Crl. Appeal No.791-DB-2002 v. The State of Punjab

Judgment

1. The present appeal is directed against the judgment and order dated 12.7.2002 passed by the learned Additional Sessions Judge (Adhoc) Sangrur whereby appellant Prem Kumar has been convicted and sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code for having caused the murder of his Crl. Appeal No.791-DB-2002 #2# friend Sonu.

2. The prosecution was set in motion on the statement of the complainant Dhanna Singh(PW-7), Jat Sikh, resident of Sangrur which read as under:- “It is stated that I am posted as Jail warder in District Jail, Sangrur. Today on 28.9.1998 after finishing my duty, I reached my house at Ganga Ram Basti, at about 6.30 PM. After taking tea, water, I was coming towards Railway line. On the way, Tehal Singh son of Karnail Singh resident of Ganga Ram Basti ward no.20 which is near my house, met me. We both, while talking were going towards the railway lines. Then near west cabin Home signal, we saw that my son Sonu and Prem Kumar son of Ram Chand r/o Ajit Nagar Basti were quarelling with each other. We ran towards railway lines to rescue them. Before our arrival, Prem Kumar gave blow with some Chhura like articles after taking out the same from the Dub of his wearing pant, into the left blank of Sonu. Before that we could rescue of Sonu, from him, Prem Kumar gave two more more blows in the left blank of Sonu, on which Sonu fell down in the railways Crl. Appeal No.791-DB-2002 #3# lines, and we started taking care of him. Then Prem Kumar ran away from the spot along with his weapon. We lifted Sonu and in the meantime, Somnath son of Muni Ram, who is residing our Mohalla, was coming on scooter. After stopping him I sent Sonu to get him admitted in Civil hospital along with Tehal Singh, and I went to my house to take the money. When after taking the money from the house, I reached Civil Hospital, Sangrur, there I came to know that my son Sonu has died. My son Sonu has been killed by Prem Kumar son of Pam Chand resident of Ajit Nagar Basti with some Chhura like article. This dispute had arose between Sonu and Prem Kumar regarding some girl. Please action be taken. Statement has been heard which is correct. I put my signatures”.

3. On arrival of injured Sonu at civil hospital Sangrur, a medical ruqa was sent at 7.40 PM and SI Ravinder Lamba, SHO GRP Sangrur(PW-8) reached the civil hospital Sangrur and recorded the statement(Ex.PW-7/A) of Dhanna Singh at 10.15 PM. On the basis of

the statement a formalized FIR (Ex.PW-8/C) was registered at 10.55 PM at police station Railway Police, Sangrur. The special report reached the Illaqa Magistrate at 10.30 AM the next morning i.e. Crl. Appeal No.791-DB-2002 #4#

29.9.1998.

4. The inquest report (Ex.PW-8/D) was prepared on 29.9.98 by IO Ravinder Rana(PW-8) and the body was sent for post mortem examination. Then PW-8 visited the place of occurrence and prepared the rough site plan(Ex.PW-8/E) and recorded the statements of Som Nath and Tehal Singh under section 161 Cr.PC. On the same day Dr. H.S. Bali (PW-1) along with Dr. S.K. Singla conducted the autopsy at civil hospital Sangrur. He found three stab wounds in the abdominal which were opined as the cause of his death. On 1.10.1998 accused/appellant was arrested and on his disclosure statement (Ex.PW-8/G) the weapon of offence i.e. Sua type knife was recovered at the specified concealed place and taken into possession vide memo Ex.PW-8/J. After completion of the investigation accused was charge sheeted for the offence under section 302 of the Indian Penal Code to which he pleaded not guilty and claimed trial.

5. The prosecution to prove its case examined 11 witnesses and led documentary evidence. Accused-appellant in his statement recorded under section 313 Cr.PC denied the incriminating allegations and pleaded his false implication. However he did not lead any evidence in defence.

6. The learned trial court by relying on the eye witness account of complainant Dhanna Singh(PW-7) and Tehal Singh (PW-9) corroborated by the medical evidence of Dr. H.S. Bali (PW-1) who conducted the autopsy and the evidence of motive convicted and Crl. Appeal No.791-DB-2002 #5# sentenced the appellant as aforesaid.

7. The sole contention raised by the counsel for the appellant is that in view of the provisions of Juvenile Justice Act 2000( for short the 2000 Act), raising the age limit for being covered under the definition of “juvenile” from 16 to 18 years, the appellant was liable to be held as a juvenile and entitled to all the protections available under the 2000 Act and thus could not be kept in custody beyond a period of three years. In support of his contention reliance has been placed upon the law laid down by the Hon'ble Supreme Court in Hari Ram Vs. State of Rajasthan 2009(2) RCR (Criminal) 878. Learned State counsel has not been able to seriously refute the contentions raised on behalf of the appellant.

8. Before we proceed to deal with the contention it is necessary to notice the law laid down by the Hon'ble Supreme Court in Hari Ram's case (Supra). In Hari Ram's case (Supra) the accused on the basis of the medical opinion was determined to be of 16 years and 13 days on the date of commission of the crime i.e. 30.10.1998. He was thus, not covered under the definition of “juvenile” under the Juvenile Justice Act, 1986 being above 16 years of age. The 2000 Act, which was enforced with effect from 1.4.2001, repealed the Juvenile Justice Act 1986 but provided that the 2000 Act would apply to pending cases provided the person was juvenile and had not completed the age of 18 years from the date when the 2000 Act was enforced i.e. 1.4.2001. Hari Crl. Appeal No.791-DB-2002 #6# Ram was 18 years and 05 months and 15 days of age as on 1.4.2001 i.e. the date of the enforcement of the 2000 Act. The constitution bench of the Hon'ble Supreme Court in Partap Singh Vs. State of Jharkhand 2005(1)RCR (Criminal) 836 while considering the relevant provisions of the 2000 Act held firstly, that the age of the offender was to be reckoned from the date when the alleged offence was committed; secondly, the 2000 Act will have a limited application in the cases pending under the 1986 Act i.e. the offender/juvenile had to be not more than 18 years on 1.4.2001. The decision in Partap Singh's case (Supra) led to the substitution of Section 2(l) defining “a juvenile in conflict with law” and the introduction of Section 7(A) and amendment of Section 20 of the 2000 Act by an Amendment Act of 2006; and the subsequent introduction of Rule 12 in the Juvenile Justice, Rules. The effect of amendments post Partap Singh's decision case (Supra) were considered in detail in Hari Ram's case (Supra) and in nutshell it was held that after the amendments made in 2006 the only criteria that is necessary for determining the juvenality of a person is whether on the date of the offence he was below the age of 18 years or not and if he was so, then the offender is to be treated as a juvenile and the benefits of the 2000 Act would accrue to him. Accordingly the appeal filed by Hari Ram was allowed by recording that he was below 18 years of age at the time of commission of the offence and entitled to full protection under the 2000 Act. Crl. Appeal No.791-DB-2002 #7#

9. Keeping in view the aforesaid legal position settled in Hari Singh's case(Supra), we proceed to examine the facts of the present case. It is not in dispute that before the learned trial court appellant/accused Prem Kumar had raised the question regarding his being juvenile on the date of occurrence i.e. 28.9.1998. He had asserted to be below 16 years of age and thus covered under the definition of “juvenile” under the Juvenile Justice Act 1986. He had also submitted that he was not in position to produce any proof thereof. Accordingly the learned trial court vide its order dated 10.3.1999 had provided that the accused be produced before Civil Surgeon, Sangrur on 18.3.1999 at 10.00 AM for necessary medical Ossification test to determine his age and submit a report. The perusal of the zimni order dated 1.4.1999 of the trial court reveals that Ossification test report of the accused Prem Kumar was received and according to the same the age of the accused was stated to be between 17 to 20 years. No objection to this report was raised by either side, therefore, the same was accepted by the learned trial court. The learned trial court then adopted the age of the accused to be 17 years on the day of test and accordingly recorded a finding that he was about 16-1/2 years on the date of occurrence on 28.9.1998 and thus being more than 16 years of age was not a juvenile. No objection to this adoption was ever raised by the prosecution. Thus, we are constrained to accept that the age of the accused/appellant was 16-1/2 years on the date of occurrence and, Crl. Appeal No.791-DB-2002 #8# therefore, in view of the law laid down by the Hon'ble Supreme Court in Hari Ram's case (Supra) we hold that the appellant is covered under the definition of being “juvenile” under the 2000 Act being less than 18 years of age on the date of occurrence and is entitled to the benefit under proviso to sub section 2 of Section 16 of the 2000 Act which clearly mandates that the period of detention so ordered shall not exceed in any case the maximum period provided under section 15 of the 2000 Act i.e. a maximum period of three years. It is a matter of record that the appellant has been in custody for more than 10 years. Consequently, we maintain the conviction and modify the sentence to three years. Since the accused has undergone more than three years, therefore, he is directed to be released forthwith. Appeal is allowed in the above terms. (HEMANT GUPTA) (JASWANT SINGH) JUDGE JUDGE May 18th, 2010 Vinay