CRIMINAL APPEAL NO. 159-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: December 15, 2009. Parties Name Kamaljit and another ..APPELLANTS VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. R.S.Cheema, Sr. Advocate, with Mr. Pawan Girdhar and Ms. Tarannum Cheema, Advocates, for the appellants Mr. P.S.Punia, Addl. A.G., Haryana, for the respondent JASBIR SINGH, J. JUDGMENT: Appellants Kamaljit and Rajesh have filed this appeal against judgment dated February 10, 2001, convicting them for commission of offences punishable under Sections 364, 302 read with Section 34 IPC, 201 and 404 IPC. They have also laid challenge to the order dated February 13, 2001, vide which the trial Judge passed the following sentence against them: “So keeping in view nature of offence and other circumstances CRIMINAL APPEAL NO. 159-DB OF 2001 -2- of the case, I sentence both the convicts to undergo imprisonment for life and fine of Rs. 6500/- each u/S 302 IPC and in default of payment of fine the defaulting convict shall undergo further imprisonment for two years. I also sentence them to undergo rigorous imprisonment for three years and fine of Rs. 2000/- for the offence u/S 364 IPC and in default of payment of fine the defaulting convict shall undergo further R.I. for six months. They are further sentenced to undergo R.I. for one year and fine of Rs. 1,000/- each for the offence u/S 404 IPC and in default of payment of fine the defaulting convict shall undergo further R.I. for three months. I further sentence them to undergo rigorous imprisonment for six months and fine of Rs. 500/- each u/S 201 IPC and in default of payment of fine the defaulting convict shall undergo further R.I. for one month.” The sentences were ordered to run concurrently. It was accusation against the appellants and three others, namely, Rattan Singh ( proclaimed offender), Parmod and Vikram, that on May 27, 1994, at about 6 PM, they had abducted Parveen (deceased) and thereafter murdered him. Process of Criminal Law justice system was initiated on a statement (Ex. PD), made by Chander Parkash (PW2), father of the deceased, to Inspector Om Parkash (PW10), on May 28, 1994, at 6.45 PM. FIR Ex. PD/2 was registered in Police Station City Karnal at 7.05 PM and special report reached the concerned Magistrate in Karnal at 10.30 PM on CRIMINAL APPEAL NO. 159-DB OF 2001 -3- that very date. Initially, FIR was recorded under Section 364/34 IPC. However, on discovery of dead body of Parveen on May 30, 1994, offence under Section 302 etc. IPC was added in the FIR. The trial Court has noted following facts regarding case of the prosecution, which was reflected in the statement made by Chander Bhan: “wherein he alleged that he started to construct a residential house by purchasing plot No. 1342 in sector 6, Urban Estate, Karnal. Before this he was residing in Bank Colony, Karnal and also used to carry out the business of finance at Indri. In routine he used to go to Indri at 9 or 10 a.m. and return to Karnal at about 5 or 6 p.m. He had two sons, namely, Parveen Kumar, aged 16 years, and Vipin Kumar aged 13 years. Parveen had taken the examination of 10th class while Vipin Kumar used to study in 8th class. About 2 or 3 months back his son Parveen Kumar developed friendship with Vikram, Kamaljit, Rattan Singh and Rajesh. 3. On 27.5.94 at about 6 p.m., he (complainant) along with his son Parveen Kumar were in their plot No. 1342, Sector 6 , Karnal. The above named four boys along with one Parmod Kumar came there and they called his son Parveen Kumar by giving some signal. His son after talking with these persons for 2 or 4 minutes came to him and told that he was going with his friends and would come within a short time. Thereafter his son accompanied all the above named five boys. After that his son did not turn up. They waited for CRIMINAL APPEAL NO. 159-DB OF 2001 -4- arrival of his son but in vain. He also tried to search the boys with whom his son had gone, but they were also not available in their houses. After that he searched his son Parveen in relations but he could not find any clue. At the time of going with the accused his son was wearing grey coloured pants, square strip shirt, wrist watch of Timas, one gold ring weighing 100 grams having monogram 'Watch'. His son was of fair colour, medium built body with round face and having length of 5'8”. He further stated that his son Parveen had told him that about one and half month back he had some quarrel with the above named five boys but after that they had become his friends. So under such circumstances he has doubt that these accused might have murdered his son to grab the ring and wrist watch.” After registration of the case, the Investigating Officer Om Parkash (PW10) came in action. He recorded statements of the witnesses under Section 161 Cr.P.C. All the five accused were arrested on May 28, 1994, at 8.30 PM, at Bus Stand Neval. Appellant – accused Kamaljit was found wearing wrist watch of the deceased, which was identified by the complainant. The same was taken into possession against a recovery memo. A gold ring was recovered from Vikram Singh accused. It was also taken into possession against a recovery memo. The Investigating Officer prepared rough site plan of the place of occurrence. Appellants and other accused, on interrogation, disclosed their involvement in the case. Their statements also led to the recovery of a Dolu (a small steel container), in CRIMINAL APPEAL NO. 159-DB OF 2001 -5- which sugarcane juice was available, which they used for giving sleeping pills to the deceased. They also got recovered a slip, prepared for purchase of the sleeping capsules. Dead body of Parveen Kumar was recovered on May 30, 1994. It was spotted by Ram Chander (PW5) in the augmentation canal, in the area of village Sirsi. Scaled site plan of the place of occurrence was prepared by Patwari Ishwar Singh (PW6). Inquest report of the dead body was prepared by the Investigating Officer and he sent it for post- mortem examination, which was conducted by Dr. Sukhbir Singh (PW1) on May 30, 1994, at 12.30 PM. This witness made the following observations regarding condition of the dead body: “Condition of the subject (of the deceased), it was a body of a male, aged about 17/18 years old , clad in shirt, baniyan, underwear, a pair of shoes and socks. The body specially upper part was swollen, abdomen was distended. Face was distorted. Eyes balls were bulging out. Lips were swollen and averted. Blood stained fluids was coming out of the mouth and nostrils. The tongue was in between the teeth. The chest and upper part of upper limbs had greenish patches of skin. The neck and face was of greenish and purplish in colour. The whole body was smeared with sand. Slight puckering of the soles of both the feet were present. Rigor mortis was present in lower limbs only. Decomposition had started from upper limb.” The witness also found following injuries on person of the deceased: “1. An abrasion 3 cm x 2 cm just below the chin was present. It was of purple colour, on dissection subcutaneous haemorrhage CRIMINAL APPEAL NO. 159-DB OF 2001 -6- was present. 2. A small abrasion on right shoulder was also present.” Opinion regarding cause of death was deferred till receipt of Chemical Examiner's report. As per report of the Chemical Examiner, pieces of liver, spleen, kidney and blood gave a positive test for availability of barbiturate (sleeping drug). Same was the opinion regarding sugarcane juice, which was taken from a steel container (Dolu), got recovered by the appellant – accused. As per opinion Ex. PC/1 of Dr. Sukhbir Singh (PW1), death was caused due to drowning. On completion of investigation, final report was put in Court for trial. By taking note of age of Parmod and Vikram, their case was sent for trial before the competent Court established under the provisions of Juvenile Justice (Care and Protection of Children ) Act, 2000 (in short 2000 Act). As per information supplied, they were convicted and dealt with as per the provisions of 2000 Act. Appellants along with Rattan Singh and Vikram accused were charge-sheeted, to which they pleaded not guilty and claimed trial. During pendency of trial, Rattan Singh was declared a proclaimed offender. The prosecution produced 11 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statements of the appellants – accused were recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to them. They denied the same, claimed innocence and false implication. It was specifically stated by them that they were picked up from their houses and falsely implicated in this case. However, they led no evidence in defence. CRIMINAL APPEAL NO. 159-DB OF 2001 -7- The trial Court, on appraisal of evidence, found the appellants – accused guilty. They were convicted and sentenced, as found mentioned in earlier part of this order. Hence this appeal. Shri R.S. Cheema, Sr. Advocate, counsel for the appellant, has vehemently contended that there was no motive with the appellants – accused to commit the alleged crime. He further argued that there was delay in recording the FIR. The intervening period was used to concoct a false story against the appellants. The presence of Chander Parkash (PW2) at the spot, on May 27, 1994, was not probable. He further argued that story of last seen the deceased with the accused by Mahinder Kumar (PW3) is not believable. As per case of the prosecution, this witness had last seen the deceased with the accused on May 27, 1994, at 7 PM and then had seen the accused alone at 8 PM. In Court, this witness has specifically stated that he came to the house of the deceased in the mid-night of May 27/28, 1994, and told about the said fact to wife of the complainant (sister of PW3). However, very surprisingly this fact did not find mention in the FIR,, which was recorded on May 28, 1994. He further argued that there is no independent corroboration to the case of the prosecution. All material witnesses are related to the deceased in one way or the other. He also argued with vehemence that date of birth of Kamaljit , appellant, is February 3, 1978, and that of Rajesh is July 5, 1977. Occurrence had taken place on May 27, 1994. As such both were under the age of 18 years at the time of alleged occurrence. By stating as above, counsel prayed that both the appellants are entitled to get benefit of the provisions of 2000 Act. By making reference to the above said fact, he prayed that the trial Court was not justified in awarding sentence to the CRIMINAL APPEAL NO. 159-DB OF 2001 -8- appellants – accused. Counsel prayed that the judgment and order under challenge be set aside and the appellants – accused be acquitted of the charges, framed against them. Prayer, made by counsel for the appellants, has vehemently been opposed by the State counsel, who, by making reference to the statements made by PW2 to PW4, argued that the deceased was taken away by the appellants– accused on May 27, 1994. They were last seen with the deceased by PW3 at 7 PM. Appellants- accused were arrested on May 28, 1994. From them, wrist watch and ring of the deceased were recovered. Dead body was recovered on May 30, 1994. Counsel submitted that as per the circumstances, alleged murder of Parveen Kumar by the accused was proved on record. He further stated that the evidence of the Investigating Officer is very clear and is against the appellants – accused. He argued that there was no delay in recording the FIR. PW2 and others continued to search for the deceased. When they failed in their pursuit, statement was recorded on May 28, 1994, at 6.45 PM, which led to the registration of the FIR against the appellants. He further argued that motive with the appellants- accused, to commit murder, was to remove valuable articles like ring, watch etc. worn by the deceased. However, Shri Punia has failed to rebut argument, raised by Shri Cheema, that at the time of the alleged occurrence, both the appellants were below the age of 18 years. After hearing counsel for the parties, this Court is convinced that so far as participation of the appellants in the crime is concerned, the same stands proved on record. It has come in the evidence of PW2 Chander Parkash , father of the deceased, that on May 27, 1994, at 6 PM, he along with the deceased was present in his plot. All the five accused named CRIMINAL APPEAL NO. 159-DB OF 2001 -9- earlier came to the plot. They called Parveen Kumar deceased , who went with them and never came back. Similarly, PW3 has stated that at about 7 PM, when he was going to make some recovery from his client, he saw the deceased in the company of accused. When he was coming back, at about 8 PM, deceased was not present with the accused. He thought that he might have gone to his house. Naresh Kumar (PW4) has deposed the manner, in which recoveries were effected from appellants Kamaljeet, Vikram etc. As per Chemical Examiner's report, in viscera of the deceased , barbiturate chemical was found present. The same chemical was found present in sugarcane juice, which was taken out from a Dolu, got recovered by the appellants- accused. The Investigating Officer – Inspector Om Parkash (PW10) has given vivid description as to the manner and mode of investigation. He has stated as to how the recoveries were effected from the appellants – accused. PW1 Dr. Sukhbir Singh has stated regarding condition of the dead body at the time of post-mortem examination. Death was caused by drowning. Lengthy cross-examination has failed to shatter testimony of all the witnesses, mentioned above. Regarding delay in recording the FIR, this Court feels that it was natural for father of the deceased to search for him. In that process, some time might have been consumed, on the basis of which benefit cannot be given to the appellants – accused. Presence of Chander Parkash (PW2) in his plot at Karnal, when deceased went away with the accused, was proved on record. It is true that the material witnesses are closely related to the deceased. However, it makes no difference because their testimony is very clear and cogent and inspires confidence. It is also brought to the notice of the Court that other two CRIMINAL APPEAL NO. 159-DB OF 2001 -10- accused, namely, Parmod and Vikram were convicted and sentenced by the competent Juvenile Board. In view of facts, mentioned above, this Court is of the opinion that conviction of the appellants in this case is perfectly justified and is as per evidence on record. Now this Court will deal with the argument of Shri Cheema that both the appellants were juvenile at the time of alleged occurrence and as such trial Court was not justified in awarding them sentence vide the impugned order. Counsel for the State has tried to negative this argument by stating that no such plea was taken during trial, as such at this stage, appellants – accused cannot be permitted to claim benefit of the 2000 Act. Occurrence had taken place on May 27, 1994. At that time, age of the appellants was more than 16 years and they were not eligible to get benefit of the provisions of Juvenile Justice Act, 1986. After their conviction, 2000 Act came into force. As per Section 2(k) of that Act, juvenile or child means a person, who has not completed 18 years of age. During pendency of this appeal, appellants moved an application (Criminal Misc. No. 53264 of 2009) praying that an enquiry be conducted as per provisions of Section 7-A of 2000 Act to decide their request to claim benefit of juvenility. On October 22, 2009, Additional Advocate General, Haryana, accepted notice of that application and he sought time to verify age of the applicants – appellants in this appeal. In response to notice issued, reply has been filed, with it a letter dated November 17, 2009, addressed to Superintendent of Police, District Jail, Karnal, by Superintendent of Police, Karnal, has been attached, wherein it is mentioned as under: CRIMINAL APPEAL NO. 159-DB OF 2001 -11- “In this regard verification was made by local Police. As per report of S.H.O., PS City Karnal, the date of birth of Kanwaljeet s/o Deva Singh is 03.02.1978 and date of birth of Rajesh Kumar s/o Sh. Hirdey Ram is 05.07.1977. The photocopy of report of Registrar death and birth District Karnal and Headmaster of Govt. High School, Shekhpura Sohana, Karnal, is attached for further action.” At the time of arguments, Shri Punia has virtually admitted that both the appellants fall within the definition of juvenile as contained in the 2000 Act. Whether claim can be raised under the provisions of the 2000 Act, at the appellate stage, was considered by their lordships of the Supreme Court in Hari Ram v. State of Rajasthan and another, 2009(2) RCR (Criminal) 878. After taking note of the provisions of Juvenile Justice, 1986, the 2000 Act and the case law on the subject, it was observed as under: “37. Of the two main questions decided in Pratap Singh's case (supra), one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, whereunder the provisions of the Act were also made applicable to juveniles who had not completed eighteen years CRIMINAL APPEAL NO. 159-DB OF 2001 -12- of age on the date of commission of the offence. The law as now crystallized on a conjoint reading of Sections 2(k), 2(1), 7A , 20 and 49 read with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to Ist April, 2001, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. 38.The instant case is covered by the amended provisions of Sections 2(k), 2(l), 7A and 20 of the Juvenile Justice Act, 2000. However, inasmuch as, the appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence, the High Court was of the view that the provisions of the Juvenile Justice Act, 1986, would not apply to the appellant's case. Of course, the High Court, while deciding the matter, did not have the benefit of either the amendment of the Act or the introduction of the Juvenile Justice Rules, 2007. Even otherwise, the matter was covered by the decision of this Court in the case of Rajinder Chandra's case (supra), wherein this Court, inter alia, held that when a claim of juvenility is raised and on the evidence available two views are possible, the Court should lean in favour of holding the offender to be a juvenile in borderline cases. In any event, the statutory provisions have been altered since then and we are now required to consider the CRIMINAL APPEAL NO. 159-DB OF 2001 -13- question of the claim of the appellant that his date of birth was Kartik Sudi 1, Samvat Year 2039, though no basis has been provided for the fixation of the said date itself in the light of the amended provisions. Often, parents of children, who come from rural backgrounds, are not aware of the actual date of birth of a child, but relate the same to some event which may have taken place simultaneously. In such a situation, the Board and the Courts will have to take recourse to the procedure laid down in Rule 12, but such an exercise is not required to be undertaken in the present case since even according to the determination of the appellant's age by the High Court the appellant was below eighteen years of age when the offence was alleged to have been committed.” Same is opinion of a Division Bench of this Court in Naresh alias Nawhar v. State of Haryana, 2003(1) RCR (Criminal) 308, in which it was observed as under: “The learned counsel appearing on behalf of the appellant Shri Naresh alias Natwar has drawn our attention to several judgments reported as Bhola Bhagat etc. v. State of Bihar, 1998(1) RCR (Criminal 21; Subhash Chaudhur v. State of Bihar, 1993 (3) RCR (Criminal) 107 and Umesh Singh and another etc. v. State of Bihar, 2000(3) RCR (Criminal) 14. The consistent ratio of these three judgments is that if it is found that the accused was a juvenile and this fact was not brought to the notice of the trial Court, nor any inquiry was CRIMINAL APPEAL NO. 159-DB OF 2001 -14- held about the age by the Court, in such a situation, the Hon'ble Judges were pleased to maintain the conviction but the sentence was set aside. The ratio relied upon by the learned counsel for the appellant Shri Naresh is fully applicable to the facts in hand. We also feel it appropriate not to remit back this appeal again to the Juvenile Court, as he has already served about more than six years. Even otherwise, he could remain in the reformatory school upto a period of three years or till he attained the age of majority. Resultantly, we maintain the conviction of Shri Naresh alias Natwar but give directions to the Jail authorities to set him at liberty forthwith, if not wanted or required by any other Court.” To the same effect is the ratio of a Division Bench judgment of this Court in Daler Singh v. State of Punjab, (Criminal Appeal No. 619- DB of 2006), rendered on August 7, 2007. By noting admitted age of the accused therein, in appeal his conviction was upheld. However, sentence awarded to him was set aside and as per provisions of Section 15 of 2000 Act, the appellant – accused was ordered to be released on probation for a period of two years under conditions. Same is the verdict of another Division Bench of this Court in Kapoor Singh and others v. State of Haryana, (Criminal Appeal No. 518-DB of 2001), decided on October 27, 2009. To claim benefit for the appellants – accused, Shri Cheema has placed reliance upon a judgment of the Hon'ble Supreme Court in Satish alias Dhanna v. State of M.P. and others, 2009 (3) RCR (Criminal) 891, CRIMINAL APPEAL NO. 159-DB OF 2001 -15- in which similar dispute was involved. By noting facts of that case, it was observed as under: ““3. It is to be noted that prior to the date of occurrence, the Madhya Pradesh Children Act, 1928 (in short the 'Children Act') was in force. The Juvenile Justice Act, 1986(in short '1986 Act') was in operation on the date of occurrence. Subsequently, the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as '2000 Act') has been enacted. Under Section 2(h) of the 1986 Act, a juvenile is one