Court, he was once again directed to be released on bail on his sentence being suspended as he had adequately explained the reason as to why he was not present when his appeal was taken up for hearing.

11. It is, therefore, clear that the appellant has been in custody for 2 years 6 months and 21 days and has spent this time in prison whereas, in fact, in view of the provisions of the said Act, he ought not to have spent a single day in prison but could have been directed to be detained in a Special Home or in a Place of Safety in view of the provisions of Section 15 and 16 of the said Act. Mr Bhambhani, on instructions from the appellant who is also present in Court, submits that he is not challenging the conviction and is only seeking the benefit of the provisions of the said Act with regard to the sentence. Therefore, without disturbing the findings of the trial court with regard to the guilt of the appellant, the sentence of the appellant is modified to the extent that since the juvenile has already spent 2 years 6 months and 21 days in custody, there is no necessity, in our view, to further subject him to any order under Section 15 or 16 of the said Act. We are making this order particularly because it would not be appropriate to send the appellant to a Special Home as it would not be appropriate either for him or for other inmates in view of the fact that the appellant is now at least 36 years old. And, for the same reason, it would not be appropriate to send him to a Place of Safety as provided under Section 16 of the said Act for a period which would cover 5 months and 9 days in order to complete the maximum period of 3 years of detention provided under the said Act. Section 15(1)(g) of the said Act clearly indicates that the Courts exercising these powers may make an order directing the juvenile to be sent to a Special Home for a period of 3 years. The proviso to the above provision stipulates that the Court may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be

recorded, reduce the period of stay to such period as it thinks fit. It is in furtherance of these provisions that we felt that the period of detention be reduced to 2 years 6 months and 21 days being the time that the appellant has spent in prison.

12. The appeal stands disposed of accordingly. The bail bond stands cancelled and the surety stands discharged.

13. A copy of this order be sent to the Station House Officer, Police Station Seelampur for extending the other benefits of the Juvenile Justice Act to the appellant.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J DECEMBER 13, 2011 hk