Guddu @ Guchhan vs State
2014 Latest Caselaw 843 Del

$~ 2
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 512/1999

       GUDDU @ GUCHHAN                                          ..... Appellant
                   Through                  Ms. Inderjit Sidhu, Advocate.

                            versus

       STATE                                              ..... Respondent
                            Through         Mr. Rajat Katyal, APP.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MS. JUSTICE DEEPA SHARMA

                                     ORDER

% 13.03.2014

Non-bailable warrants for arrest of the appellant have not been

executed, as per the status report filed.

2. At this stage, Ms. Inderjit Sidhu, learned amicus curiae has drawn

our attention to paragraph 33 of the impugned judgment dated 10th

November, 1998, which for the sake of convenience is reproduced

below:-

"33. Arguing for accused Guddu @ Guchhan, learned counsel Shri Sherwani contended that accused Guddu was under 15 years of age at the time of the commission of the alleged crime and he could not have been tried by this Court. He also mentioned that an occification (sic) test was conducted on accused Guddu to ascertain his age but the Court never gave any finding about his age in the light of the occification (sic) test report. This argument has really surprised me. I took over the charge of this Court on 18.11.96 and during the entire period thereafter nothing such was mentioned

before me either by the accused or by ld. Counsel Shri A.M.K. Sherwani. The silence on the part of the accused and the ld. Counsel on this issue has to be taken to be an admission of the fact that the accused Guddu had nothing to dispute about his age or that whatever has contained in the occification (sic) test report was admitted by the defence taking out their stand out of the purview of the provisions of the Children Act. For the sake of caution, I have now gone through the occification (sic) report wherein the age of this accused has been opined being above 16 years and below 18 years. I think this is a sufficient answer to the defence contention as it clearly establishes that the accused was certainly above the age of 16 years at the relevant time and he was not a minor so as to be dealt with by the Children Court."

3. We have examined the trial court record. The appellant Guddu

was arrested on 12th June, 1993. The then Investigating Officer

Baldev Singh, police station Seema Puri moved an application dated

13th September, 1993 in the Court of Mr. S.S. Handa, Metropolitan

Magistrate stating, inter alia, that Guddu had disclosed his age as 18

years, but did not have any certificate as to his age. Request was made

that bony x-ray of Guddu should be undertaken to ascertain his age. On

the said application itself, the Metropolitan Magistrate passed an order

dated: 13th September, 1993 observing "Allowed. Bony X Ray be

undertaken today itself". Consequent thereto, Guddu was taken to

Guru Teg Bahadur Hospital. In the MLC dated 13th September, 1993,

which is available in the record of the trial court, age of Guddu has

been given as 16 years. This is probably the age which was stated or

disclosed by Guddu. The MLC records that Guddu had been produced

for bony x-ray to determine his age. The age determination report is

available in the trial court record and mentions that skeleton survey of

the bone age was undertaken. On the back side of the said report, it is

mentioned that bony age of the patient was above______but less

than_____ years. The ___ portions have been over-written and scored

off, but the word "eighteen" is clearly visible and can be read, though

the word "sixteen" is also visible in the portion "less than ________

years". Both the words "eighteen" and "sixteen" have been scored off.

Below this, it is recorded that bone age of the patient was above

sixteen years but less than eighteen years. Thus, as per the bony x-ray,

the age of the appellant Guddu was less than eighteen years as on 13th

September, 1993.

4. The date of occurrence in the present case is 19th May, 1993,

which is about four months prior to the date on which the aforesaid

opinion was given by the doctor.

5. As per the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2000, the age of juvenility stands

enhanced from sixteen years to eighteen years. Benefit of the said

enhanced age is equally available to a convict, whose appeal is

pending, as per the decision of the Supreme Court in the case of Hari

Ram Vs. State of Rajasthan and Another (2009) 13 SCC 211.

6. As per the Delhi Juvenile Justice (Care and Protection of

Children) Rules, 2009 for the purpose of age determination first

preference has to be given to the date of birth certificate from school,

other than a play school, first attended and in absence thereof, birth

certificate issued by a corporation or municipal authority and in the

absence thereof matriculation or equivalent certificate. It is only in

absence of the above three certificates, that recourse to medical opinion

of a duly constituted medical board is required to be obtained.

7. In the facts of the present case, we notice that Baldev Singh, the

then Investigating Officer had mentioned in the application filed before

the Metropolitan Magistrate that the appellant Guddu did not have any

certificate to prove his date of birth and thereby, no such certificate

was produced before the trial court. We have already reproduced

paragraph 33 of the judgment of the trial court.

8. In view of the aforesaid factual position, we feel that the only

available material which can be relied upon is the medical report or

opinion as to the age of the appellant Guddu on the date of occurrence

of the offence. The said opinion has not been given by a duly

constituted medical board, but by the doctor concerned. However, the

said report is dated 13th September, 1993 and the tests were conducted

keeping in view the then prevailing practice and procedure. We are in

the year 2014 and at this stage it may not be appropriate to get further

opinion or test be undertaken by a medical board to ascertain the age of

the appellant Guddu at the time of occurrence in the light of the

contemporaneous report. The said report we observe can be relied upon

and was infact relied upon by the prosecution.

9. In these circumstances, we accept the contention raised by the

learned amicus curiae and hold that the appellant was less than

eighteen years of age on the date of occurrence and, therefore, is

entitled to benefit of the Juvenile Justice (Care and Protection of

Children) Act, 2000.

10. The appellant has not been appearing. Learned amicus curiae

states that the appellant has already undergone more than three years of

sentence and had remained in judicial custody during the trial till the

date of judgment in 1998. As per one of the nominal roll placed on

record, the appellant has undergone sentence of 07 years, 09 months

and 07 days as on 20th March, 2001. Learned amicus curiae states that

conviction of the appellant may be maintained but his sentence should

be quashed in the light of the decision of the Supreme Court in Vijay

Singh v. State of Delhi (2012) 8 SCC 763, wherein it was stated as

follows:-

"26. As regards the question of sentence, this Court observed: (Vaneet Kumar Gupta case [(2009) 17 SCC 587 : (2011) 1 SCC (Cri) 1092] , SCC p. 590, paras 12-

14) "12. 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.

13. 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 v. State of Bihar [(1997) 8 SCC 720 : 1998 SCC (Cri) 125] ; 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.

14. Resultantly, the appeal is partly allowed to the extent indicated above. We direct that the appellant shall be released forthwith, if not required in any other case."

27. Having regard to such a course adopted by this Court in the above reported decisions, and in the case on hand, based on the report of the District and Sessions Judge, we are also convinced that the appellant was below 18 years of age on the date of commission of offence and the Juvenile Justice Act would apply in full force in his case also. While upholding the conviction imposed on the appellant, we set aside the sentence imposed on him and direct that he be released forthwith, if not required in any other case. The appeal is partly allowed to the extent indicated above.

11. Recording the aforesaid concession, we uphold the conviction of

the appellant but quash the order of sentence. The appellant need not

appear before the Juvenile Justice Board in view of the statement

made, which we have accepted. The appeal is accordingly disposed of.

SANJIV KHANNA, J.

DEEPA SHARMA, J.

MARCH 13, 2014 NA