Juvenile; [email protected] Muntyaz Vs. State of U.P. (Now Uttarakhand) [Supreme Court of India, 01-07-2016]

Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 25 – Juvenile Justice (Care and Protection of Children) Act, 2000 – Claim of Juvenility – Juvenile on the date of occurrence – Inquiry with regard to juvenility – The subsequent repeal of the 2000 Act on and with effect from 15.01.2016 would not affect the inquiry with regard to claim of juvenility was found to be acceptable.


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(V. Gopala Gowda) and (Uday Umesh Lalit) JJ.

July 1, 2016

CRIMINAL APPEAL NO.2084 OF 2009

[email protected] Muntyaz ….Appellant Versus State of U.P. (Now Uttarakhand) …. Respondent

WITH

CRIMINAL APPEAL NO.460 OF 2010

Dilshad @ Pappu ….Appellant Versus State of U.P. (Now Uttarakhand) …. Respondent

J U D G M E N T

Uday U. Lalit, J.

1. These appeals by special leave at the instance of Appellants Mumtaz alias Muntyaz and Dilshad alias Pappu challenge correctness of the decision of the High Court of Uttarakhand at Nainital in Criminal Appeal No.270 of 2001 affirming their conviction and sentence for offences punishable under

Section 302 read with Section 34 of the Indian Penal Code

(for short the “IPC”) passed in Sessions Trial No.15 of 1991 on the file of the Additional Sessions Judge, Roorkee.

2. On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990 PW-1 heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter PW-1 along with his other nephew PW-2 Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. Both PWs 1 and 2 rushed there and put a quilt on Pawan Kumar. In this report, PW-1 Radhey Shyam further stated that he had seen the appellants and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, Manglaur for medical attention. Aforesaid FIR Ext.A-1 led to registration of Crime No.328 of 1990 at Police Station Manglaur relating to offences punishable under Sections 307 and 342 IPC.

3. At Primary Health Centre, a dying declaration Ext.A-24 of Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra, Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants had set him on fire. The translation of the relevant portion of the dying declaration Ext.A-24 is as under:

“Two persons after pouring kerosene set me on fire. I was set on fire this morning at about 2.00 – 2.30 AM. I was set on fire by Pappu, son of unknown, R/o Landhaura and Mumtaz, son of unknown, R/o Landhaura. Mumtaz works in the flour mill of Pappu. When I was coming after running a VCR on the way, I was taken to house of a Pathani lady whose name is Joulie. Joulie is wife of Raees, R/o Landhaura. In the presence of Joulie, Pappu and Mumtaz poured kerosene on me and set me on fire and ran away. When I started burning, I shouted and a person who is not known to me came there and extinguished fire by pouring water. Thereafter what happened I do not know. I do not know why Pappu and Mumtaz set me on fire. Pappu’s flour mill is on Lakshar Road. Name of brother of Pappu is Zinda Hasan.”

Below the above dying declaration Ext.A-24, a certificate to the effect that Pawan Kumar was in a fit state of mind to give the dying declaration was recorded by Dr. S.K. Mittal.

4. On 27.12.1990 itself PW-2 Anil Kumar who had burnt his hands while trying to save Pawan Kumar, was examined by PW-7 Dr. N.D. Arora, who prepared injury report Ext.A-23. This report mentioned that when he came to the Primary Health Centre, there were burn injuries on the hands of PW-2 Anil Kumar.

5. On 27.12.1990 at about 4.30 PM Pawan Kumar succumbed to burn injuries while he was being taken to Meerut for medical treatment. Crime No.328 of 1990 was thereafter converted to one under Section 302 IPC. After the death of Pawan Kumar, PW-6 Sub-Inspector Saudan Singh, Investigating Officer took the dead body in his possession at about 5.30 PM on 27.12.1990 and prepared inquest report Ext.A-9. Thereafter by letter Ext.A-8 he sent the body for post-mortem. PW-6 Investigating Officer had interrogated the witnesses and had also taken in possession quilt, match box, shawl and kerosene from the spot vide Memorandum Ext.A-12, A-13, A-14 and A-16.

6. PW-4 Dr. Rakesh Kumar conducted post-mortem on the dead body of Pawan Kumar at about 12.30 PM on 28.12.1990 and found ante-mortem injuries on the body and opined that the deceased had died due to shock from burn injuries.

7. After completion of investigation, charge-sheet Ext.A-16 was filed against the appellants as well as Naseem Khan and Anees Khan. The prosecution examined 9 witnesses. PW-1 Radhey Shyam and PW-2 Anil Kumar were examined as eye witnesses and so also PW-3 Narendra Kumar who had seen the accused taking Pawan Kumar and setting him on fire. PW-4 Dr. Rakesh Kumar who had conducted post mortem on the dead body of deceased Pawan Kumar proved this post mortem report Ext.A-2. According to him, the cause of the death was shock from burn injuries. PW-5 Satya Prakash Mishra proved dying declaration Ext.A-4. The Investigating Officer Saudan Singh was examined as PW-6 who proved Site Plans Ext.A-4 and A-5, sample seal memo Ext.A-7, Inquest Report Ext. A-9, Seizure Memo of quilt Ext. A-10, Seizure Memo of burnt clothes of Pawan Ext.A-11, Seizure Memo of burnt shawl Ext.A-14 and other relevant documents. PW-7 Dr. N. D. Arora was examined to prove injuries on the person of PW-2 Anil Kumar and injury report Ext. A-23. PW-8 Dr. R. D. Sharma proved the endorsement of Dr. S.K. Mittal on the dying declaration of Pawan Kumar Ext.A-22. No witness was examined on behalf of the defence.

8. The Trial Court by its judgment and order dated 19.12.1994 found the appellants guilty of the charges punishable under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life and also directed them to pay fine of Rs.5,000/-, in default whereof they were directed to undergo further imprisonment for one year. Naseem Khan and Anees Khan were however acquitted of all the charges.

9. Aggrieved by the aforesaid conviction and sentence, the appellants preferred Criminal Appeal No.2007 of 1994 in the High Court of Judicature at Allahabad. The appeal was thereafter transferred to the High Court of Uttarakhand at Nainital and re-numbered as Criminal Appeal No.270 of 2001. The High Court by its judgment and order under appeal affirmed the conviction and sentence passed against the appellants. The High Court principally relied upon eye-witness account through PW-1 Radhey Shyam and PW-2 Anil Kumar as well as dying-declaration Ext.A-24.

10. After granting special leave to appeal, by orders dated 15.11.2010 and 03.01.2011 appellant Mumtaz @ Muntyaz and appellant Dilshad @ Pappu respectively were ordered to be released on bail during pendency of these appeals. Thereafter, on an application preferred by Dilshad @ Pappu seeking permission to take additional documents on record to submit that he was a juvenile on the date of the incident, following order was passed by this Court on 07.08.2014.

“Application seeking permission documents on record is allowed. It is submitted by Mr. K.T.S. Tulsi, learned senior counsel that the appellant Dilshad @ Pappu was a juvenile on the date of occurrence i.e. 27.12.1990 inasmuch as his date of birth is 22.07.1974, as is reflected from the School leaving Certificate, contained in Annexure A-1 at page 9. Learned senior counsel would submit that an inquiry should be held by the District and Sessions Judge, Roorkee, and the report be made available to this Court and thereafter the hearing may take place. Regard being had to the language employed in Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, it is directed that the concerned District & Sessions Judge, Roorkee shall cause an inquiry with regard to juvenility of the appellant, Dilshad @ Pappu, after following the procedure as engrafted under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and submit his report within a period of 30 days from the date of receipt of the order passed today. Learned District & Sessions Judge shall submit the documents forming the basis of his report.”

11. An appropriate enquiry was thereafter conducted by the First Additional and District Sessions Judge, Roorkee, Haridwar who by his report dated 05.09.2014 concluded as under:-

“13. Hence from the above discussion the date of birth of Dilshad @ Pappu is discernible from Exhibits Ka4 to Ka5. The entries made therein have not been controverted by the Counsel appearing for the State and there is nothing on record to refute or rebut the factum of date of birth as entered in above Exhibits. Hence the inquiry under Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 has been fully satisfied. The Court accordingly determines that Dilshad @ Pappu date of birth is 22-7-1974 (Twenty two July Nineteen Seventy Four) and on date of occurrence i.e. 27-12-1990 he was 16 years 5 months and 5 days old and hence a juvenile as per Juvenile Justice (Care and Protection of Children) Act, 2000. 14. Let a certified copy of the findings of this Court be forwarded to the Hon’ble Supreme Court of Indian in compliance of its order.”

12. On 14.01.2015 when the matters were taken up, the counsel appearing for the State submitted that the decision of this Court in