Punjab-Haryana High Court
Lakhbir Singh And Another vs State Of Haryana on 12 July, 2013
Bench: Jasbir Singh, G.S. Sandhawalia
Crl. Appeal No. 224-DB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
Crl. Appeal No. 224-DB of 2002
Date of Decision:- July 12, 2013
Lakhbir Singh and another ..............APPELLANT(S)
vs.
State of Haryana ...........RESPONDENT(S)
Crl. Appeal No. 463-DB of 2002
Lakhbir Singh ..............APPELLANT(S)
vs.
State of Haryana ...........RESPONDENT(S)
AND
Crl. Revision No. 1122 of 2004
Jagmohan Singh ..............PETITIONER(S)
vs.
Lakhbir Singh and another ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. APS Deol, Sr. Advocate,
with Mr. Arshdeep Singh Brar, Advocate,
for the appellants.
Mr. Jagjit Gill, Advocate,
for the petitioner. (in Crl. Rev. No. 1122 of 2004).
Mr. G.S. Chahal, Addl. A.G., Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
Gupta Shivani
2013.08.07 12:00
I attest to the accuracy and
integrity of this document
High Court Chandigarh
Crl. Appeal No. 224-DB of 2002 2
G.S. SANDHAWALIA, J.
1. The said judgment shall dispose of Crl. Appeal No. 224-DB of 2002 filed by Lakhbir Singh and Jagga Singh against the judgment of conviction recorded against them on 28.02.2002 and order of sentence dated 01.03.2002 passed by the Additional Sessions Judge, Sirsa in FIR No. 156 dated 19.07.1999 under Sections 302, 307, 326, 324 and 34 IPC, P.S. Sadar, Sirsa. Vide the said judgment, the said appellants were held guilty for causing the murder of Gurpreet Singh and attacking Jagmohan Singh-complainant with intention to kill him and were awarded life sentence under Sections 302/34 IPC and to pay fine of `5,000/- each and in default of payment of fine, to undergo further imprisonment for one year. They were also held guilty under Sections 307/34 IPC and were ordered to undergo rigorous imprisonment for a period of 7 years and to pay a fine of `3,000/- each and in default of payment of fine, to undergo further imprisonment for one year and similarly under Sections 326/34 IPC were sentenced for 5 years rigorous imprisonment and to pay a fine of `2,000/- each and in default of payment of fine to further undergo imprisonment for six months and under Sections 324/34 IPC, sentence awarded was for a period of two years. The said substantive sentences were to run concurrently. Lakhbir Singh also filed Crl. Appeal No. 463- DB of 2002 through jail against judgment of conviction and sentence whereas Jagmohan Singh-complainant filed Crl. Rev. No. 1122 of 2004 against the leniency of the sentence awarded to the convicts and prayed for awarding death sentence with maximum fine and also prayed for compensation of `9.5 lacs. The said judgment thus shall dispose of both the appeals and the criminal revision.
2. The present case is an unfortunate case where the brothers inter se have turned into the worst enemies over the ancestral property which came to their hands leading to death of one of the brothers namely Gurpreet Singh whereas Jagmohan Singh has been rendered a cripple and the third brother incarcerated in jail. The FIR was lodged on the statement of Jagmohan Singh, who is the injured Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 3 and a victim of the crime and his statement recorded is that he and his younger brother had been receiving threats from appellant no. 1-Lakhbir Singh, who had divided the land of his share. On 19.07.1999, he alongwith his father-in-law Swaran Singh had gone to the tubewell in the fields at 5.00 a.m. where the younger brother Gurpreet Singh had gone a day earlier in the evening for watering. There, they had noticed the appellants inflicting sword and kappa blows on Gupreet Singh and they had come back to the house in the village out of fear. The said appellants had followed them and inflicted injuries upon the person of Jagmohan Singh, which had led to the amputation of his left arm below the wrist joint and several blows were also given upon him in the presence of his father-in-law and his mother. He was thereafter taken to Civil Hospital, Sirsa where, his statement Ex.PG had been recorded by District Inspector-Banarsi Singh at 2.30 p.m, who had reached there on receiving V.T. message. Same was converted into the FIR Ex. PM at 3.05 p.m. and special report was sent and received by the Magistrate at 4.30 p.m. The said statement Ex.PG was recorded on an application Ex.PA/4 by S.I. Rajinder Singh after obtaining opinion from the Medical Officer regarding the condition of the injured Jagmohan Singh at 12.40 p.m. (Ex.PA/3). The site of occurrence in the fields was visited by Banarsi Singh (PW-13) and he conducted the inquest proceedings (Ex.PL) and sent the dead body of Gupreet Singh to the Civil Hospital for autopsy and lifted one mattress stained in blood, dari, takia, kassi and stick similarly stained and seized them vide memo Ex.PO and prepared rough site plan Ex.PP. Thereafter, rough site plan Ex.PQ of the occurrence which had taken place in the residential house of Jagmohan Singh was prepared and one cot stained with blood, takia and one piece of cloth stained with blood Ex.PH was taken in possession. Clothes of the injured were also taken in possession vide Ex.PR and on 25.07.1999, he arrested the appellants and on disclosure statement Ex.PS/2, the sword was taken in custody vide memo Ex.PS/1, which he had hidden in the kotha of turi (wheatchaff). The rough site plan was Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 4 prepared Ex.PS/2. Similarly, Jagga Singh-appellant no. 2 suffered disclosure statement Ex.PT and got recovered kappa from the heap of fire wood on the kotha of his residential house, which was taken into custody vide recovery memo Ex.PT/1 and the rough site plan was prepared Ex.PT/2. The opinion Ex.PD/1 of the doctor was taken regarding the injuries on the person of Jagmohan Singh, which he declared dangerous to life and challan was filed in the Court. Accordingly, the appellants were sentenced for life, as mentioned above.
3. The Trial Court, after taking into consideration the statements of the witnesses, came to the conclusion that there was no delay in lodging of the FIR and since the incident had taken place between the brothers and the neighbours would be the last people to interfere and there was no reason why the complainant would falsely implicate his real brother and try to save the real culprit. The fact that the mother of the complainant and of the accused-Lakhbir Singh was an eye witness was held against the appellants and the fact that Jagmohan Singh had received as many as 22 injures. The incident was also witnessed by Swaran Singh (PW-6), father-in-law of Jagmohan Singh.
4. Counsel for the appellants has submitted that the story set down by the complainant is highly unlikely and the presence of Jagmohan Singh at the fields at 5.00 a.m. was doubtful and he was not an eye witness to the said incident. Similarly, Swaran Singh has been introduced being the father-in-law of the complainant. The second submission is that appellant no. 2, who is the brother-in- law of appellant no. 1, has been found to be a juvenile as his date of birth was found to be 03.05.1982 as per the report of the Sessions Judge, Sirsa dated 08.05.2013, which was submitted in pursuance of the directions of this Court dated 04.04.2013 and thus, the sentence awarded to him is liable to be set aside as he would be governed by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short 'Juvenile Justice Act') as he has undergone the maximum period permissible under Section 15(3) of the Juvenile Justice Act. Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 5
5. State, on the contrary, stated that it was an open and shut case of an incident being supported by the eye witness account of the injured complainant.
6. Perusal of the FIR lodged by Jagmohan Singh would show that the injuries were inflicted at the house of the complainant and the incident had been witnessed earlier in the fields from where the eye witnesses had rushed back. The FIR reads as under:-
"Statement of Jagmohan Singh son of Harbhajan Singh, caste Jat Sikh, resident of Salarpur, aged 26 years, stated that I hail from vill. Salarpur. We are three brothers. Lakhbir Singh is the eldest. I am younger to him and and Gurpreet Singh is the youngest of all. My brother Gurpreet Singh is bachelor. We all the three own about 24 acres of land. My elder brother Lakhbir Singh has divided the land of his share from we both the brothers and has given the same on batai. I and Gurpreet singh are joint in residence and cultivation. My elder brother Lakhbir Singh had administered threats many times that he would get the land of our share. My father-in-law namely Swarn Singh son of Wadhawa Singh, resident of Arvan had visited our house yesterday in the evening. My younger brother Gurpreet Singh after taking his meals yesterday in the evening, went to our tubewell for watering the fields. Today at about 5-00 A.M. in the morning I and my father-in-law Swarn Singh went on one scooter to look after our fields and when we reached near the tubewell we had noticed that Lakhbir Singh and his brother-in-law (wife's brother) Jagga Singh son of Bachan Singh, who were armed with a sword and kappa respectively were inflicting injuries to my brother Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 6 Gurpreet. My brother Gurpreet Singh was put about to death by my brother Lakhbir Singh and his brother-in-law Jagga Singh, resident of Phulewala. Thereafter, I and my father-in-law Swarn Singh started swiftly on the Scooter towards our house at village Salapur out of fear. After some time of our reaching at the house, Lakhbir Singh and his brother-in-law Jagga Singh son of Bachan Singh, resident of Phulewala also arrived at the house. Lakhbir Singh was armed with a sword and Jagga Singh was armed with a kappa. Lakhbir Singh amputated my left arm below the wrist joint with the sword and he inflicted injuries to me at four places on my left hand with the sword and he also pierced the sword into my chest. Jagga Singh gave me 8/10 kappa blows on reverse side of my right hand and the fingers. Jagga Singh also gave 2/3 kappa blows on my head. This occurrence was witnessed by my father-in-law Swarn Singh. In the meantime, my mother Jaswant Kaur came there running. My father-in-law and my mother raised alarm whereupon, my brother Lakhbir Singh and his brother-in-law Jagga Singh ran away from the spot with their respective weapons. After some time, Sher Singh who is a son of my Mossi (mother's sister) also arrived there who had brought me to Civil Hospital, Sirsa and got me admitted there. The motive for occurrence is that my brother Lakhbir Singh wants to grab my land and that of my younger bachelor brother Gurpreet Singh. My younger brother Gurpreet Singh has succumbed to the injuries at the tubewell in the fields. Proceedings be initiated. Statement Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 7 has been heard and the same is correct. R.T.I. Jagmohan, Attested Sd/- Banarasi Singh D.I."
7. The Investigating Officer Banarsi Singh had thereafter recorded the statement Ex.DA of Jaswant Kaur, who had specifically mentioned that appellant no. 1 was not happy with the partition of land and administered threats. The deceased-Gurpreet Singh had gone to the fields for watering on 18.07.1999 and on seeing the incident in the fields, complainant had come back and followed by the accused who had also put the amputated arm of Jagmohan Singh in a bag and run away. Similar was the deposition of Swarn Singh Ex.DB, who was also witness to the recovery memo of the parcels Ex.PH wherein, pillow, cloth and blood stained cot were taken into possession by Banarsi Singh. Dr. G.S. Sonami (PW-1) deposed about the 22 injuries which were inflicted on the person of the injured Jagmohan Singh which had been caused by sharp edged weapon as per the Medico Legal Report Ex.PA. Injuries no. 7 and 15 were declared grievous in nature which pertained to the amputation of the left forearm at level of the middle of upper one third of 6 cms below the elbow joint, whereas injury no. 15 was on the right fore arm adjacent to wrist joint. He further testified regarding the application Ex.PD upon which he had given his opinion Ex.PD/1 that the injuries on the person of Jagmohan Singh collectively were dangerous to life and the possibility of using weapons like sword and kappa could not be ruled out. The details of the injuries are mentioned herein:-
"1- An incised wound with clean cut margins 2 cms x .5 cm x probing not done on the left side of abdomen, 20 cms lateral to mid line just above the costal margine bleeds on touch. X-ray was advised.
2- An incised wound with clean cut margins on the right side of face, 3 cms in front of right ear measuring 4.5 cm x 05 cm x bone deep soft clot was present, bleeds on touch. X-ray was advised.
3- An incised wound with clean cut margins 2 cms x .5 cm on the Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 8 lateral part of the right eye brow, soft clot was present, bleeds on touch. X-ray was advised.
4- An incised wound with clean cut margins 2.5 cm x .5 cm on the right side of fore head, 2 cms lateral to mid line, 4 cms above the right eye brow. Bleeds on touch. X-ray was advised.
5- An incised wound with clean cut margins 1 cm x .2 cm on the left side of forehead, 5 cms lateral to mid line, 6 cms above the eye brow. Bleeds on touch. X-ray was advised.
6- An incised wound with clean cut margins 3 cms x .5 cms on the right temporal bone area of skull, 11 cms lateral to mid line, 9 cms above and lateral to right eye brow. Bleeds on touch. X-ray was advised.
7- Amputation of left fore-arm at the level of midle of upper one third of 6 cms below the elbow joint. Distal part not present. Proximal part soft clot was present with muscles cut vessels, bone and all structures were visible. Margines of the stump were clean cut. Bleeding on touch was present. X-ray was advised.
8- An incised wound 1.2 cm x .2 cm on the front of left upper arm, 9 cms below the tip of shoulder joint. Bleeding on touch was present.
9- An incised wound with clean cut margins 2.5 cm x .5 cm on the front of left side of chest. Probing not done. It was below the clavical 3 cms lateral to mid line. X-ray was advised.
10- An incised wound with clean cut margins 7 cms x 2 cms x bone deep on the dorsal aspect of the right fore-arm, 11 cms below and medial to tip of elbow joint. Bleeding on touch was present. X-ray was advised.
11- An incised wound with clean cut margins 5 cms x 1.5 cms x bone deep on the dorsal aspect of the right fore-arm, 3 cms lateral to injury no.
10. Bleeding was present on touch. X-ray was advised.
12- An incised wound with clean cut margins 1.2 cm x .5 cm on Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 9 the dorsal aspect of right fore-arm, 5 cms below the tip of elbow joint. Bleeding on touch was present. X-ray was advised.
13- An incised wound with clean cut margins 5 cms x 2 cms x bone deep on the dorsal aspect of right fore-arm on its middle one third. Bleeding on touch was present. X-ray was advised.
14- An incised wound with clean cut margins 2 cms x .5 cm on the dorsal aspect of right fore-arm, 6 cms distal to injury no. 13. Bleeding on touch was present. X-ray was advised.
15- An incised wound with clean cut margins with soft clot. Bleeding on touch was present and it was measuring 6 cms x 2 cm x bone deep on the dorse of medial aspect of wrist joint. Soft clot was present. Bleeding on touch was present. X-ray was advised.
16- An incised wound with clean cut margins with soft clot and bleeds on touch, 4.5 cms x 3 cms x bone deep on the medial aspect of right wrist joint. X-ray was advised.
17- An incised wound with clean cut margins 5 cms x 1.5 cm x bone deep on the dorse of medial aspect of right hand on its middle part. Soft clot was present. Bleeding on touch was present. X-ray was advised.
18- An incised wound with clean cut margins 3 cms x .5 cm on the dorsal of the matacarpo phalangeal joint of midle finger and ring finger of right hand. Soft clot and bleeding was present on touch. X-ray was advised.
19- An incised wound with clean cut margins 2.5 cms x .5 cm on the base of index finger of right hand. Margins were clean cut. Bleeding on touch was present. X-ray was advised.
20- An incised wound with clean cut margins 2 cms x .5 cm on the first interphalangeal joint of ring finger of right hand. X-ray was advised.
21- Two incised wounds each measuring .75 x .2 cms one the dorsal aspect of the middle finger of right hand at its first phalanx. X-ray was Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 10 advised.
22- Two incised wounds .5 cm x .5 cm each on the frontal aspect of left upper arm. Bleeding on touch was present. X-ray was advised.
8. The complainant Jagmohan Singh, in his deposition before the Court, stated that he had alongwith his father-in-law had gone to the fields at 5- 5.15 a.m. where, they had seen the appellants showering blows on the person of Gurpreet Singh and they had immediately retreated from the scene. After 15-20 minutes, the said persons had come to the house of the complainant and scaled the wall of the house and jumped into the compound and he was taken by the accused to his room and was thrown on the charpai and brutally attacked with their respective weapons. Appellant no. 2-Jagga Singh had caught his left hand and appellant no. 1-Lakhbir Singh had given forceful blow with his kirpan on his arm thereby completely amputating his arm and thereafter blows had been inflicted on his chest region and gave half dozen cuts on his left arm with his kirpan. Appellant no. 2 had given kappa blow on his right arm and he had also received injuries on his head and forehand, hand and face. The accused picked up his hand and walked away. Similar is the deposition of Swaran Singh father-in-law of Jagmohan as PW-6 wherein, he mentioned that the deceased Gurpreet Singh had gone to the fields to look after the irrigation operations and they had seen the incident in the morning and then the appellants had followed them after 15-20 minutes and attacked Jagmohan Singh and taken him into his room and thrown him on the charpai and on raising alarm, they did not listen and even the mother was pushed out of the room. He deposed about the seizure of one cot stained in blood, pillow and one piece of cloth stained in blood Ex.PH which bore his signatures and identified them in Court which had been seized by the police. Dr. Santosh Bishnoi (PW-8) proved the post mortem report Ex.PX of the deceased Gurpreet Singh in which as many as 20 injuries were found on his person and found that the cause of death was due to hemorrhage and shock as a result of Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 11 above mentioned injuries which were sufficient to cause death in the ordinary course. He further deposed of all the injuries except injuries no. 6 and 19 could be caused by sword and kappa. Jaswant Kaur (PW-10) in her statement also deposed in detail regarding the injuries caused by the appellants upon Jagmohan Singh and deposed that Sher Singh had arrived at the spot and had taken the injured to the hospital and she had remained at home. That prior to his arrival, nobody had made an attempt to shift Jagmohan Singh to hospital and also deposed about Lakhbir Singh turning out of his children and giving beatings and his wife was residing with her father. The land had been divided only two months prior to the date of occurrence on the intervention of the relations and she denied that some unknown persons had committed the crime and they had falsely implicated Lakhbir Singh.
9. In his deposition Banarsi Singh (PW-13), gave the details of the investigation regarding the preparing of the rough site plan and lifting of the blood stained mattress from both the sites. A perusal of Ex.P/2, which was the memo sent to the police regarding the admission of Jagmohan Singh by Dr. G.S. Sonami (PW-1) would show that time had been put at 10.00 a.m. and thereafter opinion was sought at 12.40 p.m. from him regarding fitness of Jagmohan to give his statement, which was thereafter recorded at 2.30 p.m., which would go on to show that the FIR came into question promptly and there was no time for anyone to falsely implicate anyone. The investigating officer had picked up the blood stained cot and blood stained pillows and photographs of the site have also been placed on record and got proved by the photographer Sh. Ramesh Chander (PW-4), who had taken the said photographs at 6.15 p.m. and proved them as Exs.P-1 to P-4 and negatives Exs.P-5 to P-8. The appellant no. 1, on arrest, had suffered disclosure statement Ex.PS and got recovered a sword which was stained with blood. Similarly, appellant no. 2, in his disclosure statement, had got recovered the kappa vide recovery memo Ex.PT/1 and stated that he had washed the same and hidden it. As per the report of the Forensic Science Laboratory, Madhuban, Haryana Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 12 dated 06.01.2000, the charpai was stained with blood and similarly the pillow and the dari were also stained with blood. A kassi recovered from the tubewell was also stained with blood alongwith one wooden danda. As per the laboratory examination, blood was detected on the scabbard of sword which, as per the serological analysis, was human blood. The blood had already disintegrated on the danda and the sword. The cumulative testimony of one injured and two eye witnesses leave no element of doubt regarding the participation of the appellants in the incident for which they had been convicted.
10. Accordingly, their involvement is held to have been proved.
11. However, the issue which arises for consideration is whether appellant no. 2, being a juvenile, is liable to be released in view of the fact that it has been found that on the date of incident i.e. 19.07.1999 that he was less than 18 years of age having been born on 03.05.1982 as per the report of the Sessions Judge, Sirsa. A reading of the report goes on to show that Gurbachan Singh, father of appellant no. 2, had appeared and submitted copies of 5th standard examination certificate, middle class examination certificate, matriculation examination certificate, Government Senior Secondary School certificate and original certificate issued by the Gram Panchayat of village Phulewala Exs. P-1 to P-5 wherein, his date of birth is mentioned as 03.05.1982. The 5th standard examination certificate was issued on 31.03.1993 and middle class examination certificate was issued on 29.04.1996 before the incident in question. The said documents were also verified by S.I. Ram Murti of police station Sadar, Sirsa and as per Section 2
(k) of the Juvenile Justice Act, a person who has not completed 18 years of age, could be held to be a "juvenile" or a "child" and as per Section 2(l), would be "juvenile in conflict with law" and who is alleged to have committed an offence and has not completed 18 years of age on the date of commission of such offence. As per Section 7A, if claim of juvenility is raised before any Court, an inquiry is to be made and evidence is to be taken to determine the age of such person. A finding Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 13 has to be recorded whether the person is a juvenile or a child and this claim can be raised before any Court. As per Section 7A(2), the said Court is to forward the juvenile to a Court for passing appropriate orders of sentence and the sentence, if any passed by the Court, shall deemed to have no effect. As per Section 15, where the juvenile has committed an offence, the Board is to pass an order and the juvenile can be sent to a special home for a period of three years. The said period is the maximum period provided under the Juvenile Justice Act.
12. As per Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short 'the Juvenile Justice Rules'), the determination of the age to be conducted by the Court or the Board is to be done by the matriculation or equivalent certificates, if any, and in the absence, the date of birth certificate from the school first attended (other than a play school) and in the absence, the birth certificate given by Corporation or a Municipal Authority. Only in the absence of the abovesaid, the age is to be determined by the Medical Board.
13. That in Hari Ram vs. State of Rajasthan and another, 2009 (2) RCR (Criminal) 878, it was also so observed as to how age is to be determined. It was also noticed that this benefit is to be given in all pending cases. It would be clear from para no. 26, which reads as under:-
"26. The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 14 juvenile would be in terms of Clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000."
14. Similar observations were followed in Dharambir vs. State (NCT of Delhi) and another, 2010 (2) RCR (Criminal) 773.
15. In the present case, as noticed above, appellant no. 2 has been found to be a juvenile on the date of the incident and, therefore, the contention of the counsel for the appellant is necessarily to be accepted that the benefit of the said provisions of the Juvenile Justice Act have to be awarded to him. A Constitutional Bench of the Hon'ble Supreme Court in Partap Singh vs. State of Jharkhand , 2005 (1) RCR (Criminal) 835 held that the age of the offender has to be seen on the date of the offence and not on the date he is produced before the Court and the provisions are social piece of legislation. Accordingly, it was held that the recurring date of the juvenile is the date of the offence and not the date of production. Similarly, it was further held that the Juvenile Justice Act would be applicable to those cases which were initiated in pending trial for the offences committed under the Juvenile Justice Act, 1986 provided the person had not completed 18 years of age on 01.04.2001. In Pawan vs. State of Uttranchal, 2009 Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 15 (2) RCR (Criminal) 451, a three Judges' Bench of the Hon'ble Apex Court held that the plea of juvenility can be raised before any Court and took into consideration the provisions of Section 7A which were introduced w.e.f. 22.08.2006. It was accordingly held that if there is prima facie material, it would be necessary to get an inquiry made by the Trial Court or call for a report. In the present case, the said exercise has gone in favour of appellant no. 2. The relevant observations in Pawan's case (supra) read as under:-
"37. The question is : should an enquiry be made or report be called for from the trial court invariably where juvenility is claimed for the first time before this Court. Where the materials placed before this Court by the accused, prima facie, suggest that the accused was `juvenile' as defined in the Act, 2000 on the date of incident, it may be necessary to call for the report or an enquiry be ordered to be made. However, in a case where plea of juvenility is found unscrupulous or the materials lack credibility or do not inspire confidence and even, prima facie, satisfaction of the court is not made out, we do not think any further exercise in this regard is necessary. If the plea of juvenility was not raised before the trial court or the High Court and is raised for the first time before this court, the judicial conscience of the court must be satisfied by placing adequate and satisfactory material that the accused had not attained age of eighteen years on the date of commission of offence; sans such material any further enquiry into juvenility would be unnecessary.
38. As regards A-2, two documents are relied upon to show that he had not attained age of eighteen years on Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 16 September 25/26, 2003. His age (17 years) mentioned by the trial court at the time of recording his statement under Section 313 Cr.P.C. is tentative observation based on physical appearance which is hardly determinative of age. The other document is the school leaving certificate issued by Headmaster, Prem Shiksha Niketan, Bilaspur, Rampur which does not inspire any confidence as it seems to have been issued on October 16, 2006 after A-2 has already been convicted. Primary evidence like entry from the birth register has not been produced. We find it difficult to accept Annexure P-3 (school leaving certificate) relied upon by counsel. For A-1, the only document placed on record is a school leaving certificate which has been procured after his conviction. In his case also, entry from the birth register has not been produced. We are not impressed or satisfied with such material. There being no satisfactory and adequate material, prima facie, we are not persuaded to call for report about the age of A-1 and A-2 on the date of commission of offence."
16. Accordingly, keeping in view the above observations, it is held that appellant no. 2 is entitled for the benefit of the provisions of the Juvenile Justice Act and his conviction is accordingly sustained but the sentence awarded to him is set aside.
17. Coming to the plea raised by the complainant-Jagmohan Singh in Crl. Rev. No. 1122 of 2004 wherein, he has sought enhancement of the sentence awarded to the appellants and sought compensation of `9.5 lacs, we are of the opinion that the revision is to be partly allowed. The 22 injuries reproduced in para no. 7 above would show that appellant no. 1 has acted with extreme brutality Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 17 inflicting the same on his own brother for a piece of 24 acres of land which was divided between the three brothers equally. The complainant has been left handicapped for the rest of his life as his left forearm has been amputated below the elbow joint. An effort was made to amputate the right hand, which would be clear from the reading of injury no. 15, which was also declared grievous in nature. The handicap suffered by an agriculturist thus is immense and in such circumstances, this Court has to exercise its power to grant compensation while upholding the judgment of conviction which has to be exercised liberally. The Hon'ble Apex Court in Hari Singh vs. Sukhbir Singh and others (1988) 4 SCC 551 has held as under:-
"10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only withsub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 18 forward in our criminal justice system. We, therefore,recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
11. The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default."
18. The said view has been followed by the Hon'ble Apex Court in Vijayan Vs. Sadanandan K. & another 2009 (2) RCR (Criminal) 969 and Roy Fernandes Vs. State of Goa & others (2012) 3 SCC 221. In the latter case, the conviction awarded to the appellant under Section 302 read with Section 139 was modified as sentence under Section 323 and 325 and the appellant was directed to pay a sum of `4.5 lacs. The observations of the Hon'ble Apex Court read as under:
"39. Section 357 of the Code of Criminal Procedure embodies the concept of compensating the victim of a - crime and empowers the courts to award a suitable amount. This power, it goes without saying, shall be exercised by the Courts having regard to the nature of the injury or loss suffered by the victim as also the paying Gupta Shivani capacity of the accused. That the provision is wide enough 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 19 to cover a case like the present where the appellant has been found guilty of offences punishable under Sections 323 & 325 of the IPC has not been disputed before us. Indeed Mr. Luthra relied upon the provision and beseeched this Court to invoke the power to do complete justice short of sending the appellant back to the prison. Mrs. Subhashini also in principle did not have any quarrel with the proposition that the power was available and can be exercised, though according to her, the present being a gross case of unprovoked violence against law abiding citizens the exercise of the power to compensate the victims ought not to save accused from suffering a deterrent punishment warranted under law."
19. In R.Mohan Vs. A.K.Vijaya Kumar (2012) 8 SCC 721, Hon'ble Apex Court has further held that in case the compensation is not paid as imposed under Section 357, a separate sentence can be imposed qua imprisonment for default in payment of compensation. The relevant portion of the judgment reads as under:
"29. The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 20 complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC. It is obvious that in view of this, in Vijayan, this court stated that the above mentioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default."
20. This view has further been reiterated by the Hon'ble Apex Court in Crl. Appeal No. 689 of 2013 arising out of SLP (Crl.) No. 6287 of 2011, Ankush Shivaji Gaikwad vs. State of Maharashtra, 2013 (2) RCR (Criminal) 1036 decided on 03.05.2013. It was noticed that the Courts were ignoring the provisions of compensation and not applying their mind towards it and it was thus leading to defeating the object behind the introduction of the provision. The relevant paragraphs read as under:-
Gupta Shivani2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 21
"50. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite Legislature having gone so far as to enact specific provisions relating to victim compensation, Courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on Courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision.
xxx xxx xxx
62. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 22 consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.
63. Coming then to the case at hand, we regret to say that the trial Court and the High Court appear to have remained oblivious to the provisions of Section 357 Cr.P.C. The judgments under appeal betray ignorance of the Courts below about the statutory provisions and the duty cast upon the Courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future."
21. Keeping in mind the said observations and in view of the fact that appellant no. 1 is the main accused of the incident and is also owner of as many as 8 acres of land falling in Sirsa district, it would be appropriate that the compensation is granted to the tune of `4,00,000/-, which is over and above the fine which has already been imposed by the Trial Court and which shall be recovered from appellant no. 1 by way of summary procedure under the Punjab Gupta Shivani 2013.08.07 12:00 I attest to the accuracy and integrity of this document High Court Chandigarh Crl. Appeal No. 224-DB of 2002 23 Land Revenue Act, 1887 (as applicable to the State of Haryana). This right is being given to the complainant under Section 421 Cr.P.C. The Collector, Sirsa is directed to realise the amount in accordance with law. Accordingly, Criminal Appeals No. 224-DB of 2002 and 463-DB of 2002 are dismissed. However, appeal filed by Jagga Singh-appellant no. 2 in Criminal Appeal No. 224-DB of 2002 is partly allowed and the conviction against him is sustained and his sentence is set aside in view of the provisions of the Juvenile Justice Act. Similarly, Criminal Revision No. 1122 of 2004 filed by Jagmohan Singh is partly allowed and the compensation to the tune of `4,00,000/- is awarded to the injured- complainant. The appellant no. 1, who is on bail, shall surrender before the CJM, Sirsa immediately, failing which, steps be taken to take him into custody for undergoing the rest of the sentence.
(G.S. Sandhawalia)
Judge
12.07.2013 (Jasbir Singh)
shivani Judge
Gupta Shivani
2013.08.07 12:00
I attest to the accuracy and
integrity of this document
High Court Chandigarh