DEVILAL AND OTHERS versus STATE OF MADHYA PRADESH on 25 February 2021

[2021] 1 S.C.R. 592

SUPREME COURT REPORTS

[2021] 1 S.C.R.

ADEVILAL AND OTHERS

v.

STATE OF MADHYA PRADESH

(Criminal Appeal No. 989 of 2007)

BFEBRUARY 25, 2021

[UDAY UMESH LALIT, INDIRA BANERJEE ANDK. M. JOSEPH, JJ.]

Penal Code, 1860 – ss.302 r/w 34 – Appellants convictedu/ss.302 r/w 34, sentenced to life imprisonment – Affirmed by HighCCourt – On appeal, held: FIR was rightly relied upon by the courtsbelow as dying declaration of the victim-deceased – FIR itselfreferred to the presence of PW1 (wife of deceased) and PW2 (sister-in-law of the deceased) – Testimony of both these witnesses disclosedthat the appellants opened an assault on victim which led to hisDdeath – Recoveries of the weapons in question viz., lathi, swordand axe also lend sufficient corroboration to the prosecution’s case– Conviction and sentence recorded by the courts below, insofar asthe two appellants are concerned, affirmed – Third appellant ‘AR’,though is also guilty of the offence charged, but was juvenile interms of the 2000 Act thus, the sentence of life imprisonment imposedEupon him is set aside – Matter remitted to Juvenile Justice Boardfor determining appropriate quantum of fine to be levied on him –Juvenile Justice (Care and Protection of Children) Act, 2000 – s.20–Juvenile Justice Act, 1986 – Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 – ss.3(1)(10), 3(2)(5).

FJuvenile Justice (Care and Protection of Children) Act, 2000– s.20 – Effect of – Discussed.

Disposing of the appeal, the Court

HELD: 1.1 The incident in the present case had occurredin July, 1998 when the Juvenile Justice Act, 1986 (the 1986 Act)Gwas in force. The age of juvenility for a male juvenile under the1986 Act was 16 years. Since ‘AR’ was 16 years 11 months as onthe date when the offence was committed, he was certainly not ajuvenile within the meaning of 1986 Act. However, the age of H

juvenility was raised to 18 years in terms of the provisions of theJuvenile Justice (Care and Protection of Children) Act, 2000 (the2000 Act). Section 20 of the 2000 Act dealing with proceedingspending against a juvenile on the date the 2000 Act came intoforce. Where an offender was more than 16 years of age on theday when the incident had occurred (and therefore was not ajuvenile within the meaning of the 1986 Act) but was less than 18years of age on the day of the incident, the question as to whatextent benefit can be given in terms of the provisions of the 2000Act, was considered by this Court in some cases. Thus, even if itis held that ‘AR’ was guilty of the offence with which he wascharged, the matter must be remitted to the jurisdictional JuvenileJustice Board for determining appropriate quantum of fine thatshould be levied on ‘AR’. [Para 15, 16 and 18][602-G-H;603-A-B, F-G; 609-A-B]

Mumtaz alias Muntyaz vs. State of Uttar Pradesh (nowUttarakhand (2016) 11 SCC 786 : [2016] 3 SCR 434;Satya Deo alias Bhoorey vs. State of Uttar Pradesh(2020) 10 SCC 555 – relied on.

1.2 The testimony of PW9-Doctor, shows that victim-deceased (‘G’) was alive when the initial examination wasundertaken by PW9. According to the witness, when he examined‘G’, the blood pressure could not be detected. However, that byitself does not mean that the ‘G’s not in a physical condition tomake any reporting to the police two hours earlier. Paragraph 24of the deposition of PW9 shows that if the symptoms stated thereinwere present, it could possibly be said that the concerned personwould not be in a position to speak. First of all, such assertion ispurely an opinion of an expert. Secondly, nothing is available onrecord to show that ‘G’ had shown these symptoms either soonafter the incident or when his statement was recorded by PW8.No questions were put to PW1, PW2 and PW8 in that behalf. Thesubmission advanced on this score is therefore, rejected and itis found that the FIR was rightly relied upon by the courts belowas dying declaration on part of ‘G’. The FIR itself referred to thepresence of PW1 and PW2. The substantive testimony of both AB

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Athese witnesses clearly discloses that the appellants had openedan assault on ‘G’ which led to his death. The assertion on part ofPW1 that her earlier statement recorded during investigationwas read over to her does not mean that she was tutored to followthe line of prosecution. No such questions were put to PW2. Thus,even if the testimony of PW1 is eschewed from consideration,Bthe deposition of PW2 along with the dying declaration of ‘G’,completely clinch the matter against the appellants. Additionally,the recoveries of the weapons in question viz., lathi, sword andaxe also lend sufficient corroboration to the case of theprosecution. [Para 21, 22][609-F-H; 610-B-E]C1.3 The view taken by the courts below is affirmed and theappellants are found guilty of the offence with which they werecharged. The conviction and sentence recorded by the courtsbelow, insofar as accused ‘D’ and Gokul are concerned, are,therefore, affirmed and the present appeal insofar as these twoDaccused are concerned is dismissed. However, even while holdingthe appellant ‘AR’ to be juvenile in terms of the 2000 Act andguilty of the offence with which he was charged, the sentence oflife imprisonment imposed upon him is set aside and the matteris remitted to the jurisdictional Juvenile Justice Board fordetermining appropriate quantum of fine that should be leviedEon appellant ‘AR’ in keeping with the directions issued by thisCourt in Jitendra Singh vs. State of U.P. Since ‘D’ and Gokul werereleased on bail by this Court vide Order dated 08.04.2009, theyare directed to surrender before the concerned Police Stationwithin two weeks from today, failing which the bail bonds furnishedFat the time of their release on bail shall stand forfeited and theyshall immediately be arrested by the concerned police to undergothe sentence imposed upon them. [Para 23-25][610-E-H; 611-A]

Jitendra Singh vs. State of U.P (2013) 11 SCC 193: [2013] 13 SCR 764 – relied on.

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Case Law Reference

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 989 of 2007.

From the Judgment and Order dated 14.9.2006 of the High Courtof Madhya Pradesh, Bench Indore in Criminal Appeal No. 700 of 1999.

Sushil Kumar Jain, Sr. Adv., Harshit Khanduja, Puneet Jain, Ms.Christi Jain, Harsh Jain, Ms. Pratibha Jain, Pashupathi Nath Razdan,Harmeet Singh Ruprah, Arjun Garg, Advs. for the appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. This appeal, at the instance of Devilal son of Chetaram Gujarand his two sons Gokul and Amrat Ram, is directed against the judgmentand order dated 14.09.2006 passed by the High Court[1] in Criminal AppealNo.700 of 1999.

2. The appellants along with one Gattubai, wife of accused Devilal,were tried in Special Offence Case No. 88 of 1998 in the court of SpecialJudge (SC/ST), Mandsaur, Madhya Pradesh under Sections 302 readwith 34 of the Indian Penal Code (for short, ‘IPC’) and Sections 3(1)(10)and 3(2)(5) of the Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989 (‘SC/ST Act’, for short).

3. The instant crime arose out of F.I.R. No.212 of 1998 registeredat 11.10 p.m. on 19.07.1998 with Police Station Manasa, DistrictNeemach, Madhya Pradesh. The reporting made by one Ganeshramwas to the following effect:- “I am resident of village Khera Kushalpura. On 14.7.98, therehad been quarrel between Devilal son of Jetram Gurjar and me invillage Khera Kusalpura. Today, in the evening I was coming fromBinabas after doing my work and going by walk to my house. Atabout 8 p.m., while going towards my house on public road whenI had reached in front of the house of Devilal Gurjar then afterseeking me Devilal armed with Kulhari, his son Gokul armed withTalwar and Amritlal armed with lathi had come there. Devilal hadabused me and called me as Chamar and stated that Chamarshave advanced too much. He told me that he shall finish me. Hehad attacked me from sharp side of Kulhari with intention to kill 1 High Court of Madhya Pradesh, Bench Indore A

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Ame. The first blow hit me on the bone (calf) of right leg. Gokulhad given second sword blow on my bone (calf) of left leg. Myboth legs were cut and I fell down there itself. Then Amritramhad given lathi blow on my right fist and left hand and my right fistwas fractured. These persons had again called me Chamar andtold me that if I shall fight with them again. They had kicked meBon my face below both eyes and there is swelling. Then I shoutedfor help. My mother Gattu Bai, wife Sajan Bai and sister-in-lawSaman Bai had run from home and reached there, they protectedme. When Saman Bai was protecting me then Devilal had givenblow on her left elbow. Later, my mother, wife and sister-in-lawClifted me and taken me to home. Kanhaiyalal had brought tractorfrom Barbua. …Satyanarain, my sister-in-law Saman Bai haveput me in the tractor and brought me to police station. I am lodgingreport, I have heard the report, it is correct. Action may be taken.My hand is fractured and I cannot sign. I have put my thumbimpression.”D

4. The aforesaid FIR was recorded by PW8-Shankar Rao, who,then took Ganeshram along with Tehsildar to Community Health Centre,Manasa, where PW9-Dr. Kailash Chandra Kothari examined injuredGaneshram. It was found that the general condition of the injured wasnot good; that he was unable to speak; and that his blood pressure couldEnot be recorded. The injuries found on the person of Ganeshram wererecorded in report Exhibit P/23 and Ganeshram was referred to SurgicalSpecialist, District Hospital, Mandasaur vide Reference Form Exhibit P/25 at about 12.45 a.m. on 20.07.1998. However, while PW9-Dr. Kothariwas completing the formalities, Ganeshram expired at 1.00 a.m.. PW9- FDr. Kothari, therefore, recorded the information of death in Exhibit P/26under his signature.

5. At about 9.45 a.m. on 20.07.1998, application Exhibit P/17 wasreceived by PW9-Dr. Kothari, pursuant to which post-mortem wasconducted on the dead body of Ganeshram. The observations withGrespect to external and internal injuries suffered by the deceased wereas under:- “16. The following external injuries were present on his person –

1. Incised wound with dimension of five X four and a halfX three and a half cm. which is present on left leg inH

which broken pieces of Tibia and Fibula bone werefound. Much of blood was found to have coagulatednear about the wound.

2. Incised wound with dimension of four and a half X threeand a half X two and a half cm. which was present onright leg through which tibia and Febula bone was clearlyvisible and in which much blood was found coagulated.

3. Cyanosed mark on lower part of right hand four andhalf X two and a half cm. dimension.

4. Cyanosed mark on left hand three and a half X two anda half cm. dimension.

5. Incised wound on left eyebrow two X one X half cmdimension.

17. All the said injuries were ante mortem.

18. The internal examination found that –

1. Skull – The front right part of the skull was found broken.Membrane was contracted and much of blood was foundcoagulated. Blood lumps were stuck in the brain and brainwas found contracted. Tympanium, rib, pleura, Trachea andthroat were found contracted. Both the lungs were found dryand contracted. After cutting the lungs blood etc. yeast etc.did not come out.

2. Heart – left chamber of the heart was found empty. Rightside chamber was full of blood. The velum membrane of theintestine morsel pipe all were pale and contracted Membranein the stomach was contracted and was pale and stomach wasempty small intestine and large intestine were contracted andwas having paleness. Liver, spleen, Kidney all were contracted.

3. Bladder was empty.

4. The following bones inside the body were found fractured –

1. Front skull bone, right side skull bone, Tibia, Febulas leftand right both were found broken. Right radius ALNA wasfound fractured. Left numerous was found broken.”

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AThe cause of death was stated to be excessive bleeding from theinjuries suffered by the deceased.

6. During the course of investigation, PW8-Shankar Rao preparedsite map Exhibit P/18 and arrested accused Devilal, Gokul and AmratRam vide Exhibits P/5 to 7.

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Pursuant to disclosure statement made by accused Gokul videExhibit P/8, a sword was recovered. Similarly, pursuant to the disclosurestatement made by accused Amrat Ram, vide Exhibit P/9, a lathi wasrecovered, while pursuant to disclosure statement made by accusedDevilal, vide Exhibit P/10, an axe was recovered.

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Statements of Sajan Bai (PW1), Saman Bai (PW2), Kanhaiyalal(PW3) Satya Narayan (PW4), Amarlal (PW6) and Gatto Bai were alsorecorded by PW8-Shankar Rao.

7. After completion of investigation, the appellants along withGattubai wife of accused Devilal were tried in Special Offence CaseDNo. 88 of 1998 as stated above.

8. In support of its case, the prosecution relied upon the eyewitnessaccount through PW1-Sajan Bai, PW2-Saman Bai and PW7-Lakshminarayan.

a) PW1-Sajan Bai, wife of the deceased, in her examination-in-Echief stated:- “2. The event is of 19th of Seventh month. The time wasevening between 7 to 8 o’clock. I had returned after doinglabour and myself, my mother-in-law and Devrani were sittingon otla outside the house. I heard the call of my husband thatFrush I am being beaten.

3. All the three of us rushed and reached in front of Devi Lal’shouse. We saw there that Gokul, Amrit Ram and Devi Lalwere beating my husband and Gatto Bai was standing there.Gokul was having sword, Amrit Ram was having lathi. Devilalwas having axe in his hand. My husband’s hands and legs hadbeen cut. His hands were broken and legs were cut. Whilebeating these were telling DHED Caste CHAMARS havebecome arrogant (DHED JAT CHAMARON KE BHAVBADH GAYE HAIN).

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4. I, my mother-in-law, my Devrani lifted Ganeshram andbrought to our house. My husband was having injury on eyeand head also. Then my Jeth Kanhiyalal came at home.

5. My Jeth went to Badkua to bring tractor wherefrom hecame with Ratan Ba’s tractor. Then Ganeshram was put intractor and brought to Manasa Police Station. My husbandlodged report at the police station, myself, my Jeth, my Devrani,two Devars, mother-in-law and Devi Lal of Badkuan also wentto manage in the tractor. My husband could read and write buthands had been broken, therefore did not sign had put thumbimpression.

6. They were taken to the hospital from the Police Station.Treatment was given there. Ganeshram breathed his last within2 to 3 hours there itself.”

In her cross-examination the witness stated:- “10. The police had taken my statement which was read overto me yesterday. Then said did not read over yesterday. Hadread over to all the three of us separately. We were made tounderstand what statement we have to make in the court. TheGovernment Advocate who examined today had read over.”

b) PW2-Saman Bai, sister-in-law of the deceased, stated:- “2. On dated 19[th] of seventh month, at about 7-8 p.m., we hadcome from our work and we were sitting on Otley. My sister-in-law, mother-in-law and I all three were sitting there. At thetime of fight, Ganeshram had shouted for help. After hearingshout, we all the three had run and reached there in front ofthe house of Devilal.

3. All the four accused persons were beating Ganeshram andthey were telling that they shall kill him. They were continuouslycalling him Chamar. Gokul was armed with Talwar, Devilalwas armed with Kulhari, Amritram was armed with lathi andGattubai was having Mogri of washing cloth.”

c) PW7-Laxminarayan, brother of the deceased, in hisexamination-in-chief stated:- AB

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A“3. This incident has taken place nearly 7 months ago.Ganeshram was coming to house by motor. Motor comes at 7p.m. This incident has taken place during the evening.Ganeshram was coming. On the way, a quarrel started in frontof the house of Devilal. I was standing outside my house onthe “Otle”. I heard shouts on which I have gone to see what isBhappening. I saw that Gokul, Amritram, Devilal were beatingmy brother. Devilal had an axe, Gokul had a sword andAmritram had a truncheon. Gatthubai had a “Tenpa” (a pieceof wood). I was standing slightly away. I was standing at adistance of around 15-20 steps away.

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4. I could not see that who has inflicted injury on which part.5. Devilal exclaimed for me that, “kill this ‘Chamate Rampe’also”, on which I have ran away to my house.

6. I have ran away to my house from there, on which myDmother, my sister-in-law Sajanbai and my wife Samanbai wentto the place where quarrel was taking place. Then, all three ofthem brought Ganeshram to the house.

7. Hands and legs of Ganeshram have been incised.

8. Then, my brother Kanhaiyyalal went to Badkuan and broughta tractor from there. We took Ganeshram to Manasa by tractor.Ganeshram had lodged a report at Manasa P.S. Statementswere recorded over there and then we went to hospital. Doctorshave provided treatment over there and during the course oftreatment Ganeshram had died.”

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FIn his cross-examination the witness stated:- “28. I have returned back from the place of incident and sentmy mother, sister-in-law and wife, a fact which I have not toldto the police. Police has not held inquiry in this regard becauseof which I have not told this fact.

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29. The house of Devilal cannot be seen from my house.

30. I have came back running from the house of Devilal in 2-3 minutes.”

d) The medical evidence was unfolded through the testimony ofHPW9-Dr. Kothari, who in his cross-examination accepted:- “24. I agree with Modi’s Medical jurisprudence that breathingintermittently, not catching the pulse speed, non tracing of bloodpressure, spreading of eye pupils and reacting weakly onthrowing light spreading of blackness on the pupils and eyebrows of the injured Ganesh – all these symptoms are ofimmediately following unconscious at the spot in the state ofinjured and will not get consciousness till death.

25. Such type of injured persons lose their memory at once ongetting injury.

26. If the incident takes place at 8 o’clock evening then thepatient will become unconscious at once and will not remain inthe state of speaking.

27. All this condition was of the injured Ganesh.”

9. After considering the evidence on record, the Trial Court foundthat the FIR recorded at the instance of the deceased could be reliedupon as dying declaration and that the statements of PW1-Sajan Bai,PW2-Saman Bai and PW7-Laxminarayan as well as the recoveries atthe instance of accused Devilal, Gokul and Amrat Ram proved the caseof prosecution. By its judgment and order dated 01.05.1999, the trialCourt found that the offence under Section 302 read with 34 IPC wasproved by the prosecution as against accused Devilal, Gokul and AmratRam. It was, however, found that the case was not proved against thefourth accused Gattubai. It was further found that none of the accusedcould be held guilty under offences punishable under SC/ST Act.

Thus, the appellants were convicted under Sections 342 read with34 IPC and by a separate order recorded on the same day they weresentenced to suffer imprisonment for life with fine of Rs.5,000/- each, indefault whereof to undergo further imprisonment for two years.

10. Being aggrieved, Criminal Appeal No. 700 of 1999 waspreferred by accused Devilal, Gokul and Amrat Ram in the High Court.It was submitted before the High Court that considering the medicalevidence on record and the statement of PW9-Dr. Kothari, it was unlikelythat the deceased could have made any statement before the police, onthe basis of which the FIR was recorded in the present case. The furthersubmission was that, as admitted by PW1-Sajan Bai, in her cross-examination, the witnesses were tutored. These submissions were notaccepted by the High Court. It, however, accepted that the version of A

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APW7-Laxminarayan could not be relied upon as the same was notconsistent with the statement of PW2-Saman Bai and the name of PW7-Laxminarayan was also not mentioned in the FIR. The High Court thusaffirmed the conviction and sentence recorded against accused Devilal,Gokul and Amrat Ram and dismissed Criminal Appeal No. 700 of 1999by its judgment and order dated 14.09.2006 which decision is presentlyBunder challenge.

11. During the pendency of this appeal, by Order dated 08.04.2009this Court released accused Devilal and Gokul on bail as they hadundergone imprisonment for nine years and four months.

CI.A. No. 4224 of 2017 was, thereafter, filed submitting inter aliathat accused Amrat Lal was a juvenile on the day the offence wascommitted and that in the light of the decision of this Court in Hari Ramvs. State of Rajasthan and another[2], the submission of his juvenilitycould be raised for the first time before this Court.

D12. By Order dated 3.10.2018 this Court directed the SessionsJudge, Neemach to conduct an inquiry into the issue of juvenility ofAmrat Ram and submit a report to this Court. In the inquiry so conducted,statements of concerned persons including Assistant Teacher, GovernmentPrimary School, Khushalpura, were recorded and the documents wereconsidered, whereafter, it was found that the date of birth of accusedEAmrat Ram was 23.03.1981 and that he was 16 years 11 months and 26days on the date of offence. Accordingly, the in-charge District andSessions Judge, Neemach has forwarded report dated 03.12.2018 tothis Court.

13. In this appeal, we have heard Mr. Sushil Kumar Jain, learnedFSenior Advocate on behalf of the appellants and Mr. Harmeet SinghRuprah, learned Advocate appearing for the respondent-State.

14. At the outset, we must deal with the issue of juvenility ofAmrat Ram.15. The incident in the present case had occurred in July, 1998Gwhen the Juvenile Justice Act, 1986 (‘the 1986 Act’, for short) was inforce. The age of juvenility for a male juvenile under the 1986 Act was16 years. Since Amrat Ram was 16 years 11 months as on the datewhen the offence was committed, he was certainly not a juvenile within H2 (2009) 13 SCC 211

the meaning of 1986 Act. However, the age of juvenility was raised to18 years in terms of the provisions of the Juvenile Justice (Care andProtection of Children) Act, 2000 (‘the 2000 Act’, for short). Section 20of the 2000 Act dealing with proceedings pending against a juvenile onthe date the 2000 Act came into force, states:-

“20. Special provision in respect of pending cases.-Notwithstanding anything contained in this Act, all proceedings inrespect of a juvenile pending in any court in any area on the dateon which this Act comes into force in that area, shall be continuedin that court as if this Act had not been passed and if the courtfinds that the juvenile has committed an offence, it shall recordsuch finding and instead of passing any sentence in respect of thejuvenile, forward the juvenile to the Board which shall pass ordersin respect of that juvenile in accordance with the provisions ofthis Act as if it had been satisfied on inquiry under this Act that ajuvenile has committed the offence:

Provided that the Board may, for any adequate and special reasonto be mentioned in the order, review the case and pass appropriateorder in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appealor any other criminal proceedings in respect of a juvenile in conflictwith law, in any court, the determination of juvenility of such ajuvenile shall be in terms of clause (1) of section 2, even if thejuvenile ceases to be so on or before the date of commencementof this Act and the provisions of this Act shall apply as if the saidprovisions had been in force, for all purposes and at all materialtimes when the alleged offence was committed.”

16. Where an offender was more than 16 years of age on the daywhen the incident had occurred (and therefore was not a juvenile withinthe meaning of the 1986 Act) but was less than 18 years of age on theday of the incident, the question as to what extent benefit can be given interms of the provisions of the 2000 Act, was considered by this Court insome cases. In Mumtaz alias Muntyaz vs. State of Uttar Pradesh(now Uttarakhand)[3], after noting the earlier decisions, this Courtobserved:- A

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“ 18. The effect of Section 20 of the 2000 Act was consideredin Pratap Singh v. State of Jharkhand[4] and it was stated asunder: (SCC p. 570, para 31)

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‘notwithstanding anything contained in this Act, allproceedings in respect of a juvenile pending in any court inany area on the date on which this Act came into force’

has great significance. The proceedings in respect of a juvenileCpending in any court referred to in Section 20 of the Act arerelatable to proceedings initiated before the 2000 Act cameinto force and which are pending when the 2000 Act cameinto force. The term “any court” would include even ordinarycriminal courts. If the person was a “juvenile” under the 1986DAct the proceedings would not be pending in criminal courts.They would be pending in criminal courts only if the boy hadcrossed 16 years or the girl had crossed 18 years. This showsthat Section 20 refers to cases where a person had ceased tobe a juvenile under the 1986 Act but had not yet crossed theage of 18 years then the pending case shall continue in thatEcourt as if the 2000 Act has not been passed and if the courtfinds that the juvenile has committed an offence, it shall recordsuch finding and instead of passing any sentence in respect ofthe juvenile, shall forward the juvenile to the Board which shallpass orders in respect of that juvenile.”

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F19. In Bijender Singh v. State of Haryana[5] , the legal positionas regards Section 20 was stated in the following words: (SCCpp. 687-88, paras 8-10 & 12)

“8. One of the basic distinctions between the 1986 Act and the2000 Act relates to the age of males and females. Under the1986 Act, a juvenile means a male juvenile who has not attainedthe age of 16 years, and a female juvenile who has not attainedthe age of 18 years. In the 2000 Act, the distinction betweenmale and female juveniles on the basis of age has not been G

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maintained. The age-limit is 18 years for both males andfemales.

9. A person above 16 years in terms of the 1986 Act was nota juvenile. In that view of the matter the question whether aperson above 16 years becomes “juvenile” within the purviewof the 2000 Act must be answered having regard to the objectand purport thereof.

10. In terms of the 1986 Act, a person who was not juvenilecould be tried in any court. Section 20 of the 2000 Act takescare of such a situation stating that despite the same the trialshall continue in that court as if that Act has not been passedand in the event, he is found to be guilty of commission of anoffence, a finding to that effect shall be recorded in the judgmentof conviction, if any, but instead of passing any sentence inrelation to the juvenile, he would be forwarded to the JuvenileJustice Board (in short “the Board”) which shall pass orders inaccordance with the provisions of the Act as if it has beensatisfied on inquiry that a juvenile has committed the offence.A legal fiction has, thus, been created in the said provision. Alegal fiction as is well known must be given its full effect althoughit has its limitations. …

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12. Thus, by reason of legal fiction, a person, although not ajuvenile, has to be treated to be one by the Board for the purposeof sentencing, which takes care of a situation that the personalthough not a juvenile in terms of the 1986 Act but still wouldbe treated as such under the 2000 Act for the said limitedpurpose.”

20. In Dharambir v. State (NCT of Delhi)[6] the determinationof juvenility even after conviction was one of the issues and itwas stated: (SCC p. 347, paras 11-12)

“11. It is plain from the language of the Explanation to Section20 that in all pending cases, which would include not only trialsbut even subsequent proceedings by way of revision or appeal,etc., the determination of juvenility of a juvenile has to be in AB

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terms of clause (l) of Section 2, even if the juvenile ceases tobe a juvenile on or before 1-4-2001, when the 2000 Act cameinto force, and the provisions of the Act would apply as if thesaid provision had been in force for all purposes and for allmaterial times when the alleged offence was committed.

12. Clause (l) of Section 2 of the 2000 Act provides that“juvenile in conflict with law” means a “juvenile” who is allegedto have committed an offence and has not completed eighteenthyear of age as on the date of commission of such offence.Section 20 also enables the court to consider and determinethe juvenility of a person even after conviction by the regularcourt and also empowers the court, while maintaining theconviction, to set aside the sentence imposed and forward thecase to the Juvenile Justice Board concerned for passingsentence in accordance with the provisions of the 2000 Act.”

21. Similarly in Kalu v. State of Haryana[7], this Court summedup as under: (SCC p. 41, para 21)

“21. Section 20 makes a special provision in respect of pendingcases. It states that notwithstanding anything contained in theJuvenile Act, all proceedings in respect of a juvenile pending inany court in any area on the date on which the Juvenile Actcomes into force in that area shall be continued in that court asif the Juvenile Act had not been passed and if the court findsthat the juvenile has committed an offence, it shall record suchfinding and instead of passing any sentence in respect of thejuvenile forward the juvenile to the Board which shall passorders in respect of that juvenile in accordance with theprovisions of the Juvenile Act as if it had been satisfied oninquiry under the Juvenile Act that the juvenile has committedthe offence. The Explanation to Section 20 makes it clear thatin all pending cases, which would include not only trials buteven subsequent proceedings by way of revision or appeal,the determination of juvenility of a juvenile would be in termsof clause (l) of Section 2, even if the juvenile ceased to be ajuvenile on or before 1-4-2001, when the Juvenile Act cameinto force, and the provisions of the Juvenile Act would applyas if the said provision had been in force for all purposes and for all material times when the alleged offence wascommitted.”

22. It is thus well settled that in terms of Section 20 of the 2000Act, in all cases where the accused was above 16 years but below18 years of age on the date of occurrence, the proceedings pendingin the court would continue and be taken to the logical end subjectto an exception that upon finding the juvenile to be guilty, the courtwould not pass an order of sentence against him but the juvenilewould be referred to the Board for appropriate orders under the2000 Act. What kind of order could be passed in a matter whereclaim of juvenility came to be accepted in a situation similar to thepresent case, was dealt with by this Court in JitendraSingh v. State of U.P.[8] in the following terms: (SCC pp. 210-11,para 32)

“32. A perusal of the “punishments” provided for under theJuvenile Justice Act, 1986 indicate that given the nature of theoffence committed by the appellant, advising or admonishinghim [clause (a)] is hardly a “punishment” that can be awardedsince it is not at all commensurate with the gravity of the crime.Similarly, considering his age of about 40 years, it is completelyillusory to expect the appellant to be released on probation ofgood conduct, to be placed under the care of any parent,guardian or fit person [clause (b)]. For the same reason, theappellant cannot be released on probation of good conduct underthe care of a fit institution [clause (c)] nor can he be sent to aspecial home under Section 10 of the Juvenile Justice Act,1986 which is intended to be for the rehabilitation andreformation of delinquent juveniles [clause (d)]. The onlyrealistic punishment that can possibly be awarded to theappellant on the facts of this case is to require him to pay afine under clause (e) of Section 21(1) of the Juvenile JusticeAct, 1986.”

23. In Jitendra Singh v. State of U.P.[8], having found the juvenileguilty of the offence with which he was charged, in accordancewith the law laid down by this Court as stated above, the matterwas remanded to the jurisdictional Juvenile Justice Boardconstituted under the 2000 Act for determining appropriate8 (2013) 11 SCC 193

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Aquantum of fine. The view taken therein is completely consistentwith the law laid down by this Court and in our opinion the decisionin Jitendra Singh v. State of U.P.[8] does not call for anyreconsideration. The subsequent repeal of the 2000 Act on andwith effect from 15-1-2016 would not affect the inquiry in whichsuch claim was found to be acceptable. Section 25 of the 2015BAct makes it very clear.”

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17. Recently, in Satya Deo alias Bhoorey vs. State of UttarPradesh[9], this Court observed:-

“19. This position of law and principle in Mumtaz case3 wasaffirmed by this Court for the first time in Hari Ram v. State ofRajasthan2 in the following words: (SCC p. 223, para 39)

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“39. The Explanation which was added in 2006, makes it veryclear that in all pending cases, which would include not onlytrials but even subsequent proceedings by way of revision orDappeal, the determination of juvenility of a juvenile would be interms of clause (l) of Section 2, even if the juvenile ceased tobe a juvenile on or before 1-4-2001, when the Juvenile JusticeAct, 2000, came into force, and the provisions of the Act wouldapply as if the said provision had been in force for all purposesand for all material times when the alleged offence wasEcommitted. In fact, Section 20 enables the court to considerand determine the juvenility of a person even after convictionby the regular court and also empowers the court, whilemaintaining the conviction, to set aside the sentence imposedand forward the case to the Juvenile Justice Board concernedFfor passing sentence in accordance with the provisions of theJuvenile Justice Act, 2000.”

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20. In light of the legal position as expounded above and in theaforementioned judgments, this Court at this stage can decideand determine the question of juvenility of Satya Deo,notwithstanding the fact that Satya Deo was not entitled to theGbenefit of being a juvenile on the date of the offence, under the1986 Act, and had turned an adult when the 2000 Act wasenforced. As Satya Deo was less than 18 years of age on thedate of commission of offence on 11-12-1981, he is entitled to betreated as a juvenile and be given benefit as per the 2000 Act.”

18. It is thus clear that, even if it is held that Amrat Ram wasguilty of the offence with which he was charged, the matter must beremitted to the jurisdictional Juvenile Justice Board for determiningappropriate quantum of fine that should be levied on Amrat Ram.

19. We now turn to the basic issue whether the appellants wererightly held guilty by the courts below.

20. Mr. Sushil Kumar Jain, learned Senior Advocate for theappellants has submitted that given the cross-examination of PW9-Dr.Kothari, it would be impossible to believe that Ganeshram could havemade any reporting to the police as alleged. It is submitted that, accordingto the FIR, the incident had occurred around 8.00 p.m., while the FIRwas recorded after more than three hours. Mr. Jain has further submittedthat, as accepted by PW1-Sajan Bai, witnesses were clearly tutoredand, as such, the value of the testimony of PWs 1 and 2 stands diminishedto a great extent. Relying on the cross-examination of PW7-Laxminarayan, it is submitted that the front of the house of accusedDevilal where the incident was stated to have occurred was not visiblefor the alleged eye witnesses.

The submissions are countered by Mr. Harmeet Singh Ruprah,learned Advocate for the State. It is submitted that the testimonies ofPWs 1 and 2 are quite consistent; their presence was recorded rightfrom the initial stage of reporting of the crime; that the distance betweenthe houses was just about 100 feet and; that there was no effectivecross-examination on the issue whether they had enough opportunity towitness the incident.

21. The testimony of PW9-Dr. Kothari, shows that Ganeshramwas alive when the initial examination was undertaken by PW9-Dr.Kothari. According to the witness, when he examined Ganeshram, theblood pressure could not be detected. However, that by itself does notmean that Ganeshram was not in a physical condition to make anyreporting to the police two hours earlier. Paragraph 24 of the depositionof PW9-Dr Kothari shows that if the symptoms stated therein werepresent, it could possibly be said that the concerned person would not bein a position to speak. First of all, such assertion is purely an opinion ofan expert. Secondly, nothing is available on record to show thatGaneshram had shown these symptoms either soon after the incident or A

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Awhen his statement was recorded by PW8 Shankar Rao. No questionswere put to PW1-Sajan Bai, PW2 Saman Bai and PW8-Shankar Rao inthat behalf. We, therefore, reject the submission advanced on this scoreand find that the FIR was rightly relied upon by the courts below asdying declaration on part of Ganeshram.

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B22. The FIR itself referred to the presence of PW1-Sajan Baiand PW2-Saman Bai. The substantive testimony of both these witnessesclearly discloses that the appellants had opened an assault on Ganeshramwhich led to his death. The assertion on part of PW1-Sajan Bai that herearlier statement recorded during investigation was read over to herCdoes not mean that she was tutored to follow the line of prosecution. Itis relevant to note that no such questions were put to PW2-Saman Bai.

Thus, even if the testimony of PW1-Sajan Bai is eschewed fromconsideration, the deposition of PW2-Saman Bai, along with the dyingdeclaration of Ganeshram, completely clinch the matter against theDappellants.

Additionally, the recoveries of the weapons in question viz., lathi,sword and axe also lend sufficient corroboration to the case of theprosecution.

23. In the premises, we affirm the view taken by the courts belowEand find the appellants guilty of the offence with which they were charged.Their appeal, therefore, deserves dismissal. The conviction and sentencerecorded by the courts below, insofar as accused Devilal and Gokul areconcerned, are, therefore, affirmed and the present appeal insofar asthese two accused are concerned is dismissed.F

24. However, even while holding the appellant Amrat Ram to bejuvenile in terms of the 2000 Act and guilty of the offence with which hewas charged, we set aside the sentence of life imprisonment imposedupon him and remit the matter to the jurisdictional Juvenile Justice Boardfor determining appropriate quantum of fine that should be levied onGappellant Amrat Ram in keeping with the directions issued by this Courtin Jitendra Singh vs. State of U.P[8].

25. Since Devilal and Gokul were released on bail by this Courtvide Order dated 08.04.2009, they are directed to surrender before theconcerned Police Station within two weeks from today, failing which theH

bail bonds furnished at the time of their release on bail shall stand forfeitedand they shall immediately be arrested by the concerned police to undergothe sentence imposed upon them. A copy of this Order shall immediatelybe transmitted by the Registry of this Court to the jurisdictional ChiefJudicial Magistrate and the concerned Police Station for compliance.

26. The appeal is disposed of in afore-stated terms.

Divya Pandey

Appeal disposed.

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