Mukhwinder Singh vs State of Punjab and Another

Jai Singh Sekhon, J.—Mukhwinder Singh, petitioner, along with others was convicted by Shri H.S. Bakhshi, the then Additional Sessions Judge, Gurdaspur on 25-10-1980 (Annexure R/1) for the murder of three persons. The learned Sessions Judge awarded various punishments vide his detailed order dated 27-10-1980 including the one for life imprisonment on three counts regarding the murder of three persons. While awarding the sentence the trial Court refuted the contention of the counsel for Mukhwinder Singh, accused, that he was less than 16 years old at the time of the commission of the offence by observing that apparently it appears that the accused had given less age by a couple of years. The above referred order of sentence and conviction of the Ld. Sessions Judge was confirmed by the High Court as well as by the Supreme Court.

The petitioner then filed Criminal Writ Petition No. 123 of 1989 under Articles 226 and 227 of the Constitution of India and u/s 6 of the East Punjab Children Act, 1949 (for short the Children Act) praying that the case be referred to the State Government u/s 34 of the Children Act for quantifying sentence. This petition was disposed of by S.D. Bajaj, J. on 13-7-1989 by passing an order, which reads as under:

In terms of the observations made by this Court in Gulzar Singh Vs. State of Punjab and Another, , the respondent-State is directed to have the representation referred to and decided by its Social Welfare Department within two months from today. Criminal Writ Petition No. 123 of 1989 shall stand disposed of on these terms."

The Secretary, Social Welfare Department, Punjab then passed an order under Sections 34 and 35 of the Children Act (Annexure P.5) to the effect that the prisoner being not less than 16 years of age at the time of the commission of the offence i.e. 16-5-1980 was entitled to the benefit in the matter of sentence under the Children Act.

The petitioner thereafter filed the present petition inter alia contending that the age given by the prisoner in his statement recorded u/s 313 of the Code by the trial Court is to be taken as gospel truth unless the trial Court had examined some medical expert or got subjected the petitioner to ossification test for determining the bone age and that the observation of the trial Court that the petitioner might be above the age of 16 years of age, being based on mere surmises and conjectures, is of no consequence. It is further maintained that Secretary, Social and Welfare Department, had no jurisdiction to reopen the issue of the age of the prisoner at the time of the commission of the offence after the decision of this Court in Criminal Writ Petition No. 123 of 1989 wherein the written statement filed by the State (Annexure P. 2) it has been admitted that the age of the petitioner was recorded as 16 years at the time of conviction as mentioned in the conviction order besides admitting that the prisoner had given his age as 16 years at the time of recording his statement u/s 313 of the Code on 24-10-1980.

On notice, the return has been filed by Shri G. D. Bhasin, Joint Secretary Social Welfare, Punjab, Chandigarh, contending that the petitioner having not assailed the finding of the trial Court regarding his apparent age in appeal before the High Court or the Supreme Court, the finding of the trial Court in this regard has attained finality and cannot be challenged in this writ petition and that the Secretary Social Welfare had rightly concluded that the case of the petitioner was not covered by the provisions of the Children Act.

After hearing the learned counsel for the parties and perusal of the record it is evident that there is no dispute between the parties that the petitioner has given his age as 16 years before the trial Court on 24-10-1980 when his statement was recorded u/s 313 of the Code. It is also not disputed that on the warrants issued by the trial Court regarding the confinement of the petitioner in the jail, the petitioner''s age is mentioned as 16 years. A perusal of the judgment of the trial Court (Annexure R. 1) also reveals that in the description of the prisoner on the first page of its judgment the age of the prisoner has been given as 16 years. In a portion of the judgment, dated 2-10-1980 pertaining to the awarding of punishment, the trial Court had remarked as under :--

...Apparently, it appears that they have to suppress their true ages and perhaps each is older by couple of years than the age stated in the Court. Considering all these circumstances, more so the youthfulness of the accused, I decided to spare their lives and direct that lesser punishment of rigorous imprisonment for life in each case would meet the ends of justice."

These remarks of the trial Court are based on mere surmises as it has failed to give even the apparent appearance of the petitioner i.e. the growth of beard, moustaches height or the number of teeth, etc. Thus under these circumstances these observations of the trial Court regarding the age were not required to be challenged by the petitioner before the High Court or the Supreme Court. The Apex Court had observed in the case of Raisul Vs. State of U.P., that age of the accused by appearance recorded by the trial Court is of no significance as the appearances are sometime deceptive.

On the other hand, under the provisions of Section 63 of the Children Act it was the duty of the trial Court to have recorded such evidence as may be forthcoming at the hearing of the case for determining the age of the accused especially when the petitioner must have given his age as 16 years at the time of the framing of the charge, as admittedly, the petitioner has given his age as 16 years at the time of recording of his statement u/s 313 of the Code. Thus the trial Court under these circumstances should have recorded the evidence regarding the age of the petitioner. The benefit of this lapse of the trial Court is to be given to the petitioner in view of the well known dictum that the benefit of every reasonable doubt has to be given to the petitioner/detenu and not to the prosecution.

As a matter of fact, in view of the order of S.D. Bajaj, J. in Criminal Writ Petition No. 123 of 1989 (Annexure P. 3) the State Government u/s 34 of the Children Act was only required to determine the period of detention of the petitioner and could not reopen the case of the petitioner being less than or more than 16 years of age at the time of the commission of offence. S.D. Bajaj, J. has passed the above referred order as per the terms of the Division Bench judgment of this Court in Gulzar Singh Vs. State of Punjab and Another, . A bare perusal of that judgment leaves no doubt that after discussing the applicability of Section 34 of the Act, the case of Guljar Singh was ordered to be referred to the State Government u/s 34(1) of the said Act for determining the period of his detention. In that case also, the age of Gulzar Singh, petitioner, during the trial was mentioned as 16 years. Thus it cannot be said by any stretch of imagination that order (Annexure P/3) would entitle the Secretary, Social Welfare to reopen the issue of the age of the petitioner at the time of the commission of offence.

A perusal of the trial Court''s judgment (Annexure R/1) reveals that the murders were committed on 16-5-1980 at 10.00 a.m. and the statement of the accused was recorded u/s 313 of the Code on 24-10-1980. As per the earlier return (Annexure P/2) filed by the State Government to the earlier writ petition it is mentioned that the prisoner was 16 years of age at the time of the commission of the offence.

The matter does not rest here as the State Government is estopped from challenging the age of the petitioner being less than 16 years at the time of the commission of the offence in view of its earlier admission in the return (Annexure P/2) filed in Civil Writ Petition No. 123 of 1989.

Consequently, under these circumstances it appears that Secretary, Social Welfare was under the wrong impression that he was competent to reopen and redetermine the age of the prisoner at the time of the commission of the offence. Though ordinarily it could have been a case of taking appropriate action under the Contempt of Courts Act, yet all the same in view of the bona fide belief of the Secretary that he was competent to do so, no action is called for. However, the State Government is directed to determine the period of detention of the petitioner u/s 34 of the Children Act, within a period of two months from today as the prisoner had already suffered "more than 10 years actual imprisonment. In case, the State Government fails to pass appropriate orders within two months, the petitioner shall be released on furnishing requisite bonds to the satisfaction of the District Magistrate, Gurdaspur, undertaking to abide by the order of the State Government. The writ petition stands disposed of accordingly.