Uttarakhand High Court

CRLA/263/2014 on 7 September, 2022

 IN THE HIGH COURT OF UTTARAKHAND
            AT NAINITAL

      HON'BLE SRI JUSTICE SANJAYA KUMAR MISHRA
      HON'BLE SRI JUSTICE ALOK KUMAR VERMA

               07TH SEPTEMBER, 2022

             Criminal Appeal No.263 of 2014

Between:

Gopi alias Harmendra                          .......... Appellant

and

State of Uttarakhand                          ......Respondent

Counsel for the appellant : Mr. Akram Parvez, Amicus Curiae.

Counsel for the State : Mr. J.S. Virk , learned Deputy Advocate General for the State.

Upon hearing the learned counsel for the parties, this Court made the following judgment:

(Per: Hon. Sri Sanjaya Kumar Mishra, J.)

In this Appeal, the appellant - Gopi alias Harmendra

has assailed his conviction and sentence, vide, judgment and

order dated 15.07.2014, passed in Sessions Trial No.142 of

2011, by the learned 2nd Additional Sessions Judge,

Haridwar, for the offence punishable under Sections 302,

376, 201, 404 of the Indian Penal Code, 1860 (hereinafter

referred as "the Penal Code", for brevity) and sentencing him

to undergo imprisonment for life along with a fine of

Rs.2,000/- and in default of payment of fine to undergo six

months imprisonment; rigorous imprisonment for a period of

seven years along with a fine of Rs.1,000/- and in default of

payment of fine to undergo three months imprisonment;

rigorous imprisonment for a period of two years along with a

fine of Rs.500/- and in default of payment of fine to undergo

one month imprisonment and rigorous imprisonment for a

period of one year along with a fine of Rs.500/- and in

default of payment of fine to undergo one month

imprisonment, respectively. All the sentences are directed to

run concurrently.

2. The case of the prosecution, in short, is that

Munesh Singh son of Lallu Singh on 05.03.2011 presented a

written report in the Police Station Shyampur, District

Haridwar, to the effect that for the three to four days prior

lodging of FIR, he was discharging his duty in Chidiyapur. On

the date of the FIR, he received information from Yograj son

of Ghasita Singh that his wife's dead body is lying near the

agricultural field of one Suraj Singh. On such information, he

reached his house and found that the dead body of his wife is

lying in the agricultural fields of the said Suraj Singh. On

enquiry from his children he came to learn that at about

09:00 p.m. on the previous night his wife proceeded holding

a torch in her hand towards her elder brother Dayaram's

house, but, did not return therefrom. Therefore, he

suspected some unknown person(s) might have committed

rape and murder of her. On such report, Crime Case No.13 of

2011 was registered and the Investigating Officer took up

investigation and arrested the accused on suspicion. The

appellant, while in custody, led to the discovery of certain

incriminating articles like ornaments of the deceased, mobile

and torch. After collecting Scientific Officer's report, he

submitted a charge-sheet against the appellant under

Sections 302, 376, 201, 404 of the Penal Code.

3. Admittedly, the case of the prosecution is based on

circumstantial evidence, however, the learned 2nd Additional

Sessions Judge, Haridwar came to the conclusion that the

prosecution has proved its case beyond reasonable doubt

and, therefore, convicted him for the offence under aforesaid

sections and sentenced him as mentioned above. While, this

appeal was pending, the appellant filed an application before

this Court to the effect that on the date of occurrence he was

a juvenile and as per the order passed by this Court on

07.08.2020, the Juvenile Justice Board having jurisdiction

was directed to enquire in the matter and submit a report.

The report has already been submitted to this Court vide a

letter dated 19.08.2020.

4. Thus, basis on such report, this Court had already

granted bail to the appellant.

5. We have carefully examined the report submitted

by the Principal Magistrate, Juvenile Justice Board, Haridwar.

The Juvenile Justice Board, Haridwar has given a specific

finding to the effect that appellant was a juvenile on the date

of occurrence and he was 13 years 08 months and 04 days

old. For better appreciation, the same is quoted below:-

"04. Since the date of birth of appellant in his first school has been mentioned as 01.07.1997 and date of occurrence of the offence is 04-05/03/2011 therefore on the date of occurrence appellant Gopi @ Harmendra was found to be of 13 years 8 month 4 days old. Appellant was less than 18 year of age on the date of occurrence therefore appellant Gopi @ Harmendra was Juvenile on the date of occurrence. After conducting the inquiry Board has declared appellant to be Juvenile on the date of occurrence in case crime no.13/11, under Section 302, 376, 404, 201 IPC, Police Station Shyampur District Haridwar. Order of declaration of Juvenility

passed by the Board is being attached herewith for kind perusal of Hon'ble Court".

6. It is not disputed at this stage that the appellant

was juvenile in conflict with the law on the date of

occurrence. Though, the occurrence took place on

05.03.2011. The procedure prescribed in the Juvenile Justice

(Care and Protection of Children) Act, 2015 shall be taken

into consideration. Section 14 provides for the procedure to

be followed by the Magistrate who has not been empowered

under the Act, it reads as follow:-

"14. Inquiry by Board regarding child in conflict with law.-(1) Where a child alleged to be in conflict with law is produced before Board, the Board shall hold an inquiry in accordance with the provisions of this Act and may pass such orders in relation to such child as it deems fit under sections 17 and 18 of this Act. (2) The inquiry under this section shall be completed within a period of four months from the date of first production of the child before the Board, unless the period is extended, for a maximum period of two more months by the Board, having regard to the circumstances of the case and after recording the reasons in writing for such extension.

(3) A preliminary assessment in case of heinous offences under section 15 shall be disposed of by the Board within a period of three months from the date of first production of the child before the Board.

(4) If inquiry by the Board under sub-section (2) for petty offences remains inconclusive even after the extended period, the proceedings shall stand terminated:

Provided that for serious or heinous offences, in case the Board requires further extension of time for completion of inquiry, the same shall be granted by the Chief Judicial Magistrate or, as the case may be, the Chief Metropolitan Magistrate, for reasons to be recorded in writing.

(5) The Board shall take the following steps to ensure fair and speedy inquiry, namely:-

(a) at the time of initiating the inquiry, the Board shall satisfy itself that the child in conflict with law has not been subjected to any ill-treatment by the police or by any other person, including a lawyer or probation officer and take corrective steps in case of such ill-treatment;

(b) in all cases under the Act, the proceedings shall be conducted in simple manner as possible and care shall be taken to ensure that the child, against whom the proceedings have been instituted, is given child-friendly atmosphere during the proceedings;

(d) cases of petty offences, shall be disposed of by the Board through summary proceedings, as per the procedure prescribed under the Code of Criminal Procedure, 1973 (2 of 1974);

(e) inquiry of serious offences shall be disposed of by the Board, by following the procedure, for trial in summons cases under the Code of Criminal Procedure, 1973 (2 of 1974);

(f) inquiry of heinous offences,-

(i) for child below the age of sixteen years as on the date of commission of an offence shall be disposed of by the Board under clause (e);

(ii) for child above the age of sixteen years as on the date of commission of an offence shall be dealt with in the manner prescribed under section 15."

7. Section 7A of the Juvenile Justice (Care and

Protection of Children) Act, 2000, now repealed, provided the

procedure to be followed when the claim of juvenility is

raised before any court which is as under:-

"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 thereunder, even if the juvenile 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".

8. Section 15 of the Juvenile Justice (Care and

Protection of Children) Act, 2000 provided the orders that

may be passed regarding juvenile, it reads as follow:-

"15. Order that may be passed regarding juvenile.--(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 it so thinks 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;

(b) direct the juvenile to participate in group counselling and similar activities;

(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age and earns money;

(e) direct the juvenile to be released on probation of good conduct and placed under the care of any parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and well-being of the juvenile for any period not exceeding three years;

(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 for a period of three years:

Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the circumstances of the case, it is expedient so to do, for reasons to be recorded, reduce the period of stay to such period as it thinks fit.] (2) The Board shall obtain the social investigation report on juvenile either through a probation officer or a recognised voluntary organisation or otherwise, and shall take into consideration the findings of such report before passing an order.

(3) Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in conflict with law shall remain under the supervision of a probation officer named in the order during such period, not exceeding three years

as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the juvenile in conflict with law:

Provided that if at any time afterwards it appears to the Board on receiving a report from the probation officer or otherwise, that the juvenile in conflict with law has not been of good behaviour during the period of supervision or that the fit institution under whose care the juvenile was placed is no longer able or willing to ensure the good behaviour and well-being of the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict with law to be sent to a special home.

(4) The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile has been placed, the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the sureties, if any, and the probation officer."

9. A plain reading of above Sections reveals that the

plea of juvenility by a child in conflict with law can be taken

even at the stage of appeal, i.e. after the completion of trial.

Interpreting the similar provision, the Hon'ble Supreme Court

considered in the case of Abuzar Hossain alias Gulam

Hossain vs. State of West Bengal, (2012) 10 SCC 489

that the scope of Section 7-A(1) proviso of the Juvenile

Justice (Care and Protection of Children) Act, 2000 is held as

under :-

"39. Now, we summarise the position which is as under:

39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court. 39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the

delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan, these documents were not found prima facie credible while in Jitendra Singh, the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent. 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised.

10. The same view is reiterated by the Hon'ble

Supreme Court in the case of Ashok Kumar Mehra and

Another vs. State of Punjab and Others, (2019) 6 SCC

132, the relevant paragraph is as under:-

"8. Now so far as the appeal filed by Appellant 2 Sukhwant Kumar i.e. son is concerned, the same, in our view, deserves to be allowed in the light of law laid down by this Court in a recent decision of this Court in Raju v. State of Haryana, wherein a similar question

was involved. This is what was held by this Court (three Judge Bench) in para 10 is as under:-

"10. It is by now well settled, as was held in Hari Ram v. State of Rajasthan that in the light of Sections 2(k), 2(I), 7-A read with Section 20 of the 2000 Act as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is entitled to the benefit of the 2000 Act [also see Mohan Mali v. State of M.P.; Daya Nand v. State of Haryana; Dharambir v. State (NCT of Delhi); Jitendra Singh v. State of U.P. It is equally well settled that the claim of juvenility can be raised at any stage before any court by an accused, including this Court, even after the final disposal of a case, in terms of Section 7-A of the 2000 Act [see Dharambir v. State (NCT of Delhi), Abuzar Hossain v. State of W.B., Jitendra Singh v. State of U.P., Abdul Razzaq v. State of U.P."

11. Thus, it is clear that the juvenile can take the plea

of juvenility even after attaining the age of majority during

the pendency of an appeal before this Court. In that view of

the matter, in accepting the report submitted by the Principal

Magistrate, Juvenile Justice Board, Haridwar, we hold that

the appellant was 13 years 8 months 4 days old on the date

of incident. Hence, he cannot be held guilty and sentenced as

an adult.

12. In that view of the fact that the appellant has been

convicted by the learned 2nd Additional Sessions Judge,

Haridwar and he has been sentenced to undergo

imprisonment for life, in pursuant thereof, he has already