ASHOK KUMAR MEHRA & ANR. versus THE STATE OF PUNJAB ETC. on 15 April 2019

1. These appeals are directed against the final judgment and orderdated 21.07.2008 passed by the High Court of Punjab & Haryana atChandigarh in Criminal Appeal No.681-DBA of 2000 and CriminalRevision No.1242 of 2000 whereby the High Court allowed the criminalappeal filed by respondent No.1(State) herein and the criminal revisionfiled by respondent No.2(Complainant) herein by setting aside thejudgment dated 06.06.2000 passed by the Sessions Judge, Rupnagar inSessions Case No.10 of 1998 and convicted both the appellants for theoffence punishable under Section 302 read with Section 34 of the IndianPenal Code, 1860(hereinafter referred to as “IPC”) and sentenced themto undergo imprisonment for life and to pay a fine of Rs.5,000/- each. Indefault of payment of fine, they shall undergo further rigorousimprisonment for a period of six months each.

2. A few facts need mention hereinbelow for the disposal of theseappeals.

3. Appellant No.1-Ashok Kumar Mehra is the father of appellantNo.2-Kushwant@Sukhwant Kumar Mehra. Both the appellants, i.e.,father and son were prosecuted for commission of the offence ofcommitting murder of one Inderjit Dhiman. The Sessions Judge byjudgment/order dated 06.06.2000 passed in Sessions Case No.10/1998acquitted both the appellants.

4. The State and the Complainant both felt aggrieved and filedcriminal appeal and criminal revision in the High Court. By impugnedorder, the High Court allowed the criminal appeal as well as the criminalrevision and while reversing the judgment of acquittal passed by theSessions Judge, convicted both the appellants and awarded them lifesentence, which has given rise to filing of these appeals by both theaccused persons, i.e., father and son.

5. Heard Mr. T.S. Doabia, learned senior counsel for the appellantsand Mr. Ankit Swarup & Ms. Jaspreet Gogia, learned counsel for therespondents.

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6. Mr. T.S. Doabia, learned senior counsel for the appellants, atthe outset, stated that so far as the appellant No.1-Ashok Kumar Mehra,i.e., father is concerned, he has expired during the pendency of theseappeals. Learned counsel then brought to our notice that so far as appellantNo.2-Kushwant @ Sukhwant Kumar Mehra, i.e., son is concerned, hewas juvenile on the date of commission of the offence.

7. In our opinion, so far as appeal filed by appellant No.1-AshokKumar Mehra, i.e., father is concerned, the same stands abated onaccount of his death. In this view of the matter, the appeal filed byappellant No.1 is accordingly dismissed as abated.

8. Now so far as the appeal filed by appellant No.2 - SukhwantKumar, i.e., son is concerned, the same, in our view, deserves to beallowed in the light of law laid down by this Court in a recent decision ofthis Court in Raju vs. The State of Haryana, 2019(4) SCALE 398wherein a similar question was involved. This is what was held by thisCourt (Three Judge Bench) in Paras 9, 10, and 25 as under:

“9. It is by now well-settled, as was held in Hari Ram v.State of Rajasthan, (2009) 13 SCC 211, that in light ofSections 2(k), 2(I), 7A read with Section 20 of the 2000 Actas amended in 2006, a juvenile who had not completedeighteen years on the date of commission of the offence isentitled to the benefit of the 2000 Act (also see Mohan Maliv. State of Madhya Pradesh, (2010) 6 SCC 669; Daya Nandv. State of Haryana, (2011) 2 SCC 224; Dharambir v. State(NCT) of Delhi (supra); Jitendra Singh @ Babboo Singh v.State of Uttar Pradesh, (2013) 11 SCC 193). It is equallywell-settled that the claim of juvenility can be raised at anystage before any Court by an accused, including this Court,even after the final disposal of a case, in terms of Section7A of the 2000 Act (see Dharambir v. State (NCT) of Delhi,(supra), Abuzar Hossain v. State of West Bengal, (2012) 10SCC 489; Jitendra Singh @ Babboo Singh v. State of UP,(supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15SCC 637).

10. In light of the above legal position, it is evident that theAppellant would be entitled to the benefit of the 2000 Act ifhis age is determined to be below 18 years on the date of commission of the offence. Moreover, it would be irrelevantthat the plea of juvenility was not raised before the TrialCourt, in light of Section 7A. As per the report of the inquiryconducted by the Registrar (Judicial) of this Court, in thiscase, the Appellant was below 18 years of age on the dateof commission of the offence. The only question before usthat needs to be determined is whether such report maybe given precedence over the contrary view taken by theHigh Court, so that the benefit of the 2000 Act may be givento the Appellant.

25. Criminal Appeal hereby stands allowed and the orderof the High Court affirming the conviction and sentence ofthe Appellant under Section 376(2)(g) of the IPC is set aside.Seeing that the Appellant has already spent 6 years inimprisonment, whereas the maximum period for which ajuvenile may be sent to a special home is only 3 years asper Section 15(1)(g) of the 2000 Act, and since the Appellanthas already been enlarged on bail by virtue of the order ofthe Court dated 09.05.2014, he need not be taken intocustody. His bail bonds stand discharged and all proceedingsagainst him, so far as they relate to the present case, standterminated.”

9. When we examine the facts of the case of appellant No.2 inthe light of law laid down in the case of Raju (supra), we find thatappellant No.2 was born on 14.06.1980 whereas the date of commissionof the offence is 04.01.1998.

10. It is, therefore, an admitted fact that appellant No. 2 was ajuvenile (he was below the age of 18 years, i.e., he was 17 years and 5months) on the date of the commission of the offence (04.01.1998). Inother words, appellant No. 2 had not completed the age of 18 years onthe date of commission of the offence, i.e., on 04.01.1998.

11. Though this fact was neither brought to the notice of theSessions Judge and nor the High Court and was brought to the notice ofthis Court for the first time by appellant No. 2 in this appeal, yet in thelight of law laid down by this Court in several decisions referred to inPara 10 of the decision in Raju (supra), appellant No. 2 is entitled toraise this plea even in this appeal.

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A12. Now, so far as the issue relating to the genuineness of thedate of birth of appellant No. 2 is concerned, firstly, it is not in disputethat appellant No.2 had filed his date of birth certificate in the SessionsCourt; Secondly, the prosecution did not object to the correctness of thebirth certificate before the Sessions Judge; Thirdly, this Court by orderdated 11.07.2011 granted bail to appellant No. 2 on this ground observingBtherein that since he was juvenile at the time of commission of the offenceand was below 18 years, which was not disputed by the respondent-State; and lastly, even at the time of hearing of this appeal, learned counselfor the respondent-State did not dispute the date of birth certificate ofappellant No.2.

C13. In the light of these four reasons, we are of the view that it isnot necessary to hold any further inquiry on this question.

14. In view of the foregoing discussion, we are of the consideredopinion that since appellant No.2 was a juvenile on the date of commissionof the offence and though till date he has already undergone considerableDjail sentence partly as an under-trial and partly as a convict, yet theappeal filed by appellant No. 2 has to be allowed as was done in thecase of Raju (supra) without going into the merits of the case and passingany other consequential order in that regard.

15. The appeal of appellant No. 2 is accordingly allowed. TheEimpugned order qua appellant No.2 is set aside.

Nidhi Jain

Appeals disposed of.

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