Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision:
7. h March, 2013 + CRL. A. 698/2011 LAKHI RAM @ KACHA Through: ..... Appellant Mr. Arvinder Singh with Mr. Sandeep Satkar, Advocates. versus STATE (NCT OF DELHI) Through ...... Respondent Ms. Jasbir Kaur, APP for the State. CORAM: HON'BLE MR. JUSTICE G.P.MITTAL JUDGMENT G. P. MITTAL, J.
(ORAL) 1. The Appeal is directed against a judgment dated 03.05.2010 and order on sentence of even date whereby the Appellant was convicted for the offences punishable under Sections 367/377 of the Indian Penal Code (IPC) and under Section 25 of Arms Act. He was sentenced to undergo rigorous imprisonment for three years and to pay fine of `1,000/- or in default to undergo simple imprisonment for one month for the offence punishable under Section 367 IPC. He was sentenced to undergo rigorous imprisonment for ten years and to pay fine of `1,000/- or in default to undergo simple imprisonment for one month for the offence punishable under Section 377 IPC. He was further sentenced to undergo rigorous imprisonment for one year and to pay fine of `1,000/- or in default to undergo simple imprisonment for one month for the offence punishable under Section 25 Arms Act.
2. At the time of hearing the Appeal on 19.07.2011, the learned counsel for the Appellant raised the issue of juvenility and submitted that the Appellant was less than 18 years on the date of commission of offence, that is, 09.01.2008. Since no documentary evidence with regard to the Appellants age as required under Rule 12 (3) (a) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (Rules of 2007) was available, this Court directed an ossification test to be done and to obtain medical evidence as required under Rule 12(3) (b) of the Rules of 2007.
3. A medical report dated 27.07.2011 was received declaring the age of the Appellant to be between 20 years and less than 22 years on the date of examination, that is, 27.07.2011. Thus, on the date of commission of the offence, the Appellants age was more than 16 years and less than 18 years. Thus, on the basis of the medical evidence considering the age as given on the lower side, the Appellant may be said to be more than 16 years. In the absence of any definite evidence that he was more than 18 years on the date of the offence, he has to be considered a juvenile on the date of commission of the offence, that is, 09.01.2008.
4. The learned counsel for the Appellant does not want to address any argument on the merits and says that since he has already remained in custody for more than three years and was granted bail by this Court by an order dated 16.08.2011, he has to be released. The learned counsel for the Appellant places reliance on a Division Bench of this Court in Raju v. State (Govt. of NCT) of Delhi, 184 (2011) DLT 10.(DB).
5. As per provisions of Sections 15 and 16 of the Act of 2000, a juvenile can be sent to a special home for a period of three years. Moreover, as per section 7-A (2) of the Act of 2000, the sentence, if any, passed by a Court shall be deemed to have no effect with regard to a juvenile. Thus, normally when a convict is held to be a juvenile, the case has to be remitted to the Juvenile Justice Board (JJB) for an inquiry whether the juvenile has committed any offence and for passing appropriate orders. However, in this case the Appellant has already remained in custody as stated earlier for five years and nine months. Thus, no fruitful purpose would be served by sending the Appellant to the JJB for an inquiry into the offence.
6. A similar view was taken by a Division Bench of this Court in Raju v. State (Govt. of NCT) of Delhi, 184 (2011) DLT 10.(DB). Para 10 of the report is extracted hereunder:10. The fact that the petitioner had not raised the plea of juvenility before the trial court or before the Division Bench at the stage of the appeal or even before the Supreme Court would not come in his way of seeking the remedy and relief that is sought by virtue of this petition in view of the clear and express provisions of Section 7-A of the said Act. Once we have determined that the petitioner was a juvenile as on the date of the incident, he has to be given the benefit thereof under the said Act. Sections 15 and 16 of the said Act clearly indicate that no juvenile can be kept in custody or detained for a period in excess of 3 years. In the present case, the appellant has already been in custody for over 10 years and 4 months as per the nominal roll on record. Therefore, it is clear that the petitioner has been in custody for a period far in excess of the maximum period of 3 years that is contemplated under the said Act. In these circumstances, he is eligible to be released forthwith. Insofar as the sentence is concerned, the same is deemed to have no effect in view of the provision of Section 7-A(2) of the said Act.
7. The Supreme Court echoed the same sentiments in Satish @ Dhanna v. State of Madhya Pradesh & Ors. (2009) 14 SCC 187.Paras 5 and 6 of the report are extracted hereunder:- 5. In Bhola Bhagat v. State of Bihar (1997) 8 SCC 72.this Court after referring to the decision in Gopinath Ghosh v. State of W.B. 1984 Supp SCC 22.and Bhoop Ram v. State of U.P. (1989) 3 SCC 1 held that an accused who was a juvenile cannot be denied the benefit of provisions of the 2000 Act. The course this Court adopted in Gopinath and Bhola Bhagat cases was to sustain the conviction, but at the same time modify the sentence awarded to the convict.
6. At this distant point of time to refer the appellant to the Juvenile Board would not be proper. Therefore, while sustaining the conviction for the offence for which he has been found guilty, the sentence awarded is restricted to the period already undergone. The appellant be released from custody forthwith unless required to be in custody in connection with any other case.
8. The Supreme Court has reiterated the same view in its later judgments in Amit Singh v. State of Maharashtra & Anr. (2011) 13 SCC 74.and Ashwani Kumar Saxena v. State of M.P. (2012) 9 SCC 750.
9. In view of above, no fruitful purpose would be served by remitting the matter for an inquiry to the Juvenile Justice Board. The Appellant is, therefore, directed to be released.
10. The Appeal is allowed in above terms. (G.P. MITTAL) JUDGE MARCH 07 2013 pst