Mohd. Amir @ Lundi vs State

Mukta Gupta, J.—By the present appeal the Appellant Mohd. Amir @ Lundi has laid a challenge to the judgment dated 29th November, 1999 passed by the learned Trial Court holding him guilty for offences punishable under Sections 186/307/34 IPC and the order on sentence dated 30th November, 1999 directing the Appellant to undergo rigorous imprisonment for a period of one month and a fine of Rs. 500/- and in default to undergo six months simple imprisonment u/s 186 IPC and for offence punishable u/s 307 IPC to undergo rigorous imprisonment for a period of three years and a fine of Rs. 3,000/- and in default of payment of fine to undergo simple imprisonment for six months.

Brief facts of the case are that in the year 1994 on 14th March, 1994 it was a day of festival of Eid and the injured Constable Madhav Singh PW4 along with other police staff was deputed at Aram Park Masjid. SI Bhim Singh PW17 with Constable Billo Singh PW6 was also present there. After the prayers, Constable Madhav Singh was patrolling in Bank Enclave, at about 12.25 p.m. when he reached opposite Kothi No. 41 and 42 on the main road, he noticed a Maruti Gypsy coming from the side of pusta. On seeing the same he became suspicious. There were four boys in the said Gypsy and in order to check the antecedents of the boys he went near the Gypsy bearing No. DL-1C-2171. However, on the glass i.e. the window screen Gypsy No. DL-1C-2071 was etched. He inquired about the name and address of the four boys sitting in the gypsy and noted their names on a piece of paper. As he was suspicious about the said gypsy bearing two different numbers on it, he asked for the document of the gypsy but the boys did not show any papers to him. One Munna @ Imran who was seated at the driver''s seat was brought out from the gypsy by him for showing the documents of the gypsy. In the meanwhile, the other three boys also got down from the vehicle and tried to release Manna @ Imran from Constable Madhav Singh. During this period HC Vend Kumar PW11 and Constable Joginder PW2who were on patrolling duty seeing the boys grappling with the complainant reached at the spot. They parked their motor cycle in order to help Constable Madhav Singh but before they could help him all the four boys took out knives and started inflicting knife blows on Constable Madhav Singh as a result of which he fell on the ground and was bleeding profusely. The boys started running from the spot; two of them ran towards Lovely Public School and the other two ran towards the pusta. PW11 HC Vend Kumar and PW2 Constable Joginder Singh chased the two boys who were running towards the Lovely Public School and during the chase gave danda blows to those boys to overpower them but they managed to escape. PW11 and PW2 returned to the spot where Constable Madhav Singh was lying in injured condition. He handed over a piece of paper on which he had written the names of the four occupants of the gypsy after the inquiry. This information was passed on to SI Bhim Singh PW17who along with Constable Billo Singh PW6 reached at the spot. Constable Madhav Singh was removed to J.P.N. Hospital in the PCR. PW17 SI Bhim Singh recorded the statement of PW11 HC Vend Kumar and on the basis of which ruqqa was sent for registration of the FIR. FIR No. 121/1994 Ex.PW1/A under Sections 186/353/307/34 IPC was registered at PS Shakarpur. During the course of investigation accused Mohd. Amir, Maid, Islamuddin @ Raja, Mohd. Imran @ Manna were arrested and after completion of investigation challan was filed. Accused Majid and Mohd. Amir, the Appellant herein were declared as PO by the learned Metropolitan Magistrate and the case of accused Islamuddin and Mohd. Imran was committed to be court of Sessions for Trial.

Accused Mohd. Amir was arrested subsequently. Accused Mohd. Imran @ Munna being juvenile were ordered to be tried by Juvenile Court vide order dated 8th December, 1994. Accused Islamuddin was discharged on 16th February, 1996. Accused Majid who was declared as proclaimed offender was also arrested and charged for offences punishable u/s 186/307/34 IPC. Majid thereafter again absconded and was declared proclaimed offender. Thus, trial proceeded only against Mohd. Amir@ Lundi the Appellant herein and vide impugned judgment dated 29th November, 1999,he was held guilty for offences punishable u/s 186/307/34 IPC and sentenced as mentioned hereinabove.

Learned Amicus Curiae for the Appellant contends that the prosecution case is full of contradictions and discrepancies. PW14 Constable Madhav Singh is the injured whereas PW11 HC Vend Kumar and PW2 Constable Joginder Singh are the alleged eye-witnesses. It is stated that the testimony of PW11 and PW2 the alleged eye-witnesses is not reliable as the injured himself deposed that there were four knives, however, only two knives were recovered from the spot. Further no opinion of an expert on the weapon of offence was sought by the prosecution to prove the possibility of the injury being caused by the said weapon. As regards the testimony of the eye witnesses it is contended that PW11 and PW2 in their examination-in-chief have deposed that they saw injured Constable Madhav making enquiries from the boys and noting their names while in their cross examinations the witnesses have deposed that they were about 100 yards away when they saw it. Thus, it is highly improbable that the two police officials saw Constable Madhav noting the names of the Appellant and other three boys. Learned Counsel states that despite the fact that names of the boys who gave knife blows to be injured were available with the police officials when the ruqqa was sent, the same were not mentioned in the ruqqa and the statements recorded u/s 161 Code of Criminal Procedure

An application has been filed by the Appellant stating that on the date of incident, he was around 20 years and thus entitled to the benefit of Probation of Offenders Act.

Learned APP for the State on the other hand contends that there is sufficient evidence placed before the Court to prove the guilt of the Appellant. Four circumstances have been pointed out by the learned APP being (i) the fact that the Appellant refused to take part in the TIP and no explanation for doing so has been rendered by the Appellant; thus adverse inference should be drawn (ii) the Appellant has been identified in the Court by PW2, PW11 and PW14 as one of the boys present at the spot when he along with his co-accused inflicted knife blows to Constable Madhav (iii) the conduct of the Appellant running away from the spot u/s 8 of the Evidence Act and (iv) the CFSL Report Ex. PW 17/D records that the blood of human origin was found on the knife. Thus from all these circumstances it stands proved beyond reasonable doubt that the Appellant was one of the four boys who inflicted knife blows on the person of the injured. Per contra the contention of learned amicus curiae that names of the boys was not recorded in ruqqa it is stated that in ruqqa Ex. PW11/A the description of the boys is mentioned and also factum of the said chit with name is recorded in the ruqqa. Thus, there is no merit in the present appeal and the same is liable to be dismissed.

I have heard learned Counsel for the parties and perused the record. There are two eye witnesses PW2 and PW11 who have deposed that on the day of incident when they were on patrolling and reached near Bank Enclave they saw Constable Madhav Singh making inquiries from the boys and noting their names. When Madhav Singh caught hold of one of the boys the other three came down from Gypsy and tried to rescue their friend. After he was rescued all of them having knives in their hands started inflicting blows and Madhav Singh received injuries on his mouth, chest, back and other parts of his body. Thereafter, both PW2 and PW11 raised an alarm and chased the boys; while chasing the boys who ran towards Lovely Public School, PW11 gave danda blows at the left hand of the boy who was short structured than the other boy. The boy who was given the danda blow was wearing a green coloured shirt. During an attempt to overpower him his green shirt came into the hands of PW11, also during his scuffle PW11 received injuries and the other boy i.e. the taller boy gave beatings to him. However, both the boys managed to escape.PW2 and PW11 rushed back to spot and Constable Madhav Singh gave them a slip having the names and addresses of the boys, the same is Mark X. On the spot, they recovered two blood stained knives. These two witnesses have correctly identified the knives, Gypsy and the Appellant. PW14 the injured himself has given the facts of the case and identified the Appellant. PW14 has deposed that it would be incorrect to say that the Appellant herein was not present at the spot nor inflicted injuries on him with knives. Furthermore, the CFSL report records the presence of the human blood on the knife. The minor discrepancies in testimony of the witness do not go to the root of the prosecution version. I find no force in the contention of the learned Counsel that the names of the boys were not recorded in the ruqqa. There is sufficient evidence on record in the form of the testimony of the eye-witnesses and the injured himself, recovery of weapon at the spot and CFSL report to hold the Appellant liable for the offences of which he is charged. Thus, I find no illegality in the judgment and order passed by the learned Trial Court.

The vital question which arose in the appeal during the course of arguments was the issue of juvenility of the Appellant at the relevant time of commission of offence. This Court by it orders dated 25th February, 2011 besides the probation officer''s report, had directed State for submission of a report in regard to the verification of the age of Petitioner. The said report has been received. Along with the said report, the copy of birth certificate has been enclosed which records the date of birth of the Petitioner to be 19th January, 1977. Thus, on 14th March,1994, when the incident took place the Petitioner was 17 years and 2 months of age. The Juvenile Justice (Care & Protection of Children) Act 2000 replaced the Juvenile Justice Act, 1986 wherein the ''juvenile'' is below 18 years. The Hon''ble Supreme Court in Hari Ram Vs. State of Rajasthan and Another, has clarified the position in regard to the effect/benefit of the new Act on the cases registered prior to this 2000 Act. Their Lordships held:

The said question, which is identical to the question raised in these proceedings, was considered in the case of Arnit Das Vs. State of Bihar, , wherein, in the light of the definition of "juvenile" under the 1986 Act, which was then subsisting, this Court came to a finding that the procedures prescribed by the 1986 Act were to be adopted only when the Competent Authority found the person brought before it or appearing before it to be under 16 years of age, if a boy, and under 18 years of age, if a girl, on the date of being so brought or such appearance first before the Competent Authority. This Court also came to a finding that the date of commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the 1986 Act. In the said decision, this Court sought to distinguish the earlier decisions in the case of Santenu Mitra''s case (supra); Bhola Bhagat Vs. State of Bihar, and Krishna Bhagwan Vs. State of Bihar, which was a Full Bench decision. It also over-ruled the decision of the Calcutta High Court in Dilip Saha Vs. State of West Bengal, where the Calcutta High Court, while interpreting the provisions of the West Bengal Children''s Act, 1959, which is a pari materia enactment, took the view 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.

The question which fell for decision in Arnit Das''s case (supra), once again fell for the consideration of this Court in the case of Pratap Singh''s case (supra), where the decision of this Court in Umesh Chandra''s case (supra), which expressed a view which was contrary to that expressed in Arnit Das''s case (supra), was brought to the notice of the Court, which referred the matter to the Constitution Bench to settle the divergence of views. In fact, the Constitution Bench formulated two points for decision, namely, (a) Whether the date of occurrence will be the reckoning date for determining the age of the alleged offender as juvenile offender or the date when he is produced in the Court/competent Authority?

(b) Whether the Act of 2000 will be applicable in a case where a proceeding is initiated under the 1986 Act and was pending when the Act of 2000 was enforced with effect from 1.4.2001?

While considering the first question, the Constitution Bench had occasion to consider the decision of the three Judge Bench in Umesh Chandra''s case (supra), wherein it was held that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. Consequently, the decision in Arnit Das''s case (supra) was over-ruled and the view taken in Umesh Chandra''s case (supra) was declared to be the correct law. On the second point, after considering the provisions of Sections 3 and 20 of the Juvenile Justice Act, 2000, along with the definition of "juvenile" in Section 2(k) of the Juvenile Justice Act, 2000, as contrasted with the definition of a male juvenile in Section 2 of the 1986 Act, the majority view was that the 2000 Act would be applicable to a proceeding in any Court/Authority initiated under the 1986 Act which is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001. In other words, a male offender, who was being proceeded with in any Court/Authority initiated under the 1986 Act and had not completed the age of 18 years on 1.4.2001, would be governed by the provisions of Juvenile Justice Act, 2000.

In his concurring judgment, S.B. Sinha, J., while considering the provisions of Section 20 of the Juvenile Justice Act, 2000, observed that for the purpose of attracting Section 20 it had to be established that (i) on the date of coming into force the proceedings in which the Petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. The unanimous view of the Constitution Bench was 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, he was below 18 years of age as on 1.4.2001. Consequently, 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.

The said decision in Pratap Singh''s case (supra) led to the substitution of Section 2(l) and the introduction of Section 7A of the Act and the subsequent introduction of Rule 12 in the Juvenile Justice Rules, 2007, and the amendment of Section 20 of the Act.

Read with Sections 2(k), 2(l), 7A and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, is probably the Section most relevant in setting at rest the question raised in this appeal, as it deals with cases which were pending on 1st April, 2001, when the Juvenile Justice Act, 2000, came into force. The same is, accordingly, reproduced herein below:

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, 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 (1) 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.

The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.

In view of the decision of the Hon''ble Supreme Court this Court is duty bound to grant the benefit of the Act to the Appellant herein who at the relevant point of time i.e. at the time of commission of offence was a juvenile, below 18 years of age.

The issue thus arises as to how the benefit of juvenility can be extended to the Appellant in a case where the offences charged have been proved beyond reasonable doubt by the Prosecution. The Hon''ble Supreme Court in Bhoop Ram v. State of U.P. AIR 1986 SC 1329 held:

On a consideration of the matter, we are of the opinion that the Appellant could not have completed 16 years of age on 3-10-1975 when the occurrence took place and as such he ought to have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act 1951 and dealt with u/s 29 of the Act. We are persuaded to take this view because of three factors. The first is that the Appellant has produced a school certificate which carries the date 24-6-1960against the column ''date of birth''. There is no material before us to hold that the school certificate does not relate to the Appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the Appellant appeared to be about 30 years of age as on30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the Trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the Appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the Appellant was a boy of 17 years of age. The observation of the Trial would lend credence to the Appellant''s case that he was less than 10 years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the Appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the Appellant would not have completed 16 years of age on the date of the offences were committed. It therefore follows that the Appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts.

Since the Appellant is now aged more than 28 years of age, there is no question of the Appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra and another Vs. State of Uttar Pradesh, that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" u/s 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the Appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentence imposed upon the Appellant are quashed.

In view of the fact that the Appellant was a juvenile at the time of the commission of offence and the said benefit has to be extended to him, while maintaining the conviction of the Appellant, the order on sentence is set aside.

The appeal and the application are allowed in above terms. The Appellant is in custody. The Superintendent, Tihar Jail is directed to release the Appellant forthwith if not required in another case.