Bhagwan Dass @ Mittu v. State

ORDER

28.1r.2011 l. I3y the present petition, the Petitioner seeks setling aside of the order on sentence dated 26'h March, 2001 passed by the learned Trial Judge directing hirn to undergo Rigorous Imprisonment for a period of 10 years and a fine of Rs 5000/-, in default of payment of fine to further undergo Rigorous Imprisonment for a period of 2 years for offences punishable under section 376(2)(9) IPC. The Petitioner was fui1her directed to undergo rigorous Imprisonment for a period of 7 yeats and a fine of Rs 4000/-, in def,ault clf payrnent of fine to fuilher undergo Rigorous Imprisonment for a period of 18 months for offences punishable under section 366134 IPC . I'he WP(Crl.) No.L292/20L0 Poge 7 of 7 I Petitioner had prefered Crl. Appeal No.202l2001 against the said order. This Court vide its judgment dated 20th November, 2009 modified the sentence ftom 10 years to 5 years for offence under Section 376134IPC and Rigorous Imprisonment. for 4 years for offences under Section 366134 IPC and fine of Rs.5000/-.

¶2Learned counsel for the Petitioner contends that the petitioner is entitled to the benefit of juvenility under Section 7A of the Juvenile Justice (Carc and Protection) Act( for short 'JJ Act'). It is stated that the Petitioner herein was unaware about the position of law regarding juvenility. Thus, this plea could not be raised either during trial or appeal. The date of comrnission of offence is 20th April, 1983 on which date the age of the Petitioner Bhagwan Dass @ Mittu was below 17 years. The date of bifth recorded in the Election Card of the Petitioner is 16th April, 1966 and this fact is also recorded in other documents, that is, Driving Licence and Ration Card. Thus, the Petitioncr on the date of commission of the offence that is 20th April, 1983 was a juvenile and is entitled to the benefit under Section 7A of the JJ Act.

¶3This Courl vide order dated 14tr' July, 20lI had observed that the Petitioner claims to be a juvenile after his appeal by this court and Special WP(Crl.) No.7292/2070 Ie Lcave Petition had been dismissed. In order to ascertain the claim of juvenility, it would be appropriate that an enquiry for the purpose of age determination is conducted by the leamed Trial Court. Thus, the learned 'frial Court was directed to conduct an inquiry into the age of the Petitioner and submit a report in this regard.

¶4A report in this regard has been received. The learned Additional Sessions Judge has reported that during the inquiry, statement of 8 witnesses was recorded, CWl Mr. Bineshwar Ram, Inspector, Food and Supply, Circle-33, Dwarka, New Delhi, CW2 \4r. Prakash Chand Thakur, AERO (Assistant Electoral Registration Officer), Assembly Constituency No.39, Rajender Nagar, Delhi, CW3 Mr. Babu Lal, LDC, Transporl Authority, South-West Zone and CW4 Mr. Alok Mishra, Manager, TIN 10047, 49, Rajender Bhawan, Rajender Place, New Delhi-110008.

¶5CWI has desposed that as per their record, Ration Card No' APL-20250632 had been issued in the name of Bhagwan Dass, born in the year 1966. CW3 and CW4 have also deposed that in their records, that is, the Driving Licence and the Pan Card respectively the date of birth of the Petitioner is recoided as 16th April, 1966. The ossification test of the Petitioncr was also got conducted at DDU Hospital. CW 6 Dr. Sunil WP(Crl.) No.L292/20L0 Poge 3 of 7 t\ Kakkar, HOD (Radiology), DDU Hospital has deposed that after the physical, dental and radiological examination of the Petitioner, the Medical Board opined that the age of the Petitioner was above 30 years and below 40 years as on 1tt Septernber,201l. I{ence, afler recording the relevant evidence, the leamed Trial Court has submitted that the date of birth of the Petitioner is sometirne in betweenI9TT-1981.

¶6Thus, in view of the report of the learned Additional Sessions Judge and the opinion of the Medical Board, it is clear that the Petitioner was a juvenile at the time of commission of crime. The contemporaneous documents that is the election card,PAN card and the driving licence record his date of birth to be 16tr'April,1966 which show his age to be around 16 years but the same are not supporled by any docutnents. The Medical Board has opined that the age of the Petitioner was not below 30 years and more than 40 years as on I't September,20ll. Even if the age of Petitioner is taken to be 40 years in 201 1 the age of petitioner would be around 12 yeats when the alleged offence was committed in 1983. Hence, the Petitioner being a juvenile at the time of commission of crime is entitled to get the benefit under Juvenile Justice Act. 7 . IIon'ble Supreme Court tn l{ari Ram Vs. State of Raiasthan (2009) I3 WP(Crl.) No.L292/2010 Poge 4 of 7 Ltz SCC 2ll has held that a juvenile, who has not completed 18 years on the date of comrnission of the offence is entitled to benefit of the Juvenile Justice (Care & Protection of Children) Act, 2000'

¶8The issue thus arises as to how the benefit of juvenility can be extended to the petitioner in a case where the offences charged have been proved beyond reasonable doubt by the Prosecution. 'Ihe Hon'ble Supreme Court inBhoop Ramvs' State of TJ'P'' AIR 1986 SC 1329 held: "7. On a consideration of the matter, we are of the opinion that the appellant could not have completed 16 years of age on 3-I0-Ig73^ when the occumence took place and as such he ought to have been treated as a "child" within the meaning of Section 2@) of the U.P. Children Act 1951 and dealt with under Seciion 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which canies the date 24-6-1960 against the colurnn 'date of birth'. There is no material beforc us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Ctrief Medical Officer that the appellant appear"d to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school cerlificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two yeafs at the time of their admission in schools for benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in rnind that even the Trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he w P (cr l. ) N o. 1-29 2/20 L0 Poge 5 of 7 \1 delivered judgment on L2-9-I977 on the ground the appellant was a boy of 17 years of age. The observation of the Trial would lend credence to the appellant's case thAt he was less than 10 years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date of the offences were committed. It therefore follows that the appellant should have been dealt with under the u.1,. children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts.

¶8Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Couft held in Jayendra v. State of U.P. 1982 Cri.LJ 1000 that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Section 2($ of the U.P-Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forlhwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash thc sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentence imposed upon the appellant are quashed.

¶9In view of the fact that the Petitioner was a.juvenile at the time of the comrnission of offence and the said benefit has to be extended to him, while WP(Crl.) No.1292/20L0 l\ maintaining the conviction of the Petitioner, the order on sentence is set aside. fhe petition is disposed of accordingly. The Petitioner is in custody. The Superintendent, 'fihar Jail is directed to release the Petitioner forlhwith, if not required in another case. WM MUKTA GUPTA,J NOVEMBER 28,2olr 'dk' W P ( cr l. ) N o. 129 2/20 1-0

r $- * IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(cRL) 129212010 BI{AGWAN DASS @ MITTU ..... Petitioner Through Mr. Chirag Jarnwal & Mr. Ajay UPadhYaY, Advocates VETSUS STA]E OF NCT OF DELFII ..... Respondent Through Mr. Amit Singh Rathore, proxy counsel for Mr. Saleem Ahrned, ASC for State. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA