Punjab-Haryana High Court
Madan Singh vs State Of Haryana on 27 August, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. S- 1105 SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. S- 1105 SB of 2003
Date of decision : 27 .08. 2013
Madan Singh
...... Appellant.
versus
State of Haryana
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present :- Mr. Pritam Saini, Advocate for the appellant.
Mr. Amit Kaushik, Senior DAG, Haryana
Mr. Ajay Ganghas, Advocate for the complainant.
K.C.PURI, J.
Madan Singh accused appellant has directed the present appeal against the judgment and order dated 26.05.2003 passed by Shri A.S.Narang, learned Additional Sessions Judge, Karnal vide which accused/appellant stood convicted under Section 326 of the IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- and in default thereof to undergo further rigorous imprisonment for a period of two years.
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2. The case of the prosecution is that on 23.8.1999 a VT was received from police station Model Town, Panipat at the police post to the effect that Telu Ram was admitted in General Hospital, Panipat in injured condition. At this HC Bajinder alongwith Constable Dharambir reached police post bus stand, Panipat and after obtaining ruqa from doctor reached General Hospital, Panipat. However, at the General Hospital, Panipat, the doctor opined that the injured had been referred to PGI Rohtak. HC Bajinder Singh came to know from General Hospital, Panipat that the injured had not been taken to PGI Rohtak and he had been got admitted at Hyderabadi Hospital, Panipat. HC Bajinder Singh alongwith Constable Dharambir Singh reached Hyderabadi Hospital and moved an application to the doctor to opine about the condition of the injured. The doctor opined that injured was unfit to make the statement. Brother of Telu Ram namely, Pritam Singh was present there and accordingly, HC Bajinder recorded the statement of Pritam Singh - complainant, who stated that he was resident of village Chulkana and was an agriculturist. Telu Ram injured is his younger brother. Telu Ram owned a Maruti car which he used to ply as taxi. On that very day at about 9.30 a.m., he alongwith his brother Telu Ram had left village Chulkana in the Maruti car of his brother. At about 10.00 am they reached the old bus stand of Samalkha. His brother Telu Ram had parked the Maruti car at the taxi stand and they had started conversing with each other near the shop of Monu. At about 10.30 a.m., the accused came there on his motorcycle and he parked his motorcycle in front of Aneja Hospital. Accused raised Lalkara that Telu Ram be taught a lesson. Saying this Bhatia Shalini 2013.09.10 17:07 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No. S- 1105 SB of 2003 -3- accused took out a knife from under his shirt and gave a knife blow to Telu Ram on the left side of his waist. The knife hit on the shoulder of Telu Ram. Accused gave another blow to Telu Ram. Telu Ram turned all of a sudden and the knife hit on his stomach. Complainant raised cries. On hearing cries, Joginder s/o Jagdish and Rajinder Singh son of Chhaju Ram of village Chulkana came there. Both of them rescued Telu Ram from the clutches of the accused. Accused fled away with his knife. The injured was shifted to General Hospital, Panipat by Rajinder and Joginder in the Maruti Van. However, he left for his village to inform his brothers. Narrating the motive for the crime, complainant reported that about one year back an altercation had taken place between Telu Ram and the accused. Accused nursed a grudge against Telu Ram on account of that. On the basis of the report, formal FIR was recorded. Investigation was conducted. The accused was arrested. The weapon of offence was recovered. After investigation challan was presented in the Court of Illaqua Magistrate, who after completing the commitment proceedings committed the case to the court of Session.
3. The trial Court framed charge under Section 307 IPC against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution in order to bring home guilt of the accused, examined PW-1 ASI Zile Singh, PW-2 Constable Ramesh Kumar, PW-3 Dr. Pankaj Aggarwal, PW-4 Rajesh Kumar, Draftsman, PW-5 Constable Dharambir, PW-6 HC Rambir, PW-7 Pritam Singh, PW-8 Telu Ram injured, PW-9 Dr. Naveen Vishard, PW-10 ASI Atma Ram, PW-11 HC Vijender Singh, PW-12 ASI Rohtash Singh and PW-13 Constable Satish Kumar and Bhatia Shalini 2013.09.10 17:07 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No. S- 1105 SB of 2003 -4- closed the prosecution evidence.
5. The accused was examined under section 313 Cr.P.C. and all the incriminating evidence was put to him, to which he denied. The accused was called upon to lead the defence evidence and he examined DW-1 Constable Ram Niwas and DW-2 HC Ashok Kumar and closed the defence evidence.
6. The trial Court after hearing the learned counsel for the parties convicted and sentence the accused vide judgment and order dated 26.05.2003, as aforesaid.
7. Feeling dissatisfied with the aforesaid judgment and order dated 26.05.2003, the present appeal has been preferred by the accused- appellant.
8. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
9. Learned counsel for the appellant has challenged the conviction recorded by the trial Court on the technical ground that at the time of commission of alleged offence, the appellant was below 18 years of age and as such, he was a juvenile falling within the meaning of Section 7 A of the Juvenile Justice Act, 2000. It is further submitted that the date of occurrence in the present case is 23.08.1999. The date of birth as per the matriculation certificate of the appellant is 10.05.1983. So, he was only 16 years and 03 months old at the time of commission of offence. So, in view of authorities "Hari Ram vs. State of Rajasthan and another" 2009 (2) RCR (Criminal) 878; "Daya Nand vs. State of Haryana" 2011 AIR (SC) 593; and "Roshan Bhatia Shalini 2013.09.10 17:07 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No. S- 1105 SB of 2003 -5- Lal vs. State of Haryana" passed in CRR No. 1973 of 2003 decided on 07.02.2013, it is contended that the accused has to be directed to be produced before the Juvenile Justice Board for passing appropriate orders in accordance with provisions of Juvenile Justice Act. The benefit of juvenile has to be extended even to the person who has committed offence prior to the enforcement of the Juvenile Justice Act, 2000.
10. It is further contended that findings of the trial Court to the effect that appellant is not a juvenile, has to be ignored. It is also submitted that according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007 (hereinafter mentioned as the Rule), the first and foremost evidence to determine the factum of juvenile is matriculation certificate. The trial Court has not taken into account that aspect of the case.
11. In reply to the above noted submissions, learned State counsel, as well as, learned counsel for the complainant have submitted that the record in school is not of evidentiary value. To support this contention , learned counsel for the complainant has relied upon authority "Babloo Pasi vs. State of Jharkhand and another" 2008 (4) RCR (Criminal) 756; Lal Mohd. vs. State" 2005 (3) RCR (Criminal) 177; and "Rama Kant vs. State of U.P and another" 2000 CrlLJ 4682.
12. I have considered the submissions made by both the sides and have gone through the records of the case.
13. In order to properly appreciate the facts of the case, Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2007 is reproduced as under :-
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12. Procedure to be followed in determination of Age.― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4)If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or Bhatia Shalini otherwise, for the purpose of the Act and these rules and a 2013.09.10 17:07 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No. S- 1105 SB of 2003 -7- copy of the order shall be given to such juvenile or the person concerned.
(5)Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
14. From the bare perusal of the said Rule, it is revealed that the main evidence regarding the age of juvenile/accused to be considered is the matriculation certificate. In case the matriculation certificate is not available, then the date of birth from the school other than the play school first attended is to be considered.
15. In the present case, the matriculation certificate of the accused/appellant is produced on the file. Learned trial Court in its report dated 17.07.2003 observed that the occurrence has taken place on 23.08.1999 and the date of birth of accused is 10.05.1983. On the date of occurrence, the new Act has not come into force. The charge in the present case was framed on 24.01.2000. Accordingly, the accused was neither juvnile at the time of occurrence nor at the time of framing the charge. However, the learned trial Court has ignored the provisions of Section 7 (A) of the Act. According to said provision, in case of pending appeal also, the Juvenile Justice Act, 2000 will be made applicable although he was not juvenile at the time of committing the offence. Mere fact that he has given Bhatia Shalini 2013.09.10 17:07 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No. S- 1105 SB of 2003 -8- his age as 20 years according to his statement recorded under Section 313 Cr.P.C, does not make him major. The fact remains that the best evidence as per Rule 12 of the Act is matriculation certificate, which is available on file and according to the same, the appellant is a juvenile.
16. So far as Babloo Pasi's case (supra) relied upon by learned State counsel is concerned, the same is distinguishable from the facts of present case as matriculation certificate was not produced in that case. The authority Lal Mohd.'s case (supra) and Rama Kant's case (supra), are also distinguishable on the same ground. The Hon'ble Apex Court in Hari Ram's case (supra) and Daya Nand's case (supra), has held that Rule 12 of the Act has been made retrospective. The accused will be treated as juvenile under the said Act. In both these authorities, the Hon'ble Apex Court accepted the appeal and the matter was remitted to the Court of Juvenile Justice Board for disposal in accordance with law within three months from the date of receipt of copy of the order.
17. Accordingly relying upon the said authorities, the case stands remitted to the Juvenile Justice Board for passing appropriate orders. The parties are directed to appear before the Juvenile Justice Board on 30.09.2013.
18. Disposed of accordingly.
AUGUST 27, 2013 (K. C. PURI)
shalini JUDGE
Bhatia Shalini
2013.09.10 17:07
I attest to the accuracy and
integrity of this document
High Court Chandigarh