Delhi High Court
Amit Kumar vs State N.C.T. Of Delhi on 23 January, 2019
SHAKUN ANAND
04.02.2019 11:30
$~R-81
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 23rd January, 2019
+ CRL.A. 737/2002
AMIT KUMAR ..... Appellant
Through: Mr. Ashutosh Mishra, Advocate
for Dr. Surat Singh, Advocate
with Appellant in person.
Versus
STATE N.C.T. OF DELHI ..... Respondent
Through: Mr. Amit Ahlawat, APP for the
State with SI Manish Kumar,
PS Delhi Cantt.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The appellant was arrested on 10.06.1998 (vide Ex.PW-7/A)
during the course of investigation into first information report (FIR)
No.194/1998 registered by Police Station Delhi Cantt., for offence
under Section 364 of the Indian Penal Code, 1860 (IPC). The FIR
(Ex.PW-5/A) had been registered on the basis of complaint (Ex.PW-
3/A) made by his sister Meenakshi (PW-3) on which the Station
House Officer (SHO) of Police Station had made endorsement
(Ex.PW-12/A). In the FIR, the first informant (PW-3) had reported
that her daughter, then aged six years, had gone missing, she raising
suspicion about complicity in the kidnapping on part of her brother,
the appellant, on account of his past conduct. During the course of
investigation, the girl child was recovered and it was found that she
had been stabbed. The evidence gathered during investigation showed
the complicity of the appellant in the kidnapping of the said child, the
knife injuries inflicted on her being serious and of such nature as were
likely to result in her death, the knife used in the process statedly
having been recovered at the instance of the appellant.
2. On conclusion of investigation, report (charge sheet) under
Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was
presented on which cognizance was taken by the Metropolitan
Magistrate. Eventually, the case was committed to the court of
sessions where it was registered as sessions case No.191/2000.
3. The appellant was put on trial on the charge for offences
punishable under Sections 364/307 IPC and Section 25 of the Arms
Act. The prosecution led evidence by examining Dr. Rajender Kumar
(PW-1), Senior Scientific Officer of FSL; ASI Chet Ram (PW-2), the
fingerprint expert; Meenakshi (PW-3), the first informant; Head
Constable Arjun Pandit (PW-4), Moharrar malkhana; Head Constable
Satbir (PW-5), duty officer; Constable Jaipal (PW-6), who had taken
the exhibits to FSL; Head Constable Rajender Kumar (PW-7), who
had assisted Inspector S.P. Gupta in the investigation; Head Constable
Ram Phool (PW-8), who had got the FIR registered; Lalit Tiwari (PW-
9), who joined and assisted in the investigation; Major (Dr.) Harkeerat
Singh (PW-10), who proved the report, (Ex.PW-10/A) of medical
examination in respect of victim; ASI Hari Shanker (PW-11), the
crime team photographer; and Inspector S.P.Gupta (PW-12), SHO of
the Police Station who had conducted the investigation.
4. In the statement under Section 313 Cr.P.C., the appellant denied
his involvement or complicity in the crimes disputing evidence as
incorrect, though declining to lead any evidence in defence.
5. The Additional Sessions Judge by judgment dated 29.08.2002
found the appellant guilty and convicted him on the charge for the
offences under Sections 364 and 307 IPC, he proceeding to award
punishment in form of rigorous imprisonment for ten years with fine
of Rs.10,000/-, in default simple imprisonment for two years, on each
count, by order dated 31.08.2002.
6. The present appeal was filed to assail the above mentioned
judgment of conviction and order on sentence. The sentence was
suspended and the appellant released on bail, pending hearing on the
appeal, initially by order dated 14.10.2004, as confirmed by order
dated 17.01.2005.
7. At the hearing, it has been submitted by the appellant, who is
present in person with his father and sister Meenakshi (PW-3) that he
was a juvenile, i.e., less than 17 years old at the time of commission of
the offence, and, therefore, benefit of amended law relating to Juvenile
Justice, be accorded to him. He has submitted through counsel that he
admits his guilt and complicity in the aforementioned crimes, not
disputing the evidence that was adduced on the basis of which the
conclusions have been recorded. He places reliance on the view taken
by the Supreme Court in Abdul Razzaq vs. State of U.P., (2015) 15
SCC 637.
8. The trial court record reveals that soon after the arrest, during
the period of investigation, it had been brought to the notice of the
investigating agency, and the court, that the date of birth of the
appellant is 6th September, 1981. A certificate dated 10.09.1997 issued
by Central Board of Secondary Education declaring he to have passed
the Secondary School Examination (Compartmental Examination
August, 1997), it confirming the said date of birth of the appellant,
was submitted.
9. Taking note of all these facts, indicating he to be a person less
than seventeen years on the relevant date, i.e., 10.06.1998, which is
the date of offences being committed, as indeed certain medical
condition of the appellant, the Additional Sessions Judge, New Delhi
had directed he to be released on bail on 13.08.1998. In view of the
said material on record, the learned Additional Public Prosecutor fairly
concedes that the appellant was less than 17 years old on the date the
offences were committed.
10. The offence which is the subject matter of the present case was
committed on 10.06.1998. At that point of time, Juvenile Justice Act,
1986 governed the field. The Juvenile Justice (Care and Protection of
Children), Act 2000 came to be enacted and brought into force with
effect from 28.02.2001. The said law was subsequently amended at
least twice and has since been replaced by the Juvenile Justice (Care
and Protection of Children) Act, 2015. Be that as it may, immediately
after the appeal at hand had been presented, the Act of 2000 had come
to be enforced. In terms of the amended law, as introduced in
February 2001, the expression "juvenile" would mean a person who
had not completed eighteen years of age and the expression "juvenile
in conflict with law" would similarly mean a juvenile who is alleged to
have committed an offence and had not completed eighteen years of
age as on the date of commission of such offence. By virtue of Section
7-A, which was inserted in the Act of 2000, by amendment introduced
with effect from 22.08.2006, the claim of juvenility could be raised
before any court for benefit of the amended law to be taken any time,
there being inclusion of a special provision to take care of pending
cases, including at the stage of appeal (Section 20).
11. In Abdul Razzaq (supra), the petitioner had been found guilty of
the offences under Section 302 IPC and sentenced to life
imprisonment by the court of Sessions. The conviction and sentence
was confirmed by the High Court in appeal and the special leave
petition, followed by a review petition, was dismissed by the Supreme
Court, the last order having been rendered on 20.07.2010. The claim
of the said person being a juvenile on the date of commission of the
offence, upon inquiry, was found to be correct.
12. Against the above said backdrop, the Supreme Court noted the
ruling in an earlier decision reported as Jitendra Singh alias Babboo
Singh and Anr. vs. State of Uttar Pradesh, (2013) 11 SCC 193 laying
down as under :-
"80. The settled legal position, therefore, is that in all
such cases where the accused was above 16 years but
below 18 years of age on the date of occurrence, the
proceedings pending in the court concerned will
continue and be taken to their logical end except that the
court upon finding the juvenile guilty would not pass an
order of sentence against him. Instead he shall be
referred to the Board for appropriate orders under the
2000 Act. Applying that proposition to the case at hand
the trial court and the High Court could and indeed
were legally required to record a finding as to the guilt
or otherwise of the appellant. All that the courts could
not have done was to pass an order of sentence, for
which purpose, they ought to have referred the case to
the Juvenile Justice Board.
81. The matter can be examined from another angle.
Section 7-A(2) of the Act prescribes the procedure to be
followed when a claim of juvenility is made before any
court. Section 7-A(2) is as under:
"7-A.Procedure to be followed when claim
of juvenility is raised before any court.--
(1)***
(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 order, and the sentence
if any, passed by a court shall be deemed to
have no effect."
82. A careful reading of the above would show that
although a claim of juvenility can be raised by a person
at any stage and before any court, upon such court
finding the person to be a juvenile on the date of the
commission of the offence, it has to forward the juvenile
to the Board for passing appropriate orders and the
sentence, if any, passed shall be deemed to have (sic no)
effect. There is no provision suggesting, leave alone
making it obligatory for the court before whom the
claim for juvenility is made, to set aside the conviction
of the juvenile on the ground that on the date of
commission of the offence he was a juvenile, and hence
not triable by an ordinary criminal court. Applying the
maxim expressio unius est exclusio alterius, it would be
reasonable to hold that the law insofar as it requires a
reference to be made to the Board excludes by necessary
implication any intention on the part of the legislature
requiring the courts to set aside the conviction recorded
by the lower court. Parliament, it appears, was content
with setting aside the sentence of imprisonment awarded
to the juvenile and making of a reference to the Board
without specifically or by implication requiring the
court concerned to alter or set aside the conviction. That
perhaps is the reason why this Court has in several
decisions simply set aside the sentence awarded to the
juvenile without interfering with the conviction recorded
by the court concerned and thereby complied with the
mandate of Section 7-A(2) of the Act."
13. It was also noted that in Union of India & Ors. vs. Ex-GNR
Ajeet Singh, (2013) 4 SCC 186 had held that :-
"19. The provisions of the JJ Act have been interpreted
by this Court time and again, and it has been clearly
explained that raising the age of "juvenile" to 18 years
from 16 years would apply retrospectively. It is also
clear that the plea of juvenility can be raised at any
time, even after the relevant judgment/order has
attained finality and even if no such plea had been
raised earlier. Furthermore, it is the date of the
commission of the offence, and not the date of taking
cognizance or of framing of charges or of the
conviction, that is to be taken into consideration.
Moreover, where the plea of juvenility has not been
raised at the initial stage of trial and has been taken
only on the appellate stage, this Court has consistently
maintained the conviction, but has set aside the
sentence."
14. Following the said rulings, in case of Abdul Razzaq (supra)
while leaving the conviction undisturbed, the sentence awarded
against him was set aside. On being asked, the learned Additional
Public Prosecutor submitted that he had nothing to say in the face of
the ratio and result in Abdul Razzaq (supra).
15. The facts and circumstances being similar to the case of Abdul
Razzaq (supra), the same dispensation is followed in the present case.
The benefit of amended benevolent law on juvenility has to be
accorded. Thus, while maintaining the conviction, the sentence of the
appellant is set aside.
16. The appeal is disposed of in above terms.
R.K.GAUBA, J.
JANUARY 23, 2019
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