Delhi High Court
Ravi Kumar @ Ravi vs State Govt Of Nct Of Delhi on 6 December, 2012
Author: Sanjiv Khanna
Bench: Sanjiv Khanna, S.P.Garg
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 06th December, 2012.
+ CRL.M.A 15930/2012 & CRIMINAL APPEAL NO. 1022/2012
RAVI KUMAR @ RAVI ..... Appellant
Through Mr. O.N. Sharma, Advocate.
versus
STATE GOVT OF NCT OF DELHI ..... Respondent
Through Mr. Sanjay Lao, APP.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE S.P.GARG
HON'BLE MR. JUSTICE SANJIV KHANNA (ORAL)
Age inquiry report has been received. As per the opinion
expressed in the said report, age of the appellant-Ravi was 17 years of
age on the date of the incident i.e. 5th October, 2007. Accordingly, the
appellant was a juvenile on the said date and, therefore, was required to
be dealt with under the Juvenile Justice (Care and Protection of
Children) Act, 2000 and not under the provisions of the Indian Penal
Code, 1860 read with the Code of Criminal Procedure, 1973.
2. We have also examined the said report, which is detailed and
elaborate. As per the Medical Board, consisting of 7 doctors, the
appellant was between 22 to 25 years of age on the date of his medical
Crl.M.A.13640/2012 in Crl.A. 1022/2012 Page 1 of 5
examination i.e. 22nd October, 2012. The Medical Board has referred
to the radiological examination, which consists of 7 x-rays, opinions of
radiologist, dentist and forensic expert. In terms of the said report of 7
doctors of All India Institute of Medical Sciences, the appellant was
between 17 to 20 years on the date of occurrence i.e. 5th October, 2007.
3. In addition to the aforesaid ossification test report, we have
statements of father and brother of the appellant, namely, Karan Singh
(CW-1) and Rajesh (CW-2). Karan Singh has stated that on the date of
his examination in the Court i.e. 31st October, 2012, he was about
52-53 years old. He has three sons, Ravi being the youngest. He
claims that Ravi was born in the summer of 1990. He has further
stated that he had procured Ravi's caste certificate dated 27th July,
1995, for admission in a school. The said caste certificate is marked
Ex.CW1/A. However, he did not go to any school. CW-1 in his cross-
examination avers that his elder sons did not study and were never
admitted to any school. In the cross-examination and on Court
question, CW-1 had stated that he got married six months after the
death of Mrs. Indira Gandhi, the former Prime Minister of India. He
was working in Delhi as a daily wage labourer, though his family
remained in Ajmer even after he had shifted to Delhi. He claims that
Ravi was 5 years old when he had applied and procured the caste
certificate to get Ravi admitted in a school.
Crl.M.A.13640/2012 in Crl.A. 1022/2012 Page 2 of 5
4. Rajesh (CW-2), on the other hand, has stated that he had studied
in a village school for 2-3 years, but thereafter discontinued study. He
claims that Ravi is 11 years younger to him. He gave his year of birth
as 1982, which obviously is not correct, as noticed below.
5. The investigating agency could not locate or find any document
which could shed light on the age of the appellant. Ravi claims that he
has never been to a school. Police has not been able to controvert or
deny the said averment. No document to the contrary has been
produced.
6. Statements of CW-1 and CW-2 are ambiguous and
contradictory. We feel that the only and reliable evidence is in the form
of ossification test report of 7 doctors of AIIMS. As per the said
report, the appellant could be a juvenile on the date of occurrence i.e.
he could be less than 18 years of age as on 5 th October, 2007. In these
circumstances, the benefit of doubt must go to the appellant in terms of
the decisions of the Supreme Court in Arnit Das Vs. State of Bihar
AIR 2000 SC 2265, Rajender Chander Vs. State of Chandigarh, AIR
2002 SC 748 and Ashwini Kumar Saxena Vs. State of M.P., 2012 (9)
SCALE 19.
7. We may note that two doctors i.e. CW-3, Dr. Chittaranjan
Behera, Assistant Professor, Forensic Department, AIIMS and CW-4,
Dr. Munish Sharma, Junior Resident, Forensic Department, AIIMS had
Crl.M.A.13640/2012 in Crl.A. 1022/2012 Page 3 of 5
appeared before the trial court and have stated that it cannot be ruled
out that as on 5th October, 2007, the appellant-Ravi was less than 18
years of age.
8. As noticed above, statements of CW-1 and CW-2 are
contradictory, but it can be safely accepted that Ravi is the youngest
son of CW-1. CW-1 has stated that he was about 52-53 years old when
his statement was recorded in the Court on 31 st October, 2012. In his
cross-examination, he has stated that he had got married sometimes
after the death of Mrs. Indira Gandhi. He has also relied upon Ravi's
caste certificate dated 21st July, 1995. Keeping in view the aforesaid
facts, we can compute and conclude that the appellant was born
sometimes in 1990 and thereabout, if the gap between the three
children is taken as 2-2.5 years. This corroborates and affirms the
ossification/medical report and our observations and findings recorded
above. In view of the aforesaid position and the factual matrix, we
accept the inquiry report and hold that the appellant was a juvenile on
the date of the commission of the offence.
9. When the matter was called out in the morning, we had asked
the appellant-Ravi to state whether he would like his conviction to be
sustained and we can set aside the sentence awarded to him. The other
alternative being to refer the case to the Board under the Juvenile
Justice (Care and Protection of Children) Act, 2000. Mr. O.N. Sharma,
Crl.M.A.13640/2012 in Crl.A. 1022/2012 Page 4 of 5
Advocate for the appellant and Mr. Sanjay Lao, Additional Public
Prosecutor were asked to speak to Ravi and the matter was passed
over.
10. On the second call, Mr. O.N. Sharma, Advocate, on instructions
from Ravi, has stated that the appellant's conviction may be sustained,
but his sentence may be set aside. Ravi has also made a similar
statement. We take the statement on record. Accordingly, the
conviction of the appellant is sustained, but the sentence awarded to
him is set aside.
11. In view of the aforesaid position, we are not inclined to refer the
matter to the Juvenile Justice Board after noting that the appellant has
suffered incarceration for more than 3 years. The appeal will be
treated as disposed of. The appellant will be released, if he is not
required to be detained in any other case.
Dasti under signature of the Court Master.
SANJIV KHANNA, J.
S.P. GARG, J. DECEMBER 06, 2012 NA Crl.M.A.13640/2012 in Crl.A. 1022/2012 Page 5 of 5