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2010 Supreme(Raj) 976
[Citation : 2011(2) RLW 1431 (SC)]
(Supreme Court)
Remdeo Chauhan Vs. Bani Kant Das (Ganguly, J.)
HON'BLE AFTAB ALAM, J.
HON'BLE ASOK KUMAR GANGULY, J.
Remdeo Chauhan @ Rajnath Chauhan
Versus
Bani Kant Das & Ors.
Review Petition (C) No.1378 of 2009
IN
Writ Petition (C) No.457 of 2005, decided on 19.11.2010
Jyoti Mendiratta, for Petitioner;
M/s. Corporate Law Group, for Respondent
Headnote:(a) Protection of Human Rights Act, 1993, Sec. 2(d), 12(j) — Definition of "Human rights" — Cannot be straitjacketed within narrow confines — Jurisdiction of National Human Rights Commission u/Sec. 12 (j) — Person entitled to benefit under a particular law and benefit under that law have been denied to him — It will amount to a violation of his human rights — Denial by private party, a public institution, the government or even Courts of law. (Paras 46, 47, 52)
¼d½ ekuokf/kdkj laj{k.k vf/kfu;e] 1993] /kkjk 2¼?k½] 12¼j½ & ^^ekuokf/kdkj** dh ifjHkk"kk & ladh.kZ {ks=ksa esa LVsªV tSdsVsM ugha fd;k tk ldrk & /kkjk 12¼j½ ds rgr jk"Vªh; ekuokf/kdkj vk;ksx dh vf/kdkfjrk & fdlh dkuwu fo'ks"k ds rgr ifjykHk gsrq gdnkj O;fDr vkSj ml fof/k ds rgr ifjykHk nsus ls mls badkj fd;k x;k & ;g mlds ekuokf/kdkjksa ds mYya?ku dh Js.kh esa vk;sxk & eukgh futh i{kdkj] fdlh lkoZtfud laLFkku] ljdkj ;k ;gka rd fd U;k;ky;ksa }kjk HkhA ¼in la[;k 46] 47] 52½
(b) Protection of Human Rights Act, 1993, Sec. 12(j) and Constitution of India, Art. 161 — Death sentence commutated to life imprisonment by Governor — Entire record considered — Held — Non discloser of reason will not vitiate order of Governor directing commutation of sentence. (Paras 76, 82 & 83)
Order accordingly.
¼[k½ ekuokf/kdkj laj{k.k vf/kfu;e] 1993] /kkjk 12¼j½ ,oa Hkkjr dk lafo/kku] vuqPNsn 161 & e`R;qn.M dks jkT;iky }kjk vkthou dkjkokl esa :ikUrfjr fd;k & lEiw.kZ vfHkys[k ij fopkj fd;k & vfHkfu/kkZfjr & dkj.kksa dk [kqyklk ugha djuk ltk y?kqdj.k dk funsZ'k nsus okys jkT;iky ds vkns'k dks nwf"kr ugha ekuk tk;sxkA ¼in la[;k 76] 82] 83½
rnuqlkj vkns'k fn;kA
Hon'ble GANGULY, J.—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 5½ 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 petitioner r
