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Madhya Pradesh High Court · body

2010 DIGILAW 612 (MP)

Mohd. Hanif Khan v. State of M. P.

2010-06-23

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT S.L.KOCHAR, J. (1) The appellant has preferred this appeal challenging the impugned judgment dated 21-2-2002 passed in S. T. No. 58/97 by learned VI Additional Sessions Judge, Indore (M. P.), whereby convicted the appellant under Section 302 of the Indian Penal Code (for short 'the I. P. C), sentenced to RI for life with fine of Rs. 1,000/-. In default of payment of fine, he shall suffer additional RI for two months. (2) Briefly stated the prosecution case, as unfolded before the trial Court, is that on 4- 11-1996 at about 8.30 p.m. appellant -Hanif along with acquitted co-accused Munna alias Shehzad reached at the house of his sister, deceased-Farzana, at that time her husband Anwar (PW-5) was also present in the house, Appellant told his sister Farzana that she was called by their father. Farzana came out of her house and crossed about 50 paces, at that moment appellant and acquitted co-accused Munna started assaulting her by knife. She returned back to her house and with her husband Anwar reached to police station Chandan Nagar, which was situated at a distance of 1 km. from her house, and she lodged the report (Ex. P/41). Police also recorded the statement of Farzana (Ex. P/43) as per provision under Section 161 of the Criminal Procedure Code. Police send Farzana for medical examination and treatment to M. Y. Hospital, Indore, where she was admitted and her admission ticket is Ex. P/13. She was treated in the hospital and documents of treatment are Ex. P/14 to P/40. During the course of treatment deceased died in the hospital on 13-11-1996. During the course of investigation, police affected seizure of blood-stained, controlled earth and blood-stained Dupatta of the deceased from the spot, vide seizure memo (Ex. P/1). Spot map (Ex. P/2) was also prepared by the Investigating Officer. Appellant was nabbed and on his disclosure statement as per provision under Section 27 of the Evidence Act, vide Ex. P/6, a knife was seized through seizure memo (Ex. P/8). On completion of inquest report, the dead body was sent for post-mortem examination, which was conducted by PW-11 Dr. N. M. Unda. The post-mortem report is Ex. P/44. Seized articles were sent to Forensic Science Laboratory and its reports are Exs. P/49 and P/50. P/6, a knife was seized through seizure memo (Ex. P/8). On completion of inquest report, the dead body was sent for post-mortem examination, which was conducted by PW-11 Dr. N. M. Unda. The post-mortem report is Ex. P/44. Seized articles were sent to Forensic Science Laboratory and its reports are Exs. P/49 and P/50. Investigating Officer had recorded the statements of the witnesses, who were acquainted with the facts of the case and on completion of investigation, filed the charge- sheet against the accused persons for commission of offence under Section 302 of "the IPC". It is said that deceased had love marriage with PW-5 Anwar against the wishes of her family members, because of which appellant-Hanif was annoyed and keeping ill- will with her. (3) Accused persons denied the charges and claimed for trial. They have not examined any witness in their defence, whereas prosecution has examined, in all, 11 witnesses and adduced 50 documents to prove its case. Learned trial Court after hearing both the parties, while acquitting co-accused Munna alias Shehzad, convicted and sentenced the appellant-Hanif as mentioned hereinabove. (4) We have heard the learned counsel for the parties and also perused the entire record carefully. It is apparent on the basis of the impugned judgment that conviction of the appellant is based on First Information Report lodged by deceased herself, vide Ex. P/41, and her statement Ex. P/43 recorded by the Investigating Officer as per provision under Section 161 of the Criminal Procedure Code. These statements have been relied upon by the trial Court as Dying Declaration because same are relating to the cause of death of the deceased, therefore, admissible as per provision under Section 32(1) of the Evidence Act as Dying. Declaration. The prosecution had examined two witnesses PW-1 Zahida Bee and PW-2 Bandu as eye-witness of the incident but both have turned hostile. PW-5 Anwar, husband of the deceased, had also not supported the prosecution case; to whom the deceased immediately disclosed the name of the appellant as her assailant. The learned trial Court has also placed reliance on recovery of knife at the instance of appellant, vide memorandum (Ex. P/7) and seizure memo (Ex. P/8), as weapon of the offence. (5) The learned counsel for the appellant has vehemently argued that First Information Report lodged by deceased (Ex. P/41) and her statement (Ex. The learned trial Court has also placed reliance on recovery of knife at the instance of appellant, vide memorandum (Ex. P/7) and seizure memo (Ex. P/8), as weapon of the offence. (5) The learned counsel for the appellant has vehemently argued that First Information Report lodged by deceased (Ex. P/41) and her statement (Ex. P/43), could not be relied upon for proving the guilt of the appellant because deceased remained hospitalized from 4-11 -1996 to 13-11 -1996 and during this period police did not try for recording of her Dying Declaration by Executive Magistrate, and that, looking to the number and nature of injury deceased could not be in a position to lodge the report; for this he placed reliance on the testimony of PW-7 Dr. Sanjay. Learned counsel has also submitted that on the date of incident i.e. 4-11-1996 appellant-Hanif was below 16 years of age, hence his trial was without jurisdiction and he placed reliance on school leaving certificate filed during the course of trial before the trial Court, wherein his date of birth is mentioned as 14-12-1980. He placed reliance on the following Supreme Court judgments:- i) Babban Rai and Ann v. State of Bihar (2008 Cri LJ 1038 (SC). ii) Upendra Kumar v. State of Bihar (2005 SCC (Cri) 778). iii) Raj Singh v. State of Haryana ( 2006 (6) SCC 759 (sic). iv) Bhola Bhagat v. State of Bihar (AIR 1998 SC 236) : (1998 Cri LJ 390). v) Rajendra Singh alias Sonu v. State of M. P. (2002 (3) MPLJ (sic). vi) Hari Ram v. State of Rajasthan and another ( 2009 (13) SCC 211 ). vii) Satish alias Dhanna v. State of M. P. and others ( 2009 (14) SCC 187 ): (AIR 2009 SC 2643). viii) Vikram Singh v. State of Haryana ( 2009(13) SCC 645 ). ix) Dharambir v. State (NCT of Delhi) and Anr. (2010 STPL (Web) 297 (SC)). x) Chacko v. State of Kerala ( 2003 (1) SCC 112 ) : (2003 Cri LJ441). xi) Bheru Singh alias Raju v. State of M.P. ( 2004(1) MPWN 33 ). (6) On the other hand, learned counsel for the State had supported the impugned judgment and finding arrived at by the learned trial Court. (2010 STPL (Web) 297 (SC)). x) Chacko v. State of Kerala ( 2003 (1) SCC 112 ) : (2003 Cri LJ441). xi) Bheru Singh alias Raju v. State of M.P. ( 2004(1) MPWN 33 ). (6) On the other hand, learned counsel for the State had supported the impugned judgment and finding arrived at by the learned trial Court. Learned prosecutor has invited our attention towards order-sheets of the trial Court showing the fact that on 27-1-1997 an application was filed by the counsel for the appellant before the trial Court for the purposes of determination of age of the appellant on the basis of school leaving certificate, shown to be issued by Principal of private school and on 6-2-1997 learned counsel for the appellant prayed before the trial Court for consideration of the application. on which trial Court ordered for production of the appellant before the Court to see his personality. Appellant was produced before the trial Court on 20-2-1997 and on this date counsel for the appellant did not press the application for enquiry about the age of the appellant, because of which trial Court dismissed the same as not pressed. According to learned prosecutor, this shows that appellant was not juvenile that is why he was not ready for enquiry, as contemplated under the provisions of Juvenile Justice Act. It is also pointed out that during the pendency of this appeal, same certificate was filed along with an application for suspension of sentence and this Court by order dated 25-10-2002, 28- 10-2005 as well as 29-1-2007, dismissed the application for suspension of sentence of the applicant, mainly on the ground that the appellant himself withdrew application filed before the trial Court regarding enquiry of the age of the appellant, and by order dated 29-1-2007 it is held that the document was only school leaving certificate and not a certificate of high school or Board, which could form basis for the contention with regard to age. and no other evidence was produced by the appellant. It was held that appellant was not a juvenile and since the early enquiry was terminated on account of request of counsel for the appellant, it was not necessary for holding any enquiry. and no other evidence was produced by the appellant. It was held that appellant was not a juvenile and since the early enquiry was terminated on account of request of counsel for the appellant, it was not necessary for holding any enquiry. Learned counsel for the respondent- State has submitted that looking to the conduct of the appellant, it is clear that at the initial stage he was not ready for facing the enquiry about his age as per provisions of Juvenile Justice Act, and that shows that he was not juvenile and just wanted to take benefit of the certificate simpliciter, which was also not admissible in evidence without recording statement of issuing authority to prove the same in the Court in accordance with the provisions of Evidence Act. (7) First of all, we will deal with the evidence relied upon by the trial Court for proving the guilt of the appellant. On perusal of the FIR lodged by deceased (Ex. P/41), it is clear that appellant has been specifically named as perpetrator of the crime. Appellant is the real brother of the deceased and in our considered view there was no reason for the deceased to implicate him falsely. The police station was only 1 km. away from the place of incident and deceased reached to the police station immediately and lodged the report. We find no reason for doubting the genuineness of the FIR lodged by the deceased, which is containing her signature at B to B part. Report is duly proved by PW-10 SHO Shri R. C. Patidar, who has been cross- examined in detail and there is nothing in the cross-examination to attach vulnerability to the FIR (Ex. P/41) which has been rightly relied upon as Dying Declaration by learned trial Court, as per provision under Section 32(1) of the Evidence Act, because same is relating to cause of death of the deceased. (8) Deceased was conscious and lodged the report, is also clear from the statement of PW-10 SHO Shri Patidar. Learned counsel for the appellant has placed reliance on testimony of PW-7 Dr. Sanjay, who attended the deceased first in point of time and after examination issued MLC report (Ex. P/11). In the report, nowhere it is mentioned that she was unconscious. In Court statement also Dr. Sanjay (PW-7) has nowhere stated that patient was unconscious. Learned counsel for the appellant has placed reliance on testimony of PW-7 Dr. Sanjay, who attended the deceased first in point of time and after examination issued MLC report (Ex. P/11). In the report, nowhere it is mentioned that she was unconscious. In Court statement also Dr. Sanjay (PW-7) has nowhere stated that patient was unconscious. In cross-examination, in paragraph-13, he has stated that at the time of examination because of injuries Nos. 1, 2, 3 and 6 patient was not in a position to speak. Learned counsel for the appellant argued on the basis of this statement that deceased could not lodge the report. In our considered view, this opinion was given by the doctor for the first time in Court on 4-12- 2000, after about 4 years. Apart from this, patient was examined on 4-11-1996 at 9.20 p.m., whereas FIR was lodged at 8.50 p.m. Dr. has nowhere stated that immediately after sustaining injuries, patient could not speak. Answering to Court question No. 14, Dr. Sanjay opined that deceased could be in a position to speak and he had not mentioned anything on this issue in his report (Ex. P/ 11). In view of this factual position, it cannot be held that deceased was not in a position to lodge the report. Deceased sustained injuries on 4-11- 1996 and died in the hospital during the course of treatment on 13-11-1996, shows that her condition was not serious and treating doctor/doctors had not given any opinion and information to concerned police for recording Dying Declaration, because of which probably Dying Declaration of the deceased was not got recorded by Executive Magistrate. Apart from this, no question was put to the Investigating Officer (PW-10) Shri Patidar in cross-examination as to why Dying Declaration of the deceased was not got recorded by Executive Magistrate. He was the best person to answer this question, therefore, without giving opportunity of explaining this situation by the Investigating Officer, the defence cannot get any benefit. (9) The contents of First Information Report (Ex. P/41) are duly corroborated by her statement (Ex. P/43), which is also admissible in evidence as Dying Declaration and PW-10 SHO Shri Patidar has proved it. (9) The contents of First Information Report (Ex. P/41) are duly corroborated by her statement (Ex. P/43), which is also admissible in evidence as Dying Declaration and PW-10 SHO Shri Patidar has proved it. (10) The decision passed by Supreme Court in case of Chacko (supra) and Division Bench of this High Court in case of Bheru Singh (supra) not placing reliance on Dying Declaration recorded by Investigating Officer, are not applicable in the facts and circumstances of the present case because the Station House Officer had not recorded Dying Declaration of the deceased but he had recorded FIR (Ex. P/41) and statement (Ex. P/43) of the deceased as per provision under Sections 154 and 161 of the Criminal Procedure Code, therefore, precautions required to be observed for recording Dying Declaration are not applicable. Both the documents have been considered as Dying Declaration because of the death of deceased, which relates to the cause of death of deceased and admissible under Section 32(1) of the Evidence Act. Regarding second limb of argument of learned counsel for the appellant, we are of the view that counsel for the appellant withdrew the application regarding enquiry of the age, therefore, after lapse of such a long period it would not be proper and conducive to send the matter back for determination of age of the appellant on the date of incident. On the date of incident i.e. 4-11- 1996 the Juvenile Justice Act, 1986 (53 of 1986) (for short hereinafter referred to as "Old Act") was in force and same was repealed by Section 69 of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "New Act"). Under the provisions of "Old Act" the age of juvenile was prescribed 16 years, if a juvenile is boy and 18 years for girl. (11) The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for brevity "the Rules") were brought into force on 26- 10-2007. As per the Rule 97(2), all the cases pending which have not attained a finality, will be dealt with and disposed of in accordance with the provisions of the "New Act", as amended on 22-8-2006 and 2007 Rules. (11) The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for brevity "the Rules") were brought into force on 26- 10-2007. As per the Rule 97(2), all the cases pending which have not attained a finality, will be dealt with and disposed of in accordance with the provisions of the "New Act", as amended on 22-8-2006 and 2007 Rules. In view of these provisions, the present appeal will also be governed by the "New Act" and Rules and according to Section 2(1) "Juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence". In view of this definition of juvenile we have to see, whether appellant had completed 18 years of age on the date of incident or not? (12) Supreme Court has considered this issue in the case of Vikram Singh (supra) and held that provision of "New Act" and "the Rules" would be applicable for all pending cases. In this view of the matter, the core question for decision would be whether appellant had completed 18 years of age on the date of incident or not? On this aspect no positive evidence has been adduced by the appellant but in arrest memo of the appellant dated 7-11-1996 (Ex. P/5) proved by PW-10 SHO Shri R. C. Patidar, the age of the appellant is mentioned 18 years, therefore, looking to the beneficial nature of enactment we hold that appellant would get benefit of the provisions of "New Act" and "the Rules" for the purposes of trial and sentence. Supreme Court in case of Dharambir v. State (NCT of Delhi) and another (supra) while considering the provision under Sections 20 and 7-A of the "New Act", has held in pararaph 15 as under :- "Having held so, the next question for consideration is as to what order on sentence is to be passed against the appellant for the offences committed by him under Sections 202 and 307 read with Section 34, I. P. C, correctness whereof has not been put in issue before us. Section 15 of the Act of 2000 provides for various orders which the Juvenile Justice Board (for short "the Board") may pass against a juvenile when it is satisfied that the juvenile has committed an offence, which includes an order directing the juvenile to be sent to a special home for a period of three years. Section 16 of the Act of 2000 stipulates that 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 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 the 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. Proviso to sub-section (2) of Section 16 of the Act of 2000 provides that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the said Act, i.e., for three years. In the instant case, as per the information furnished to us. the appellant has undregone an actual period of sentence of 2 years. 4 months and 4 days and is now aged about thirty five years. We feel that, keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to special home or for keeping him at some other place of safety for the remaining period of less than eight months, the maximum period for which he can now be kept in either of the two places. (13) In the case at hand, appellant remained in jail during the course of trial from 8-11- 1996 to 28-1-1997 and now continuously is in jail from the date of judgment i.e. 21-2- 2002 meaning thereby completed 32 years of age, therefore, it would not be conducive to direct him to produce before the Board for passing order in terms of Section 20 of the "New Act". (11) The Juvenile Justice (Care and Protection of Children) Rules, 2007 (for brevity "the Rules") were brought into force on 26- 10-2007. As per the Rule 97(2), all the cases pending which have not attained a finality, will be dealt with and disposed of in accordance with the provisions of the "New Act", as amended on 22-8-2006 and 2007 Rules. In view of these provisions, the present appeal will also be governed by the "New Act" and Rules and according to Section 2(1) "Juvenile in conflict with law means a juvenile who is alleged to have committed an offence and has not completed 18 years of age as on the date of commission of such offence". In view of this definition of juvenile we have to see, whether appellant had completed 18 years of age on the date of incident or not? (12) Supreme Court has considered this issue in the case of Vikram Singh (supra) and held that provision of "New Act" and "the Rules" would be applicable for all pending cases. In this view of the matter, the core question for decision would be whether appellant had completed 18 years of age on the date of incident or not? On this aspect no positive evidence has been adduced by the appellant but in arrest memo of the appellant dated 7-11-1996 (Ex. P/5) proved by PW-10 SHO Shri R. C. Patidar, the age of the appellant is mentioned 18 years, therefore, looking to the beneficial nature of enactment we hold that appellant would get benefit of the provisions of "New Act" and "the Rules" for the purposes of trial and sentence. P/5) proved by PW-10 SHO Shri R. C. Patidar, the age of the appellant is mentioned 18 years, therefore, looking to the beneficial nature of enactment we hold that appellant would get benefit of the provisions of "New Act" and "the Rules" for the purposes of trial and sentence. Supreme Court in case of Dharambir v. State (NCT of Delhi) and another (supra) while considering the provision under Sections 20 and 7-A of the "New Act", has held in pararaph 15 as under :- "Having held so, the next question for consideration is as to what order on sentence is to be passed against the appellant for the offences committed by him under Sections 202 and 307 read with Section 34, I. P. C, correctness whereof has not been put in issue before us. Section 15 of the Act of 2000 provides for various orders which the Juvenile Justice Board (for short "the Board") may pass against a juvenile when it is satisfied that the juvenile has committed an offence, which includes an order directing the juvenile to be sent to a special home for a period of three years. Section 16 of the Act of 2000 stipulates that 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 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 the 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. Proviso to sub-section (2) of Section 16 of the Act of 2000 provides that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the said Act, i.e., for three years. In the instant case, as per the information furnished to us. the appellant has undregone an actual period of sentence of 2 years. 4 months and 4 days and is now aged about thirty five years. In the instant case, as per the information furnished to us. the appellant has undregone an actual period of sentence of 2 years. 4 months and 4 days and is now aged about thirty five years. We feel that, keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to special home or for keeping him at some other place of safety for the remaining period of less than eight months, the maximum period for which he can now be kept in either of the two places. (13) In the case at hand, appellant remained in jail during the course of trial from 8-11- 1996 to 28-1-1997 and now continuously is in jail from the date of judgment i.e. 21-2- 2002 meaning thereby completed 32 years of age, therefore, it would not be conducive to direct him to produce before the Board for passing order in terms of Section 20 of the "New Act". (14) Accordingly while maintaining the conviction of the appellant, as passed by the trial Court, we quash the sentence awarded to him and direct his release forthwith, if not wanted in any other case. The appeal succeeds partly to the extent mentioned hereinabove. Appeal partly allowed.