Bombay High Court
Dharmendra Munib Gupta vs The State Of Maharashtra on 16 July, 2013
Bench: V.K. Tahilramani, Mridula Bhatkar
vss
apeal.775.2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.775 OF 2009
1) Dharmendra Munib Gupta
2) Baya Abel Pereira
3) Kamlesh Rameshwar Yadav ... Appellants
Vs.
The State of Maharashtra ... Respondent
Ms.B.P. Jakhade, Advocate appointed for the Appellants
Ms.M.M. Deshmukh, APP, for Respondent - State
Mr.D.A. Nalawade, Spl.P.P. for Union Territory
ig CORAM: MRS.V.K. TAHILRAMANI &
MRS.MRIDULA BHATKAR, JJ.
DATE: JULY 16, 2013 ORAL JUDGEMENT (PER MRS.BHATKAR, J.):
1. All the three accused are convicted by judgment and order dated 21.11.2007 of the Sessions Court, Daman for the offence punishable under section 302 r/w 34 of the Indian Penal Code and also u/s 201 r/w 34 of the Indian Penal Code. The maximum sentence awarded to the accused is of life imprisonment. Accused No.2 Baya is the wife of deceased Abel Pereira and was having an affair with accused No.1. The incident of murder has taken place during the night between 18.7.2004 at 20:00 hrs till 4am on 19.7.2004. Accused No.2 was residing with deceased Abel since 9 years prior to the incident.1 / 16 ::: Downloaded on - 27/08/2013 21:06:53 :::
apeal.775.2009
2. As per the case of the prosecution, there was no nuptial knot between them and they were having live-in relationship and procured three children out of the said relationship. PW1 Pinki is the eldest daughter. They were staying in a hut near the mutton market at Daman.
Accused No.2 Baya developed illicit relationship with accused No.1, who used to visit the house of accused No.1 and 2. Accused No.1 was doing some carpentry work with one Amas. Due to this illicit relationship, there were quarrels between deceased Abel and accused No.2 Baya. Abel left the house and started residing with his brother Anthony, PW2. But he used to visit his house to meet his children. In the absence of Abel, accused No.1 started residing with Baya. Accused No.3 used to earn his livelihood by begging and was known as Bhikhari [beggar] in the vicinity.
On the evening of 18.7.2004, all the three accused had consumed liquor with Abel near the hut of accused No.2 and after consuming liquor, accused No.1 took Abel little away towards the seashore. Accused No.2 followed her husband alongwith her daughter Pinki. When they all were there, accused No.1 took out a knife and stabbed Abel in his stomach, back and on face and he also cut the ear of Abel. Accused No.3 held legs of Abel and accused No.2 bit the chest and on the hands of Abel. Accused No.1 gagged mouth of Abel with sand so that he would not be able to scream. All of them dragged injured Abel towards the sea and threw him and they all returned home. On the next day early morning i.e., on 2 / 16 ::: Downloaded on - 27/08/2013 21:06:53 ::: apeal.775.2009 19.7.2004, one boy named Clifford from the vicinity came and told Anthony that his brother Abel was lying dead at sea shore. He rushed to the seashore and found his brother lying dead in injured condition. Blood was oozing from the injuries. He went to the police station at Daman and lodged complaint with the police. The said complaint was registered as C.R. No.100 of 2004 at Nani Daman against all the three accused. It is marked as exhibit 22.
The police i.e., PW6 PSI Vaja recorded the FIR and registered the C.R.No.100 of 2004. Inquest panchanama of the body of deceased Abel was conducted which is marked as exhibit 25. Postmortem was conducted by Dr.Jagdish B. Patel, Medical Officer, Government Hospital, Marwar, Daman. According to him, the death of Abel was caused due to asphyxia due to drowning which has caused multiple stab wounds and other injuries. On 19.7.2004, the police carried out search of accused No.2 Baya and also recorded statement of PW1 Pinki. They arrested accused No.1 and 2 on 19.7.2004 i.e., on the next day and also arrested accused No.3. The police recovered blood stained clothes of accused No.1 (article 5) at the instance of accused No.1 from the dustbin in the house of accused No.2, which is recorded as memoranda (exhibit 28 and
29) on the same day i.e., 19.7.2004. Two knives were seized from the house of accused No.2. The police collected the postmortem report, C.A. report, recorded statements of all the witnesses.
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3. After completion of the investigation, chargesheet was submitted in the Court of Chief Judicial Magistrate, Daman. The learned Chief Judicial Magistrate committed the case to the Court of Sessions. The trial was conducted before the learned Sessions Judge against all the three accused for the charge u/s 302 r/w 34 as well as section 201 r/w 34 of the Indian Penal Code. Thereafter, it was concluded in the conviction of all the accused. Hence, this appeal.
4. At the outset, learned Counsel for the appellants raised the issue of the age of accused No.1. She submitted that at the time of the incident i.e., on 18.7.2004, accused No.1 was juvenile in conflict with law and he should have been given the benefit under the Juvenile Justice (Care and Protection of Children) Act, 2000. She submitted that this plea of age was raised by accused No.1 before the learned Chief Judicial Magistrate and then continuously agitated before the learned Sessions Judge. However, though the report of the Medical Board in respect of the age of the accused was between 18 to 20 years, flexibility of two years was not given to the said accused and, therefore, that has caused prejudice to the accused, who was a juvenile at the time of the incident. The learned Counsel in support of her submissions relied on the judgment of the Supreme Court in the case of Jyoti Prakash Rai alias Jyoti Prakash vs. State of Bihar.1 The learned Counsel also made submissions on merits. 1 (2008) 15 SCC 223 4 / 16 ::: Downloaded on - 27/08/2013 21:06:53 ::: apeal.775.2009 Those submissions on merit will be taken into account after answering the question whether accused No.1 Dharmendra Munib Gupta was below 18 years of age on 18.7.2004 or not?.
5. As per the Juvenile Justice (Care and Protection of Children) Act (for short, hereinafter referred to as 'The Act', a juvenile is defined u/s 2(k) of the Act as under:
"2(k). "juvenile" or "child" means a person who has not completed eighteenth year of age".
U/s 7A of the said Act, a procedure is laid down when claim of juvenility is raised before the Court. It is a settled procedure that it is necessary that the Court shall make an enquiry and take such evidence, which is necessary to determine the age of such person and shall record finding whether the person is a juvenile or a child. The proviso to section 7A provides an opportunity to a juvenile to raise claim of juvenility at any stage reads thus:
7A. 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 enquiry, 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 recognised 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, 5 / 16 ::: Downloaded on - 27/08/2013 21:06:53 ::: apeal.775.2009 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 orders and the sentence, if any, passed by a court shall be deemed to have no effect."
(emphasis added) Thus, it is obligatory on the part of the Court to first decide the question of juvenility of the accused as and when it is raised before the Court. If the same is raised, it is necessary for the Appeal Court to decide it in the beginning.
6. In the present case, on a perusal of the record, in the committal order dated 30.12.2004, we find in para 3 thereof, the learned Chief Judicial Magistrate has recorded that accused No.1 claimed that he was juvenile and he was 16 years old. However, no legal proof of his age was produced and, therefore, the case was referred to Department of Forensic Medicine & Toxicology, Government Medical College, Surat. Accordingly, the accused was examined and it was certified that the said accused was more than 18 years of age. However, since the learned Magistrate had no jurisdiction to determine the age of the juvenile as per Section 7A of the Act, he committed the case alongwith all the documents to the Court of Sessions. The Court of Sessions, it appears in the judgment, has dealt with this point in paragraph 20 onwards. The Court referred to the opinion given by the dentist Dr.Rupali. Thereafter, he has also considered a copy of Parivar Register and Transfer Certificate which was produced by the 6 / 16 ::: Downloaded on - 27/08/2013 21:06:53 ::: apeal.775.2009 defence wherein the age of accused No.1 was mentioned as 5.8.1988. It was contended by the defence that at the time of commission of the offence, the accused was just 16 years old and even in the ossification test, which was conducted at the Nani Daman Government hospital, it shows that the dental age of patient was under 18 years. However, the learned Sessions Judge has turned down the submissions of the learned Counsel for the defence and rejected the claim of accused No.1 that he was juvenile at the time of the commission of the offence and held that he does not deserve to get the benefit under the Act.
7. The defence has examined the father of accused No.1 to prove that the accused was juvenile at the time of the incident. The learned Sessions Judge did not accept the evidence of defence witness, DW1, the father, Munib Gupta, a resident of Solara, Tal.Khushinagar, Uttar Pradesh. The learned Sessions Judge gave much importance on the fact of non-
production of the birth certificate of the accused. It was held that despite ample opportunity given to the accused, he did not bother to produce his birth certificate, which would have been an authentic proof of his age.
Moreover, he relied on the report of the medical examiner of the Government Hospital (exhibit 47). The panel doctors who examined accused No.1 on 30.11.2004 were of the opinion that accused No.1 was more than 18 years and less than 20 years of age. Thus, the learned Sessions Judge accepted that he was more than 18 years of age. The 7 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 learned Sessions Judge also gave his physical observation in respect of accused No.1, who was personally present before the Court. He has mentioned that the accused Dharmendra looks well built and is very strong and stout. He said that in the absence of birth certificate and on perusal of the physique of Dharmendra, the evidence of medical Board stating that he is above 18 years and as he was working as a carpenter for three years prior to the incident in a carpentry shop, he cannot be said to be a child and he rejected the plea of the said accused.
8. We have perused exhibit 37, the medical report and also exhibit 47, the report on the dental examination as also the evidence of defence witness Munib Gupta. It is true that the said accused did not produce birth certificate. However, in support of his claim of being a juvenile, the defence has produced a copy of one Parivar Register and Transfer Certificate in which the date of birth of one Jaisingh s/o. Munib Mahajan Gupta is mentioned as 5.8.1988. There is a discrepancy in the name of Jaisingh and Dharmendra, which is the name of the accused No.1. He has given his full name as Dharmendra Munib Gupta. In order to clear that discrepancy, the defence has examined the father of the accused No.1 Munib Mahajan Gupta as DW1. He has stated that he has four children and name of one of the sons is Jaisingh. He identified accused No.1 Jaisingh as his son and he further deposed that his son is known at Daman by nick name as Dharmendra and since last four years, he is in 8 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 Daman. The trial Court has mentioned in its judgment that he is a very strong and very stout person and, therefore, he is called as Dharmendra in his vicinity. There is a report of Nani Daman Government Hospital where he was examined on 30.9.2004 and his dental age was shown as under
18 years. In the report of the Medical Board, when he was examined on 30.11.2004, the age is stated as more than 18 years and less than 20 years. Thus, the indicator of age moves from 18 to 20 years. Today, the issue of determination of age of an accused is not res integra. The law is based on the medical jurisprudence.
Thus, it says that a margin of error in age is to be made of two years on either side. Thus, in the present case, if it is to be considered on the higher side, then it can be 22 years and if it is to be considered on the lower side, it could be 16 to 18 years. It is further settled position of law that if two inferences are possible then the inference in favour of the accused is to be adopted by the Court and that benefit is to be given to the accused. The learned Sessions Judge ought to have accepted this settled position of law so also the documentary evidence of Parivar Register which shows the date of birth of Jaisingh alias Dharmendra Munib Gupta as 5.8.1988. So, it comes hardly to 16 years as on 18.7.2004. The benefit of margin of error in age if given, then the accused falls below the age of 18 years of age. Thus, he is a juvenile in conflict with law, as per the definition u/s 2(k) of the Act. The learned Prosecutor while defending the 9 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 order of the trial Court on the point of rejecting the claim of the juvenile has submitted that there is sufficient evidence against the accused No.1 that he has committed a brutal murder alongwith the co-accused Nos.2 and 3 so he is to be considered above 18 years otherwise, it will cause injustice to the victim.
9. We do understand the emotions of the learned Prosecutor and the point raised by her. It is true that the Courts are required to adopt victim protection approach. ig However, no deviation from the Statute is permissible. The Supreme Court in Ravinder Singh Gorkhi vs. State of U.P.1, in paragraph 39 of its judgement, made observations on the similar lines and it is useful to reproduce the same thus:
"39. We are, therefore, of the opinion that that until the age of a person is required to be determined in a manner laid down under a statute, different standard of proof should not be adopted. It is no doubt true that the court must strike a balance. In case of a dispute, the court may appreciate the evidence having regard to the facts and circumstance of the case. It would be a duty of the court of law to accord the benefit to a juvenile, provided he is one. To give the same benefit to a person who in fact is not a juvenile may cause injustice to the victim. . .................."
Therefore, in the light of this judgement, it is a bounden duty of the Court to first ascertain the age of the accused when the claim of the age is raised by the accused. In Jaya Mala vs. Home Secretary, Government of Jammu & Kashmir & Ors. 2, the issue of determination of the age of a 1 (2006) 5 SCC 584: (2006) 2 SCC (Cri.) 632 2 (1982) 2 SCC 538 10 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 detenu who was facing a charge of detention and who was a minor school going boy at the time of detention was before the supreme court. This particular case is much prior to the enactment of the Act of 2000. However, the Supreme court while ascertaining the age has relied on section 57 of the Evidence Act and held in para 9 thus:
"9. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention. Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert, in October 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. ......."
10. In Rajinder Chandra vs. State of Chhattisgarh 1, the Supreme Court has taken a similar view in paragraph 5, which reads thus:
"5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das Vs. State of Bihar, (2000) 5 SCC 488, this court has, on a review of judicial opinion, held that while dealing with question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this court, squarely applies to the facts of the present case."
1 (2002) 2 SCC 287 11 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009
11. In these circumstances, indulgence is required in the finding given by the learned Sessions Judge in respect of the age of accused No.1 and we set aside the said finding and hold that accused No.1 being a juvenile under the Act of 2000, be given benefit under the Act.
12. On merits, the prosecution has mainly relied on the evidence of PW1 Pinki, who is a child witness but an eye witness. PW1 Pinki has deposed that she saw accused No.1, 2 & 3 in the late evening of 18.7.2004 drinking liquor and talking with her father Abel. She deposed that her father was not residing with them and accused No.1 used to visit and started residing with them. She used to call accused No.1 Bhaiya.
She has deposed that her father was also drinking on that evening. She was standing near them and after consuming liquor, Bhaiya i.e., accused No.1 told her father that they would go to answer the natures call and accordingly, they moved towards seashore. She deposed that she and her mother followed them and then she saw Bhaiya stabbing her father with knife in the stomach, back and in the eye. He also cut the ear of her father. Then, she saw Bhikhari holding the legs of her father and her mother beat her father on the chest and she got hold of his hands. She also saw the accused No.1 putting sand in the mouth of her father with a view to shut his mouth and then, she saw all the three accused persons i.e., Bhaiya, Bhikhari and her mother dragging her father towards the sea.
She got frightened and she ran from the place. Then her mother and accused No.1 told not to tell the incident to anyone. She identified all the 12 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 three accused in the Court. Her evidence remains unshaken in the cross-
examination. The submission of the learned defence counsel that she being a child witness her evidence is not reliable, cannot be accepted.
She answered all the questions and she denied all the suggestions given to her. Her evidence, though a child witness, is rightly found reliable and is the basis of conviction of the accused persons.
13. Besides, PW1 prosecution has also relied on the evidence of Anthony, the brother of the deceased, who has given the history and the previous conduct of accused No.1 and 2 and the strained relationship between his deceased brother Able and accused No.2 Baya. He confirmed that accused No.1 was having illicit relations with Baya and they were staying together. Thus, evidence of Anthony throws light on the motive of the murder of the deceased. We cannot appreciate the submission of the learned defence Counsel that the case of prosecution is weak and full of contradictions.
14. The evidence of PW4 corroborates the evidence of PW1 and PW2 on important points. PW4 Lucy,being a resident of the vicinity knew the deceased Abel Pereira since childhood. She reiterated about the relationship of deceased accused No.1 and accused No.2. She has also stated that prior to the incident on the evening when she was passing from the house of accused Baya, she saw accused No.1, 2 and 3 and the deceased sitting together and when she returned at 6.30pm, she saw all of 13 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 them consuming liquor. She identified all the three accused in the Court.
Thus, her evidence is useful on the point of last seen together and corroborates the evidence of PW1 Pinki on this point.
15. Then the prosecution has examined PW5, Dr.Bhagirath Chand. He has deposed that Dr.Jagdish Patel, Medical Officer of the Government hospital, has conducted the postmortem and he identified the postmortem notes written by Dr.Patel, which is exhibit 36 and PW5 deposed that injury No.4 alone in clause 17 in exhibit 36 corresponding to left lung is sufficient to cause death. Due to that injury, a bleeding injury was caused to lungs thereby the patient will go into shock, blood will go in bronchi resulting into asphyxia. Then the injury mentioned in clause 20 shows that it had penetrated from the upper part of the left lung. The postmortem notes disclose that there were multiple stab injuries. He inhaled water and sand which was found in the trachea cavity. This Doctor's evidence corroborates the evidence of Pinki as Pinki has stated that all the three accused dragged her injured father towards sea and his body was found at the seashore.
16. The prosecution has also relied on the evidence of recovery panchanama at the instance of accused No.1 the blood stained shirt was found in the dustbin in the house of accused No.2. The prosecution has examined PW3 on the point of recovery. The C.A. report (exhibit 40) confirms that the blood group of the deceased Abel was 'A' and the blood 14 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 found on the shirt (article 5) was also of group 'A'.
17. Thus, the prosecution has tendered sufficient evidence and the trial Court has properly weighed and appreciated the evidence holding accused No 1 2 and accused No.3 are guilty of the offence of committing murder of Abel and trying to conceal the evidence. At this stage, we rely and refer to the findings given by the Hon'ble Supreme Court in the case of Jitendra Singh @ Babboo Singh & anr. vs. State of U.P. 1 In the said judgment, the Hon'ble Supreme Court has relied on number of previous rulings of the Supreme Court and has held that when it is found and concluded that the juvenile has committed an offence, then the finding of the conviction is not to be set aside however the sentence is to be awarded as per the provisions of the Juvenile Justice Act of 2008 and as amended in 2000. As per the provisions of the Juvenile Justice Act, when the case is referred to the Juvenile Board and the juvenile is found guilty, then the sentence given is based on the reformative principles with the view to give him an opportunity to improve and be a good citizen of the nation. The Hon'ble Supreme Court has observed that when juvenile has undergone some period of incarceration and if he is not juvenile when the trial is concluded or appeal is decided, then after referring the matter to the Juvenile Board, a fine can be increased and imposed in lieu of the sentence and that amount can be given as a compensation to the family of the victim. As per the ratio laid down in the case of Supreme Court in the 1 Criminal Appeal No.763 of 2003 decided on 10th July, 2013 15 / 16 ::: Downloaded on - 27/08/2013 21:06:54 ::: apeal.775.2009 case of Jitendra Singh @ Babboo Singh & anr. vs. State of U.P. (supra), we thought over the sentence of accused No.1 as his participation and his role as a murderer is confirmed by us. In the present case, accused No.1 is in the prison since 19.7.2007 and thus, he has undergone sentence of rigorous imprisonment in the jail for a period of 6 years. Though he is entitled to get the benefit under the Juvenile Act, considering the period of sentence undergone by accused No.1, we don't intend to refer this matter to the Juvenile Board. He be released, if he is not required in any other offence.
18. In the circumstances, we are inclined to maintain the conviction of accused No.2 and accused No.3 and do not want to interfere with the same.
19. Thus, the appeal is partly allowed. Accused No.1 has been in prison since last 6 years. He be released forthwith and as regards accused No.2 and accused No.3, the appeal is dismissed.
20. At this stage, we must record our appreciation for the able assistance rendered by the learned advocate Ms.B.P. Jakhade, who has very ably conducted the matter. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at `2,500/-.
(MRS.MRIDULA BHATKAR, J.) (MRS.V.K. TAHILRAMANI, J.) 16 / 16 ::: Downloaded on - 27/08/2013 21:06:54 :::