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SUPREME COURT OF INDIA
A.M. KHANWILKAR, AJAY RASTOGI, JJ.
PRATAP SINGH @ PIKKI – Appellant(s)
VERSUS
STATE OF UTTARAKHAND – Respondent(s)
CRIMINAL APPEAL NO(s). 1890 OF 2011
Decided On : 12-07-2019
(A) Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Plea of juvenility – Person below 18 years at the time of incident can claim benefit of Juvenile Justice Act at any time – In terms of scheme of Rule 12 of Juvenile Justice (Care and Protection of Children) Rules 2007, committee constituted has been entrusted to hold inquiry by seeking evidence in support of respective claim has to first consider if there is a matriculation certificate available, in first instance – In absence thereof, date of birth certificate from school (other than play school) first attended; and in absence, birth certificate given by Corporation or a Municipal Corporation or a Panchayat in descending form has to be considered as the basis for the purpose of determination of age of juvenile. (Paras 21 and 23)
(B) Indian Penal Code, 1860 – Sections 304 Part II/34 – Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 2(k) – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Culpable homicide not amounting to murder – Common intention – Conviction and sentence – Appellant was not a juvenile and has crossed age of 18 years by few days on the date of incident, i.e. 18th June, 1995 and the protection of Juvenile Justice Act was not available to him – Trial Court, while awarding sentence to appellant has not made any analysis of relevant facts – Even High Court has not considered issue of quantum of sentence – They were young boys having no previous enmity – On some comments made to girls sitting in front of deceased, some altercation took place and they entered into a scuffle and without any premeditation, alleged unfortunate incident took place between two group of young boys – Appellant has served sentence of more than three years and five months – Quantum of sentence is excessive and deserves to be interfered by this Court – Considering overall facts of case in totality with nature of crime, tender age of appellant at the time of offence, subsequent conduct and other ancillary circumstances including that no untoward incident has been reported against him and mitigating circumstances, it is appropriate that in obtaining factual score, sentence of rigorous imprisonment be altered to period already undergone for offence under Section 304 Part II/34 IPC, to meet ends of justice. (Paras 24, 27 and 28)
Facts of Case:
Murder case. Both unsuccessful convicted persons preferred criminal appeal against the judgment dated 12th January, 1998 before High Court of Uttarakhand. In case of appellant, High Court observed that according to his mark-sheet of Secondary School Certificate Examination 1993, his date of birth is 13th June, 1977 while incident was of 18th June, 1995 and he was not a juvenile on the date of incident. At the same time, Vikas Kirola, whose date of birth was 26th December, 1977 on the basis of his secondary school certificate was given the benefit of Juvenile in view of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and their conviction under Section 304 Part II/34 IPC came to be confirmed vide impugned judgment of the High Court dated 9th November, 2010 which has been challenged by the appellant in the instant appeal.
Findings of Court:
We do find substance in what being submitted by Counsel for the appellant and in the first place, it is to be noted that the trial Court, while awarding sentence to appellant has not made any analysis of the relevant facts. Even High Court has not considered the issue of quantum of sentence.
Result : Appeal allowed.
JUDGMENT
Rastogi, J.
1. The appellant(accused no. 1) along with three others tried for an offence under Sections 147, 148, 302/149 and 323/149 of the Indian Penal Code (hereinafter being referred to as “IPC”). The appellant and one Vikas Kirola were convicted under Section 304 Part II/34 IPC and sentenced to undergo rigorous imprisonment for 10 years and other two persons Manoj Singh Rautela and Deepak Pathak were acquitted vide judgment dated 12th January, 1998.
2. Both the unsuccessful convicted persons preferred criminal appeal against the judgment dated 12th January, 1998 before the High Court of Uttarakhand. In the case of appellant, the High Court observed that according to his marksheet of Secondary School Certificate Examination 1993, his date of birth is 13th June, 1977 while the incident was of 18th June, 1995 and he was not a juvenile on the date of the incident. At the same time, Vikas Kirola, whose date of birth was 26th December, 1977 on the basis of his secondary school certificate was given the benefit of Juvenile in view of Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 and their conviction under Section 304 Part II/34 IPC came to be confirmed vide impugned judgment of the High Court dated 9th November, 2010 which has been challenged by the appellant in the instant appeal.
3. The facts in brief which are essential to be stated for adjudication of this appeal are that complainant Mukesh Sah (PW-1) lodged FIR stating interalia that on 18th June, 1995, his cousin brother Rajesh Sah had gone to see Jagjit Singh night at Mallital, Nainital. At about 10.30 PM, Manoj Joshi, friend of Rajesh Sah, had come and informed that some boys had committed Marpit with his brother (Rajesh Sah) near the flat and his situation was serious and was admitted to B.D. Pandey Hospital. On this information, the complainant immediately rushed to B.D. Pandey Hospital and saw that his brother Rajesh was in operation theatre. When his brother was brought out, he was unconscious and after some time at about 12.25 AM, he succumbed to his injuries. He also came to know that in the Marpit committed with his brother, Harshwardhan Verma, Sanjay Goswami and Deepak Verma also sustained injuries. He further came to know that in Jagjit Singh night, his brother (Rajesh Sah) along with Harshvardhan Verma, Deepak Verma, Pankaj Verma, Sanjay Goswami and Tanmay Tiwari @ Fatty were there and on their next row, some girls were sitting to whom some boys were passing indecent remarks. Complainant’s brother Rajesh stopped those boys not to do so, on which one of those boys slapped Rajesh and gone from there by threatening to see him. When Jagjit Singh night was going to end and the people were coming out of it, Rajesh Sah along with his friends proceeded towards his house and near the fountain at about 10.00 PM in the night, 56 boys assaulted Rajesh by lathisdandas. After sustaining injuries, Rajesh fell down on the earth but even then, those persons continued beating him. Some of the companions of Rajesh, namely, Harshvardhan Verma, Deepak Verma and others tried to intervene, who too sustained injuries. Injured Rajesh was then immediately brought to B.D. Pandey Hospital. The persons accompanying Rajesh informed the names of accused as Pratap Singh Bisht, Vikas Kirola, one Pathak and also about 2-3 other boys, however, their names were not known.
4. On the said complaint, FIR (Exhibit Ka-1) was lodged by PW1 Mukesh Sah on 19th June, 1995 at 1.20 AM at P.S. Mallital, Distt. Nainital. Injured Rajesh Sah was primarily medically examined on 18th June, 1995 at 10.10 PM by PW-5 Dr. Rajeev Kumar, who after the examination, prepared injury report (Exhibit Ka-3). Similarly injured Harshvardhan Verma was examined at 1.10 AM on 19th June, 1995 and his injury report (Exhibit Ka-4) was prepared. Injured Sanjay Goswami was examined on 19th June, 1995 at 1.15 AM and his injury report (Exhibit Ka-5) was prepared. Likewise, injured Deepak Verma was
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