IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 613-DB of 2001 DATE OF DECISION : 12.11.2010 Rajesh Kumar .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. Ashit Malik, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Rajesh Kumar was tried by the court of Sessions Judge, Kurukshetra, for the offence under Section 302 IPC, for committing the murder of Karam Chand. The trial court vide its judgment and order dated 11.10.2001, convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of ` 5,000/- under Section 302 IPC. 2. During the pendency of this appeal, when the appellant was in custody, he moved an application for suspension of his sentence alleging therein that his date of birth is 21.7.1981 and on the day of commission of the alleged offence (i.e. 1.9.1998), he was less than 18 years of age, therefore, at that time, he was juvenile, as has been defined in Section 2 (k) Crl. A. No. 613-DB of 2001 -2- of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as `the Juvenile Justice Act, 2000'), which came into force on 1.4.2001, when his trial was pending before the trial court. It was contended that under Section 20 of the Juvenile Justice Act, 2000, the provisions of the said Act have been made applicable on the pending cases also, though the offence had been committed much earlier to the coming into force of the said Act. It was argued that even if it is found by the trial court that an accused, who was juvenile at the time of the commission of the offence, has committed the offence, even then such juvenile cannot be sentenced beyond the period of three years, and even the matter with regard to the awarding of the said sentence has to be referred to the Juvenile Justice Board for appropriate order. Along with the said application, the appellant had annexed certain documents i.e. his Middle and Matriculation Examination Certificates, issued by the Board of School Education, Haryana, wherein his date of birth was shown as 21.7.1981. 3. On that application, the matter was referred to the District & Sessions Judge, Kurukshetra, to make an enquiry and submit a report to this Court, regarding the date of birth of the appellant. The learned District & Sessions Judge, Kurukshetra, after providing an opportunity of hearing to both the parties, submitted his report dated 18.10.2004 to this Court, and gave his finding that the date of birth of the appellant is 21.7.1981. On the basis of the said report, on November 22, 2004, this Court ordered for the release of the appellant on bail, by passing the following order : Crl. A. No. 613-DB of 2001 -3- “The Sessions Judge, Kurukshetra has sent his report which shows that the appellant was born on 21.7.1981 and as such he was a juvenile according to the Juvenile Justice (Care and Protection of Children) Act, 2000. As the matter is covered by Dharam Pal vs. State of Haryana, 1999 (4) RCR (Crl.) 600, we suspend the sentence imposed on Rajesh Kumar, appellant and he is directed to be released on bail, to the satisfaction of the Chief Judicial Magistrate, Kurukshetra.” 4. Today, when this appeal has been taken up for regular hearing, learned counsel for the appellant argued that in view of the report submitted by the Sessions Judge, Kurukshetra, at the time of passing of the impugned judgment of conviction and the order of sentence on 11.10.2001, the appellant should have been treated as juvenile on the date of commission of the offence and in view of the provisions of the Juvenile Justice Act, 2000, which came into force on 1.4.2001, the trial court should not have sentenced the appellant to undergo imprisonment for life, as provided under Section 15 of the said Act. In view of this argument, learned counsel for the respondent-State has been specifically asked to rebut the factum of the date of birth of the appellant, if the State so desires. However, learned counsel for the respondent-State could not produce any contrary document to falsify the aforesaid date of birth of the appellant. 5. In Hari Ram v. State of Rajasthan and another, (2009) 13 Supreme Court Cases 211, it has been held that as per Section 7-A of the Juvenile Justice Act, 2000, which has been added by amendment made in Crl. A. No. 613-DB of 2001 -4- the Act in the year 2006, the issue of juvenility of an accused can be raised before the court at any stage and if such an issue is raised with document showing the accused as juvenile, it is required to be determined in terms of the provisions contained in the Juvenile Justice Act, 2000 and the Rules framed thereunder. Even if a juvenile in conflict with law has ceased to be so on or before the date of commencement of the Juvenile Justice Act, 2000, even then such juvenile, who was below the age of 18 years on the day of commission of the offence, even prior to the date of commencement of the Juvenile Justice Act, 2000 (i.e. 1.4.2001), would be treated as juvenile and his claim of juvenility has to be determined and considered, even if he had attained the age of 18 years on or before 1.4.2001 and was undergoing sentence upon being convicted. Since it has been found as a fact by the learned District & Sessions Judge, Kurukshetra, in his report dated 18.10.2004, that the date of birth of the appellant was 21.7.1981, therefore, on the day of commission of the offence (i.e. on 1.9.1998), he was juvenile. 6. Now, we will deal this appeal by treating the appellant as juvenile, under the provisions of the Juvenile Justice Act, 2000, on the day of commission of the offence. 7. The learned trial court has convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of ` 5,000/- under Section 302 IPC for committing the murder of Karam Chand. On 1.12.1998, when the charge was framed against the appellant for committing the offence, he was about 17 years of age, therefore, he was not treated as a Crl. A. No. 613-DB of 2001 -5- `juvenile' under the Juvenile Justice Act, 1986, which was in force at that time, and was tried by the regular criminal court. On 11.10.2001, he was convicted and sentenced. On that day, the Juvenile Justice Act, 2000 had already come into force. 8. Having held the appellant to be a juvenile on the day of commission of the offence in this case, the next question for consideration is that even if the finding of the trial court regarding conviction of the appellant for the offence under Section 302 IPC is upheld, then what order of sentence is to be passed against the appellant for the said offence. 9. We have considered the issue of conviction of the appellant for the offence under Section 302 IPC as well as sentence to be awarded to him. 10. As per the prosecution version, which is based upon the statement of Pawan Kumar (nephew of deceased Karam Chand), on 1.9.1998 at about 8 PM, when complainant Pawan Kumar (PW.8) along with his uncle Karam Chand (deceased) was proceeding towards their house from bus stop, Ismailabad, they met Kirna Devi (aunt of the complainant), who along with her two children was also going towards the house. She also followed them. Karam Chand, being elder member of the family, was going ahead, whereas complainant Pawan Kumar and Kirna Devi were following him. When they reached in front of the house of Bagga Goldsmith, accused Rajesh Kumar was seen coming from the opposite direction. Karam Chand told accused Rajesh Kumar that his Bhabhi (brother's wife) was following him and he should give some side to pass her. At that time, accused Rajesh Crl. A. No. 613-DB of 2001 -6- Kumar moved little aside and Karam Chand stopped there. Then complainant Pawan Kumar and Kirna Devi crossed through and proceeded further in the lane. At that time, accused Rajesh Kumar told Karam Chand that he would teach him a lesson for asking him to get aside. On hearing that, complainant and Kirna Devi also stopped there. Then accused Rajesh Kumar caught hold of Karam Chand with his left hand and caused two blows to him with knife with his right hand. One blow was given on the abdomen and the second blow was given on the right flank of Karam Chand. When the complainant raised noise saying “Maar Dia – Maar Dia”, the accused after inflicting injuries with his knife, fled away from the spot with his knife. In the meantime, Prem and Maya Ram, residents of village, arrived at the spot and they had just taken injured Karam Chand in the lane, when Ram Kumar and Balbir, brothers of Karam Chand, also came there with an Armada vehicle of R.K. Studio. In that vehicle, they shifted Karam Chand to Lok Nayak Jai Parkash, Hospital, Kurukshetra. Thereafter, in the same night, after receiving a telephone message from Kurukshetra that Karam Chand had expired due to the injuries inflicted by the accused, complainant Pawan Kumar accompanied by Joginder Kaurshal, Ex-Panch, and Chander Bhan Saini, Panch, residents of the village, proceeded to the Police Station and in the way, near Manchanda Petrol Pump, Ismailabad, at 11.15 PM, he made statement (Ex.PF) to Sub Inspector Sher Singh (PW.12), on the basis of which the formal FIR (Ex.PF/2) was recorded. 11. On 2.9.1998, Sub Inspector Sher Singh prepared the inquest Crl. A. No. 613-DB of 2001 -7- report (Ex.PN) and sent the dead body for post mortem examination. On the same day at about 10.0 AM, Dr. O.P. Gogia (PW.1) along with Dr. G.D. Mittal conducted autopsy of the deceased. They found five incised wounds on the body of the deceased and opined that the cause of death was due to haemorrhage and shock, due to liver injury. All the injuries were ante- mortem in nature. Injury No.1 was found to be sufficient to cause death in the ordinary course of nature. According to them, the probable time between injuries and death was within two hours and between death and the post mortem was between 6 to 24 hours. 12. On 2.9.1998, Sub Inspector Sher Singh visited the place of incident and prepared the rough site plan (Ex.PO). The parcel, containing the clothes of the deceased, which was duly sealed by the doctors, was taken into possession vide recovery memo Ex.PQ. On the same day, one Devi Charan had produced the accused before the police and he was arrested. During interrogation, in pursuance of his disclosure statement (Ex.PK), the accused got recovered the knife (Ex.P1), which was taken into possession vide memo Ex.PK/2. 13. On 7.9.19989, the duly sealed knife (Ex.P1) was produced before the Doctors, who conducted post mortem examination of the deceased, and vide their opinion (Ex.PC), they opined that injuries on the body of the deceased could be caused with the said knife. 14. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 Crl. A. No. 613-DB of 2001 -8- IPC, to which he did not plead guilty and claimed trial. 15. In support of its case, the prosecution examined 12 witnesses, out of whom PW.1 Dr. O.P. Gogia is the Medical Officer, who along with Dr. G.D. Mittal, another Medical Officer, had conducted post mortem examination of the deceased. PW.8 Pawan Kumar (complainant) and PW.9 Kirna Devi are the eye witnesses. PW.11 Karnail Singh is the witness to the recovery of knife (Ex.P1) at the instance of the accused and PW.12 Sub Inspector Sher Singh is the Investigating Officer of the case. All the remaining witnesses are formal in nature. 16. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication in the case. However, he did not examine any witness in his defence. 17. The trial court, while relying upon the statements of the eye witnesses and the medical evidence, coupled with the recovery of the knife (Ex.P1) at the instance of the appellant, convicted and sentenced the appellant, as indicated above. 18. We have heard the arguments of learned counsel for the parties and have gone through the impugned judgment as well as the trial court record. 19. Learned counsel for the appellant half-heartedly challenged the conviction of the appellant on the ground that there is a material contradiction between the prosecution version given in the FIR (Ex.PF/2) Crl. A. No. 613-DB of 2001 -9- and the medical evidence led by the prosecution. According to the learned counsel, as per the Post Mortem Report (Ex.PB/1-4), which has been proved by PW.1 Dr. O.P. Gogia, five incised wounds were found on the body of the deceased, whereas as per the initial statement (Ex.PF), made by PW.8 Pawan Kumar (complainant), the accused had given only two knife blows, one on the abdomen and the other on the right flank. According to the learned counsel, this material variance in the ocular version and the medical evidence creates serious doubt in the prosecution version, therefore, the appellant deserves to be given the benefit of doubt. 20. We have examined the aforesaid contention of learned counsel for the appellant and have carefully perused the statement of PW.1 Dr. O.P. Gogia as well as the Post Mortem Report (Ex.PB/1-4). We do not find any force in the contention of learned counsel for the appellant. 21. Firstly, PW.9 Kirna Devi (eye witness), in his statement before the court, has categorically stated accused Rajesh Kumar caused one knife blow in the right flank of Karam Chand and another knife blow was given in the abdomen of Karam Chand. Thereafter, Karam Chand caught hold of his abdomen, sat down and cried. In the meanwhile, accused caused 2/3 other blows with his knife on the person of Karam Chand. Regarding this part of the statement, PW.9 Kirna Devi was not cross-examined at all and it was not confronted to her that as per the statement (Ex.PF), made by complainant Pawan Kumar, only two knife blows were given by the accused to the deceased. Crl. A. No. 613-DB of 2001 -10- 22. Secondly, in his statement before the court, PW.8 Pawan Kumar (complainant) has categorically stated that after giving two knife blows to Karam Chand, when the injured sat down, accused gave further knife blows to him. In the cross-examination, he has categorically stated that he made statement to this effect to the police. 23. Thirdly, during the cross-examination of PW.1 Dr. O.P. Gogia, no suggestion was put to him that the injuries found on the body of the deceased were not caused by the knife (Ex.P1), recovered from the appellant. 24. After going through the evidence led by the prosecution, particularly the medical evidence, statements of two eye witnesses and the Investigating Officer of the case, we do not find any force in the contention raised by learned counsel for the appellant. In our opinion, in the present case, the prosecution has fully proved its case beyond reasonable doubt and the trial court was fully justified in convicting the appellant for the offence under Section 302 IPC for committing the murder of Karam Chand. We find the testimonies of both the eye witnesses to be reliable, trust-worthy and consistent. Both of them were cross-examined at length, but nothing adverse could be extracted. In pursuance of the disclosure statement (Ex.PK), made by the appellant, the knife (Ex.P1), which was used in the crime, was recovered and as per the opinion (Ex.PC) of the doctors, who conducted post mortem examination of the deceased, injuries on the body of the deceased could be caused with the knife (Ex.P1), recovered from the Crl. A. No. 613-DB of 2001 -11- appellant. 25. In view of the above, we do not find any illegality and perversity in the impugned judgment of conviction, passed by the trial court. 26. Now, the next question arising for consideration is that for the offence under Section 302 IPC, committed by the appellant, who was juvenile at the time of the commission of the offence, what order of sentence is to be passed against him. The trial court has convicted and sentenced the appellant to undergo imprisonment for life and to pay a fine of ` 5,000/- under Section 302 IPC. 27. Section 15 of the Juvenile Justice Act, 2000, provides for various orders which the Juvenile Justice Board may pass against a juvenile when it is satisfied that the juvenile has committed an offence, which includes an order directing the juvenile to be sent to a special home for a period of three years. 28. Section 16 of the Juvenile Justice Act, 2000 provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. The proviso to this Section further provides that if a juvenile, who has attainted the age of sixteen years, has committed an offence, and if the Juvenile Justice Board is satisfied that the offence committed by him is of serious nature, then the Board may send him to Crl. A. No. 613-DB of 2001 -12- special home or may order to keep him in such place of safety and in such manner as it thinks fit, but proviso to sub-section (2) of Section 16 of the Juvenile Justice Act, 2000 provides that the period of detention so ordered by the Juvenile Justice Board shall not exceed in any case the maximum period provided under Section 15 of this Act. 29. In Hari Ram's case (supra), which has been subsequently followed by the Hon'ble Supreme Court in Dharambir v. State (NCT of Delhi) and another, (2010) 5 Supreme Court Cases 344 and Mohan Mali and another v. State of Madhya Pradesh, (2010) 6 Supreme Court Cases 669, and by this Court in Jai Kishan @ Jaiki v. State of Haryana (Criminal Appeal No. 436-DB of 2001, decided on August 16, 2010), it has been held that as per Sections 2 (k), 2 (l), 7-A of the Juvenile Justice Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 read with Section 20 of the said Act, as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2 (k) had always been in existence even during the operation of the Juvenile Justice Act, 1986. The said position has been re- emphasised by virtue of the amendments introduced in Section 20 of the Juvenile Justice Act, 2000, whereby the proviso and Explanation were added to Section 20, which make it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of Crl. A. No. 613-DB of 2001 -13- such a juvenile would be in terms of Section 2 (l) of the Juvenile Justice Act, 2000, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed. 30. In view of the above, we are of the opinion that the sentence awarded by the trial court is not sustainable and the same is hereby quashed. Since in the present case, the appellant, who is on bail, has already undergone more than 5 years and 10 months of actual sentence, therefore, there is no purpose to send him to the Juvenile Justice Home, as he has completed more than the maximum period of sentence as provided under Section 15 of the Juvenile Justice Act, 2000. 31. Consequently, conviction of the appellant, recorded by the trial court vide judgment dated 11.10.2001, is upheld. However, the order of sentence, passed by the trial court on the same day, i.e. 11.10.2001, is hereby set aside. Since the appellant is already on bail, therefore, there is no need to issue the release warrant. 32. Accordingly, the appeal is partly allowed. ( SATISH KUMAR MITTAL ) JUDGE November 12, 2010 ( JORA SINGH ) ndj JUDGE