Delhi High Court
Rudermani @ Rukmani vs State (Gnct Of Delhi) on 20 October, 2016
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.374/2015 & Crl.M.A. No.3841/2016
Date of Decision: 20th October, 2016
RUDERMANI @ RUKMANI ..... Appellant
Through Mr.Ajay Verma, Adv.
Appellant in custody.
versus
STATE (GNCT OF DELHI) ..... Respondent
Through Ms.Aashaa Tiwari, APP for State.
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE P.S.TEJI
GITA MITTAL, J (Oral)
1. The police has undertaken the exercise of verification of the extract
of the Parivar Register maintained by the Gram Panchayat, PS Bhatpara
Rani, Village Bhaiyari Bhagel, District Devaria. As per status report
dated 27.05.2016, no authentication of the document relied upon by the
appellant was possible.
2. On 30.08.2016, we had observed that the document relied upon by
the appellant was not reliable. Consequently, the medial examination of
the appellant was directed to be conducted by the medical Board of Deen
Dayal Upadhyay Hospital to ascertain the probable age of the appellant.
3. It appears from the record before us that no reliable documentary
evidence regarding date of birth of the appellant is available. Therefore,
in accordance with the mandate of Rule 12 (3)(b) of the Juvenile Justice
(Care an Protection of Children) Rules, 2007, we had caused the medical
examination of the appellant to have his bone age declared by a duly
constituted Board as on 07.09.2016, when he was subjected to the
examination.
4. A report dated 28.09.2016 has been received from the Central Jail,
Tihar, placing before us the result of the Bone Age Report of the
appellant conducted by the medical board on 07.09.2016. The dental and
X-ray reports were taken up to determine the bone age of the appellant.
In the opinion dated 08.09.2016 under the signatures of Dr. Anand Singh
Kushwaha (Medical Officer), Department of Radiologist, DDU Hospital
as well as other doctors of the Board, constituted by the Medical
Superintendent placed before us, it has been opined after appropriate
medical examination that the age of the appellant is between 22 to 30
years.
5. The instant case is concerned with the commission of the offence
on the intervening night of 15th/16th October 2011. Consequently, in
accordance with Rule 12(3)(b) of the Juvenile Justice (Care an Protection
of Children) Rules, 2007 the age of the appellant has to be considered on
the lower side within the margin of one year. Also calculating the age of
the appellant in terms of the opinion of the Medical Board, he is to be
considered as 22 years with the margin of one year on the lower side i.e.
21 years as on date. As such, the appellant would be deemed to have
been 16 years as on 15th/16th October 2011, i.e. the date of commission of
the offence. Therefore, the appellant is entitled to benefit of being
considered as juvenile within the meaning and expression under Section
2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015
and is entitled to benefit thereunder.
6. The appellant was convicted for commission of the offence under
Sections 302/392/397/34 & Under Sections 25/27/54/59 of the Arms Act
of the IPC by the judgment dated 22.08.2014 and by order dated
03.09.2014, the appellant stood sentenced to rigorous imprisonment for
life for both the offences as well as fine of Rs.1 lac and fine of Rs.5,000/-
for commission of offence under Section 392/397 of IPC. For
commission of offence under Section 25 read with Section 27 of the
Arms Act, the appellant was separately sentenced to rigorous
imprisonment of 5 years and fine of Rs.5,000/-.
7. In view of the above discussion, it is clear that the appellant was
juvenile on the date of the commission of the offence and consequently
on account of operation of the provisions of the Juvenile Justice (Care &
Protection of Children) Act, 2015, the order dated 3rd September, 2014
imposing the sentence cannot stand in law.
8. We are informed that the appellant has already undergone
incarceration in the regular prison for more than five years and three
months which is more than the sentence he would have undergone under
the Juvenile Justice (Care & Protection of Children) Act. He could not
have been incarcerated even for one day more. He is, therefore, liable to
be set at liberty forthwith.
9. Pursuant to our last order, the appellant has been produced in
custody. We have examined him and he has stated that he does not wish
to pursue the appeal so far as the judgment on conviction is concerned.
10. We are informed by Ms.Aashaa Tiwari, learned Additional Public
Prosecutor for the State that the co-convict Sunil has filed Crl.Appeal
No.1541/2014 while co-convict Rohit Kumar has filed Crl.Appeal
No.139/2015.
In view of the above, it is directed as follows:-
(i) The order on sentence dated 3rd September, 2014 is hereby set
aside and quashed.
(ii) The appeal assailing the judgment dated 22nd August, 2014 is
disposed of as not pressed.
(iii) The Appellant - Rudermani @ Rukmani @ Guderia @ Rohit shall
be released from custody immediately, if not required in any other case
(iv) It is made clear that nothing herein contained is an expression of
opinion on the merits of the challenge laid to the impugned judgment
dated 22nd August, 2014 and the order on sentence dated 3rd September,
2014.
(v) It shall be open for the appellants in Crl. Appeal Nos.1541/2014 &
139/2015, to press their appeals on all available grounds.
(vi) The Registry shall ensure that copy of this order is sent by special
messenger to the concerned Superintendent, Jail, so that the appellant is
released from jail today itself, if not wanted in any other case.
This appeal and application are disposed of in the above terms.
Copy of this order be given dasti under the signatures of the Court
Master of this Court.
(GITA MITTAL)
JUDGE
(P.S.TEJI)
JUDGE
OCTOBER 20, 2016
pkb/aa
