IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 92 of 2004. Date of Decision: 20.9.2010. _______________________________________________ Birbal and Others ….Petitioners. Versus State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the petitioners : Mr. Bhupinder Ahuja, Advocate. For the respondent : Mr. P. K. Sharma, Addl. A.G. Dev Darshan Sud, J.(Oral). Cr.MP_______/2010 Be registered. 2. By this application the petitioner seeks to place on record the date of birth of Tilak Raj which is 4.3.1982 in both certificates issued by the Himachal Board of School Education for the middle standard examination as also matriculation examination. The petitioner has also placed on record the Pariwar Register showing the date of birth of Tilak Raj to be 4.3.1982. Application is not opposed and is accordingly allowed. The documents are taken on record. Whether reporters of the Local papers are allowed to see the judgment? 2 3. The petitioners in this case, including Tilak Raj were charged and convicted for offences under Sections 325 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for one year and pay fine of Rs.2,000/- each and in default to undergo rigorous imprisonment for a period of one month. The petitioners were also convicted for offence under Section 323 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment for six months and pay fine of Rs.1,000/- each in default to undergo rigorous imprisonment for a period of one month. 3. Adverting to the case of the petitioner Tilak Raj, his case is squarely covered by a decision of Supreme Court in Dharambir v. State(NCT of Delhi) and another, 2010)5 SCC 344. Adverting to the provisions of the Juvenile Justice Act, the court holds: “7. Before adverting to the question, we may note that the issue with regard to the date, relevant for determining the applicability of either of the two Acts, insofar as the age of the accused, who claims to be a juvenile/child, is concerned, is no longer res integra. On account of divergence of views on the pint in Umesh Chandra v. State of Rajasthan and Arnit Das v. State of Bihar, the matter was referred to the Constitution Bench in Pratap Singh v. Umesh Chandra case, the Constitution Bench held that the relevant date for determining the age of the accused, who claims to be a juvenile/child, would be the date on which the offence has been committed and not the date when he is produced before the authority or in the court. 3 9. The decision in Pratap Singh case led to substitution of Section 2(l); the insertion of Section 7-A and proviso and the Explanation to Section 20 of the Act of 2000 by Act 33 of 2006 as also introduction of the Juvenile Justice(Care and Protection of Children) Rules, 2007 containing Rule 12, which lays down the procedure to be followed in determination of age of a child or a juvenile. 15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(I), 7-A, 20 and 49of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice(Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1.4.2001 would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan.” 4. The offence was committed on 1.6.1988, on which date the petitioner Tilak Raj was aged 16 years. In these circumstances, he cannot be sentenced to imprisonment and was entitled to protection under the Juvenile Justice Act. 5. Adverting to the other two convicts, I do not find any merit in this revision petition. For arriving at this conclusion, I am fortified by the evidence of PW-1 Laxman 4 Dutt, PW-7 Kamla Devi PW-3 Dr. Sanjay Pathak and PW-4 Dr. Anil Kaushal, who proved on record the injuries including the MLCs Ext.PW-3/A and Ext.PW-3/B evidencing grievous injuries on the person of the complainant. The submission made on behalf of the learned counsel for the petitioner that there are contradictions in the evidence of the prosecution cannot be accepted as even after reading the evidence, I am unable to find out any material contradictions on record of the case. Needless to say that PW-2 Dina Nath who was an independent witness has proved the case of the prosecution. 6. Adverting to the sentencing aspect, I find that before the learned trial court, no attention was paid to the fact that Tilak Raj was juvenile and could not have been imposed a sentence, the trial court refused to give benefit of Probation of Offenders Act to accused Birbal aged 60 years and his wife accused Laxmi Devi aged 50 years. I find from the submissions made by the learned counsel for the petitioner that one of the petitioners is aged 70 years and his wife is 60 years old. Learned counsel for the petitioners also submits that he has a son who is suffering from sever mental retardation and requires consistent care and attention. In these circumstances, it would be against the established norms of criminal jurisprudence to sentence both the petitioners to imprisonment. This petition is accordingly disposed of. It is directed that instead of sentence and imprisonment, the petitioners shall pay Rs.25,000/- as fine which shall be deposited with the learned trial Magistrate 5 within six months from today. On deposit of such amount, it shall be paid to the injured Laxmi Dutt. It is clarified that in case of non payment of fine, the sentence and imprisonment shall revive. Accordingly the revision is disposed of. (Dev Darshan Sud), Judge. September 20, 2010(VT)