Back
2010 (7) Supreme 777
SUPREME COURT OF INDIA
Aftab Alam and Asok Kumar Ganguly, JJ.
Remdeo Chauhan @ Rajnath Chauhan — Petitioner(s)
versus
Bani Kant Das & Others — Respondent(s)
Review Petition (C) No.1378 of 2009
in
Writ Petition (C) No.457 of 2005
Decided on : 19-11-2010
(b) Indian Penal Code, 1860 – Section 302 – Where the juvenility of the accused is neither positively proved or disproved, imposition of lesser sentence of life imprisonment cannot be foreclosed. (Para 14)
(1982) 3 SCC 24 – Relied upon
(c) Code of Criminal Procedure, 1973 – Sections 432, 433 and 433A r/w Articles 72 and 161, Constitution of India – Although imposition of death sentence cannot be re-opened in a review petition, it can be appropriately dealt with if motion was made under Sections 432, 433 and 433A Cr. P.C. r/w Articles 72 and 161, Constitution of India. (Para 15)
(d) Supreme Court Rules – Part VIII Order XL, Rule 1 – Even though the ambit of the review petition has been widened by Eswara, it has to follow broadly the principles of review under Order XLVII Rule 1. (Paras 32, 35 and 90)
(1980) 2 SCC 167; (2004) 12 SCC 713; (1999) 9 SCC 323; (1980) 4 SCC 680 – Relied upon
(e) Supreme Court Rules – Part VIII Order XL, Rule 6 – When the attention of Supreme Court is not drawn to any particular provision of a statute, it can review the decision and it is not the case of a mere mistaken judgment. (Para 37)
AIR 1971 SC 2162 – Relied upon
(f) Protection of Human Rights Act, 1993 – Section 12 – Power of NHRC to enquire into cases of violation of and for protection and promotion of human rights being extensive one, should not be construed narrowly – If a person is denied access to a right guaranteed under the Constitution or under an International Covenant or under a law, then it amounts to a clear violation of his human right – NHRC has the jurisdiction to intervene for protecting it. (Paras 46, 47, 52 and 55)
(g) Protection of Human Rights Act, 1993 – Section 12 – It is not correct to say that there cannot be any violation of human rights by decision of the High Courts or the Supreme Court – The Commission, by virtue of its constitution, is truly an expert body on matters of human rights and fundamental rights – However the Commission is bound by any direction of Supreme Court u/Art. 32 of the Constitution and it cannot function as a seat of justice in parallel to the Supreme Court. (Para 59, 64, 67 and 68)
(1976) 2 SCC 521; (1942) AC 206; (1999) 2 SCC 131 – Relied upon
(h) Constitution of India – Article 161 – Governor has to act on the advice of Council of Ministers – Entire record of the case including notes prepared by Chief Minister’s office on which the Governor acted were on record before the Court reviewing the matter – These records contained all the reasons for the act of the Governor – Hence it was not correct to opine that the Governor did not give any reason for his order. (Paras 74, 76 and 77)
(2006) 8 SCC 161 – Distinguished
(i) Judicial Review – The power of clemency granted under Articles 161 and 72 to the Governor and the President respectively are not totally immune from judicial review – Nonetheless the Court makes an almost extreme presumption in favour of bona fide – Such orders can be reviewed only if made just by rule of thumb and totally arbitrarily. (Paras 79 and 82)
(1976) 1 SCC157; (1981) 1 SCC 107; (1989) 1 SCC 204 – Relied upon
Facts of the case:
1. A criminal case was registered against the appellant under section 302 IPC, on an FIR lodged by Bani Kant Das, elder brother of Bhabani Charan Das.
2. Trial court convicted and sentenced the accused.
3. Ground of juvenility raised by the accused was considered and rejected.
4. High Court confirmed the death sentence.
Finding of the Court:
NHRC acted within its jurisdiction.
Result : Review petition partly allowed.
JUDGMENT
Ganguly, J. —
1. This case has a chequered background. The facts, therefore, are to be appreciated in their sequence.
2. A criminal case was registered against the petitioner under section 302 IPC, on an FIR lodged by Bani Kant Das (first respondent), elder brother of Bhabani Charan Das (the deceased), in view of the offences committed by the petitioner on 8.3.1992. After investigation and preparation of charge sheet, the case was committed for trial to the Court of Sessions and charges were framed against the petitioner under Sections 302, 323, 325 and 326 of IPC.
3. On 31.3.1998, the Trial Court held the petitioner guilty of murdering four members of Bhabani Charan Das’s family and that all the charges under Sections 302, 323, 325 and 326 of IPC against him were proved beyond all reasonable doubt. The Trial Court also opined that the crime fell within the category of ‘rarest of rare cases’ and the petitioner deserved death penalty.
4. However, the defence raised the plea that at the time of commission of the crime, the petitioner was below 16 years of age. To determine the actual age of the petitioner, Dr. Bhushan Chandra Roy, Associate Professor of Forensic Medicine of Guwahati Medical College, with a team of doctors, examined him on 23.12.1997. The defence examined the father of the petitioner, Mr. Firato Chauhan and also placed reliance on the school admission register. The school register was held to be unreliable, as it was not properly maintained. Further, the petitioner’s father estimated the petitioner’s age to be 19 years at the time of occurrence of the crime.
5. However, on the basis of the physical and radiological examination done of the petitioner, the doctor was definitely of the opinion that his age was above 20 years but could not be more than 21 years on the date of the examination. This examination was conducted more than 5= years after the date of commission of the crime.
6. Dr. Bhushan Chandra Roy, who was a prosecution witness, subjected the petitioner to scientific tests including radiological tests. The medical opinion of Dr. Bhushan Chandra Roy was a joint opinion and he consulted the doctor in the Department of Radiology and Dr. Kanak Chandra Das, the Medical Officer on duty in the Department of Radiology.
7. About the age of the petitioner, trial Court accepted the opinion of the team of doctors headed by Dr. Bhushan Chandra Roy.
8. The Trial Court’s finding about the age of the petitioner is as follows:
“On the basis of the physical examination and radiological examination done on Ramdeo Chauhan alias Raj Nath Chauhan, they are of opinion that the age of the individual is above 20 years.”
9. The Trial Court, after considering the medical evidence about the age of the petitioner along with the evidence of the father of the petitioner, came to the following conclusion:
“Then the accused cannot be below sixteen years of age at the time of alleged occurrence to attract the provisions of Juvenile Justice Act, 1986 as the alleged occurrence took place before six years.”
10. On appeal by the petitioner, the High Court, vide its judgment dated 1.2.1999, confirmed the conviction and sentence of death against the petitioner. Before the High Court the Counsel for the petitioner specifically submitted, that he was not challenging the finding of the Trial Court on the point of age of the accused- petitioner.
11. The appeal from the High Court judgment was dismissed by a Bench of this Court, comprising K.T. Thomas and R.P. Sethi, JJ, on 31.7.2000 and death sentence was upheld. In that judgment, this court did not advert to the question of age of the petitioner as it was possibly not argued.
12. A review petition (hereinafter, the first review petition) was filed against the abovementioned judgment of this Court. After notice was issued, a two Judge Bench of this Court held that the question of conviction of the petitioner under section 302 IPC cannot be reopened. However, considering the fact that the pe
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
