Supreme Court - Daily Orders
Ashok Verma vs State Of Chhattisgarh on 24 July, 2015
Bench: Fakkir Mohamed Ibrahim Kalifulla, Uday Umesh Lalit
Crl.A. No. 598 of 2008
ITEM NO.102 COURT NO.7 SECTION II, IIA & IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No. 598/2008
ASHOK VERMA Appellant(s)
VERSUS
STATE OF CHHATTISGARH Respondent(s)
(With application for exemption from filing Official Translation
and office report)
WITH
Crl.A. No. 402/2014
[SAMUNDER V. STATE NCT OF DELHI]
(With Office Report)
Crl.A. No. 1804/2014
[DEEPAK V. THE STATE (NCT OF DELHI)]
(With application for bail and application for exemption from
filing certified copy of the impugned judgment and Office Report)
SLP(Crl.)...CRLMP No. 21697/2012
[PEM SINGH V. STATE OF JHARKHAND]
(With application for condonation of delay in filing SLP and Office
Report)
SLP(Crl) No. 5839/2013
[PARAG BHATI (JUVENILE) THR. LEGAL GUARDIAN V. STATE OF U.P. &
ANR.]
SLP(Crl) No. 2995-2996/2015
[JITENDRA KUMAR SINGH V. STATE OF ORISSA & ANR.]
(With prayer for interim relief and office report)
SLP(Crl) No. 5699/2014
[CENTRAL BUREAU OF INVESTIGATION V. SWAPAN ROY]
(With application for ad-interim ex-parte stay and exemption from
filing certified copy and vacating stay and Office Report)
Crl.A. No. 779/2013
[RIKEN @ DIKEN V. STATE OF DELHI]
(With application for permission and Office Report)
Signature Not Verified
SLP(Crl) No. 9248/2014
Digitally signed by
Kalyani Gupta
[STATE OF U.P. V. PRADEEP AND ANR.]
Date: 2015.08.05
17:25:22 IST
Reason:
(With application for exemption from filing Official Translation
and application for condonation of delay in filing SLP and Office
PAGE NO. 1 of 5
Crl.A. No. 598 of 2008
Report)
SLP(Crl) No. 2512/2012
[SUDHIR KUMAR V. STATE OF U.P. & ANR.]
(With application for stay and office Report)
Crl.A. No. 1169/2007
[DIWANI RAM V. STATE OF UTTARAKHAND]
(With Office Report for Direction)
Date : 24/07/2015 These Matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
Mr. Maninder Singh, Sr. Adv. (A.C.)
Ms. Pjitha Gorantla, Adv.
For Appellant(s)
in Crl. A.598
Mr. T. Mahipal, A.O.R.
in Crl. A. 402 Mr. A. Venayagam Balan, A.O.R.
Ms. V.S. Lakshmi, Adv.
in Crl.A. 1804
Mr. Ashok Kumar Gupta II, A.O.R.
in CRLMP 21697
Mr. Kedar Nath Tripathy, A.O.R.
in SLP 5839 Mr. Prem Kumar, Adv.
Dr. V. P. Appan, A.O.R.
Mr. Rakesh Kumar, Adv.
in SLP 2995-96
Mr. Sibo Sankar Mishra, A.O.R.
in SLP 5699
Mr. B. V. Balaram Das, A.O.R.
in Crl.A. 779
Mr. Sudhanshu S. Choudhari, A.O.R.
in SLP 9248 Mr. Ratnakar Dash, Sr. Adv.
Mr. Abhisth Kumar, A.O.R.
Mr. Abhishek Kumar Singh, Adv.
Mr. Sudeep kumar, Adv.
PAGE NO. 2 of 5
Crl.A. No. 598 of 2008
in SLP 2512
Mr. Mohan Pandey, A.O.R.
in Crl.A. 1169 Mr. Vishwajit Singh, A.O.R.
Mr. Abhindra Maheshwari, Adv.
Mr. Pankaj Singh, Adv.
Ms. Veera Kaul Singh, Adv.
For Respondent(s)
For State of
Chhattisgarh
Mr. C. D. Singh, A.O.R.
Mr. Darpan, Adv.
Jharkhand Mr. Ajit Kumar Sinha, Sr. Adv.
Mr. Tapesh Kumar Singh, A.O.R.
Mr. Mohd. Waqar, Adv.
in SLP 5699
Ms. Sarla Chandra, A.O.R.
Delhi
Mr. D. S. Mahra, A.O.R.(NP)
U.P. Mr. Ratnakar Dash, Sr. Adv.
Mr. Abhisth Kumar, A.O.R.
Mr. Abhishek Kumar Singh, Adv.
Mr. Sudeep kumar, Adv.
Uttarakhand
Mr. Jatinder Kumar Bhatia, A.O.R.
UPON hearing counsel the Court made the following
O R D E R
CRIMINAL APPEAL NO. 1169 of 2007 There is no scope to reopen the judgment delivered on29th July, 2009 for the purpsoe of granting any relief to the appellant on the ground of juvenility.
This order shall be communicated to the appellant through the jail authorities by the PAGE NO. 3 of 5 Crl.A. No. 598 of 2008 Registry.
SLP(CRL) NO.... ….@ CRLMP 21697 Delay condoned.
Application seeking exemption from filing official translation is allowed and permission for taking additional grounds and additional documents on record is granted.
Leave granted.
For the reasons stated in the signed order, the appeal is partly allowed to the extent indicated above.
REST OF THE MATTERS Subsequent to our orders dated 21st October, 2014, 24th November, 2014 and 12th January, 2014 today, when these batch of cases were taken up Mr. Maninder Singh, learned Amicus Curiae placed before us the Juvenile Justice (Care and Protection of Children) Bill 2014 Bill No. 99-C/2014 and submitted that above amendment moved provide for categorising juveniles in the age group of 16-18 years for different offences where such crimes are heinous and horrendous has already been passed in the Lok Sabha and is now being placed before the Rajya Sabha and that the session is presently going PAGE NO. 4 of 5 Crl.A. No. 598 of 2008 on. We, therefore, direct the learned Amicus Curiae to get necessary instructions and file an affidavit as to the outcome of the above said Bill pending consideration in the Parliament.
For that purpose, we adjourn these cases by four weeks.
[KALYANI GUPTA] [SHARDA KAPOOR]
COURT MASTER COURT MASTER
[TWO SIGNED ORDERS, ONE IN CRIMINAL APPEAL NO. 1169 OF 2007 AND ANOTHER IN CRIMINAL MISCELLANEOUS PETITION NO. 21697 OF 2012 ARE PLACED ON THE FILE.] PAGE NO. 5 of 5 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1169 OF 2007 DIWANI RAM ….. APPELLANT VERSUS STATE OF UTTARAKHAND ….. RESPONDENT O R D E R This Criminal Appeal was dismissed by this Court by the order of this Court dated 29th July, 2009, finding no merit. Subsequently, the appellant forwarded a letter bearing No. 225/A.R. dated 2nd November, 2007 contending that based on the age mentioned in the Admission and Release Register No. 1 of the Jail Authorities as on 09th December, 1991, the age of the appellant was noted as 19 years and, therefore, it should be considered that on the date of occurrence i.e. 13 th June, 1989, the appellant was only 17 years of age. On the above basis, the appellant wanted to get the benefit of the juvenile status by invoking Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000.
When the said claim was made, by our order dated 18th December, 2014, the District Collector was directed to facilitate the appellant to meet his counsel who was PAGE NO. 1 OF 6 Crl.A. No. 1169 of 2007 appointed by this Court for getting necessary details such as any proof of date of birth namely, Birth Certificate or School Certificate if he had studied in any school.
Subsequently, by our order dated 6th February, 2015 following the judgment of this Court reported in (2012) 10 SCC 489 Abuzar Hossain alias Gulam Hossain v. State of West Bengal, the District Judge was directed to refer the appellant to the Medical Board for determining his age by conducting necessary test to determine the correct age since the appellant through the letter dated 6th January, 2015 sent by Senior Jail Superintendent, Central Jail mentioned that he had no birth certificate or school certificate in respect of his date of birth.
The learned District Judge has forwarded the Report of the Medical Board dated 30th May, 2015. The opinion of the Medical Board is to the effect that the appellant is between 35 and 40 years of age and that the average age of the appellant is about 38 years on the date of examination namely, 30th May, 2015.
Having perused the report of the Medical Board inasmuch as the said Report does not make any definite statement based on any reliable test in order to ascertain the approximate age of the appellant. We are PAGE NO.2 OF 6 Crl.A. No. 1169 of 2007 not inclined to pass any orders based acting on the Report of the Medical Board.
When we apply Section 7A it is necessary to invoke Rule 12 of the 2007 Rules which prescribes the procedure to be followed in regard to the determination of the Medical Board. Rule 12(3) prescribe the procedure as under:-
(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) PAGE NO.3 OF 6 Crl.A. No. 1169 of 2007 shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” When we apply Rule 12(3) in the first instance, the person who claims to be a juvenile as on the date of occurrence and when an inquiry is conducted by the Court it is evident that in the first instance the document that is to be sought for is a matriculation or equivalent certificate and in its absence, the Date of Birth Certificate from the School first attended and again in its absence the Birth Certificate given by a Corporation or Municipal Authority or Panchayat. The Legislature was, therefore, very careful while prescribing the said Rule in order to ensure that the benefit of juvenile status cannot be extended just for mere asking. Therefore, the question of ascertaining the age of the person who claims such status undertaking the exercise of medical opinion can always be by way of a last resort. Such a course cannot be just like that adopted by accepting the mere statement that no school certificate or birth certificate or a certificate from the Corporation or other municipal bodies are not available.
Therefore, in the absence of any effort taken on the side of the appellant to secure such legally acceptable PAGE NO.4 OF 6 Crl.A. No. 1169 of 2007 material evidence to support the claim of juvenile status, we cannot merely go by the claim that no birth certificate or school certificate is available and it would not be proper to straightaway call for a medical examination and then extend the benefit of juvenile status by simply accepting any such Report.
In fact, we have perused the medical opinion placed before us dated 30th May, 2015, we find the following remarks:
“M./I.- Old scar mark over the chin.
1. Epiphysis at medial end of clavicle and ischial tuberosity has appeared & fused – age is above 22 years.
2. Sagittal & coronal sutures are fused while lambdoid suture is not fused – age is between 35 to 40 years.
3. All the body pieces of sternum are fused to each other but xiphisternum & manubrum stermii are not fused to the body. Age is above 25 years and below 40 years.
4. Total teeth are 28 in number, left upper 3rd molar is not yet erupted, other are missing.
Opinion of the Medical Board.
Concluding all the above radiological findings, dental & clinical appearance the age of Mr. Diwani Ram s/o Sri Gaflu Das is between 35 to 40 years and the average age of Mr. Diwani Ram S/o Sri Gaflu Das is about 38 years on the date of examination.
The report of the Medical Board is submitted with regards.” We find that the opinion of the Medical Board is highly speculative. In one place, it is stated that the PAGE NO.5 OF 6 Crl.A. No. 1169 of 2007 age of the appellant would have been above 22 years as on the date of examination and in another place it is stated that it could be between 35 and 40 years and in yet another place it was stated that the age was above 25 years and below 40 years. Ultimately, it was stated that since it could be between 35 and 40 years and average age can be arrived at 38 years. There appears to be no scientific method adopted to ascertain the age. No sound basis is also mentioned for arriving at the age of the appellant. Such an unreliable Report/opinion cannot form the basis for granting the benefit of juvenile status to the appellant at this belated point of time. Therefore, there is no scope to reopen the judgment for the purpose of granting any relief to the appellant on the ground of juvenility.
This order shall be communicated to the appellant through the jail authorities by the Registry.
…...................................J [FAKKIR MOHAMED IBRAHIM KALIFULLA] …...................................J [UDAY UMESH LALIT] NEW DELHI JULY 24, 2015.
PAGE NO.6 OF 6 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1007 OF 2015 ARISING OUT OF SLP(CRL) NO. 6302 OF 2015 ARISING OUT OF CRLMP NO. 21697 OF 2012 PREM SINGH ….. APPELLANT VERSUS STATE OF JHARKHAND ….. RESPONDENT O R D E R Delay condoned.
Application seeking exemption from filing official translation is allowed and permission for taking additional grounds and additional documents on record is granted.
Leave granted.
The appellant herein has been convicted by the trial Court for the offence under Section 302/394 read with 34 and Section 411 of the Indian Penal Code. He was inflicted with the punishment of life imprisonment for offence under Section 302 read with Section 34; ten years for the offence under Section 394/34 IPC; rigorous imprisonment for 3 years for the offences under Section 411 IPC and rigorous imprisonment for five years for the offence under Section 27 of the Arms Act. PAGE NO. 1 OF 6 CRL.A. NO......... @ SLP(CRL)...@ CRLMP NO. 21697/2012 As the trial Court as well as the High Court have considered the evidence in length, we do not find any scope to interfere with the judgments. However, learned counsel for the appellant confined his submission to the only question pertaining to the juvenile status of the appellant on the date of occurrence namely, 28 th September, 2002. It was contended that his Date of Birth as per school records is 5th December, 1986 and going by that appellant was 15 Years 9 Months and 23 Days on the date of occurrence. Therefore, the learned counsel contended that being a juvenile he was entitled to the benefits that are available under the Juvenile Justice (Care and Protection of Children) Act, 2000 [hereinafter called 'the Act'].
When the said grievance was expressed before us, by our order dated 15th November, 2014, the trial Court was directed to hold an inquiry in terms of Section 7A read with Rule 12 of the 2007 Rules and submit a Report. The learned District Judge, after a detailed inquiry wherein the appellant as well as the State were duly represented, submitted his Report dated 25th August, 2014. On a perusal of the Report it is disclosed that on behalf of the appellant, the school records, namely, Matriculation mark sheet issued by the Jharkhand PAGE NO.2 OF 4 CRL.A. NO......... @ SLP(CRL)...@ CRLMP NO. 21697/2012 Secondary Examination Board, Ranchi, Matriculation Admition Card issued by the Jharkhand State Education Board, Ranchi, Original Matriculation Certificate issued by the Jharkhand Secondary Examination Board and also Letter dated 30th July, 2014 of the Jharkhand Academic Council addressed to the learned District Judge, which also confirmed that the Date of Birth of the appellant was 5th December, 1986. The relevant Serial Number, Roll Number, Roll Code, name of the appellant, his father's name, the marks obtained and the class in which he appeared for the examination were all duly mentioned in the said communication of the Jharkhand Academic Council. The learned District Judge, therefore, by placing reliance upon the above materials has reported that the appellant was a juvenile as on the date of occurrence namely, 28th September, 2000.
Having regard to the evidence relied upon by the learned District Judge, we see no reason to differ from the same. We, therefore, hold that applying the Section 7A of the Act, the appellant is entitled for juvenile status and whatever benefit accrued to him on that basis. We also find that the appellant has already undergone incarceration for more than 13 years.
In this context, we wish to refer to our earlier PAGE NO.3 OF 4 CRL.A. NO......... @ SLP(CRL)...@ CRLMP NO. 21697/2012 judgment in Vijay Singh v. State of Delhi (2012) 8 SCC 763 in which one of us (Hon. Fakkir Mohamed Ibrahim Kalifulla) after making a detailed reference to various earlier judgments, directed as under in paragraph 27:-
“Having regard to such a course adopted by this Court in the above reported decisions, and in the case on hand, based on the report of the District and Sessions Judge, we are also convinced that the appellant was below 18 years of age on the date of commission of offence and the Juvenile Justice Act would apply in full force in his case also. While upholding the conviction imposed on the appellant, we set aside the sentence imposed on him and direct that he be released forthwith, if not required in any other case. The appeal is partly allowed to the extend indicted above.” Applying the said ratio, while upholding the conviction imposed on the appellant, we allow the appeal in part, set aside the sentence imposed on him and direct that he be released forth with if not required in connection with any other case. The appeal is partly allowed to the extent indicated above.
…...................................J [FAKKIR MOHAMED IBRAHIM KALIFULLA] …...................................J [UDAY UMESH LALIT] NEW DELHI JULY 24, 2015.PAGE NO.4 OF 4