Allahabad High Court
X- Juvenile vs State Of U.P. on 12 January, 2024
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 14.12.2023 Judgment delivered on 12.01.2024 Court No. - 67 Case :- CRIMINAL APPEAL No. - 12123 of 2023 Appellant :- X- Juvenile Respondent :- State of U.P. Counsel for Appellant :- Govind Saran Hajela,Damini Hajela Counsel for Respondent :- G.A. Hon'ble Rahul Chaturvedi J.
Hon'ble Mohd. Azhar Husain Idrisi, J.
[1] Heard Shri G.S. Hajela and Ms. Damini Hajela, leaned counsel for the appellant, Sri Satyendra Tiwari, learned Addl. Government Advocate and perused the memo and the impugned judgment.
[2] The instant Criminal Appeal is filed on behalf of appellant named above invoking the power under section 101(5) of Juvenile Justice (Care and Protection ) Act, 2015 read with Section 374(2) Cr.P.C. assailing the legality and validity of judgment and order dated 25.08.2023 passed by Additional District and Sessions Judge/Additional Special Judge(POCSO Act)(Children's court), Court No.14, Saharanpur while deciding the Sessions Trial No. 01/2018. The accused/appellant "X" son of Ashok Kumar got involved in Case Crime No.08/2016 U/s 302, 393 I.P.C. Police Station Janakpuri District Saharanpur, whereby the Trial Judge/Children's court has convicted and condemned the delinquent juvenile "X" for the offences U/s 302/34 awarding sentence for life sentence and a fine of Rs. 50,000/- failing which 2 years additional imprisonment. Besides this, the "X" juvenile was also convicted U/s 393 I.P.C. for five years rigorous imprisonment and a fine of Rs.10,000/- and failing which six months additional imprisonment was awarded.
All the sentences shall run concurrently.
[3] Instant appeal is filed and taken up today as fresh case. Shri Hajela, learned counsel for the appellant has drawn the attention of the Court to the sentence imposed. The delinquent Juvenile was convicted and condemned U/s 302/34 I.P.C. awarding life sentence and a fine of Rs. 50,000/-. On this, Shri Hajela, has formulated the moot legal point for the consideration of this Court, at the admission stage, of the appeal namely;
"As to whether a Juvenile whose age has been determined in between 16-18 years at the time of incident, was put to trial before Children's Court pursuant to section 18(3) read with Section 15 of Juvenile Justice Act, 2015 could he be awarded life sentence which is in the stark contrast with the mandatory provision of Section 21 of Juvenile Justice Act, 2015".
Before addressing this legal issue, it is imperative to give bird's eye view to the facts of the case which has given rise to the aforesaid controversy :-
FACTS OF THE CASE:
[4] The genesis of the case starts from lodging of an FIR by one Vipin Gandhi son of Tilakraj Gandhi resident of Beni Bagh, P.S. Janakpur District Saharanpur, with the allegation that he is resident of Beni Bagh and resides with his younger brother, Sanjay Gandhi and his family. He (Vipin Gandhi) with his family is in occupation of Ist Floor, whereas, his younger brother Sanjay Gandhi resides with his wife Kiran Gandhi and his children at the ground floor, in the same residential complex.
[5] On 15.01.2016, while Smt. Kiran Gandhi, wife of Sanjay Gandhi was all alone in her house, at around 5.30 in the evening, some unknown persons ranged the call bell of the house. When she opened the door, two young lads covering their faces with masks, barged into the house, threatened his wife by showing knife and threatened her to kill and have demanded jewellery and cash. Per chance Kiran raised alarm and thereafter one of the assailants, assaulted upon her by the dagger. After hearing the alarms, the informant came down to the ground floor and along with Annu son of Devendra, Ravi Gandhi, Surendra Kwatra, Arun Bathola, Sanjay @ Bappal too came on the spot. Sensing that offenders are surrounded by number of persons, the assailants tried to sneak away from the place of incident, but when these persons tried to overpower the assailants, in this scuffle, the mask of one of assailants got opened and was identified as "X" (the juvenile) son of Ashok Kumar and another assailant was his accomplice, Mukul. The assailant Mukul used to meet the juvenile delinquent at the shop. However, co-accused, Mukul along with looted articles succeeded and ran away but the delinquent appellant "X" Juvenile was caught on the spot. With the help and aid of fellow residents, Kiran Gandhi was taken to the Hospital, where she was declared dead.
[6] An FIR to this effect was registered U/s 302, 392 I.P.C. but charge sheet was submitted U/s 302/34 and 394 I.P.C. In the impugned judgment, in its opening paragraph, it has been clearly mentioned :-
IN THE CASE IN HAND IS THAT THE "X"-JUVENILE HAS CLAIMED 'JUVENILITY' ON THE DATE OF INCIDENT AND HIS CASE WAS DISASSOCIATED FROM PRIME ACCUSED MUKUL. HIS CLAIM WAS REFERRED TO JUVENILE JUSTICE BOARD/ADDL. CHIEF JUDICIAL MAGISTRATE-IST, SAHARANPUR FOR DETERMINING THE AGE OF "X"-JUVENILE.
[7] The Juvenile Justice Board after holding full dressed determination, vide order dated 22.l12.2017, has held the age of "X" Juvenile, on the date of incident is in between 16-18 years and accordingly the case was disassociated and referred to Children/POCSO Court for trial pursuant to Section 18(3) read with Section 15 of Juvenile Justice Act, 2015.
[8] The charges were framed on 22.08.2019 U/s 302, 393 I.P.C. and explained to delinquent Juvenile but he denied from the charges and have insisted to be tried.
[9] To establish the case, the prosecution has produced PW-1, Vipin Gandhi/informant, PW-2, Surenra Kumar, PW-3 Suresh Kumar, PW-4, HCP Narendra Sharma, PW-5, Dr. Naresh Saini and PW-6, Yashpal Singh.
[10] PW-1 in his testimony, has almost reiterated the version of FIR, and further stated, that he often used to send the "X" Juvenile, to home to fetch the articles, lunch etc. On the fateful day after committing robbery, there was scuffle which resulted in opening of his mask and that is how, the assailant was identified as "X" Juvenile and his accomplice, Mukul, who was carrying dagger in his hand but the delinquent juvenile was caught hold on the spot. This delinquent was working in the informant's shop for the last 5-6 years as an assistant. His conduct was quite satisfactory, having no previous complaint of committing any mischief or theft. Informant in his deposition, candidly states that he has not seen the alleged assault upon his sister-in-law/deceased as to who is the author of death caused by dagger blow.
[11] Almost on the same pattern, the testimony of PW-2 Surendra Kumar was also recorded in which he has stated that after coming back from the hospital, he enquired from the "X" the Juvenile, then only he has confessed his guilt before him. The delinquent Juvenile has taken the responsibility of giving the dagger blow on the deceased but later on he added that his accomplice, Mukul had taken away the weapon of assault from his hand.
[12] Dr. Naresh Saini in his statement before the trial court stated that the post mortem of the deceased was conducted on 16.01.2016 at 5.00 P.M. and the deceased has sustained as many as eight injuries over her person i.e. on her face, right wrist, right forearm, right thumb, right elbow, over her breast and left foot. Her left lung was completely punctured and 2 liters of blood was accumulated in plural cavity. The cause of death is shock and excessive bleeding caused by sharp edged weapon. Only injury no. 6 and 7 are caused by sharp edged weapon, rest of injuries is caused by hard and blunt object. Injury no.6, having clear margins caused by sharp edged weapon, though its seat was on right elbow (a non-vital part), however, injury no.7, is over her breast, which is turned to be fatal.
[13] The recovery of weapon of assault too at the pointing out of accused Mukul near Dhamola river from the shrub, except this there is no recovery of any incriminating article, much less than any hard and blunt object, alleged weapon of assault used in commission of crime was recovered.
[14] Learned Trial Judge, after recording the evidences formulated the question that, on 15.01.2016 at around 5.30 in the evening the appellant "X" Juvenile along with his accomplice with intention to loot, forcibly barged into the house, demanded jewellery and cash from the deceased. On raising alarms by the deceased Kiran Gandhi, they have eliminated the deceased by giving dagger blow upon her person and fled away with looted articles though, those articles were never recovered from the possession of juvenile accused. This issue was decided against the accused/appellant in favour of prosecution. In as much as the "X" Juvenile who was caught hold from the place of incident and thus there was no need for carrying out any test identification parade. The Trial Judge in paragraph no. 63 of the judgment, has arrived at that though there is no ocular testimony to the incident, as nobody has given ocular testimony of the incident, but in the event all facts are put to linear way, they sufficiently indict that the appellant "X"-Juvenile and his active involvement in the present crime in question.
[15] Ultimately, in paragraph no. 72 of the judgment, after thrashing the entire evidence on record, the trial Judge came to conclusion that the juvenile delinquent is actively involved in commission of crime and the same has been established beyond any iota of doubt, which includes the recovery of weapon of assault at the pointing out of his accomplice Mukul. The Trial Judge hold that this was in the furtherance of common intention of both the accused persons have committed the henious offence and therefore, the charges against "X" Juvenile offender stands proved U/s 302/34 and U/s 393 I.P.C. and thus passed conviction order against him.
[16] Learned counsel for the appellant Shri G.S. Hajela opposed the findings recorded by the trial court tooth and nail by making a mention that the alleged delinquent juvenile engaged with informant's family from last 5-6 years, having unblemished past, there was no complaint whatsoever regarding his conduct. It is highly unlikely that he has committed the crime in question. It was also alleged by the counsel for appellant that there is no ocular testimony of the entire incident and the entire case of prosecution is based upon the broken links of circumstances. It is just possible that the presence of the delinquent Juvenile is sheer per chance as neither there is any recovery of any incriminating/looted article from him, nor the alleged weapon of assault is at the pointing out of appellant. There is no evidence on record to establish that the accused/appellant was having common intention to commit the offence and as such the conviction order is based on surmises and conjectures and after having an imaginary story in which its character were pasted.
[17] In addition to this, learned counsel for the appellant has pointed out the number of fallacies in the post mortem report. It is the pointed case of the prosecution that the assailants have given the dagger blow over the person of deceased. As many as eight injuries were found over the person of deceased as per post mortem report, out of which injury no. 6 and 7 are caused by sharp edged weapon. Rest of injuries is caused by hard and blunt object but there is no recovery of any hard and blunt object from the place of incident. The seat of injury no.6 is right forearm(a non-vital part of body) over the elbow which was skin deep. The solitary fatal injury is injury no.7 which was caused at about 9 c.m. below over the left nipple, 4 x 1 cm x cavity deep, which could be termed as fatal one. Thus, it is evident that there is a solitary injury which has termed to be fatal one. It seems that there was a struggle and scuffle in between them and only after raising the alarms, the assailants in the stage of panic, accidently has given a sharp blow over her left breast. There is no succession of repeated blow by the knife.
[18] We have gone through the entire judgment and the appreciation by the learned Trial Judge. The delinquent juvenile 'X' was an accomplice of his major crime partner Mukul, who have actively participated in the commission of the offence, in which the deceased lost her life. The delinquent juvenile was caught on the spot, where he was unmasked. He was duly identified by the informant and others. Thus we are of the considered opinion that the analysis and finding recorded by the learned Trial Judge while convicting the appellant is spotless and thus deserves no interference by us in exercise of our appellate powers.
[19] Sri Hajela has further drawn the attention of the Court to the paragraph no.3 of the judgment which forms the basis of his argument and is purely question of law. Before coming to that, it is mandatory to spell out one para of the judgment :-
"3- बाल अपचारी नाबालिग होने के कारण उसकी पत्रावली अभियुक्त मुकुल की पत्रावली से पृथक कर, किशोर न्यायालय, अपर मुख्य न्यायिक मजिस्ट्रेट, प्रथम, सहारनपुर में बाल अपचारी की आयु जॉच हेतु दाखिल की गयी। किशोर न्याय बोर्ड द्वारा अपने आदेश दिनांकित 22.12.2017 के माध्यम से किशोर अपचारी की आयु 16 से 18 वर्ष के बीच निर्धारित की गयी और विचारण हेतु सम्बन्धित पत्रावली को बालक न्यायालय अर्थात् पोक्सो न्यायालय में प्रेषित किया गया।"
[20] Thus, from the above, it is clear that the Juvenile Justice Board vide order dated 22.12.2017, have declared "X" juvenile delinquent in between 16-18 years and consequently, pursuant to the provisions of Section 18(3) of the Juvenile Justice Act, 2015, his case after holding preliminary assessment passes the order that there is need of trial of the said child as an adult and transmitted the same to the children's court having jurisdiction to try the said offence. Shri Hajela, at this juncture hammered his submission on the sentence awarded by the learned Trial Judge. He states that the scheme of Juvenile Justice Act, 2015 put fetters on the trial court not to award maximum sentence or death sentence to a delinquent juvenile. But the learned trial court in the stark contrast with the relevant provisions of J.J. Act, 2015 have fasten life imprisonment and a fine of Rs.50,000/- upon the "X" juvenile delinquent, which is de-hors of provisions of Section 21 of J.J. Act, 2015. In this regard, learned counsel for the appellant has drawn the attention of the Court to Section 15, 18 and 21 of the Juvenile Justice Act, 2015 while buttressing his contention.
Section 15 (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of sub-section (3) of section 18:
Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.
Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.
(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that the order of the Board to dispose of the matter shall be appealable under sub-section (2) of section 101:
Provided further that the assessment under this section shall be completed within the period specified in section 14.
Section 18 (1) Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, 1[or a child above the age of sixteen years has committed a heinous offence and the Board has, after preliminary assessment under Section 15, disposed of the matter] then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,--
(a) allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian;
(b) direct the child to participate in group counselling and similar activities;
(c) order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board;
(d) order the child or parents or the guardian of the child to pay fine:
Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated;
(e) direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and childs well-being for any period not exceeding three years;
(f) direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and childs well-being for any period not exceeding three years;
(g) direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home:
Provided that if the conduct and behaviour of the child has been such that, it would not be in the childs interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety.
(2) If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to
(i) attend school; or
(ii) attend a vocational training centre; or
(iii) attend a therapeutic centre; or
(iv) prohibit the child from visiting, frequenting or appearing at a specified place; or (v) undergo a de-addiction programme.
(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences.
Section 21 No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any such offence, either under the provisions of this Act or under the provisions of the Indian Penal Code (45 of 1860) or any other law for the time being in force.
[21] Section 2(54) of the Juvenile Justice Act, 2015 defines "serious offence" which includes the offence for the punishment under the IPC or any other law for the time being in force, with an imprisonment of 3-7 years. However this provision was amended by the Juvenile Justice Board regarding the protection of children (amended Act, 2021) which re-defines Section 2(54) of the Juvenile Justice Act "serious offence" includes the offence for which punishment under the IPC or any other law for the time being in force is :-
(a) Minimum imprisonment for a term of more than three years and not exceeding seven years. Or ;
(b) Maximum imprisonment for a term of more than seven years but no minimum imprisonment of less than seven years is provided.
[22] The Board may pass the order in this regard with the provisions of Section 18(3) of the Juvenile Justice Act, the J.J. Board may take assistance of experience psychologist or psycho social worker and other expert in such assessment, when the Board is satisfied on the preliminary assessment that the matter should be disposed of by the Board itself then the Juvenile Justice Board shall follow the procedure of trial in summoning the case under the Cr.P.C. Whereas the mandate of Section 18 of the Act provides that where the Board is satisfied on an inquiry that the child irrespective of his age, has committed a petty offence, or a serious offence or a child below the age of 16 years and has committed heinous offence, then notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence specified need for supervision or intervention, circumstances as brought by Social Investigation Report and the past conduct of the child, the Board may take appropriate steps as prescribed for this purpose.
[23] IN THE INSTANT CASE, the appellant 'X' juvenile delinquent is in jail since 15.01.2016 and has already undergone incarceration of eight years on 15.01.2024, which is de-hors of the provisions u/s 21 of J.J. Act, 2015.
[24] Learned trial Judge without taking into account Section 21 of the Juvenile Justice Act which specifically provides, that notwithstanding anything contrary contained under any other law for the time being in force, no juvenile in conflict with the law, shall be sentenced to death or life imprisonment or committed to prison in default of payment of fine or in default or furnishing the security. Where the plea of juvenility is raised by the accused convicted and sentenced under section 307 IPC for the first time before Hon'ble the Apex Court, the Supreme Court found the accused to be juvenile on the date of offence and therefore, the sentence imposed upon him by the Children Court, was set at naught in the case of Kamlendra Singh@Pappu Singh Vs. State of M.P. reported in (2013) CrLJ, 2151 SCC.
[25] It is true that while inserting Section 21 of the Juvenile Justice Act, 2015, the legislature in its own wisdom, has given the benefit to a person who was declared juvenile to be a child on the date of incident only with respect to its sentence part and he shall not be awarded either death sentence or life imprisonment, as the same has been awarded in the instant judgment. Hon'ble the Apex Court has categorised four categories where different views have been taken by the Supreme Court :-
(i) Where the conviction was upheld but the sentence has been quashed ;
(ii) Where the conviction was upheld but the sentence was modified for the period already undergone ;
(iii) Where conviction and sentence both were set-aside ;
(iv) Where conviction was upheld and the matter was referred to Juvenile Justice Board for awarding suitable sentence.
[26] On the above parameters, where the involvement of the appellant is that he was an accomplice to the main assailant Mukul and he was caught on the spot as his mask was removed during scuffle and was identified as an "X", thus, his active involvement in the commission of the offence cannot be ruled out. But fact remains that the appellant has already undergone eight years of his incarceration, and therefore, we are of the considered view that without touching his conviction part, as he has already undergone eight years, let the juvenile delinquent 'X' be released, as he has already served out of his maximum sentence.
[27] The sentence impugned dated 25.08.2023 passed by Additional District and Sessions Judge/Additional Special Judge (POCSO Act) (Children's court), Court No.14, Saharanpur while deciding the Sessions Trial No. 01/2018 is modified to the aforesaid extent and the fine imposed by the trial Court is completely waived off.
[28] Hence, the present appeal is hereby allowed with above modification.
Order Date :- 12.1.2024 Sumit S