Delhi High Court
Afsar & Anr vs State Of Delhi on 15 March, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.APPEAL No.1192/2011
% Judgment reserved on: 09th February,2012
Judgment delivered on:15th March, 2012
AFSAR & ANR ..... Appellants
Through: Mr. G.P. Thareja, Adv.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Rajdipa Behura, APP.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the instant appeal, the appellants have assailed the judgment
dated 26.08.2011 and order on sentence dated 29.08.2011 in case titled as
State Vs. Afsar and others in Sessions case No. 29/09 in case FIR 301/2004
under Sections 307/324/34 IPC, wherein the appellants were sentenced to
undergo RI for 03 years and fine of Rs.5,000/- each under Section 307 IPC
and further to undergo SI for 06 months for the offence punishable under
Section 324/34 IPC and fine of Rs.1000/- Both the sentences were to run
concurrently. Benefit of Section 428 Cr.P.C. has been given to the
appellants.
2. By the aforesaid impugned judgment, two co-accused namely Salim
s/o Shakeel and Sanjay Kashyap @ Sonu were acquitted by the Trial Court
on the same set of evidence, whereas, the appellants have been convicted.
Crl. A. No.1192/2011 Page 1/23
3. Brief facts arising out of this case are that on 04.08.04 at about 10:15
PM, on receipt of an information with regard to occurrence of a quarrel and
causing injury by using of chhura/knife at 150 Gali No. 1, 2nd Pushta Sonia
Vihar, ASI Dharam Pal Singh along with Const. Khem Chand reached at the
spot. On reaching there they saw Rajender S/o Sh.Havans Lal, R/o 150 B
Block, Gali No. 1, 2nd Pushta Sonia Vihar, Delhi, stained with blood. All the
injured namely Rajender, Krishan and Shakuntla were taken to GTB
Hospital by PCR Van, where they all were medically examined vide MLC
No 2493/04, 2637/04 and 2694/04 respectively. Nature of injuries was
opined as „caused by sharp weapon.‟ On the MLC of Rajender, he was
declared unfit for statement and on the MLC of Shakuntla, the nature of
injuries were opined as a simple caused by „blunt weapon‟ and on the MLC
of Krishan, nature of injuries was opined as simple caused by „sharp object.‟
4. The statement of injured Kishan S/o Rajender Kumar was recorded
wherein he stated as under:-
"His father had been doing the business of property dealer,
who had arranged a plot for sale to Asgar and 2% commission
payable by Asgar on sale consideration was settled. On 03/8/04
his father went to the shop of Asgar and asked for his
commission. Sirajuddin, father of Asgar refused to pay the
commission due to that some altercation had taken place
between his father and Sirajuddin. Asgar who was present at
the shop stated that he would pay his commission at his house.
Again on 04/8/04 at about 8.30p.m. Asgar and his brother Afsar
along with two another persons had come to his house and
called his father out side the house. Asgar extended threat while
saying that „AA MAIN TUGHE ABBI COMMISSION DE
DETA HOON" In the mean time, other unknown boys caught
hold of his father and Asgar and Afsar started stabbing his
Crl. A. No.1192/2011 Page 2/23
father with churee/knives. His mother also came out from his
house. Asgar and Afsar extended threat of killing her. When he
tried to save his mother, one boy of (Savla colour) among them
landed a dunda blow on the head of his mother and when he
tried to caught hold the knife which was in the hand of Asgar,
the also received sharp injuries on three fingers of his hand.
Asgar along with his associates attempted to kill his father".
5. On merit, ld. Counsel for the appellants has submitted that in the
present case, the injuries received by the PW1 Krishan Kumar, PW2 Smt.
Shakuntala and PW3 Rajender Kumar in the altercation on the issue of
„commission in sale of the property‟. The injuries caused on PW3 Rajender
Kumar were a clean deep wound over right hand measuring 4cm x 1cm; a
deep clean wound near mouth left side measuring 4cm x 1cm; a deep clean
wound on left hip joint on interior abdominal wall; and a wound measuring
2cm x 5cm above left clavicle. He further deposed that after initial treatment
the patient was referred to surgery.
6. On the report of X-Ray plate of injured Rajender, found a chip
fracture of iliac crest.
7. The injuries received by PW1 Krishan Kumar, though are of simple in
nature, however caused by a sharp object.
8. I note, the appellant No.1 used the knife during altercation whereby
caused injuries on the vital parts of the body that too by using a sharp
weapon. Learned Trial Judge has already taken a lenient view and awarded
only three years rigorous imprisonment and fine of Rs.5,000/- under Section
307 Indian Penal Code and SI for 06 months for the offence punishable
under Section 324/34 Indian Penal Code and fine of Rs.1,000/-; whereas the
Crl. A. No.1192/2011 Page 3/23
punishment under Section 307 Indian Penal Code may extend up to life
imprisonment.
9. Pursuant to the order dated 10.01.2012, the Probation Officer filed the
report of appellant no. 2 Afsar, on the submission of ld. Counsel for
appellant who sought the benefit to be extended as provided under Section
360 of the Code, which was taken on the record, which reads as under:-
"Report of Preliminary enquiries vide Rule 16 (1)Regarding Afsar
s/o Sirfuddin:-
1. Personal history: The accused is a married man of 26 years.
He belongs to poor class family of Muslim society. His
family originally hails from district Punchsheel of UP.
2. Behaviour and habits: He is observed well behaved with
submissive nature. He is no bad habit.
3. Temperament: He is observed of cool temperament. No
criminal tendency is found on the nature of accused.
4. Physical and mental history: Physically he is well built.
His mental condition is also sound.
5. Leisure time activities: He spent leisure time with his family
members.
6. External influences: Chances of being influenced by other
seems to be very few.
7. School record and report of teacher: He is illiterate.
8. Employment history: The accused started to work as a
labour. He also works with his elder brother.
9. Present occupation & wages: He is doing the job of tyre
puncture since last 15 years.
10.Report of employer: He is self employed with no regular
work. He is earning of Rs.6000/- pm.
11.Associates: He is not in the association of bad elements.
Crl. A. No.1192/2011 Page 4/23
12.Contact with social & religious organization, if any:
Nothing was reported.
13.FAMILY HISTORY :
(a) Father Sirrajuddin expired in 2007
(b) Mother Sakila 49 years Housewife and
handicapped
(c) Step father No
(d) Brother Asgar 24 years Mamed and living in joint
family
(e) Step mother No
(f) Sister Riswana 19 years Student of 11th class
Rukhsar 16 years Student of 10th class
Sabana 12 years Student of 7th class
(g) Wife Nagina 24 years House Wife.
(h) Children
04minors two
daughters and two
sons
(i) Other interested No
relations, if any,
14.Economic conditions of the family: Economic Condition of
the family is assessed as poor class family of the society. He
is only earning member of his family. They are hardly
meeting their day to day requirements.
Report of neighbours: Positive and favourable.
15.Legal history: He also faced another case vide FIR No.354/2008
under Section 283 Indian Penal Code police station K.Khas and
fined Rs.200/-.
10. The appellant has already undergone 24 days of incarceration,
Crl. A. No.1192/2011 Page 5/23
11. It is submitted by the learned counsel for the appellant that three
injured witnesses namely PW1 Krishan Kumar, PW2 Smt. Shakuntala and
PW3 Rajender Kumar had suffered simple injuries as shown in their
respective MLCs. Testimonies of the witnesses were full of contradictions,
wherein the above mentioned witnesses deposed differently and could not
establish conclusively. Therefore, the benefit of doubt ought to have been
extended to the appellants.
12. Learned counsel argued that on 31.08.2004 NBWs were issued
against accused Salim s/o Shakeel, and thereafter on 14.09.2004 he was
arrested at the instance of PW-1 Krishan Kumar. Report of the MLCs of all
the injured persons were obtained. On the MLC of injured Rajender, the
nature of injuries were opined as „grievous caused by sharp object' and
nature of injuries on the MLC of Shakuntla was opined as „simple caused by
blunt object‟.
13. Learned counsel for the appellants has referred the deposition of PW-
8 Dr. S. Kohli, who deposed on behalf of Dr. Chanchal, who was working as
CMO at the relevant time. He was deputed by M.S. GTB Hospital, to be
deposed on behalf of Dr. Chanchal as she left the services of hospital and her
present whereabouts were not known. PW8 deposed that on 04.08.2004 at
about 11:30 P.M. patient Rajender was brought to the hospital with an
alleged history of assault. He was medically examined by Dr. Chanchal who
was working as CMO at that time. On local examination following injuries
were noticed :-
"a) Superficial wound on left arm measuring 10cm long and
2cm wide
Crl. A. No.1192/2011 Page 6/23
b) A deep wound over right hand measuring 4cm x 1cm
c) A deep clean wound near mouth left side measuring
4cmx1cm
d) A deep clean wound on left hip joint on interior abdominal
wall.
e) A wound measuring 2cmx5cm above left clavicle. He further
deposed that after initial treatment the patient was referred to
surgery. Nuero surgery, orthopedic department for further
management. He further stated that a the time of examination of
patient he was fit examination. MLC prepared by Dr. Chanchal
is Ex. PW8/A bearing her signatures."
14. Further submitted that PW-10 Dr. Raj Pal, deposed that on 04.08.2004
he examined the X-ray plate of injured Rajender, vide plate No. 3629 of
pelvis with both hips AF and found a chip fracture of iliac crest. He proved
his report as Ex.PW-10/A bearing his signatures at point A.
15. Learned counsel has further referred to cross-examination of PW2,
wherein she stated that her husband has been doing the business of property
dealing since last 20 years, however, PW1 Krishan stated that his father was
doing the business of property dealing since last 06 years and PW3 Rajinder
himself deposed that he has been doing the business of property dealing
since last 10/12 years, therefore all the public witnesses failed to prove the
modus operandi/ motive, which they tried to implicate the accused persons
in the present case.
16. During cross-examination, PW-2 Smt.Shakuntala deposed that she
had told the name of the assailants to the doctor who had medically
examined her. But on perusal of MLC no name of assailants had been
recorded by the doctor, it proves that the testimony of PW2 does not inspire
Crl. A. No.1192/2011 Page 7/23
confidence and is liable to be rejected.
17. PW-7 is a doctor, has identified the signatures of Dr. Subhash B.
Bijita who examined the injured. On perusal of the injuries mentioned on the
MLC bearing No. A-2640, the nature of injuries opined as „simple caused by
blunt object‟ and also MLC no. C-2493/04 of injured Rajender, injury was
opined as „grievous in nature‟ whereas as per clinical records and X-ray
which clearly shows that injuries which were allegedly caused were of
„simple in nature‟. In such circumstances, ingredients of Section 307 IPC are
not attracted, as argued by Ld. counsel for the appellants.
18. Learned counsel has further referred to the deposition of PW16,
wherein, during his cross-examination he admitted that the injured was not
examined in his presence. He also admitted that on the radiologist report it
was written that No Bony Injury seen and thereafter the cutting were made
and opined that Bony injury seen. He further deposed that on perusal of X-
ray report a chip fracture of iliac-crest and same is counter signed by the
doctor in the report Ex.PW 10/A.
19. On the issue, whether the ingredients of Section 307 Indian Penal
Code, 1860 are disclosed in the present case, the Learned Trial Judge
carefully perused the nature of injuries opined by the doctor on the MLC of
all the three injured which is Ex.PW7/A, 7/B and Ex. PW8/A wherein it is
established that the injuries mentioned in the MLC of injured Krishan
Kumar reflects that he received injuries when he tried to get hold of the
knife from the hands of accused person, which was simple in nature caused
by a sharp object. The injuries opined on the MLC of PW2 Shakuntla, as
nature of injury simple caused by blunt object but on the vital part of the
Crl. A. No.1192/2011 Page 8/23
body i.e. head. On perusal of the MLC ExPW8/A of injured PW3 /
Rajender, injury No. 3 i.e. deep clean wound near left side mouth and injury
No.5 is above the left clavical clearly shows that both the injuries were
inflicted on the upper limb i.e. vital part of the body by using sharp weapon.
In such circumstances and considering the nature and the number of injuries
i.e. six, it could not be said that the ingredients of Section 307 were not
attracted, therefore, learned Judge was not in agreement with the contention
of ld. counsel of accused on that issue.
20. It is submitted that there are difference of opinions on MLC and there
are contradictions on the deposition of the injured persons, therefore, two co-
accused persons have already been acquitted, whereas the same allegations
are there as regards to the appellant.
21. In support of above arguments, he has submitted that the learned trial
Judge has straight away come to the conclusion and did not give any heed
that whether the ingredients of Section 307 IPC are met out in the present
case, keeping to the fact about nature of injuries.
22. It is further submitted that there is no opinion regarding causing death
and therefore, ingredients of Section 299 IPC are not meted out. If the
injuries are opined to be fatal, than the case falls under Section 326,
however, in the present case it is already point out that the injuries were not
fatal, therefore, the benefit of doubt should be given to the appellant and
accordingly the case falls under Section 324 Indian Penal Code, 1860.
23. If this court is of the view that the present case falls under Section 324
Indian Penal Code, 1860 then as, he can be released on the period already
Crl. A. No.1192/2011 Page 9/23
undergone by him. Since, the appellant has already undergone 24 days, he
may be let of accordingly.
24. Learned counsel for the appellant has further argued that under
Section 360(1) Cr.P.C., it is provided that if the accused is below 21years of
age at the time of commission of offence and where the sentence of life and
death has not been awarded, then he is entitled to the benefit under Section
360 of Cr.P.C. For convenience same is reproduced as under:-
"(1) When any person not under twenty-one years of age is convicted
of an offence punishable fine, or with imprisonment for a term of
seven years or less, or when any person under twenty-one years of
age or any woman is convicted of an offence not Punishable with
death or imprisonment for life, and no previous conviction is proved
against the offender, if it, appears to the court before which he is
convicted, regard being had to the age, character or antecedents of
the offender, and to the circumstances in which the offence was
committed, that it is expedient that the offender should be released on
probation of good conduct, the court may, instead of sentencing, him
at once to any Punishment, direct that he be released on his entering
into a bond, with or without sureties to appear and receive sentence
when called upon during such period (not exceeding three years) as
the Court may direct and in the meantime to keep the peace find be of'
good behaviour :
Provided that where first offender is convicted by a Magistrate of the
second class not specially empowered by the High Court, and the
Magistrate is of opinion that the powers conferred by this section
should be exercised, he shall record his opinion to that effect. and
submit the proceedings to a Magistrate of the first class forwarding
the accuses to or taking, bail for his appearance before, such
Magistrate, who shall dispose of the case in the manner provided by
sub-section (2)".
25. Therefore, ld. Counsel has prayed that when any person under 21
Crl. A. No.1192/2011 Page 10/23
years of age or any women is convicted for an offence punishable with death
or imprisonment of life, and no previous conviction is proved against the
offender. In that case keeping age, character or antecedents of the offender,
and the circumstances in which the offence was committed, that it is
expedient that the offender should be released on probation of good conduct.
The report filled by the Probation Officer, does not indicate any criminal
antecedents against both the appellants.
26. On the other hand, learned APP has submitted that for the evidence
punishable under Section 307 of Indian Penal Code, injuries do not matter,
whereas the intention or knowledge and under the circumstances in which
the act is done, is most essential. In the present case, apart from PW-1
Sh.Krishan Kumar / complainant, his mother and father also received
injuries.
27. Learned APP has further argued that PW-7 Dr. S. Kohli deposed that
on 05.08.2004 at about 12:05 a.m. Krishan Kumar aged about 18 years was
brought by ASI Vasudev to the Casualty Ward of GTB Hospital for his
medical examination with the alleged history of assault. The Doctor who had
examined him has now left the services of the hospital. He identified the
handwriting and signatures of Dr.Subhash B Bijita which is Ex. PW 7/A.
The said MLC was prepared under supervision as he was posted as CMO
casualty on that day. On local examination of injured Krishan an incised
wound over the distal (Top), part of index finger, middle finger and ring
fingers were noticed and patient was referred to surgery emergency for
further management.
28. The said doctor further deposed that on local examination of injured
Crl. A. No.1192/2011 Page 11/23
Shakuntla, a lacerated wound measuring 2 x ½ x ½ cm over the left posterior
partial region of the head was noticed, and was referred to surgery
emergency for further management.
29. During his cross-examination, he reiterated his testimony as submitted
by him during examination-in-chief except the fact that both the MLCs were
prepared in his supervision but not in his presence. It is further stated that the
injuries noticed on Krishan Kumar can be caused, by falling on hard
surface/floor, on the person of Shakuntla is possible.
30. Learned APP has further referred Dr. S.Kohli, CMO of hospital and
deposed that he has been deputed by M/s. GTB Hospital to depose on behalf
of Dr. Chanchal, as who left the services of hospital, and her present
whereabouts are not known. He deposed that on 04.08.2004 at about 11:30
p.m., patient Rajender was brought to the hospital with the alleged history of
assault. On local examination, following injuries were noticed:
a. Superficial wound on left arm measuring 10cm long and 2cm wide.
b. A deep wound over right hand measuring 4cm x 1cm.
c. A deep clean wound near mouth left side measuring 4cm x 1cm.
d. A deep clean wound on left hip joint on interior abdominal wall.
e. A wound measuring 2cm x 5cm above left clavicle. He further deposed
that after initial treatment the patient was referred to surgery, Nuero
surgery, orthopedic department for further management. He further
stated that at the time of examination of patient he was fit
examination. MLC prepared by Dr.Chanchal is Ex. PW 8/A bearing
her signatures.
31. Ld. APP has further submitted that PW-10 Dr. Raj Pal deposed that on
04.08.2004 he examined the X-ray plate form of injured Rajender vide X-ray
plate No. 3629 of X-ray pelvis with both hips AP and found a chip fracture
Crl. A. No.1192/2011 Page 12/23
of iliac crest. He proved his report as Ex. PW 10/A.
32. Learned APP has referred PW-16, Dr. Manish Chadha who identified
the handwriting and signature of Dr. Sanjeev, Senior Resident on the MLC
No.C-2493, pertaining to injured Rajender and deposed that Dr. Sanjeev has
now left the services of hospital, and his present whereabouts are not know
in the office. As per opinion given by him, the natures of injuries are
grievous.
33. During his cross-examination, he admitted that on the radiologist
report, it was written "No Bony injury seen" and thereafter the cutting were
made and opined that "Bony injury seen". Therefore, 'No Bony Injury'
was written by mistake and same was corrected and opined with, 'Bony
Injury Seen'.
34. Learned APP has further submitted that Learned Trial Judge has dealt
the ingredients of section 307 IPC carefully. After pursuing the nature of
injuries opined by the doctor on the MLCs, of all the three injured, which are
Ex. PW 7/A, 7/B and Ex. PW 8/A, wherein it is established that injuries
mentioned in the MLC of injured Krishan Kumar reflects that he received
injuries, when he tried to get hold of the knife from the hands of accused
person, which is simple in nature caused by sharp object and the injuries
opined on the MLC of PW-2 Shakuntla, nature of injury simple caused by
blunt object but on the vital part of the body i.e. head and on perusal of the
MLC Ex. PW 8/A of injured Rajender / PW-3, injury no. 3, i.e. deep clean
wound near mouth left side and injury no. 5 is above the left clavical clearly
goes to show that both the injuries were inflicted on the upper limb, i.e. vital
part of the body by using sharp weapon. In such circumstances, the Learned
Crl. A. No.1192/2011 Page 13/23
Trial Judge was of the considered opinion that after considering the nature of
injury and the number of injuries i.e. six in a number, opined that ingredients
of section 307 IPC to be attracted.
35. On considering the submission advanced by ld.Counsels for parties, in
the present case, both the appellants used knife not once, but on numerous
time. This fact is proved on the injuries caused to PW-3 Rajinder, who
received six injuries. Only one injury is opined as superficial wound, rest all
opined as deep wounds. X-Ray Report also proved bony injury was
sustained. Some injuries are on vital part of body and grievous in nature. It
is also proved that all injuries were caused by sharp weapon.
36. However facts remain that none of injuries were opined as fatal. The
intention of the appellants were to cause injuries only, therefore some of the
injuries received by injured while holding the knife. From the nature of
injuries it established that the knife used in the incident not with that force
which would have been fatal. Therefore, in my considered opinion, the
appellant would not have been convicted under Section 307 of Indian Penal
Code, 1860.
37. Keeping the nature of weapon, its forcity and the nature of injuries,
the case falls under Section 326 of Indian Penal Code, 1860. Therefore, in
my opinion, the ld. Trial judge should not have convicted the appellants
under Section 307 Indian Penal Code, 1860, however the appellants are
liable to be punished for the offence punishable under Section 326 of Indian
Penal Code, 1860, apart from other provisions.
38. In the above facts and circumstances, I modify the judgement and
Crl. A. No.1192/2011 Page 14/23
order on conviction dated 26.08.2011 and convict the appellants under
Section 326 of Indian Penal Code, 1860. Consequently, he shall undergo
sentence for a period of one year with fine of Rs.3,000 and in default he
shall further undergo simple imprisonment for 2 months. The sentence
awarded to the appellants under Section 324/34 Indian Penal Code, 1860
shall remain intact.
39. Vide the order dated 26.09.2000 of this court, the respondent/State
was directed to verify the authenticity of the documents, as the appellant
No.2 has claimed to be juvenile at the time of occurrence of the offence. In
pursuance thereto, the respondent/State filed the verification report, found to
be correct, as under:-
"Accused Afsar S/o Sirajuddin R/o B-7, Service Road, IInd
Pusta, Sonia Vihar, Delhi and Asgar S/o Sirajuddin R/o B-7
Service Road, IInd Pusta, Sonia Vihar, Delhi, has been
convicted on 29.08.11 by the Court of Sh.B.S. Chumbak,
ASJ/KKD Court Delhi, for a term of RI for three years and to
pay a fine of `5000/- each in FIR No.301/04 u/S
307/323/324/34 IPC PS Khajuri Khas, Delhi. The Hon‟ble
High Court of Delhi directed to verify age proof of both the
accused through school certificate, driving license, ration card
etc. In this regard verification was conducted, accuse Afsar
provided his driving license, and ration card, on behalf of
these documents the date of birth of accused Afsar is
06/11/1984. Accused Asgar provided his driving license the
date of birth of accused Asgar is 08/11/1988 and according
school leaving certificate the date of birth of accused Asgar is
09/05/1987."
40. Vide order dated 10.01.2012 of this court, the concerned Probation
Officer, was directed to file the report on the appellants. Pursuant thereto,
same has been filed and taken on record.
Crl. A. No.1192/2011 Page 15/23
41. Learned counsel has referred the report of Probation officer,
Karkardooma courts, Shahdara, Delhi 32, wherein it has been recorded that
no case is pending against him or ever convicted except the present one
since the year 2004.
42. Learned counsel has further submitted that appellant no. 2 Asgar lost
his father way back in 2007, his mother is 50 years old and is suffering from
55% disability.
43. He further submitted that according to the prosecution case the
incident had occurred on 04.08.2004 and on the date the appellant No.2 was
a juvenile as per the date of birth, recorded in his School Leaving Certificate,
as his date of birth is recorded as 09.05.1987, therefore, his age was 17 years
02 months and 27 days on the date of occurrence.
44. Further, the date of birth recorded in the Driving License is
08.11.1988 and as per the ration card, which is annexed at page 69 of the
paper-book, the year of birth is recorded as 1988. Therefore, in all the
situations, the appellant no. 2 was under the age of 18 years, on the date of
occurrence.
45. Learned counsel has reiterated Sections 2(k) and 2(l) of Juvenile
Justice (Care of Protection of Children) Act, 2000, which is reproduced
herein under :-
"2 (k). "juvenile" or "child" means a person who has not
completed eighteenth year of age;
(l). "juvenile in conflict with law" means a juvenile who is
alleged to have committed an offence;"
Crl. A. No.1192/2011 Page 16/23
46. Ld. counsel has further referred to Section 15(1) (a) (f) and (g) of the
above act, which is reproduced as under:-
(1) Where a Board is satisfied on inquiry that a juvenile has
committed an offence, then, notwithstanding anything to the
contrary contained in any other law for the time being in
force, the Board may, if t thinks so fit,-
(a) allow the juvenile to go home after advice or admonition
following appropriate inquiry against and counselling to the
parent or the guardian and the juvenile;
(f) direct the juvenile to be released on probation of good
conduct and placed under the care of any fit institution for the
good behaviour and well- being of the juvenile for any period
not exceeding three years;
(g) make an order directing the juvenile to be sent to a special
home,-
47. Therefore, it is submitted that learned Sessions Judge before holding
the trial, ought to have held an enquiry as contemplated by Juvenile Justice
Act before proceeding with the trial of the case. Because of the fact that
during the course of investigation, the investigating officer had collected the
age proof of the appellants; however, he intentionally recorded the wrong
age as 18 years on the day of incident, whereas the actual age of the
appellant no. 2 was 17 years. The driving license issued to appellant no.2 in
the year 2007 also reflects his age as less than 18 years, on the date of
occurrence. The age reflected in the Ration card of the appellant no.2 also
was 17 years as on the date of the incident. Therefore, the age of the
appellant from all the available sources reveals that he was a minor on the
day of occurrence and hence could not have been tried by the trial court.
Crl. A. No.1192/2011 Page 17/23
48. Ms. Rajdipa Behura, learned APP has fairly conceded that the School
Certificate of the appellant No.2 was taken on the record. However, the age
was recorded of 18 years, whereas he was less than 18 years of age on the
date of the occurrence. Therefore, she does not dispute on the juvenility of
the appellant No.2.
49. Keeping the facts and circumstances into view, although the appellant
no. 2 did not raise the issue of juvenility before the trial court, however
raised before this court, which he can raise at any stage even after the
disposal of the case even up to the level of Apex Court, therefore, after
taking the documentary proof of his age, and the submission of ld. APP for
State, I am of the considered opinion that appellant no. 2 Asgar, was juvenile
on the date of occurrence.
50. Accordingly, while maintaining the conviction, as modified by this
court, he shall be set free forthwith, as this issue has not been raised before
learned Trial Court. After the full trial, learned Trial Judge has found him
guilty, and confirmed by this court though with some modifications,
therefore, as law has been settled by the Apex Court in Vaneet Kumar
Gupta @ Dharminder vs. State of Punjab (2009) 17 SCC 587 wherein it is
held as under:-
"1. Learned counsel appearing on behalf of the appellant has
challenged the conviction of the appellant mainly on the ground that
on the date of occurrence, the appellant was a juvenile and
therefore, he should have been tried under the provisions of the
Juvenile Justice (Care and Protection of Children) Act, 2000 ("the
Juvenile Justice Act" for short). Although it is conceded by learned
counsel for the appellant that this point was not specifically raised
Crl. A. No.1192/2011 Page 18/23
either before the Trial Court or the High Court but he submits that
in the light of the provision contained in Section 7A of the Juvenile
Justice Act, the question about juvenility of the appellant can be
gone into even at this stage. Learned counsel has also pointed out
that in fact the High Court was aware of the fact that the appellant
had not completed eighteen years of age as on the date of alleged
commission of offence and was, thus, a "juvenile" inasmuch as the
fact of his being confined in Borstal Jail, Ludhiana, meant for
housing a juvenile in conflict with law was mentioned in the
application filed for grant of bail. It was, therefore, obligatory for
the High Court to hold an inquiry itself for determination of the
question of age of the appellant or cause an inquiry to be conducted
and seek a report regarding the same.
2. Having bestowed our anxious consideration to the facts before us,
we are of the opinion that the appeal commends acceptance.
3. Section 7A, inserted in the Juvenile Justice Act with effect from
22nd August, 2006 reads as follows:
7A.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 recognised 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
Crl. A. No.1192/2011 Page 19/23
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 orders and the sentence, if any, passed by a
court shall be deemed to have no effect.
4. It is manifest from a fair reading of proviso to sub- section (1)
that a claim of juvenility can be raised at any stage and even
after the final disposal of the case. In that view of the matter, the
appellant is entitled to raise before us claim of juvenility at the
relevant time. It appears to us that in view of a recent decision of
a three Judge Bench of this Court in Pawan Vs. State of
Uttaranchal JT (2009) 3 SC 87, the issue is no longer res-
integra. In the said decision, taking note of the observations in
the case of Gurpreet Singh Vs. State of Punjab (2005) 12 SCC
615, wherein entertaining the issue whether the accused was a
juvenile under the Juvenile Justice Act, 1986, raised for the first
time before it, this Court, had laid down the procedure to be
followed in such a situation, one of us, R.M. Lodha, J., speaking
for the Court has observed thus:
Where the materials placed before this Court by the
accused, prima facie, suggest that the accused was
`juvenile' as defined in the Act, 2000 on the date of
incident, it may be necessary to call for the report or an
enquiry be ordered to be made. However, in a case
where plea of juvenility is found unscrupulous or the
materials lack credibility or do not inspire confidence
and even, prima facie, satisfaction of the court is not
made out, we do not think any further exercise in this
regard is necessary. If the plea of juvenility was not
Crl. A. No.1192/2011 Page 20/23
raised before the trial court or the High Court and is
raised for the first time before this Court, the judicial
conscience of the court must be satisfied by placing
adequate and satisfactory material that the accused had
not attained age of eighteen years on the date of
commission of offence; sans such material any further
enquiry into juvenility would be unnecessary.
5. Thus, the short question for consideration is as to whether
adequate material is available on record to hold that the
appellant had not attained age of eighteen years on the date of
commission of offence and could, thus, be treated as a "juvenile"
within the meaning of Section 2(k) of the Juvenile Justice Act?
6. When the matter came up for hearing on 15th December,
2008, counsel for the State was asked to seek instructions as to
whether any inquiry had been conducted with regard to the age
of the appellant as on the date of the commission of the offence,
particularly in the light of the school register and Transfer
Certificate issued by Rama Montessori Junior Basic Vidayalaya
Samiti, Nawabganj, Gonda (U.P.). Pursuant to and in
furtherance of the said order, an affidavit has been filed by the
Deputy Superintendent of Police, Garhshankar, District
Hoshiarpur. In the said affidavit, it is stated that upon making
inquiries from the Principal of the aforementioned School,
Certificate dated 15th December, 1987 has been found to be
genuine. It is further stated that as per the inquiries made, the
appellant had studied in the said School from Class I to V during
the period 1994-1999 and as per the school records, his date of
birth is 15th December, 1987. Thus, in view of the said report,
filed on affidavit, which is not questioned by learned counsel for
the State, the age of the appellant as on the date of occurrence
was about 15 years.
Crl. A. No.1192/2011 Page 21/23
7. The inquiry report, which inspires confidence, unquestionably
establishes that as on the date of occurrence, the appellant was
below the age of eighteen years; was thus, a „juvenile‟ in terms
of the Juvenile Justice Act and cannot be denied the benefit of the
provisions of the said Act. Therefore, having been found to have
committed the aforementioned offence, for the purpose of
sentencing, he has to be dealt with in accordance with the
provisions contained in Section 15 thereof. As per clause (g) of
sub-section (1) of Section 15 of the Juvenile Justice Act, the
maximum period for which the appellant could be sent to a
special home is a period of three years.
8. Under the given circumstances, the question is what relief
should be granted to the appellant at this juncture. Indisputably,
the appellant has been in prison for the last many years and,
therefore, at this distant time, it will neither be desirable nor
proper to refer him to the Juvenile Justice Board. Accordingly,
we follow the course adopted in Bhola Bhagat Vs. State of Bihar
(1997) 8 SCC 720; sustain the conviction of the appellant for the
offence for which he has been found guilty by the Sessions Court,
as affirmed by the High Court and at the same time quash the
sentence awarded to him.
51. Similar view has been taken by the Coordinate Bench of this court in
Crl. A. No. 72/2010 titled as Rajiv vs. State of NCT of Delhi.
52. Therefore, appellant No.2 can be set at liberty while maintaining the
conviction in his credit.
53. The appellant no. 2 has been found as juvenile, therefore, while
maintaining the conviction for the offence punishable under Section
326/324/34 Indian Penal Code, 1860, he is set free. His bail bond and surety
bond are discharged.
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54. Whereas, appellant on. 1 was below 21 years of age at the time of
commission of offence, more so, no conviction ever in his credit, except he
paid Rs.200/- as fine under Section 283 of Indian Penal Code, 1860, which
does not come in his way, therefore, he is given benefit of Section 360
Cr.P.C.
55. Accordingly, appellant no. 1, Afsar is released on good behaviour by
giving benefit of Probation of Offenders Act. Accordingly, he shall furnish
the bond of good behaviour for one year, before the trial Court. If the said
appellant commit any offence during the bond period, in that case, he shall
complete his remaining sentence.
56. Crl. Appeal no. 1192/2011 is accordingly disposed of on the above
terms & conditions.
SURESH KAIT, J
MARCH 15, 2012
jg
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