Penal Code, 1860 – ss.302 r/w 34 – Appellants convicted u/ss.302 r/w 34, sentenced to life imprisonment – Affirmed by High Court – On appeal, held: FIR was rightly relied upon by the courts below as dying declaration of the victim-deceased – FIR itself referred to the presence of PW1 (wife of deceased) and PW2 (sisterin-law of the deceased) – Testimony of both these witnesses disclosed that the appellants opened an assault on victim which led to his death – Recoveries of the weapons in question viz., lathi, sword and axe also lend sufficient corroboration to the prosecution’s case – Conviction and sentence recorded by the courts below, insofar as the two appellants are concerned, affirmed – Third appellant ‘AR’, though is also guilty of the offence charged, but was juvenile in terms of the 2000 Act thus, the sentence of life imprisonment imposed upon him is set aside – Matter remitted to Juvenile Justice Board for determining appropriate quantum of fine to be levied on him – Juvenile Justice (Care and Protection of Children) Act, 2000 – s.20 –Juvenile Justice Act, 1986 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – ss.3(1)(10), 3(2)(5). Juvenile Justice (Care and Protection of Children) Act, 2000 – s.20 – Effect of – Discussed.
Disposing of the appeal, the Court
HELD: 1.1 The incident in the present case had occurred in July, 1998 when the Juvenile Justice Act, 1986 (the 1986 Act) was in force. The age of juvenility for a male juvenile under the 1986 Act was 16 years. Since ‘AR’ was 16 years 11 months as on the date when the offence was committed, he was certainly not a juvenile within the meaning of 1986 Act. However, the age of juvenility was raised to 18 years in terms of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (the 2000 Act). Section 20 of the 2000 Act dealing with proceedings pending against a juvenile on the date the 2000 Act came into force. Where an offender was more than 16 years of age on the day when the incident had occurred (and therefore was not a juvenile within the meaning of the 1986 Act) but was less than 18 years of age on the day of the incident, the question as to what extent benefit can be given in terms of the provisions of the 2000 Act, was considered by this Court in some cases. Thus, even if it is held that ‘AR’ was guilty of the offence with which he was charged, the matter must be remitted to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on ‘AR’. [Para 15, 16 and 18][602-G-H; 603-A-B, F-G; 609-A-B]
Mumtaz alias Muntyaz vs. State of Uttar Pradesh (now Uttarakhand (2016) 11 SCC 786 : [2016] 3 SCR 434; Satya Deo alias Bhoorey vs. State of Uttar Pradesh (2020) 10 SCC 555 – relied on.
1.2 The testimony of PW9-Doctor, shows that victimdeceased (‘G’) was alive when the initial examination was undertaken by PW9. According to the witness, when he examined ‘G’, the blood pressure could not be detected. However, that by itself does not mean that the ‘G’s not in a physical condition to make any reporting to the police two hours earlier. Paragraph 24 of the deposition of PW9 shows that if the symptoms stated therein were present, it could possibly be said that the concerned person would not be in a position to speak. First of all, such assertion is purely an opinion of an expert. Secondly, nothing is available on record to show that ‘G’ had shown these symptoms either soon after the incident or when his statement was recorded by PW8. No questions were put to PW1, PW2 and PW8 in that behalf. The submission advanced on this score is therefore, rejected and it is found that the FIR was rightly relied upon by the courts below as dying declaration on part of ‘G’. The FIR itself referred to the presence of PW1 and PW2. The substantive testimony of both these witnesses clearly discloses that the appellants had opened an assault on ‘G’ which led to his death. The assertion on part of PW1 that her earlier statement recorded during investigation was read over to her does not mean that she was tutored to follow the line of prosecution. No such questions were put to PW2. Thus, even if the testimony of PW1 is eschewed from consideration, the deposition of PW2 along with the dying declaration of ‘G’, completely clinch the matter against the appellants. Additionally, the recoveries of the weapons in question viz., lathi, sword and axe also lend sufficient corroboration to the case of the prosecution. [Para 21, 22][609-F-H; 610-B-E]
1.3 The view taken by the courts below is affirmed and the appellants are found guilty of the offence with which they were charged. The conviction and sentence recorded by the courts below, insofar as accused ‘D’ and Gokul are concerned, are, therefore, affirmed and the present appeal insofar as these two accused are concerned is dismissed. However, even while holding the appellant ‘AR’ to be juvenile in terms of the 2000 Act and guilty of the offence with which he was charged, the sentence of life imprisonment imposed upon him is set aside and the matter is remitted to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on appellant ‘AR’ in keeping with the directions issued by this Court in Jitendra Singh vs. State of U.P. Since ‘D’ and Gokul were released on bail by this Court vide Order dated 08.04.2009, they are directed to surrender before the concerned Police Station within two weeks from today, failing which the bail bonds furnished at the time of their release on bail shall stand forfeited and they shall immediately be arrested by the concerned police to undergo the sentence imposed upon them. [Para 23-25][610-E-H; 611-A] Jitendra Singh vs. State of U.P (2013) 11 SCC 193 : [2013] 13 SCR 764 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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