Mumtaz @ Muntyaz vs State Of U.P.(Now Uttarkhand)

2. On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990 PW-1 heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter PW-1 along with his other nephew PW-2 Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. Both PWs 1 and 2 rushed there and put a quilt on Pawan Kumar. In this report, PW-1 Radhey Shyam further stated that he had seen the appellants and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, Manglaur for medical attention. Aforesaid FIR Ext.A-1 led to registration of Crime No.328 of 1990 at Police Station Manglaur relating to offences punishable under Sections 307 and 342 IPC.

3. At Primary Health Centre, a dying declaration Ext.A-24 of Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra, Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants had set him on fire. The translation of the relevant portion of the dying declaration Ext.A-24 is as under:

4. On 27.12.1990 itself PW-2 Anil Kumar who had burnt his hands while trying to save Pawan Kumar, was examined by PW-7 Dr. N.D. Arora, who prepared injury report Ext.A-23. This report mentioned that when he came to the Primary Health Centre, there were burn injuries on the hands of PW-2 Anil Kumar.

7. After completion of investigation, charge-sheet Ext.A-16 was filed against the appellants as well as Naseem Khan and Anees Khan. The prosecution examined 9 witnesses. PW-1 Radhey Shyam and PW-2 Anil Kumar were examined as eye witnesses and so also PW-3 Narendra Kumar who had seen the accused taking Pawan Kumar and setting him on fire. PW-4 Dr. Rakesh Kumar who had conducted post mortem on the dead body of deceased Pawan Kumar proved this post mortem report Ext.A-2. According to him, the cause of the death was shock from burn injuries. PW-5 Satya Prakash Mishra proved dying declaration Ext.A-4. The Investigating Officer Saudan Singh was examined as PW-6 who proved Site Plans Ext.A-4 and A-5, sample seal memo Ext.A-7, Inquest Report Ext. A-9, Seizure Memo of quilt Ext. A-10, Seizure Memo of burnt clothes of Pawan Ext.A-11, Seizure Memo of burnt shawl Ext.A-14 and other relevant documents. PW-7 Dr. N. D. Arora was examined to prove injuries on the person of PW-2 Anil Kumar and injury report Ext. A-23. PW-8 Dr. R. D. Sharma proved the endorsement of Dr. S.K. Mittal on the dying declaration of Pawan Kumar Ext.A-22. No witness was examined on behalf of the defence.

8. The Trial Court by its judgment and order dated 19.12.1994 found the appellants guilty of the charges punishable under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life and also directed them to pay fine of Rs.5,000/-, in default whereof they were directed to undergo further imprisonment for one year. Naseem Khan and Anees Khan were however acquitted of all the charges.

9. Aggrieved by the aforesaid conviction and sentence, the appellants preferred Criminal Appeal No.2007 of 1994 in the High Court of Judicature at Allahabad. The appeal was thereafter transferred to the High Court of Uttarakhand at Nainital and re-numbered as Criminal Appeal No.270 of 2001. The High Court by its judgment and order under appeal affirmed the conviction and sentence passed against the appellants. The High Court principally relied upon eye-witness account through PW-1 Radhey Shyam and PW-2 Anil Kumar as well as dying-declaration Ext.A-24.

17. Having gone through the material on record, we do not see any reason to upset the findings recorded by the Trial Court and the High Court regarding conviction and sentence of appellant Mumtaz @ Muntyaz. Confirming his conviction and sentence we dismiss Criminal Appeal No.2084 of 2009 preferred by appellant Mumtaz @ Muntyaz.

24. It is thus well settled that in terms of Section 20 of the 2000 Act, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the Court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the Court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act.

27. Thus, while holding appellant Dilshad @ Pappu to be juvenile in terms of the 2000 Act as on the day of occurrence and guilty of the offence with which he was tried, we set aside the sentence of life imprisonment passed against him and remit the matter to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine that should be levied on the appellant Dilshad @ Pappu and the compensation that should be awarded to the family of the deceased, keeping in mind the directions issued in Jitendra Singh and another v. State of U.P. (supra).

28. Criminal Appeal No.2084 of 2009 is thus dismissed while Criminal Appeal No.460 of 2010 is allowed to the aforesaid extent and the matter as regards Appellant Dilshad @ Pappu stands remitted to the Jurisdictional Juvenile Justice Board for determination as aforesaid. The bail bonds furnished by Appellant Mumtaz alias Muntyaz are cancelled and he shall be taken in custody forthwith to undergo the sentence awarded to him.