Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 193

SUPREME COURT OF INDIA
B.R. GAVAI, VIKRAM NATH, SANJAY KAROL, JJ.
Karan @ Fatiya - Appellant
Versus
The State Of Madhya Pradesh - Respondent
Criminal Appeal Nos.572-573 of 2019
Decided on : 03-03-2023

Advocates appeared:
For the Appellant(s) : Mr. Rajat Mittal, AOR
For the Respondent(s): Mr. Mukul Singh, D.A.G. Ms. Ankita Chaudhary, D.A.G. Mr. Yashraj Singh Bundela, Adv. Mr. Sunny Choudhary, AOR Mr. Shreyash Balaji, Adv. Mr. Sandeep Sharma, Adv.

IMPORTANT POINTS
(1) Law provides full coverage to a person who is established to be a child on the date of offence, to avail benefits admissible to a child under 2015 Act even if case has been finally decided and also such person has attained majority – Whatever punishment is to be provided, same cannot exceed a period of three years.
(2) Trial conducted and conviction recorded by Sessions Court would not be held to be vitiated in law even though subsequently person tried has been held to be a child.

Headnote:
(A) Protection of Children from Sexual Offences Act, 2012 – Sections 5(m)/6 – Indian Penal Code, 1860 – Sections 363, 376(2)(i), 302 and 201 – Juvenile Justice (Care and Protection) Act, 2015 – Sections 9, 18 and 94 – Kidnapping, rape, murder and disappearance of evidence – Death sentence – Plea of juvenility by accused – Birth certificate from a Government Primary School has been duly proved in inquiry before Trial Court – No reason to doubt its correctness – Law provides full coverage to a person who is established to be a child on the date of offence, to avail benefits admissible to a child under 2015 Act even if case has been finally decided and also such person has attained majority – Whatever punishment is to be provided, same cannot exceed a period of three years and JJB has to take full care of ensuring best facilities that could be provided to child for providing reformative services including education, skill development, counselling and psychiatric support – Appellant held to be less than 16 years and maximum punishment that could be awarded is upto 3 years – Appellant has already undergone more than 5 years – His incarceration beyond 3 years would be illegal, and he would be liable to be released forthwith on this count also. (Paras 12, 14, 16 and 17)
(B) Juvenile Justice (Care and Protection) Act, 2015 – Sections 9, 25 and 94 – Juvenile accused – Trial conducted and conviction recorded by Sessions Court would not be held to be vitiated in law even though subsequently person tried has been held to be a child – Intention of Legislature was to give benefit to a person who is declared to be a child on the date of offence only with respect to its sentence part – Merits of conviction could be tested and conviction which was recorded cannot be held to be vitiated in law merely because inquiry was not conducted by JJB – It is only question of sentence for which provisions of 2015 Act would be attracted and any sentence in excess of what is permissible under 2015 Act will have to be accordingly amended as per provisions of 2015 Act. (Paras 31, 32 and 33)
Facts of the case:
Present appeals assail the correctness of judgment and order dated 15.11.2018 whereby a Division Bench of the High Court of Madhya Pradesh, Bench at Indore, affirmed the death sentence awarded by the Trial Court and at the same time dismissed the appeal preferred by appellant against his conviction and sentence awarded by Trial Court.
Findings of Court:
Conviction of appellant is upheld; however, sentence is set aside. As appellant at present would be more than 20 years old, there would be no requirement of sending him to JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith.
Result : Appeals Partly allowed.

JUDGMENT :

VIKRAM NATH, J.

1. The present appeals assail the correctness of the judgment and order dated 15.11.2018 whereby a Division Bench of the High Court of Madhya Pradesh, Bench at Indore, affirmed the death sentence awarded by the Trial Court and at the same time dismissed the appeal preferred by the appellant against his conviction and sentence awarded by the Trial Court.

2. The present appellant was charged for offences under sections 363, 376(2)(i) of the Indian Penal Code¹[In short, “IPC”], sections 5(m)/6 of the POCSO Act and sections 302 and 201 IPC. The Trial Court vide judgment dated 17.05.2018 convicted the appellant for all the offences and awarded the following sentences as against each of the offences:

Offence under section Sentence Fine

363 IPC 5 years RI Rs.1,000/-

376(2)(i) IPC Life imprisonment Rs.5,000/-

5(m)/6 of POCSO Act Life imprisonment Rs.5,000/-

302 IPC Death sentence Rs.5,000/-

201 IPC 5 years RI Rs.5,000/-

3. The appeal preferred by the appellant was dismissed by the High Court and the death reference forwarded by the Trial Court was affirmed, as already noted above.

4. During the pendency of these appeals, the appellant moved an application being I.A.No.43271 of 2019 claiming juvenility and consequently the benefits available under the provisions of the Juvenile Justice (Care and Protection) Act, 2015²[The 2015 Act]. This application was apparently filed under Section 9(2) of the 2015 Act. This Court, vide order dated 28.09.2022 required the Trial Court to submit its report after due inquiry as to whether the appellant was a juvenile on the date when the offence in question was committed. The order dated 28.09.2022 is reproduced below:

“Pursuant to directions issued on the last occasion, certain Reports/Documents have been placed on record.

Without commenting on merits or demerits of the rival submissions, we direct as under:

a. The copies of the record be sent to the concerned Trial Court as early as possible in physical form as well as in digitized form.

b. The accused shall be produced before the concerned Trial Court within a week’s time.

c. The Trial Court shall endeavour to consider whether the appellant was juvenile as on the date when the offence in question was committed.

d. For arriving at this conclusion, the Trial Court shall be entitled to call for and consider all the relevant documents as well as have the facility of medical check-up of the appellant in a manner known to law.

e. The Report in that behalf shall be submitted in the Registry of this Court within four weeks.

List this matter for further consideration along with the Report in the week commencing 31st October 2022.”

5. Pursuant to the said order, a report has been received from the Court of First Additional Sessions Judge, Manawar, District Dhar, Madhya Pradesh dated 27.10.2022 running into 20 pages along with all the material evidence both documentary and oral adduced before it on the basis of which the report has been submitted. As per the said report, the appellant’s date of birth was found to be conclusively proved as 25.07.2002. The date of the incident being 15.12.2017, the appellant was 15 years 04 months and 20 days of age on the date of the incident. The operative part of the report is reproduced below:

“It is found conclusively proved that date of birth of the applicant/accused Karan is 25.07.2002. It is also proved taking into account 25.07.2002 as his date of birth, the applicant was 15 years 04 months 20 days of age as on 15.12.2017, and being below 16 years of age, he was Child as per section 2(12) of J.J. Act, 2015. Accordingly, the inquiry proceedings are concluded.”

6. At the outset learned senior counsel for the appellant has clarified that for the present he is only pressing the plea of juvenility and if he fails on that count would address on the issue of conviction and sentence. Further based on the said report, learned senior counsel for the appellant submitted firstly that the sentence awarde