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IN THE HIGH COURT OF ALLAHABAD
PANKAJ NAQVI, RAJEEV MISRA, JJ.
Lakhan Singh and Others – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 2102 of 1983
Decided On : 08-10-2020
Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 94 – Juvenile Justice (Care and Protection of Children) Model Rules, 2016 – Code of Criminal Procedure, 1973 – Section 313 – Order of Conviction – Present criminal appeal arises out of the judgment and order passed by IIIrd Additional Sessions Judge, Kanpur, in Sessions Trial whereby, accused-appellants Lakhan Singh, Ram Vijai Singh and Shiv Vijai Sigh have been convicted under section 302 read with section 34 I.P.C. and consequently, sentenced to rigorous imprisonment for life. –
Finding of the Court:
Court were impressed by aforesaid submission at the first flush particularly in the light of observations made in Mukarrab and Others (Supra) wherein the Court rejected the age determination report prepared by All India Institute of Medical Sciences (AIMS) New Delhi, but upon deeper scrutiny, we do not find any force in this submission. – The facts in Mukarrab's case were very clinching which is not the case here. In the present case, except for the fact that accused-appellant was issued a gun license on 24.7.1982 which is after the date of occurrence i.e. 20.7.1982, nothing else has been brought on record. – The same may create a suspicion. – But Suspicion howsoever strong cannot take the place of proof. Perusal of the objections filed by informant does not indicate the grounds on which the member of the Medical Board is sought to be examined and secondly, no such material has been appended along with the objections file by informant on the basis of which prima-facie court could feel satisfied to summon a member of Medical Board. – Court, negate the submission urged by learned counsel for informant to summon a member of Medical Board for cross-examination. – Court, therefore, find force in the submission of Mr. Anoop Trivedi, that once the recital contained in the order, has not been challenged at any point of time, the correctness or otherwise of the recital contained in the order qua the age of accused-appellant-2 Ram Vijai Singh, cannot be agitated at this stage. – Secondly, the accused-appellant-2 Ram Vijai Singh, in his statement under section 313 Cr.P.C. has stated that his age is about 16 years, but there is no document to ascertain the same. – Thirdly, accused-appellant-2 has been issued a gun license bearing no. 7580 on 24.7.1982, whereas, the occurrence has taken place on 20.7.1982. – Thus, the gun license has been issued to accused appellant-2 after the occurrence had taken place, but there is nothing on record to show that accused-appellant-2 crossed the age prescribed for a juvenile before 20.7.1982 or after 20.7.1982. – Court may point out that the State has not filed the copy of gun license issued to accused-appellant-2 or the extract of any register pertaining to grant of gun license maintained by the office of District Magistrate, Kanpur to demonstrate that accused-appellant-2 was a major on the date of occurrence. –
Result: Appeal Allowed
JUDGMENT :
RAJEEV MISRA, J.
Criminal Misc. Application No. 382916 of 2015
1. The present criminal appeal arises out of the judgment and order dated 3.9.1983, passed by IIIrd Additional Sessions Judge, Kanpur, in Sessions Trial No. 466/M of 1980 (State vs. Lakhan Singh and Others) whereby, accused-appellants Lakhan Singh, Ram Vijai Singh and Shiv Vijai Sigh have been convicted under section 302 read with section 34 I.P.C. and consequently, sentenced to rigorous imprisonment for life.
2. We have heard Mr. Anoop Trivedi, learned Senior Advocate, assisted by Ms. Anjali Singh, learned counsel for accused appellant-2, Ram Vijai Singh. Mr. A.N. Mulla, learned A.G.A. along with Mr. Sameer Shankar A.G.A. as well as Mr. A.K. Kushwaha (AGA) and Mr. Arun Kumar Singh, learned counsel for informant.
3. Instant appeal came up for admission on 7.9.1983, when it was admitted and accused-appellants were enlarged on bail.
4. During the pendency of this appeal, appellant-1 Lakhan Singh died and therefore the appeal in respect of aforesaid appellant was abated vide order dated 26.11.2015.
5. After expiry of a period of more than 32 years, from the year of filing of present appeal, accused-appellant-2 Ram Vijai Singh filed an application dated 28.10.2015, claiming juvenility, to the effect on the date of occurrence i.e. on 20.7.1982, he was aged about 13 years and therefore a juvenile.
6. Instant criminal appeal was heard on 26.2.2020 and judgment was reserved. Ultimately, the appeal came to be dismissed by this Court vide judgment and order dated 22.4.2020. However, the application dated 28.10.2015, filed by accused appellant-2 Ram Vijai Singh claiming juvenility remained undecided.
7. Feeling aggrieved by judgment and order dated 22.4.2020, accused appellant-2 Ram Vijai Singh preferred Special Leave to Appeal (Criminal) No. 2898 of 2020 (Ram Vijai Singh vs. State of U.P.) before Apex Court. Aforesaid special leave petition came up for orders on 28.7.2020 and Court passed the following order:-
Adjourned.
Liberty to mention.”
8. Pursuant to order dated 20.7.2020, Hon'ble the Chief Justice, vide order dated 30.7.2020 nominated instant Criminal appeal to this Bench for disposal of application dated 28.10.2015, filed by accused appellant-2 Ram Vijai Singh, claiming juvenility. This is how the present criminal appeal has come up for orders before this Bench.
9. The Bench proceeded with the matter. Considering the intricate issue involved in this application, the Court passed following order on 5.8.2020:-
Pursuant to the order of the Apex Court dated 20.7.2020 in Special Leave Petition (Criminal) No. 2898 of 2020 (Ram Vijay Singh vs. State of U.P.) the matter is listed before us. The Apex Court has called upon us to decide the application claiming juvenality of appellant no. 2-Ram Vijai Singh.
Case called out.
No one responds on behalf of appellant No. 2-Ram Vijai Singh. An application dated 28.10.2015 claiming juvenality has been filed by Sri. Apul Mishra, Advocate, but the Bench Secretary informed that Mobile phone of Sri. Apul Mishra, Advocate, is switched off.
Issue notice to the informant or his legal heirs, if any, in order to enable him/her to file objections to the application dated 28.10.2015.
Learned A.G.A. is also at liberty to file his objection, if any.
The Chief Metropolitan Magistrate, Kanpur Nagar or the Judicial Magistrate concerned, as the case may be, is directed to ensure service of no
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