IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 436-DB of 2001 DATE OF DECISION : 16.08.2010 Jai Kishan @ Jaiki .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. Akshay Kumar Goel, Advocate, amicus curiae, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Jai Kishan alias Jaiki, who was 17 years of age on the day of commission of the alleged offence, i.e. 13.10.1997, was tried by the court of Sessions Judge, Rohtak, for the offence under Section 302 IPC, for committing the murder of Subhash, a co-villager. The court of Additional Sessions Judge, Jhajjar, vide its judgment dated 16.8.2001, convicted the appellant under Section 302 IPC, and vide order dated 18.8.2001, sentenced him to undergo imprisonment for life and to pay a fine of ` 20,000/-. It has been further ordered that in case, fine of ` 20,000/- is paid by the appellant, the same be given to the legal heirs of the deceased, as compensation. By the time, the appellant was convicted and sentenced, Crl. A. No. 436-DB of 2001 -2- the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as `the Juvenile Justice Act, 2000') had come into force and the earlier Juvenile Justice Act, 1986 (hereinafter referred to as `the Juvenile Justice Act, 1986') was repealed. Under the Juvenile Justice Act, 2000, a new definition of `juvenile in conflict with law' was introduced, which defined 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, whereas under the Juvenile Justice Act, 1986, the upper age-limit for male children to be considered as juveniles was 16 years. On 13.2.1998, when the appellant was charge sheeted, he was 17 years of age, therefore, he was not treated as a `juvenile' under the Juvenile Justice Act, 1986, and he was tried by the regular criminal court and not by the Juvenile Justice Board. 2. As per the prosecution version, which is based upon the statement (Ex.PI) of Mann Singh (PW.5), father of Subhash (the deceased), his son Subhash and appellant Jai Kishan were working with a contractor at Nazabgarh (Delhi). They used to return to the village in the evening. About one month prior to the occurrence, while digging earth for fixing a poll, a quarrel had taken place between Subhash on one side and the appellant Jai Kishan along with Gulshan, Pallu and Radhey Sham on the other side. At that time, Subhash was given injuries by the appellant with fist blows. The other workers working under the said contractor had intervened. On return to the house, Subhash told about the said occurrence to the complainant and Crl. A. No. 436-DB of 2001 -3- his elder son Maman. They asked Subhash not to remain in the company of such bad persons. It is further alleged that the complainant along with his son Maman went to the house of the appellant in the evening, but the appellant declared that as and when he will get an opportunity, he will kill Subhash, as he has given fist blows to him. It is further the case of the prosecution that on 13.10.1997 at about 12 noon, when the complainant along with his nephew Jagdish (PW.6) and son Subhash was going to the pond to bring water for doing plaster work at his house, the appellant suddenly arrived from the street having a knife in his hand, near the Chaupal of Khumahar, and raised lalkara to teach lesson to Subhash, who was going ahead of the complainant. Within the sight of the complainant, the appellant gave one knife blow to Subhash on his abdomen. He gave two more knife blows, one on the armpit and the other on the chest of Subhash. When the complainant and Jagdish rushed towards Subhash to save him, the appellant threatened them by showing the knife and thereafter, he ran away from the spot. Thereafter, the complainant and Jagdish took Subhash to Civil Hospital, Bahadurgarh, but he died on the way and was declared dead by the Doctor. On the same day at 1.45 PM, Dr. Inderjit Singh Dhankar (PW.10) sent ruqa (Ex.PK) to Police Station Sadar Bahadurgarh and on receipt of the same, the police arrived in the Hospital and recorded the statement of the complainant, on the basis of which the formal FIR (Ex.PI/1) was recorded. 3. On 14.10.1997, Dr. Murari Lal Sharma (PW.3), PGIMS, Crl. A. No. 436-DB of 2001 -4- Rohtak conducted autopsy of the deceased. He found three injuries caused by sharp edged weapon on the body of the deceased. According to him, the probable time between death and the post mortem was between 12 to 24 hours and in his opinion, cause of death of the deceased was haemorrhage and shock, as a result of multiple injuries, which were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. He proved the Post Mortem Report of the deceased as Ex.PB. 4. On 20.10.1997, the appellant was arrested and on his interrogation, on 24.10.1997, he made disclosure statement (Ex.PF) that he had kept concealed the knife in the kotha toora of his house and in pursuance of the said disclosure statement, the appellant got recovered the knife (Ex.P1), which was taken into possession by the police vide recovery memo Ex.PG. 5. On 25.11.1997, the knife (Ex.P1) was shown to Dr. Murari Lal Sharma and on the police request (Ex.PE), he gave his opinion (Ex.PE/1) that injuries No. 1, 2 and 3, mentioned in the Post Mortem Report of the deceased, could be caused by the weapon shown to him. 6. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined ten witnesses. 8. PW.1 Sunil Kumar Constable, PW.2 Darshan Singh Constable, PW.7 Ajit Singh Head Constable, PW.8 ASI Chhattar Singh and PW.10 Dr. Crl. A. No. 436-DB of 2001 -5- Inderjit Singh Dhankar, who sent ruqa (Ex.PK) to the police, are the formal witnesses. 9. PW.3 Dr. Murari Lal Sharma, who conducted the post mortem examination on the dead body of deceased Subhash, proved the Post Mortem Report (Ex.PB). He also proved the application (Ex.PE) moved by the police on 25.11.1997 and his opinion (Ex.PE/1) that the injuries on the body of the deceased are possible with the knife (Ex.P1). 10. PW.4 Rajender, a witness to the disclosure statement (Ex.PF) and the recovery memo (Ex.PG), did not support the case of the prosecution and he was declared hostile. 11. PW.5 Mann Singh is the complainant and the eye witness to the alleged occurrence. He reiterated the entire version, as stated by him to the police in his initial statement (Ex.PI). 12. PW.6 Jagdish, brother of the deceased and son of the complainant, is the another eye witness and he has also supported the case of the prosecution. 13. PW.9 Rajender Singh, Inspector, is the Investigating Officer of the case, who recorded the statement (Ex.PI) of the complainant, conducted the investigation in the matter, arrested the appellant, recorded his disclosure statement (Ex.PF) and recovered the knife (Ex.P1) from him. He has proved all the material documents. 14. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. Crl. A. No. 436-DB of 2001 -6- He pleaded innocence and false implication in the case. However, he did not examine any witness in his defence. 15. The trial court, after relying upon the statements of the eye witnesses and the medical evidence, recovery of the knife (Ex.P1) at the instance of the appellant, convicted and sentenced the appellant, as indicated above. 16. 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. 17. Learned counsel for the appellant made two fold submissions. Firstly, he argued that in the instant case, the prosecution has failed to prove the alleged guilt of the appellant beyond reasonable doubt, therefore, the trial court was not justified in convicting the appellant under Section 302 IPC for committing the murder of Subhash. Secondly, learned counsel argued that undisputedly, on the date of commission of the alleged offence, the appellant was 17 years of age and when the trial court passed the judgment of his conviction and the order of sentence, the Juvenile Justice Act, 2000, had already come into force and the definition of `juvenile' in the Juvenile Justice Act, 1986, was altered. According to the definition under the Juvenile Justice Act, 2000, a `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. He further argued that in the year 2006, the Juvenile Justice Act, 2000, was Crl. A. No. 436-DB of 2001 -7- further amended and the definition of `juvenile in conflict with law' was substituted by a new definition, and Section 7-A was added, which provides 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 the Juvenile Justice Act, 2000 and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Juvenile Justice Act, 2000. In view of the said amendment, learned counsel argued that in view of sub-section (2) of Section 7-A, even if conviction of the appellant is upheld, he cannot be sentenced for the said offence, because on the date of commission of the offence, i.e. on 13.10.1997, he was below 18 years of age. In support of his contention, learned counsel relied upon the latest decisions of the Hon'ble Supreme Court in Hari Ram v. State of Rajasthan and another, (2009) 13 Supreme Court Cases 211, Lakhan Lal & Ors. v. State of U.P., (Criminal Appeal No. 1146 of 2007), decided on November 25, 2009, 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. 18. After analysing the evidence led by the prosecution in support of its case, particularly the medical evidence, statements of two eye witnesses and the Investigating Officer of the case, as well as the judgment of the trial court, we do not find any force in the first contention raised by learned counsel for the appellant. In our opinion, in the present case, the Crl. A. No. 436-DB of 2001 -8- 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 Subhash. 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. They have fully proved beyond reasonable doubt that the appellant gave three knife injuries on the body of Subhash, which resulted into his death. From the medical evidence, it has been proved that those injuries, which were ante-mortem in nature, were sufficient to cause death in the ordinary course of nature. In pursuance of the disclosure statement (Ex.PF) made by the appellant, the knife (Ex.P1), which was used in the crime, was recovered and in the opinion (Ex.PE/1) of Dr. Murari Lal Sharma (PW.3) injuries No. 1, 2 and 3 on the body of the deceased, as mentioned in the Post Mortem Report (Ex.PB), could be caused by the knife (Ex.P1) shown to him. 19. During the course of arguments, while referring to two diagrams of the recovered knife, attached with the paper book of the case, learned counsel for the appellant tried to create a doubt in the prosecution version about the recovery of alleged weapon, but from the perusal of the original record, we do not find any difference in two diagrams. Thus, the contention of learned counsel for the appellant that the knife recovered in this case was not the same, which was used in the crime, is without any substance and we do not find any force in this contention. Crl. A. No. 436-DB of 2001 -9- 20. In view of the above, in so far as conviction of the appellant is concerned, the judgment of the trial court is upheld, as we do not find any illegality and perversity in the same. 21. Now, the second issue which arises for consideration is that in case of the appellant, against whom the proceedings were initiated in the year 1998, when the charge was framed, and the Juvenile Justice Act, 1986 was in existence, now at the time of decision of the instant appeal, when the Juvenile Justice Act, 2000 has come into force, whether in view of Section 15 of the Juvenile Justice Act, 2000 (as amended in 2000), the appellant can be sentenced for the said offence, even if conviction of the appellant for the offence under Section 302 IPC is upheld. 22. The Juvenile Justice Act, 1986 was enacted to deal with offences committed by juveniles, in a different manner than to the offences committed by adult accused. It was aimed to rehabilitate the juvenile offenders in order to bring them back to mainstream of the society. Subsequently, the said Act was repealed and the Juvenile Justice Act, 2000 was enacted keeping in view certain international conventions. This new Act came into force on 1.4.2001 and the new definitions of `juvenile' and `juvenile in conflict with law' were introduced. Under the new definition, a child who has not completed eighteenth year of age was taken to be a juvenile. Section 2 (l) further defines `juvenile in conflict with law' as 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. Section Crl. A. No. 436-DB of 2001 -10- 4 of the Juvenile Justice Act, 2000 provides for constitution of Juvenile Justice Boards for every district in a State to deal with the cases of the juveniles in confict with law and Section 15 provides that a juvenile in conflict with law can be sent to the Juvenile Justice Home under the supervision of the Probation Officers for a period not exceeding three years. 23. After enactment of the Juvenile Justice Act, 2000, a controversy arose with regard to the application of the definitions of `juvenile' and `juvenile in conflict with law' under Sections 2 (k) and 2 (l) of the Juvenile Justice Act, 2000, in respect of the offences alleged to have been committed prior to 1.4.2001, when the Juvenile Justice Act, 2000 came into force, because under the Juvenile Justice Act, 1986, age of a juvenile was 16 years, whereas under the Juvenile Justice Act, 2000, age of a juvenile has been prescribed as 18 years. The question which arose for consideration was whether a person, who was not a juvenile within the meaning of the Juvenile Justice Act, 1986, but had not completed 18 years of age when he had committed the offence, could be governed by the provisions of the Juvenile Justice Act, 2000. In Arnit Das v. State of Bihar, (2000) 5 SCC 488, it was held that the procedures prescribed by the Juvenile Justice Act, 1986 were to be adopted only when the competent authority found the person brought before it to be under 16 years of age on the date of commission of the offence. It was held that the age of the accused at the time of commission of the offence is the relevant age for attracting the provisions of the said Act and not his age at the time of trial. Crl. A. No. 436-DB of 2001 -11- Subsequently, in light of one earlier decision of the Supreme Court in Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202, which expressed a contrary view to that of Arnit Das's case (supra), the said question was referred to a Constitutional Bench of the Hon'ble Supreme Court in Partap Singh v. State of Jharkhand, (2005) 3 SCC 551. The Constitutional Bench of the Hon'ble Supreme Court in Partap Singh's case (supra) has unanimously held that the provisions of the Juvenile Justice Act, 2000 have prospective effect and not retrospective effect, except to cover cases where though the male offender was above 16 years of age at the time of commission of the offence, but was below 18 years of age as on 1.4.2001. Consequently, it was held that the said Act would cover earlier cases only where a person had not completed the age of 18 years on the date of its commencement and not otherwise. 24. The decision of Partap Singh's case (supra) led to further amendment of the Juvenile Justice Act, 2000 by the Amendment Act No. 33 of 2006, which came into force on 22.8.2006. By the said amendment, the definition of `juvenile in conflict with law' as defined in Section 2 (l) was substituted and Section 7-A was introduced, which reads as under : “7-A. 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 Crl. A. No. 436-DB of 2001 -12- 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 order, and the sentence if any, passed by a court shall be deemed to have no effect.” Section 20 of the Act was also further amended, which reads as under : “ 20. Special provision in respect of pending cases – 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 comes into force in that area, shall be continued in that court as if this Act had 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, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence : Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation – In all pending cases including trial, Crl. A. No. 436-DB of 2001 -13- 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.” By the said amendment, the proviso and the Explanation to Section 20 were added in order to set at rest doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000 to cases pending on 1.4.2001, where a juvenile, who was below 18 years of age at the time of commission of the offence, was involved. Subsequently, the Juvenile Justice Rules, 2007 were enacted, which were brought into force on 26.10.2007, and Rule 12 was introduced, which provides for the procedures. 25. After the aforesaid amendments, the matter came up for consideration before the Hon'ble Supreme Court with regard to the accused, who were above 16 years but below 18 years of age on the date of commission of the offence and whose cases were pending before the Court at the time of commencement of the Juvenile Justice Act, 2000. In Jameel v. State of Maharashtra, (2007) 11 SCC 420, Vimal Chadha v. Vikas Choudhary, (2008) 15 SCC 216, Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 and Ranjit Singh v. State of Haryana, (2008) 9 SCC 453, the Hon'ble Supreme Court took the view in the light of the decision in Partap Singh's case (supra), because in these judgments, amendments to Crl. A. No. 436-DB of 2001 -14- Sections 2 (l) and 20 of the Juvenile Justice Act, 2000 and the introduction of Section 7-A as well as the Rules of 2007 were not brought to the notice and thus, not considered by the Supreme Court. Subsequently, in Hari Ram v. State of Rajasthan and another, (2009) 13 Supreme Court Cases 211, all the aforesaid judgments as well as the amendments made in the Juvenile Justice Act, 2000, from time to time, have been considered in detail and thereafter, it has been held as under : “49. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which 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 the Act and the Rules made thereunder which includes the definition of “juvenile” in Sections 2(k) and 2 (l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. 50. The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2 (l) even if the juvenile ceases to be so on or before the date of commencement of this Act and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. 51. Apart from the aforesaid provisions of the 2000 Act, as Crl. A. No. 436-DB of 2001 -15- amended, and the Juvenile Justice Rules, 2007; Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides