CR.A/885/1993 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 885 of 1993 HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI =================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =================================== GAURAV PRADIP VERMA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) =================================== Appearance : MS CHETNA M SHAH for Appellant MR HL JANI, APP, for Opponent =================================== CR.A/885/1993 2/25 JUDGMENT CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE KS JHAVERI Date : 27/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE KS JHAVERI) 1.0 The present appeal is directed against the judgement and order of conviction and sentence dated 19th July 1993 passed by the learned Additional Sessions Judge, Court No.VIII, Ahmedabad, in Sessions Case No.384 of 1991 for the alleged commission of offences punishable under section 302 of IPC and convicted the appellant to undergo imprisonment for life and fine of Rs.500, in default, to undergo imprisonment for two months. 2.0 The prosecution case, in short, is as under: 2.1 The appellant-accused, along with his parents and sister who was studying in XIIth standard, was residing in Garden View Flats near Parimal Garden, Ellisbridge, Ahmedabad. Father of victim had three daughters and one son, out of which eldest daughter was CR.A/885/1993 3/25 JUDGMENT married, while his other two younger daughters expired. The victim was studying in XII standard. 2.2 On 30th August 1991 Police Sub Inspector Gohil received a telephonic message from first informant PW1 stating that a person who is residing in Garden View Flat has committed murder of a girl in the neighborhood and injured himself by knife blows. He has also told Inspector Gohil that the parents of accused would come to the police station. Accordingly on their reaching at the police station Shri Gohil went to the flat in question where he found dead body of the victim in the bathroom and the appellant was in bleeding condition. 2.3 The accused was found sitting on a cot in the next room. PSI Gohil recorded the complaint against the accused and called father of the victim and thereafter made inquest panchnama and also the panchnama of scene of offence in the presence of panchas and bloodstained knife and other articles were seized under a panchnama. He has also found milk bags in the kitchen and steel Dolcha (milken) bearing the name of father of victim. PSI Gohil then recorded statements of certain witnesses and accused who CR.A/885/1993 4/25 JUDGMENT was injured was sent to V.S. Hospital. 2.4 The dead body of vicitm was also sent for postmortem to the V.S. Hospital and postmortem note was also obtained. Muddamal knife, etc. which were attached were sent to Forensic Science Laboratory and report of Forensic Science Laboratory was obtained. Map of the scene of offence was also obtained which was prepared by Circle Inspector, Ahmedabad. After completing necessary investigation chargesheet was submitted in the court of learned Metropolitan Magistrate, Ahmedabad, on 25.11.1991. As the offence was exclusively triable by the Court of Sessions, the learned Metropolitan Magistrate, Ahmedabad committed the case to the Court of Sessions on 30th November 1991. The case was numbered as Sessions Case No.384 of 1991. 3.0 Learned Advocate for the appellant had filed an application at Exh.5 to the effect that the accused is below 16 years of age and therefore the said Court has no jurisdiction to try the said case. The matter was, therefore, kept for inquiry. After inquiry, learned Additional City Sessions Judge, Court No.21, Ahmedabad passed order on 31st December 1992 below application Exh.5. The CR.A/885/1993 5/25 JUDGMENT operative part of the order reads as under: “10. It was held in the case of Umeshchandra Vs. State of Rajasthan, reported in (1982)2 SCC 202 that entires in the school register and admission form regarding the date of birth constitute good proof of age. In the said case, various aspects regarding determination of birth date are mentioned and, therefore, in this case, birth dated 18.12.1974 of accused Gaurav entered first in the school and which still continues has to be accepted as his correct birth date. It is not proved from any evidence that his correct birth date is 21.2.1976 and on the date of incident, i.e. On 30.8.1991, he was below the age of 16 years. Under the above circumstances, I hold that on the date of incident, i.e. On 30.8.1991 accused Gaurav was not below the age of 16 years and he was aged about 16 years 8 months and 12 days on the said day. Therefore, City Sessions Court at Ahmedabad has jurisdiction to hear the case and the case cannot be sent to the Juvenile Court as prayed in Application Exh.5.” 3.1 Learned additional Sessions Judge has framed charge against the accused-appellant who pleaded not guilty to the charge and claimed to be tried. The learned Additional Sessions Judge, therefore, proceeded to record the evidence. To prove the guilt against the accused the prosecution has examined 9 witnesses as under: 1. Suryavirsinh Tajsinhji Jhala (PW1-Exh.37) 2. Ketanbhai Piyushchandra Shah (PW2-Exh.49) 3. Dr. Jitendra Kantilal Shah (PW3-Exh.51) CR.A/885/1993 6/25 JUDGMENT 4. Panch Chandrakant Mansukhlal Gosalia (PW4-Exh.57) 5. Shitalben Jitendrabhai Shah (PW5-Exh.61) 6. Bageshree Satishbhai (PW6-Exh.62). 7. Dr. Ravidnra Shrikrishna Bhinse (PW7-Exh.64). 8. Nathubha Jorubha Gohil PSI (PW8-Exh.68). 9. Superintendent of Police Gnansagar Girdharji Ahuja (PW9-Exh.70). 3.2 The prosecution has also produced the following documentary evidence vide purshish Exh.36. 1. Police Complaint by Inpector S.J. Gohil (Exh.69) 2. Inquest Panchnama (Exh.38) 3. Panchnama of scene of offence (Exh.58) 4. Panchnama of clothes of deceased (Exh.39). 5. Postmortem Note (Exh.65) 6. Postmortem Slip (Exh.70) 7. Letter of Police Inspector for further opinion of doctor (Exh.93). 8. Further opinion of Dr. Ravindra Bhinse (Exh.42) 9. Receipt in respect of receipt of Muddamal (Exh.43) 10. Forwarding note to FSL dated 30.8.1991 (Exh.44) 11. Medical Certificate in respect of Gaurav Varma. (Exh.45) 12. Notification issued by the Commissioner of Police, Ahmedabad City under the provisions of Bombay Police Act (Exh.46). 13. FSL report (Exh.47). CR.A/885/1993 7/25 JUDGMENT 14. Report in respect of the place (Exh.48). 3.3 On submission of closing pursis, learned Additional sessions Judge has recorded further statement of accused under section 313 of Code of Criminal procedure. 3.4 After giving opportunity to the learned Advocates for the respective parties, the learned Additional Sessions Judge has delivered the judgement and convicted the appellant-accused as mentioned above which has given rise to the present appeal. 4.0 Ms Chetna M. Shah, learned Advocate for the appellant submitted that at the time of incident in question the appellant was admittedly 16 years, 8 months and 12 days and therefore the matter should have been referred to Juvenile Court. She submitted that as per the amended provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act) “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. CR.A/885/1993 8/25 JUDGMENT 4.1 She has submitted that as per The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 there is an amendment to section 20 by inserting explanation stating that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. She therefore submitted that the appeal requires to be allowed. 4.2 She further submitted that in view of the fact that the incident in question is of the year 1991, if the matter is remanded as per the provisions of Act to competent court, the appellant has to undergo unnecessary agony. Relying upon a decision of the Apex Court in the case of Upendra Kuamar Vs. State of Bihar, reported in 2005(3) SCC 592 (=2005 SCC [Cri.] 778), learned Advocate submitted that the sentence is required to be quashed. CR.A/885/1993 9/25 JUDGMENT 4.3 Learned Advocate for the appellant has relied upon section 19 of the Act of 2000 and submitted that the intention of the Legislature is to remove the stigma on the juvenile and therefore even on this ground the appeal requires to be allowed. 4.4 She has also relied upon a decision in the case of Gopinath Ghosh Vs State of West Bengal, reported in 1984(Suppl) SCC 228 [AIR 1984 SC 237] wherein it is held that in view of the beneficial provisions of Act read with Article 29[f], it would be proper not to allow a technical objection and minor was allowed to avail the benefits of the provisions of the Act. In this case the conviction and sentence of minor was set aside and directions were issued to the Magistrate to the effect that whenever a case is brought before him, an inquiry as to the age of accused on the date of occurrence be made. 4.5 Learned Advocate for the appellant has relied upon a decision in the case of Bhola Bhagat Vs. Sate of Bihar, reported in AIR 1998 SC 236 (=1997 (8) SCC 720, wherein also considering the finding of age by the trial court, the conviction sustained and the sentence CR.A/885/1993 10/25 JUDGMENT awarded was quashed. 4.6 Learned Advocate has also relied upon a decision in the case of Gurpreet Singh V. State of Punjab and Haryana, reported in AIR 2006 SC 191(=2005 (12) SCC 615) wherein it is held that it is the lower court to decide whether the accused was juvenile as on the date of occurrence and if accused was juvenile on such date, he shall be acquitted and sentence would be liable to be set aside. 5.0 Mr. H.L. Jani, learned Advocate appearing for the State has vehemently opposed the appeal and submitted that the appellant has not made out any case for allowing the appeal. He submitted that the entire prosecution case was admitted by the accused and the circumstantial evidence clearly goes to show the guilt of the accused. He submitted that there is incriminating evidence against the appellant and the prosecution has proved the case beyond doubt. He, therefore, submitted that the appeal requires to be dismissed. 5.1 Mr. H.L. Jani, learned Advocate for the State submitted that it is true that the age of the appellant is more than 16 years, but CR.A/885/1993 11/25 JUDGMENT less than 18 and in view of the judgement of the Apex Court in the case of Jameel V. State of Maharashtra, reported in AIR 2007 SC 971, the contention with regard to the age is not applicable in the present case. He further submitted that as far as merit of the matter is concerned, there are concrete evidence on record to connect the appellant-accused with the crime in question and this Court may not interfere with the conviction and sentence of the appellant. 6.0 We have heard both the learned Advocates at length and perused the impugned judgement, documentary evidence on record, relevant provisions of law and the decisions of the Apex Court. 7.0 In order to prove the case, the prosecution has examined Suryavirsinh Jhala (PW1-Exh.37) who has informed about the incident to the police, Dr. Ketan P. Shah (PW2-Exh.49) who had treated the accused Gaurav, Dr. Jitendra K. Shah (PW3-Exh.51) who is father of deceased Hiral, Chanrakant Mansukhlal Gosalia (PW-4 Exh.57) who has proved the panchnama, Shital Jitendra Shah (PW5-Exh.61) who is sister of deceased Hiral, Bageshree Sarishkumar (PW6-Exh-62) who is friend of victim, Dr. Ravindra S. Bhinse (PW7-Exh.64) who performed the postmortem of the body CR.A/885/1993 12/25 JUDGMENT of Hiral, Nathuba Jorubha Gohil (PW8-Exh.68) who has gone to the scene of incident after receiving information and Shri Ganansagar G. Ahuja (PW9-Exh.70) who has conducted the investigation. 7.1 Considering the facts and circumstances of the case the Sessions Court has come to the conclusion that it has been duly established that the accused was present at the time of the commission of the offence along with the deceased and there was nobody except them in the flat of accused and the dead body of the victim was also found in his flat. 7.2 Further, the subsequent conduct of the accused also clearly reflects that he is the only person who knows about the motive in the commission of the crime. The Sessions Court has also found that the chain of evidence is so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, but it reveals that with all human probabilities the act must have been done by the accused alone. In the present case the circumstantial evidence clearly led to the guilt of the appellant and the only conclusion which can be arrived at is that the accused has committed the alleged offence which resulted into her death. CR.A/885/1993 13/25 JUDGMENT Learned Advocate for the appellant is not able to point out anything from the record to take a contrary view of the matter. 8.0 However, we are required to consider the contention that at the time of incident the accused was admittedly aged 16 years 8 months and 12 days at the time of the incident and therefore in view of change of law the matter should be referred to Juvenile Court or not. In this connection it is advantageous to refer to section 2, subsection [h] of the Junvenile Justice Act, 1986 which reads as under: [h] “Juvenile” means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years; 8.1 In The Juvenile Justice (Care and Protection of Children) Act, 2000 the relevant provision is subsection [k] which reads as under: [k] “Juvenile” or “child” means a person who has not completed eighteenth year of age;” 8.2 At this Stage it is also relevant to note section 2(l) of the 2006 Act which defines “juvenile in conflict” with law as under: CR.A/885/1993 14/25 JUDGMENT “[l] ‘Juvenile in conflict with law’ means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence.” 8.3 The procedure to be followed when a claim of juvenility is raised before any Court is stipulated under section 7A which reads 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 recognized 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.” CR.A/885/1993 15/25 JUDGMENT 8.4 Thus, if a claim of juvenility is raised, the court has to make an inquiry and after determining the age if the court finds a person to be a juvenile on the date of commission of the offence under subsection (1), the court should 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. 8.5 On the facts of the present case the appellant had raised claim of juvenility before the Sessions Court and the Sessions Court has ordered for an inquiry in which it was found that the appellant was of the age of 16 years 8 months and 12 days. However, it appears that after ascertaining the age of the appellant the Sessions Court has not considered the request of referring the matter to Juvenile Court and proceeded to pass the judgement and order of conviction and sentence. According to us it was just, legal and proper order in view of the prevailing law as the age of juvenile was fixed at 16 years. 8.6 However, it is required to be noted that subsection (l) of section (2) of The Juvenile Justice (Care and Protection of Children) Act, 2000 was amended by section 4 of The Juvenile Justice (Care and Protection of Children) Amendment Act,2006 CR.A/885/1993 16/25 JUDGMENT (hereinafter referred to as the Amendment Act). Originally section 2(l) stipulated that “Juvenile in conflict with law” means a juvenile who is alleged to have committed an offence”. This subsection was amended by the Amendment Act stating that “juvenile inflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Legislature has thought it fit to stipulate that the age of the accused should be taken as on the date of the commission of such offence. Once it is proved that the accused is a juvenile as per the provisions of section 2[l], it is mandatory for the court to forward the juvenile to the Board for passing appropriate orders. 8.7 Now we are also required to consider as to whether at this stage this Court can consider the question of referring the matter to the Board. In this regard it is relevant to note that by section 14 of the Amendment Act, “Explanation” was inserted to section 20 of the principal Act which reads as under: “Explanation – In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause [l] of section 2, even if the juvenile CR.A/885/1993 17/25 JUDGMENT ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.” [Emphasis supplied] 8.8 Thus, even in the case of appeal, the determination of juvenility of a juvenile shall be in terms of section 2[l], even if the juvenile ceases to be so on or before the date of commencement of the said Act and the provisions of the said Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed. 9.0 At this stage we may refer to the decision in the case of Upendra Kumar Vs. State of Bihar, reported in 2005(3) SCC 592 (2005 SCC(Cri) 778) held that at that point of time the question of referring the accused to the juvenile Board does not arise and it was held that the conviction sustained and the sentence was quashed. 9.1 In the case of Pratap Singh V. State of Jharkhand and Anr. Reported in AIR 2005 SC 2731 (JT 2005(2) SC 271 =(2005) 3 SCC 551= 2005 SCC (Cri.) 742 = 2005 Cri LJ 3091) it is held that for the determination of age of juvenile, the reckoning date would be CR.A/885/1993 18/25 JUDGMENT the date of the commission of the offence and not the date when the offender is produced before the competent authority or court. It was further held that the 2000 Act would be applicable to those cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001. It is also required to be noted that the Constitution Bench in this decision has also held that the provision of the 2000 Act is furthermore a remedial statute and it is required to be given a liberal construction. It would be advantageous to quote certain observations from the above judgement as under: “The striking distinction between the 1986 Act and the 2000 Act is that under the 1986 Act a juvenile means a male juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act. Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non obstante clause. The sentence “notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act came into force” has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the CR.A/885/1993 19/25 JUDGMENT 2000 Act came into force. The term “any court” would include even ordinary criminal courts. If the person was a “juvenile” under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that section 20 refer to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has not been passed and if the court finds that the juvenile has committed an offence it shall record such finding and instead of passing any sentence in respect of the juvenile shall forward the juvenile tot he Board which shall pass orders in respect of that juvenile. Such an interpretation does not offend article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. Thus, considering the relevant definitions and provisions, it is held that the 2000 Act would be applicable tot hose cases initiated and pending trial/inquiry for the offences committed under the 1986 Act provided that the person had not completed 18 years of age as on 1.4.2001.” 9.2 Mr. H.L. Jani has relied upon a decision in the case of Jameel V. State of Maharashtra, reported in AIR 2007 SC 971, wherein it is held that since the incident in the said case was of the year 1989, the Act of 2000 would have no application, the