Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 1 of 8 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 22nd April, 2010 +CRL.M.B.NO.318/2010 & CRL. APPEAL NO. 241/2010 MOHD. JAHANGIR @ VIYA@CHOTTU ….APPELLANT Through: Ms. Nandita Rao, Advocate VERSUS STATE (GOVT. OF NCT OF DELHI) ….RESPONDENT Through: Mr. Lovkesh Sawhney, APP CORAM: HON’BLE MR. JUSTICE A.K. SIKRI HON’BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? AJIT BHARIHOKE,J. (ORAL) 1. The appellant, Mohd. Jahangir, has been convicted and sentenced in Sessions Case No.72/2006 arising out of FIR No.296/2004 registered at P.S. Kirti Nagar for having committed the offence punishable under Sections 302/34 and 392/34 IPC and for offence u/s 302/34 was sentenced Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 2 of 8 to undergo rigorous imprisonment for life and to pay a fine of Rs 2,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year. For offence under section 392/34 IPC he was sentenced to undergo rigorous imprisonment for seven years and also pay a fine of Rs 1000/- and in default of payment of fine to undergo simple imprisonment for a period of one year. The appellant was also entitled to benefit u/s 428 Cr.P.C. 2. The case of the prosecution is that on 11.6.2004 at about 2.45 p.m. accused persons namely Gajanand, Anil, Mohd Jahangir committed robbery of wrist watch, ration card and Rs 50/- from Ram Chander. Ram Chander informed his brother Nankai (deceased) about the said incident on which both of them went to catch the culprits. Accused persons were seen going towards Nehru Camp. Ram Chander and his brother ran to catch hold of the offenders. The deceased could grab one of the accused Gajanand, on which the accused person namely Mohd Jahangir and Anil got there accomplice freed from him and immediately thereafter, Gajanand took out a dagger from his pocket and threatened Ram Chander and Nankai to be killed. Deceased not being afraid of, still made an attempt to catch hold of the accused persons on which Mohd Jahangir and Anil caught hold of the deceased from both of his arms and started beating him. Both the accused persons then exhorted to Gajanand to kill Nankai, on which Gajanand stabbed Nankai with a dagger 6-7 times on Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 3 of 8 chest, stomach and arms. The stabbing was so powerful that Nankai fell on the ground and his intestines came out. Nankai died on the spot. Ct Mahinder and Ct Lachu Singh who were on patrolling duty apprehended the accused persons along with the dagger. 3. The appellant aggrieved by the impugned judgment of conviction dated 30.7.2008 and order of sentence of 31.7.2008, has preferred the present appeal. 4. During the course of arguments, learned counsel for the appellant, on instructions from the appellant, has not pressed the grounds of appeal against conviction. He, however, has submitted that the appellant was a juvenile in terms of Section 2 (k) of The Juvenile Justice (Care and Protection of Children) Act, 2000, wherein it is provided that a “juvenile” or a “child” means a person who has not completed eighteenth year of age. Thus, he is entitled to be dealt with under the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000. 5. The appellant has filed a jail petition bearing Crl. M. No. 2605/2010 duly attested by Superintendent, Jail, Tihar on 24.11.2009 under Section 7A of the Juvenile justice (Care and protection of Children) Act, 2000 for conducting ossification test of the appellant claiming that he was a juvenile on the date of commission of offence i.e. 11.6.2004 as such this case was required to be dealt with under the provisions of juvenile Justice Act. Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 4 of 8 6. Vide orders dated 8th March, 2010, we directed the Jail Superintendent to have conducted the ossification test of the appellant and to submit a report in this regard. Pursuant to the said direction, the report of ossification test has been received from Deen Dayal Upadhayay Hospital, which indicates that according to radiological evidence, the age of the appellant is more than 20 years but less than 22 years as on 16th March, 2010. Calculating the age of the appellant on the basis of the report, even if he is taken to be 22 years of age on 16th March, 2010, on the date of occurrence i.e. 22nd June, 2004, he was around 16 years of age. Thus, it is clear that the appellant was a minor i.e. below 18 years on the date of commission of offence. 7. Learned counsel for the appellant has taken us through the scheme of The Juvenile Justice (Care and Protection of Children) Act, 2000 and submitted that Section 2(k) of the Act has expanded the definition of juvenile by increasing the age from 16 years to 18 years. He has submitted that Section 7-A(1) of the Act provides for the procedure to be followed when the claim of juvenility is raised before any court and Section 7-A(2) provides that if the court finds a person to be juvenile on the day of commission of offence, 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. He has also drawn our attention to Section 20 of the Act which deals with the pending cases of the Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 5 of 8 persons who are covered under the definition of juvenile because of the definition of juvenile under Section 2(k) of the Act increasing the age from 16 to 18 years, and submitted that in view of the aforesaid provisions of the Act, the order of sentence awarding life imprisonment to the appellant is uncalled for and it needs to be modified. 8. In order to appreciate the submissions of learned counsel for the appellant, it would be useful to reproduce Section 7-A of The Juvenile Justice (Care and Protection of Children) Act, 2000, which is as follows: “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 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 order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 6 of 8 9. From a perusal of Section 7-A of The Juvenile Justice (Care and Protection of Children) Act, 2000, it transpires that as per clause (1), whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary 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 precise age as nearly as possible. 10. Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the procedure to be followed in respect of pending cases pertaining to the juveniles in any court in any area on the date on which the Act comes into force in that area. It provides that such pending cases against the juvenile shall continue in the said courts as if this 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 juvenile, forward the case to the Board which shall pass appropriate orders in respect of that juvenile in accordance with the provisions of the Act. 11. Since the appellant has conceded his pleas against the impugned judgment of conviction on merits, we dismiss the appeal to that extent. So far as the appeal against the order of sentence is concerned, we have already concluded above that the appellant was a juvenile on the date of commission of offence as his age then was less than 18 years. Clause 2 of Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 7 of 8 Section 7-A and Section 20 of The Juvenile Justice (Care and Protection of Children) Act, 2000 provides that if the Court finds a person to be juvenile in terms of definition under Section 2(k) of the Act on the date of commission of offence, it shall forward the juvenile to the Juvenile Justice Board for passing appropriate orders, and the sentence if any, awarded by a Court shall be deemed to have no effect. The import of this provision is that sentence awarded by the learned trial Judge in terms of the impugned order of sentence will have no effect and the matter has to be referred to the Juvenile Justice Board for passing appropriate orders. We may, however, note that as per Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2000, the maximum period for which a juvenile can be sent to a Special Home is three years. As per the nominal roll, the appellant has already undergone sentence of more than 5 years, meaning thereby that the appellant has already served the maximum period of three (3) years. 12. In view of the fact that the appellant has suffered incarceration for the maximum period of detention in Special Home permissible under The Juvenile Justice (Care and Protection of Children) Act, 2000, we do not deem it appropriate to refer the matter back to the Juvenile Justice Board for passing appropriate orders and direct formal release of the appellant in the present appeal. Crl.M.B.No.318/2010 & Crl.A.No.241/2010 Page 8 of 8 13. We may note that the appeals of co-accused Anil and Gajanand were also partly accepted by a Division Bench of this Court as they were also minor on the date of commission of the offence. 14. The appeal is partly accepted and order on sentence is modified accordingly. 15. The appellant is in jail. He be released forthwith if not required in any other case. 16. The application and the appeal stand disposed of. A.K. SIKRI, J. AJIT BHARIHOKE,J APRIL 22, 2010 gg