Delhi High Court
Sartaz vs State on 23 September, 2011
Author: Suresh Kait
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A.No.281/2010
% Judgment delivered on:23rd September,2011
SARTAZ ..... Appellant
Through Mr. Jayendra Sevada, Adv.
versus
STATE ..... Respondent
Through Ms. Rajdipa Behura, APP
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
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 reported NO
in the Digest?
SURESH KAIT, J. (Oral)
1. On 05.08.2011 following order was passed :
"1. On 25.07.2011 the ld. Counsel for the
appellant had raised the issue of juvenility and
he has filed a School Leaving Certificate issued
by "Maktab Afzal Ullum No.2, Lawar, Merrut,
UP" in the name of the appellant Sartaj,
wherein, his date of birth is mentioned as
01.08.1984. Whereas, the date of the incident
was 01.01.2001.
2. Ld. Counsel for the appellant has drawn the
attention of this Court to page 16 of the paper
book which is the Order on Sentence dated
06.02.2010, wherein, in para 2, the learned
Trial Judge has mentioned the age of the
appellant as 26 years, i.e., on day of
pronouncing the sentence.
3. Pursuant to the order dated 25.07.2011, the
I.O. has verified the authenticity of the School
Leaving Certificate issued from the aforesaid
school. As per the report of the I.O., the
certificate is correctly issued from the
aforesaid school. Further, it is pointed out that
on the date of birth there is a interpolation
between the date of birth, i.e., from 5.8.94/74
to 1984.
4. Ld. Counsel for the appellant has produced a
ration card of the appellant. A bare perusal of
the same reveals that the age of Sartaj is
mentioned as 21 years as on 10.09.2005.
5. If I just believe the school register, the initial
date seems to be 5.8.94/74. Both the years
cannot be the year of birth of the appellant
from any imagination.
6. Further, I note from this register, on the same
page there are six interpolations in the date of
birth of the other students. Therefore, it
cannot be said that this interpolation against
the date of birth of the appellant is intentional
and that the appellant wants to take
advantage of the said interpolation.
7. Even as per the prosecution case the age of
the petitioner is 26 years as on 06.02.2010.
Therefore, on the date of sentence, i.e.,
04.02.2011, he was 26 years old, and on the
date of the incident he was just 16 years old,
therefore, from all the angles his age comes
under 18 years on the date of incidence.
8. Section 7-A(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2000 provides that
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 this age as
nearly as may be.
9. It is further 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 there
under, even if the juvenile has ceased to be so
on or before the date of commencement of this
Act.
10. In my opinion, a bare perusal of Section 7-A
shows that an enquiry is required, where a
claim of juvenility is raised at any stage and
the age of the person is mentioned more than
the age claimed by the petitioner. In the
present case, the age of the appellant is taken
from the prosecution itself which indicates the
age of the appellant as 18 years. Therefore, in
these circumstances, no further enquiry is
required in the present case.
11. Still, in the present petition I deem it
appropriate to have ossification report of the
appellant.
12. I, therefore, direct the jail authorities to get
ossification done from any Government
hospital within two weeks and file report
thereof.
13. Renotify on 23rd September, 2011."
2. Ld. counsel for the appellant has pointed out that the
date of incident has wrongly been noted in order dated
05.08.2011 as 01.01.2001 whereas the date of incident is
19.02.2001. I, ordered accordingly.
3. Vide order dated 11.08.2011 the sentence of the
appellant was suspended till the disposal of the appeal.
4. Vide order dated 05.08.2011 the jail authorities were
directed to get the ossification done of the appellant from
any Government hospital. The jail authorities had submitted
the ossification report. I note from the ossification report
dated 05.09.2011 where the age of the appellant is shows as
22-25 years. Undisputedly, the incident took place on
19.02.2001 and in the order of sentence dated 06.02.2010,
the age of the appellant has been recorded as 26 years old.
The prosecution has presumed the age of the appellant as
around 17 years of age, which is under 18. Even as per the
aforesaid ossification report the appellant is under 18 years
of age at the time of incident.
5. Ld. Counsel for the appellant submits that while
maintaining the conviction of the appellant, and he being
declared juvenile, sentence of the appellant be reduced to
the period already undergone. He further submits that
benefit of Section 19 and Section 20 of Juvenile Justice (Care
and Protection of Children) Act, 2000 be given to the
appellant.
6. I find force in the submission of ld. counsel for the
appellant, therefore, while maintaining the conviction I
modify the order of sentence dated 06.02.2010 to the extent
already undergone. Since the appellant has been declared
juvenile, needless to state that he is entitled to benefit of
Section 19 and Section 20 of Juvenile Justice (Care and
Protection of Children) Act, 2000.
7. The sentence of the appellant was suspended vide
order dated 11.08.2011. Pursuant to that the appellant has
been released on bail.
8. In these circumstances, bail bond and surety bond of
the appellant are discharged.
9. Copy of this judgment be sent to Superintendent, Tihar
for his record.
10. Crl.A.281/2010 is partially allowed.
Crl.M.A.8519/2011
In view of the order passed in Crl.A.281/2010 this
application is dismissed as infructuous.
SURESH KAIT, J
September 23, 2011
vld
