Vijay Kumar Pandey v. State
$~9&10 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 637/2000 & Crl.M.A.2435/2016 VIJAY KUMAR PANDEY ..... Appellant Represented by:
Mr.Sunil K.Mittal, Mr.Anshul Mittal, Advs.
versus STATE ..... Respondent Represented by:
Mr.Varun Goswami, APP with SI Vishvendra, PS Seemapuri.
+ CRL.A. 722/2000 & Crl.M.A.2983/2000 AJAY KUMAR ..... Appellant Represented by:
Mr.Ajay Inder Sangwan, Mr.Tarunesh Kumar, Advs.
versus STATE ..... Respondent Represented by:
Mr.Varun Goswami, APP with SI Vishvendra, PS Seemapuri.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE MUKTA GUPTA
O R D E R
% 14.03.2016 1.
Ajay Kumar and Vijay Kumar appellants herein have been convicted for the offence punishable under Section 302 read with Section 34 IPC vide judgment dated September 30, 2000 and directed to undergo imprisonment for life vide the order on sentence dated October 09, 2000. At the time of hearing of the appeal both Ajay and Vijay claimed that they were juveniles CRL.A. Nos. 637/2000 & 722/2000 Page 1 of 5
when the alleged incident took place i.e. on December 05, 1997. 2.
Vijay Kumar has filed Crl.M.A.2435/2016 and to substantiate his claim of being a juvenile at the time of alleged incident, photocopy of the certificate from the Central Board of Secondary Education for the Delhi Secondary School Examination 1996 has been enclosed wherein the date of birth of Vijay has been noted as September 05, 1980. A status report has been filed by the State under the signatures of SHO Seelampur noting that the certificate of Secondary School Examination 1996 of the CBSE Board was verified and found to be genuine. Thus Vijay Kumar as per the matriculation certificate was less than 18 years of age at the time of alleged incident.
3.
As per the Rule 12 (3) of the Juvenile Justice Rules (in short JJ Rules) in every case concerning a child or a juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or Board by seeking the evidence by obtaining:
"(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the CRL.A. Nos. 637/2000 & 722/2000 Page 2 of 5
Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin or one year."
4.
Thus Vijay Kumar has been able to establish that he was a juvenile at the time when the offence was committed and is thus entitled to the protection of the beneficial legislation. The issue that arises is as to how the benefit of juvenility can be extended to the Appellant in a case where the offences charged have been proved beyond reasonable doubt by the Prosecution. In the decision reported as AIR 1986 SC 1329 Bhoop Ram vs. State of U.P. the Supreme Court held:
"7. On a consideration of the matter, we are of the opinion that the appellant could not have completed 16 years of age on 3-10-1975 when the occurrence took place and as such he ought to have been treated as a "child" within the meaning of Section 2(4) of the U.P. Children Act 1951 and dealt with under Section 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24-61960 against the column 'date of birth'. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars.
The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the Trial CRL.A. Nos.
Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the appellant was a boy of 17 years of age. The observation of the Trial would lend credence to the appellant's case that he was less than 10 years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material.
On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date of the offences were committed. It therefore follows that the appellant should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts. 8.
Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U.P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U.P. 1982 CriLJ 1000 that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under Section 2(4) of the U.P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentence imposed upon the appellant are quashed." CRL.A. Nos. 637/2000 & 722/2000 Page 4 of 5
5.
As per the record Vijay Kumar has been in custody during trial and appeal for over three years. Section 18(1)(g) of Juvenile Justice Act (in short JJ Act) provides that a juvenile can be retained at a special home for a maximum period of three years and thus in these circumstances no useful purpose would be served in remanding the matter back to the Juvenile Justice Board.
6.
In view of the decision reported as AIR 1986 SC 1329 Bhoop Ram vs. State of U.P. the judgment dated September 30, 2000 convicting Vijay Kumar Pandey is upheld however the order on sentence is quashed. 7.
To support the claim of juvenility Ajay Kumar has placed on record a certificate wherein his date of birth is reflected as January 01, 1982. However, the certificate issued from the School is dated March 27, 1998 i.e. after the date of offence. In these circumstances an enquiry is required to be conducted with regard to the age of Ajay Kumar. 8.
The Trial Court Record be sent to the concerned Additional Sessions Judge for conducting an enquiry into the age of Ajay Kumar. Needful be done within a period of two months and a report be sent to this Court. 9.
CRL.A. 637/2000 & Crl.M.A.2435/2016 are disposed of. 10.
List CRL.A. 722/2000 & Crl.M.A.2983/2000 on July 25, 2016. PRADEEP NANDRAJOG, J.
MUKTA GUPTA, J.
MARCH 14, 2016 'ga'
CRL.A. Nos. 637/2000 & 722/2000 Page 5 of 5