Santosh Kumar Vishvakarma vs State of Chhattisgarh

This appeal is directed against judgment dated 23-11-2010 passed by IVth Additional Sessions Judge (FTC), Ambikapur, District Surguja in Sessions Trial No. 362/2007. By the impugned judgment, accused/appellant Santosh Kumar Vishvakarma and co-accused Sanjay Bhagat and Rajesh Kushwaha have been convicted u/s 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- in default of payment of fine, to further undergo rigorous imprisonment for 4 months. The case of the prosecution, in brief, is as under:--

15 days prior to the date of incident, i.e., 15-7-2007 deceased Atal Paikara came to the house of his sister Anita Paikara (P.W. 8) and brother-in-law Chain Sai Paikara (P.W. 7) for education at Pratappur Naka, Ambikapur. On the date of incident, in the evening, the deceased was ironing his clothes. Appellant Santosh Kumar Vishvakarma came there alongwith co-accused Sanjay Bhagat and Rajesh Kushwaha. The co-accused were standing outside the house and appellant Santosh Kumar Vishvakarma entered the house and sat there. At that time, Chain Sai Paikara (P.W. 7), Anita Paikara (P.W. 8) and Sukhendra @ Bablu (P.W. 12) returned to the house of Chain Sai Paikara (P.W. 7). Appellant-Santosh Kumar Vishvakarma and co-accused took the deceased alongwith them. When deceased Atal Paikara did not return, Sukhendra @ Bablu (P.W. 12), Sanjay Paikara (P.W. 4) and Ganesh Kumar Paikara (P.W. 11) searched for him. They went to the house of appellant-Santosh Kumar Vishvakarma. At that time, Rajnibai (P.W. 13) also came there and told them that appellant Santosh Kumar Vishvakarma and co-accused committed Marpeet with the deceased and threw him in the Forest Depot Ground. Sukhendra @ Bablu (P.W. 12), Sanjay Paikara (P.W. 4) and Ganesh Kumar Paikara (P.W. 11) went to the Forest Depot Ground, where they saw that the deceased was lying naked and unconscious and heavily injured. The deceased was taken to Holicross Hospital for treatment where he was admitted. Kamles, the brother of appellant-Santosh Kumar Vishvakarma came to the house of Chain Sai Paikara (P.W. 7), threatened them and prevented for lodging a report. The deceased died during the treatment, i.e., on 16-7-2007. An intimation was sent to Police Station, Ambikapur vide Exh. P-1. On the basis of Exh. P-1, Merge Intimation (Exh. P-6) was recorded. Chain Sai Paikara (P.W. 7) lodged First Information Report (Exh. P-5) in Police Station, Ambikapur. Investigating Officer, N.L. Shrivastava (P.W. 6) reached the place of occurrence, gave notice (Exh. P-3) to Panchas and prepared inquest (Exh. P-4) on the dead body of the deceased. The dead body of the deceased was sent to Government Hospital, Ambikapur for post-mortem examination vide Exh. P-7. Doctor H.N. Ram (P.W. 4) conducted post-mortem on the dead body of the deceased and gave his report (Exh. P-2), finding (i) abrasion, 4 c.m. x 3 c.m. over left side of back of chest, (ii) abrasion, 5 c.m. x 3 c.m. over right side of thigh, anterior aspect, (iii) diffuse haematoma, 12 c.m. x 8 c.m. over scalp, left side and right side of frontal region, (iv) fracture of skull bone on left side of frontal region, 5 c.m. x 5 c.m., depressed in nature. He opined that the cause of death was due to head injury and bleeding to diffuse intra cerebral haemorrhage and the mode of death was due to coma.

In further investigation, shirt, underwear and slipper (chappal) were seized from the place of occurrence vide Exh. P-11 Spot map (Exh. P-15) was prepared by the Investigation Officer. The appellant and co-accused were arrested vide Exhs. P-16, 17 and 20. respectively.

After completion of the investigation, charge-sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Ambikapur, who, in turn, committed the case to the Court of Session, Ambikapur, from where it was received on transfer by IVth Additional Sessions Judge (FTC), Ambikapur, who conduced the trial and convicted and sentenced the appellant and the co-accused.

Appellant-Santosh Kumar Vishvakarma has filed the instant appeal, being Criminal Appeal No. 41/2011 and co-accused Sanjay Bhagat and Rajesh Kushwaha have also preferred an appeal being Criminal Appeal No. 920/2010. The instant appeal is being directed in respect of accused/appellant-Santosh Kumar Vishvakarma.

In support of its case, the prosecution examined Ranjeet Kumar (P.W. 1), Dr. Vinok Kumar Paikara (P.W. 2), Dr. H.N. Ram (P.W. 3), Sanjay Paikara (P.W. 4), Baliram (P.W. 5), Inspector N.L. Shrivastava (P.W. 6), Chain Sai Paikara (P.W. 7), Anita Paikara (P.W. 8), Ramlagan (P.W. 9), Rajbhan Singh (P.W. 10), Ganesh Kumar Paikara (P.W. 11), Sukhendra Kumar Paikara (P.W. 12), Rajni Bai (P.W. 13), Nasar Siddique (P.W. 14). The appellant did not examine any witness in his defence.

Smt. Savita Tiwari, learned Counsel for appellant-Santosh Kumar Vishvakarma did not dispute involvement of the appellant in the crime in question but she argued that the appellant was juvenile on the date of incident, i.e., 15-7-2007, and therefore, urged for his release without any further imprisonment for the period already undergone by him.

On the contrary, Shri Neeraj Mehta, learned Panel Lawyer appearing for the State/respondent opposed the above argument.

We have heard learned Counsel for the parties and have also perused the record of the case.

The Trial Court, after hearing learned Counsel for the respective parties, convicted appellant-Santosh Kumar Vishvakarma by the impugned judgment.

Learned Counsel for appellant-Santosh Kumar Vishvakarma did not dispute involvement of the appellant in the crime in question. Chain Sai Paikara (P.W. 7), Anita Paikara (P.W. 8) and Ramlagan (P.W. 9) deposed that the deceased Atal Paikara was residing with Chain Sai Paikara (P.W. 7) and Anita Paikara (P.W. 8) in the house of Chain Sai Paikara (P.W. 7). Chain Sai Paikara (P.W. 7) and Anita Paikara (P.W. 8) deposed that they went to the market and deceased was alone in the house. Thereafter, they came back their house in the evening. At that time, appellant-Santosh Kumar Vishvakarma was sitting alongwith the deceased and co-accused were standing outside the house. The appellant called the deceased and the deceased went alongwith the appellant. The deceased did not return even after 1�-2 hours, therefore, they started searching for the deceased and they went to the house of appellant-Santosh Kumar Vishvakarma. The appellant was present alongwith his wife. On being asked from the appellant about the deceased, the appellant replied that he killed the deceased and threw him in the Forest Depot Ground near Pratappur and covered his dead body with leaves. They went to the Forest Depot Ground where the body of the deceased was lying naked. The body of the deceased was covered with leaves and the deceased was unconscious. The body of the deceased was taken to District Hospital for treatment. Ramlagan (P.W. 9) also deposed in similar fashion.

Sanjay Paikara (P.W. 4) deposed that he had gone for searching the deceased and the body of the deceased was lying in the Forest Depot Ground. Ganesh Kumar Paikara (P.W. 11) told that the appellant assaulted the deceased alongwith his two associates.

After close scrutiny of the entire evidence available on record and after going through the impugned judgment, we are of the opinion that the Trial Court, after elaborately dealing with the evidence available on record and after proper appraisal of the same, has recorded a finding against the appellant. The finding so recorded is based on proper appreciation of the evidence available on record and the same does not call for any interference by this Court.

Now, we shall examine the case of the appellant for whom it was claimed that he was juvenile.

In Ashwani Kumar Saxena Vs. State of M.P., the Hon''ble Supreme Court held thus:--

...... In Hari Ram Vs. State of Rajasthan and Another, . In Hari Ram (supra), this Court took the view that the Constitution Bench judgment in Pratap Singh Vs. State of Jharkhand and Another, , was no longer relevant since it was rendered under the unamended Act. In Hari Ram (supra), while examining the scope of Section 7A of the Act, this Court held that the claim of juvenility can be raised before any Court at any stage and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed, thereunder, even if the juvenile had ceased to be so on before the date of commencement of the Act. It was held that a juvenile, who had not completed 18 years of age on the date of commission of the offence, was also entitled to the benefits of Juvenile Justice Act, 2000 as the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.

Further, it was also held that on a conjoint reading of Sections 2(k), 2(l), 7A, 20 and 49 read with Rules 12 and 98 places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-2001 would be treated as juveniles even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. With regard to the determination of age, this Court held that the determination of age has to be in the manner prescribed in Rule 12 of the 2007 Rules and opined that the determination of age is an important responsibility cast upon the Juvenile Justice Boards.

The scope of Section 7A of the Act and Rule 12 of the 2007 Rules again came up for consideration before this Court in Dharambir Vs. State (NCT of Delhi) and Another, 4. That was a case where the appellant was convicted for offences under Sections 302/34 and 307/34, IPC for committing murder of one of his close relatives and for attempting to murder his brother. The appellant was not a juvenile within the meaning of 1986 Act, when the offences were committed but had not completed 18 years of age on that date.

This Court held from the language of the Explanation to Section 20 that in all pending cases, which would include not only trial but even subsequent proceedings by way of revision or appeal etc., the determination of juvenility of a juvenile has to be in terms of clause (1) of Section 2, even if the juvenile ceases to be a juvenile on or before 1-4-2001, when the Act of 2000 came into force, and the provisions of the Act would have applied as if the said provision had been in full force for all purposes and for all material times when the alleged offence was committed. This Court held clause (1) of Section 2 of the 2000 Act provides that:--

(1) ''juvenile in conflict with law'' means a ''juvenile'' who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of the commission of such offence.

Section 20 also enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction to set aside the sentence imposed and forward the case to the J.J. Board concerned for passing sentence in accordance with the provisions of the 2000 Act.

This Court in Mohan Mali and Another Vs. State of M.P., has again considered the scope of Section 7A of the Act. That was a case where plea of juvenility was raised before this Court by the convict undergoing sentence. The appellant therein was convicted under Sections 302/34, 326/34 and 324/34, IPC and was sentenced to life imprisonment and had already undergone 9 years of imprisonment. In that case, a copy of the birth certificate issued by the Chief Registrar (Birth and Death) Municipal Corporation, Dhar u/s 12 of the Births and Deaths Registration Act, 1969 maintained by the Corporation was produced. This Court noticed that as per that certificate the date of birth of the accused was 12-11-1976. After due verification, it was confirmed by the State of Madhya Pradesh that he was a juvenile on the date of commission of the offence and had already undergone more than the maximum sentence provided u/s 15 of the 2000 Act by applying Rule 98 of the 2007 Rules read with Sections 15 and 64 of the 2000 Act. The accused was ordered to be released forthwith.

In Jabar Singh Vs. Dinesh and Another, , a two-Judge Bench of this Court while examining the scope of Section 7A of the Act and Rule 12 of the 2007 Rules and Section 35 of the Indian Evidence Act took the view that the Trial Court had the authority to make an enquiry and take necessary evidence to determine the age. Holding that the High Court was not justified in exercise of its revisional jurisdiction to upset the finding of the Trial Court, remitted the matter to the Trial Court for trial of the accused in accordance with law treating him to be not a juvenile at the time of commission of the alleged offence. The Court noticed that the Trial Court was not required to follow the procedure laid down in Section 7A of the Act or Rule 12 of the Rules and, therefore, in the absence of any statutory provision laying down the procedure to be followed in determining a claim of juvenility raised before it, the Court had to decide the claim of juvenility on the materials or evidence brought on record by the parties and Section 35 of the Evidence Act.

The Court in Jabar Singh case (supra), further stated that the entry of date of birth of respondent No. 1 in the admission form, the school records and transfer certificates did not satisfy the condition laid down in Section 35 of the Evidence Act in as much as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore, the entry was not relevant u/s 35 of the Evidence Act for the purpose of determining the age of respondent No. 1 at the time of commission of the alleged offence. We have our own reservations on the view expressed by the Bench in Jabar Singh''s case (supra).

In Daya Nand Vs. State of Haryana, , this Court considered the scope of Sections 2(k), 2(1), 7A, 20 and 64 (as amended by Act 33 of 2006 w.e.f. 22-8-2006). This Court dealt with a case where the appellant was aged 16 years 5 months and 19 days on the date of occurrence, the Court held that he was a juvenile and thus, could not be compelled to undergo the rigorous imprisonment as imposed by the Trial Court and affirmed by High Court. This Court set aside the sentence and ordered that the appellant be produced before the J.J. Board for passing appropriate sentence in accordance with 2000 Act.

''Age determination inquiry'' contemplated u/s 7A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a Corporation or a Municipal Authority or a Panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

Once the Court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub-section (5) or Rule 12 that no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the juvenility on its determination.

On the question of juvenility, this Court after hearing both the parties directed the Sessions Judge, Surguja (Ambikapur) to conduct an enquiry in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act, 2000") to determine the age of appellant-Santosh Kumar Vishvakarma on the date of incident. Learned Sessions Judge, Surguja (Ambikapur) conducted an enquiry and has submitted his report dated 22-12-2012. According to the finding recorded by the learned Sessions Judge, Surguja (Ambikapur), date of birth of appellant-Santosh Kumar Vishvakarma was 7-7-1991 and he was aged about 16 years, and 7 days on the date of incident, i.e., 15-7-2007. Thus, he was a juvenile on the date of incident according to the Act, 2000. The State has not opposed the enquiry report. The finding of the Sessions Judge has been admitted by the State.

In view of the finding recorded by the Additional Sessions Judge, Surguja (Ambikapur), the age of appellant-Santosh Kumar Vishvakarma on the date of commission of offence, i.e., 15-7-2007, was 16 years and 7 days. The parties have accepted the correctness of the age determined by the Additional Sessions Judge. Thus, it is established that appellant-Santosh Kumar Vishvakarma was a juvenile on the date of incident. Therefore, the matter of appellant-Santosh Kumar Vishvakarma has to be dealt with taking into account his juvenility.

The Juvenile Justice Act, 1986 was subsequently repealed by the Juvenile Justice (Care and Protection of Children) Act, 2000. On 22-8-2006, Section 2(1) of the Act, 2000 was amended stating that "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. The Juvenile Justice (Care and Protection of Children) Rules, 2007 were brought into force on 26-10-2007. As per Rule 97(2) of the said Rules, all the cases pending which have not received a finality has to be dealt with and disposed of in terms of the provisions of the Act, 2000 as amended on 22-8-2006 and the 2007 Rules. According to the above Rules, therefore, appellant-Santosh Kumar Vishvakarma would be entitled to benefit under the provisions of the Act, 2000. In such a situation, the appellant ought to have been tried by the Competent Board, and not by a Regular Court, in terms of Section 14 of the Act, 2000.

Section 15 of the Act, 2000 provider about the order that may be passed regarding a juvenile. u/s 15(1)(g), it has been provided that the Board may make an order directing the juvenile to be sent to a special home for a period of three years. Under the proviso, the Board has power, for the reasons to be recorded, to reduce the period of stay to such period as it thinks fit.

Section 16(1) of the Act, 2000 provides that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. According to the proviso, where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature or that his conduct and behavior have been such that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under this Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. Sub-section (2) of Section 16 further provides that on receipt of a report from a Board under sub-section (1), the State Government may make such arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under protective custody at such place and on such conditions as it thinks fit. Provided that the period of detention so ordered shall not exceed in any case the maximum period provided u/s 15 of this Act.

Section 19 of the Act, 2000 provides for removal of disqualification attaching to conviction. It provides that notwithstanding anything contained in any other law, a juvenile, who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

Therefore, it is clear that in no case a juvenile on holding him guilty for an offence can be sent for more than the period prescribed u/s 15 of the Act, 2000 and the case of appellant-Santosh Kumar Vishvakarma has to be dealt with in the above manner.

Appellant-Santosh Kumar Vishvakarma has undergone for more than 6 years, therefore, we simply set aside the sentences awarded to him and do not punish him further in the facts and circumstances of the case as also in light of the above provision of maximum punishment under the Act, 2000. It is stated that appellant is in jail. It is directed that he shall be released from custody forthwith, unless he is required in any other case. Consequently, the appeal is disposed of in the terms indicated above.