Prem Kumar vs State
2011 Latest Caselaw 5419 Del

          THE HIGH COURT OF DELHI AT NEW DELHI


%                                    Judgment delivered on: 09.11.2011

+      CRL.A. No. 119/1999


PREM KUMAR                                             ..... Appellant

                      versus

STATE                                                  ..... Respondent

Advocates who appeared in this case:-

For the Appellant : Ms Charu Verma, Advocate.

For the Respondent : Ms Richa Kapoor, APP.

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MS JUSTICE VEENA BIRBAL

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

2. To be referred to the Reporter or not? Yes

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

BADAR DURREZ AHMED, J (ORAL)

1. This appeal is directed against the judgment dated 20.05.1998

passed by the learned Additional Sessions Judge, Delhi in sessions

case No. 123/1996 arising out of FIR No.261/1994 under Section 302

IPC registered at P.S. Pahar Ganj. The appellant has been convicted

for the offence punishable under Section 302 IPC and by virtue of the

order on sentence dated 21.05.1998 passed by the learned Additional

Sessions Judge, he has been sentenced to undergo imprisonment for

life and to pay a fine of Rs. 1000/- and in default of payment of fine to

further undergo simple imprisonment for three months. The appeal is

also directed against the said order on sentence.

2. During the pendency of the present appeal, the appellant Prem

Kumar had moved an application being Crl.M.A. 119/1999 claiming

that he was a juvenile on the date of the incident i.e., 22.05.1994.

Consequently, the appellant prayed that he be treated as a juvenile and

be dealt with under the Juvenile Justice (Care and Protection of

Children) Act, 2000 (hereinafter referred to as the said Act). While

disposing of the said application, a Division Bench of this Court, by

virtue of its order dated 04.05.2011, directed the Additional Sessions

Judge to conduct an inquiry with regard to the age of the appellant and

also directed that a report be submitted. The report of the learned

Additional Sessions Judge has been received which is dated

01.10.2011. As per the said report/order, the appellant has been found

to be of the age of 17 years 3 months and 17 days on the date of the

incident.

3. There is no contest with regard to this determination by the

learned Additional Sessions Judge. As such, the appellant would have

to be treated as a juvenile within the meaning of Section 2(k) of the

said Act.

4. We find that the appellant had already undergone incarceration

for about 10 years and 10 months when this court had granted him the

benefit of suspension of sentence and had directed his release on bail

by virtue of the order dated 26.05.2005.

5. Keeping in mind the decisions of the Supreme Court in the

cases of Hari Ram v. State of Rajasthan & Anr (2009) 13 SCC 211

and Dharambir v. State (NCT of Delhi) & Anr 2010 (4) SCALE 316,

the consequent benefit under the said Act would have to be given to

the appellant. In view of the provisions of Section 15 and 16 of the

said Act, the appellant could not have been 'detained' for a period

extending beyond three years, whether in a special home or in a place

of safety. Since the appellant has already been in custody for a period

far in excess of the stipulated period of three years, he cannot be kept

under detention of any kind any further.

6. The learned counsel for the appellant states that the appellant is

not interested in challenging his conviction but is only seeking the

benefit with regard to the sentence under the said Act. In view of

Section 20 of the said Act, while we do not disturb the finding of guilt

returned by the learned Additional Sessions Judge, the sentence

awarded by the learned Additional Sessions Judge is to be set aside.

The maximum period of detention under the said Act being only three

years, whether in a special home or any place of safety, no further

order under Section 15 or 16 of the said Act can be passed in view of

the fact that the appellant has already been in custody for over 10

years and 10 months.

7. In view of the foregoing, while the conviction of the appellant

under Section 302 IPC is upheld, the sentence passed by the learned

Additional Sessions Judge is set aside. It is obvious that the appellant

will get the benefit of Section 19 of the said Act. The bail bonds are

cancelled and the surety stands discharged.

The appeal stands disposed of accordingly.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J NOVEMBER 09, 2011 srb