Manohar @ Mannu vs The State (Delhi Admn.)

Sanjay Kishan Kaul, J.—The appellant, Manohar @ Mannu, has been convicted and sentenced in Sessions Case No. 114/1996 arising out of FIR No. 185/1991 registered at P.S. Gandhi Nagar for having committed the offence punishable under Sections 302 IPC and sentenced accordingly.

The case of the prosecution is that on 13.8.1991, Veena (deceased) had an altercation with her landlady Fatto. Fatto asked the deceased to immediately vacate the house and the appellant, son of Fatto, started throwing articles of the deceased from the house onto the street. On the protest of the deceased, Fatto caught hold of the deceased. The deceased managed to release herself from the clutches of Fatto and ran towards the street. Fatto is stated to have exhorted the appellant to attack Fatto and when the deceased was collecting her household goods from the gali, the appellant gave knife blows to the deceased causing injuries, which resulted in her death. Fatto and the appellant were both charged, but in terms of the impugned judgment, Fatto has been acquitted and only the appellant was convicted.

The appellant aggrieved by the impugned judgment of conviction dated 13.1.1997 and order of sentence of the even date, has preferred the present appeal.

During the course of arguments, learned Counsel for the appellant, on instructions from the appellant, has not pressed the grounds of appeal against conviction. He, however, has submitted that the appellant was a juvenile in terms of Section 2(k) of The Juvenile Justice (Care and Protection of Children) Act, 2000, wherein it is provided that a "juvenile. or a "child. means a person who has not completed eighteenth year of age. Thus, he is entitled to be dealt with under the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000.

As per order dated 28.10.2009, learned Counsel for the appellant sought to take advantage of the age of the appellant mentioned in the order on sentence and statement of accused recorded u/s 313 of Cr.P.C. to contend that the appellant was a juvenile on the date of commission of offence, i.e. 13.8.1991. On such a plea of the learned Counsel for the appellant, appellant was directed to undergo an ossification test. In terms of the said order the report of the ossification test was directed to be submitted before the Court on the next date of hearing, i.e. today.

The report of the ossification test dated 21.11.2009 has been placed before us. We have perused the report of the ossification test carried out at All India Institute of Medical Sciences (AIIMS), New Delhi. In terms of the report, the panel of doctors opined the age of the appellant between 30-35 years on the date of ossification test. Since the incident is of 13.8.1991, the appellant would be of age between 12+ and 17+ years and thus would definitely be under 18 years of age.

Learned Counsel for the appellant has taken us through the scheme of The Juvenile Justice (Care and Protection of Children) Act, 2000 and submitted that Section 2(k) of the Act has expanded the definition of juvenile by increasing the age from 16 years to 18 years. He has submitted that Section 7A(1) of the Act provides for the procedure to be followed when the claim of juvenility is raised before any court and Section 7A(2) provides that if the court finds a person to be juvenile on the day of commission of offence, it shall forward the juvenile to the Board for passing appropriate order and the sentence if any passed by a court shall be deemed to have no effect. He has also drawn our attention to Section 20 of the Act which deals with the pending cases of the persons who are covered under the definition of juvenile because of the definition of juvenile u/s 2(k) of the Act increasing the age from 16 to 18 years, and submitted that in view of the aforesaid provisions of the Act, the order of sentence awarding life imprisonment to the appellant is uncalled for and it needs to be modified.

In order to appreciate the submissions of learned Counsel for the appellant, it would be useful to reproduce Section 7A of The Juvenile Justice (Care and Protection of Children) Act, 2000, which is as follows:

7A Procedure to be followed when claim of juvenility is raised before any court - 1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

2) If the Court finds a person to be a juvenile on the date of commission of the offence under Sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.

From a perusal of Section 7A of The Juvenile Justice (Care and Protection of Children) Act, 2000, it transpires that as per Clause (1), whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is a juvenile or a child or not stating his precise age as nearly as possible.

Section 20 of The Juvenile Justice (Care and Protection of Children) Act, 2000 provides for the procedure to be followed in respect of pending cases pertaining to the juveniles in any court in any area on the date on which the Act comes into force in that area. It provides that such pending cases against the juvenile shall continue in the said courts as if this Act has not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of juvenile, forward the case to the Board which shall pass appropriate orders in respect of that juvenile in accordance with the provisions of the Act.

Since the appellant has conceded his pleas against the impugned judgment of conviction on merits, we dismiss the appeal to that extent. So far as the appeal against the order of sentence is concerned, we have already concluded above that the appellant was a juvenile on the date of commission of offence as his age then was less than 18 years. Clause 2 of Section 7A and Section 20 of The Juvenile Justice (Care and Protection of Children) Act, 2000 provides that if the Court finds a person to be juvenile in terms of definition u/s 2(k) of the Act on the date of commission of offence, it shall forward the juvenile to the Juvenile Justice Board for passing appropriate orders, and the sentence if any, awarded by a Court shall be deemed to have no effect. The import of this provision is that sentence awarded by the learned trial Judge in terms of the impugned order of sentence will have no effect and the matter has to be referred to the Juvenile Justice Board for passing appropriate orders. We may, however, note that as per Section 15 of The Juvenile Justice (Care and Protection of Children) Act, 2000, the maximum period for which a juvenile can be sent to a Special Home is three years. As per the nominal roll of the appellant, the appellant has already served the maximum period of three (3) years.

In view of the fact that the appellant has suffered incarceration for the maximum period of detention in Special Home permissible under The Juvenile Justice (Care and Protection of Children) Act, 2000, we do not deem it appropriate to refer the matter back to the Juvenile Justice Board for passing appropriate orders and direct formal release of the appellant in the present appeal.

The appeal is partly accepted and order on sentence is modified accordingly.

Bail-cum-surety bonds of the appellant stand discharged.