Delhi District Court
Ab @ R (Name Withheld As He Was … vs The State on 15 May, 2018
                           IN THE COURT OF SH. SANJAY BANSAL:
                         SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
                        KARKARDOOMA COURTS: SHAHDARA: DELHI.

                               Criminal Appeal No. 44297/2015
                               CNR No. DLNE01-000384-2012

      AB @ R (Name withheld as he was juvenile)
      S/o Sh. Hari Om
      R/o C-1/716, Gali No. 25,
      Harsh Vihar, Delhi.

                                                                      ....... Appellant
      THE STATE,
                                                                     ..... Respondent

      Date of Institution          :      03.01.2012
      Judgment Reserved on         :      15.05.2018
      Date of Judgment             :      15.05.2018
      FIR No.       :       239/2009
      PS.           :       Harsh Vihar
      U/s.          :       302/34 IPC


1. Vide impugned judgment and order on sentence, both dated 26.11.2011, passed by the Juvenile Justice Board – II (“JJB”), in Criminal Case No. 437/11 arising out of FIR No. 239/09 PS Harsh Vihar, the appellant was convicted for the offence punishable u/s 302/34 Indian Penal Code, 1860 (“IPC“) and sentenced to period already undergone which was around three months period of his stay in the Observation Home.

2. FIR in this case was lodged upon statement of one Atul Sharma. He alleged that on 19.12.2009, appellant alongwith other family members attacked upon his Bua namely Maya Devi and due to which, Maya Devi received injuries on that day and ultimately expired on 22.12.2009. Names of various accused persons were mentioned in the FIR itself. Appellant was one of them. As appellant was found to be juvenile, final report was filed against him in the concerned JJB.

3. Notice was framed against appellant on 06.09.2011 for offences u/s 149/341/302/427/34 IPC to which appellant pleaded not guilty.

4. Prosecution examined four witnesses i.e. PW-1 Insp. Virender Singh, PW-2 Atul Sharma, PW-3 Sachine Sharma and PW-4 Pradeep Kumar Sharma.

5. Statement of appellant was recorded by learned JJB u/s 281 CrPC. Appellant stated that he had not committed any offence.

6. Vide impugned judgment, the JJB had held appellant guilty u/s 302 IPC but acquitted him u/s 341/427/149 IPC and sentenced him as already noted above.

7. Appellant has challenged the said judgment and sentence.

8. I have heard Sh. G.P. Thareja, learned Counsel for appellant; Sh. D.K. Singh, learned Addl. PP for the State and Sh. P.L. Behl alongwith Sh. K. Singhal, learned Counsels for complainant. I have perused the written submissions filed by the learned Counsels for the parties.

9. Learned Counsel for appellant submitted that the impugned judgment is unsustainable. He argued that the learned Principle Magistrate passed the judgment ignoring various aspects and particularly the principles which govern the field of juvenile delinquency. He referred to Rule 3 (2) of the Juvenile Justice (Care & Protection of Children) Rules, 2007 (“JJ Rules, 2007”). Elaborating further, learned Counsel for appellant referred to Rule 3 (2) of JJ Rules, 2007 and particularly to principle of innocence contained in the said sub- rule.

10. He also vehemently submitted that learned Principal Magistrate relied upon postmortem report whereas the concerned doctor was never examined. He contended that evidence of PW-2 and PW-3 was not reliable. The same was accepted by learned JJB without assigning any reasons. He argued that presence of PW-2 and PW-3 was doubtful. He also submitted that learned Principle Magistrate did not discuss as to how offence u/s 302 IPC was made out against the appellant.

11. Learned Counsel for the appellant had strong objection to the approach of learned Trial court in taking into consideration the postmortem report to reach to the conclusion that it was case of murder u/s 302 IPC. Learned Counsel argued that the appellant was never given any opportunity to contradict the postmortem report – firstly, because the concerned doctor who conducted the postmortem, was never examined as a witness; and secondly, because the document itself i.e. the postmortem report was never put to appellant in his statement u/s 281 CrPC. He thus contended that on both counts, reliance of learned Trial Court on the postmortem report was uncalled for. He expressed his anguish on the approach of learned Trial Court. He contended that the learned Principal Magistrate rushed through the enquiry and hastily convicted the appellant. Learned Counsel for appellant relied upon following judgments:

a). AIR 1955 SC 792 titled Manchander, Son of Pandurang vs. State of Hyderabad;

b). 2012 V AD (DELHI) 192 titled X Minor Thr. Father Natural Guardian vs. State & Ors.;

c). (2004) 13 SCC 279 titled Prithvi (Minor) vs. Mam Raj & Ors.;

d). (2003) 1 SCC 456 titled State of UP vs. Jagdeo & Ors.;

e). JT 2002 (4) SC 239 titled Dharmendrasinh @ Mansing Ratansinh v.

State of Gujarat;

f). 2014 [1] JCC 404 titled Ladan vs. State (Govt. of NCT) of Delhi;

g). 209 (2014) DLT 475 (DB) titled Manjeet Singh vs. State (NCT of Delhi);

h). (1999) 9 SCC 525 titled Leela Ram vs. State of Haryana & Anr.;

i). JT 2014 (5) SC 257 titled Ashok Rai v. State of UP & Ors.;

j). 2013 (11) SCALE 132 titled Gangabhavani vs. Rayapati Venkat Reddy & Ors.;

k). JT 2007 (4) SC 618 titled Namdeo v. State of Maharashtra;

l).        2013 [4] JCC 2508 titled Rajkumar @ Babloo vs. State; and

m).        2005 (81) DRJ 73 (DB) titled State v. Tika Ram;

12.           Learned Addl. PP has defended the impugned judgment.                He

submitted that there was enough material to hold appellant guilty. He contended that there was no error in convicting the appellant. He relied upon the following judgments:

a). 2008 [4] JCC 2267 titled Rangnath Sharma v. Satendra Sharma & Ors.;

b). 2013 [3] JCC 1802 titled Goudappa & Ors. vs. State of Karnataka;

c). 2012 Cri.LJ 3492 titled Thoti Manohar v. State of Andhra Pradesh;

d). 2012 Cri.LJ 4707 titled Kuria & Anr. v. State of Rajasthan;

e). AIR 2001 SC 282 titled State of Rajasthan v. Hanuman;

f). 2010 [2] JCC 1359 titled Shatrughan v. State (Govt. of NCT of Delhi);

g). 2010 [2] JCC 1503 titled Abu Thakir & Ors. v. State Rep. by Insp. of Police, Tamil Nadu;

h). 2004 [4] JCC 840 titled State of Uttar Pradesh v. Devendra Singh;

i). 1999 (4) RCR (Criminal) 246 titled Rammi @ Rameshwar v. State of Madhya Pradesh;

j). 2012 (2) CCC 829 (SC) titled Hiralal Pandey & Ors. v. State of U.P.;

k). 2011 (2) CCC 613 (SC) titled Sheo Shankar Singh v. State of Jharkhand & Anr.;

l). 2011 (4) CCC 557 (Allahabad)(DB) titled Heera Lal & Anr. v. State of UP;

m). 2012 (1) SCC 10 titled Prithipal Singh Etc. v. State of Punjab & Anr.;

n). 2013 Legal Eagle (SC) 656 titled Manjit Singh & Ors. v. State of Punjab & Ors.;

o). 2011 (4) CCC 664 (S) titled Gosu Jairami Reddy & Anr. v. State of A.P.;

p). 2005 [1] JCC 261 titled Nehru Jain v. State NCT of Delhi;

q). 2012 (2) CCC (SC) 148 titled Brajendrasingh v. State of M.P.;

r). (2013) 14 SCC 732 titled State of Rajasthan v. Shobha Ram;

s). AIR 2012 SC 2600 titled Jagroop Singh v. State of Punjab;

t). Crl. Rev.P. No. 696/2010 titled Anita v. State of NCT of Delhi order passed by Hon’ble High Court of Delhi vide dated 23.04.2012; and u). AIR 1989 SC 1593 titled Rambilas Singh & Ors. v. State of Bihar.

13. Learned Counsels for complainant also made few submissions. They submitted that presence of the witnesses at the scene of crime was duly established. They pointed out that participation of the appellant in the crime was also clearly established. They too defended the impugned judgment and submitted that appellant was rightly held guilty. They relied upon (2014) 8 SCC 390 titled Subramanian Swami & Ors. v. Raju.

14. To appreciate the contentions of learned Counsels, it is necessary to focus on the evidence led by the prosecution before the JJB.

15. PW-1 is Insp. Virender Singh. He was investigating officer in the later part of the investigation. He deposed about apprehension of appellant on 31.12.2009 at about 7:30 am. He had apprehended the appellant vide memo Ex.PW1/A. His personal search was conducted vide memo Ex.PW1/B. Incident report is Ex.PW1/C.

16. In cross-examination, PW-1 denied that appellant was apprehended at the police station itself and not from Lal Mandir Road as deposed by him. In all practicality, he was a formal witness.

17. Similarly, PW-4 Pradeep Kumar Sharma is also a formal witness. He is husband of deceased Maya Devi. He deposed about identifying dead body of Maya Devi on 23.12.2009 at GTB Hospital vide statement Ex.PW4/A. He received dead body after postmortem vide receipt Ex.PW4/B. PW-4 was not cross-examined.

18. The material witnesses are PW-2 Atul Sharma and his brother PW- 3 Sachine Sharma.

19. PW-2 Atul Sharma deposed that on 19.12.2009 at about 9:30 am, he was coming from his house on his motorcycle alongwith his younger brother Sachin Sharma (PW-3) and carrying a cylinder. He deposed that when they reached in front of house of Hari Dutt @ Hari Om Sharma at H.No. C-1/716, Gali No. 25, Harsh Vihar, someone threw bricks upon him from roof of Hari Dutt. However, the bricks did not hit him. Rather, it hit tank of his motorcycle bearing No. DL-13SC-7648. He saw towards the roof and saw Ram Niwas and Saroj were saying to him ,”Tu To Bach Gaya Lekin Teri Motorcycle Ka Nuksan To Kar Hi Diya”. He deposed that due to fear, he went little ahead and in the meantime, his bua Maya Devi who was residing in H. No. C-1/713, in the same area, came there and she asked the accused persons why they were beating her nephew. According to PW-2, Hari Om @ Hari Dutt replied that “Bhatije To Bach Gaye Ub Isko Sabak Sikha Do”. PW-2 deposed that after that Yashoda (wife of Hari Dutt) alongwith Anita (wife of Brijesh as well as sister-in-law of Yashoda), her nieces namely Priyanka, Parul and Upasana (all daughters of Brijesh) came in the lane. PW-2 deposed that they caught his bua Maya Devi and, thereafter, Brijesh, Hari Dutt and Ram Niwas came in the lane and started beating his bua Maya Devi with bricks. He deposed that during this Ashish and R (appellant) started abusing his bua and both also started giving her fist blows. PW-2 stated that when they tried to rescue his bua, all the offenders threatened him that “Agar Tumne Ise Bachane Ki Koshish Ki To Tumhe Bhi Jaan Se Khatam Kar Denge”. PW-1 stated that due to the blows and beatings, blood was oozing out from the head of his bua and she became unconscious. He stated that someone called to 100 number. PCR came and removed his bua to GTB Hospital. PW-2 claimed that he accompanied his bua. He deposed about recording of his statement by the police which is Ex.PW2/A and which formed basis of registration of the FIR. He deposed that IO ASI Jai Bhagwan visited spot of occurrence with him at about 4:00-4:30 pm and he prepared site plan on his instructions. He stated that IO took possession of the motorcycle as well as brick and brick pieces in his presence.

20. Deposing further, PW-2 stated that on 22.12.2009 his bua passed away. Postmortem was conducted on 23.12.2009 and they received dead body vide receipt Ex.PW2/B. He also stated that on 31.12.2009, he was passing in front of house of Hari Dutt and saw Yashoda Devi and appellant were pointing outspot of occurrence in presence of IO Insp. V.S. Punia and he identified both of them. PW-1 identified appellant before JJB also and stated that he had attacked his bua with bricks and caused her murder. Bricks and brick pieces were also shown to the witness and he identified them as Ex.P1 (colly.). Motorcycle was also produced which was Ex.P2.

21. PW-2 was cross-examined by the defence. He denied that he had not seen the incident or he had gone to attend his classes. It has come that some case was pending between family of appellant and his family. He denied that both the parties were pelting stones at the time of incident. He denied that when both the parties were pelting stones, his bua came in between them and tried to stop the fight and during this, she received injuries. He denied that his bua received injuries on her head from the stone thrown by them (complainant side). He denied that he wasted more than one hour to provide treatment to bua and due to excessive bleeding, she passed away.

22. Evidence of PW-3 is almost similar to that of PW-2. PW-3 identified dead body vide memo Ex.PW3/A. He was cross-examined on the same lines as PW-2.

23. Date of offence is 19.12.2009. On that date, the Juvenile Justice (Care & Protection of Children) Act, 2000 (“JJ Act”) was applicable to juveniles.

24. As can be seen from the JJ Act, the proceedings conducted before JJB have been termed as ‘enquiry’ and not ‘trial’. The purposes of the said enquiry are manifold. One of them is to find out whether the juvenile was guilty of the offence or not? The other purposes are rehabilitation of the juvenile and other incidental steps required to be taken in that regard. The JJ Act is a special law and is a complete code in itself. As pointed out by learned Counsel for appellant, there are many principles which are to be kept in mind by the Principal Magistrate as well as other members of JJB while carrying out enquiries under the said Act. These principles have been contained in Rule 3 (2) of JJ Rules, 2007. These principles act as guiding lampposts.

25. A trial which is held as per provisions of Criminal Procedure Code (“CrPC“), is a detailed process. There are various steps and stages in a criminal trial. The legislature deliberately did not provide for holding trials in respect of juveniles. There was a purpose behind using the term ‘enquiry’ in such cases. Unlike a trial which has no time limit for its conclusion (although every trial must conclude within a reasonable time but there is no fixed limit), an enquiry under JJ Act to determine guilt and innocence of a juvenile must conclude within four months. There is a provision for extension. It has been provided under JJ Act that if an enquiry is not concluded within the time limit fixed by it or within the extended time limit, then the same has to be stopped, and as a necessary consequence, the juvenile has to be acquitted.

26. This provision is also relevant. It shows the intention of the legislature. The legislature was conscious of the time taken in concluding trials and, therefore, fixed a time limit for concluding the enquiries held under this Act. The message was clear. There was mandate to complete the enquiry as soon as possible, the outer limit being four months and in special cases the time could be extended. However, it was clear that Parliament wanted these enquiries to finish as soon as possible. The provision for abrupt end of these enquiries and resultant acquittal of the juvenile is also indicative of the fact that the emphasis was more towards welfare of the juvenile rather than to fix criminal liability. The Act aimed for rehabilitation and reformation of juveniles rather than to punish them.

27. As we all know, in a criminal trial, prosecution must prove the charge against an accused beyond reasonable doubt. The prosecution has to cross this hurdle. Any deficiency in fulfilling these requirements will result in acquittal.

28. These requirements i.e. the burden of proof on the prosecution is also equally applicable in enquiries under JJ Act. By using the term ‘enquiry’ under JJ Act, the legislature, at no point of time, provided that the burden on the prosecution was in any manner reduced. Even in enquiries under JJ Act, the prosecution was required to prove the charges beyond reasonable doubt. This burden is never lessened. Like every trial, in an enquiry under JJ Act also, it is the duty of the JJB to collect all evidential facts which are bare minimum required to prove guilt of a juvenile. The JJB cannot reach to conclusion that a juvenile is guilty merely on preponderance of probability. It has to adopt the same touchstone i.e. prosecution has to prove the charge beyond reasonable doubt. The JJ Act nowhere provides any shortcut to hold a juvenile guilty. There should be no misconception in this regard.

29. It is noticed from the record that postmortem report was nowhere referred to by any of the witnesses. The postmortem report never formed part of the record as no witness proved the same. However, the JJB relied upon the postmortem report. This approach of the JJB was wrong. The appellant must have been given an opportunity to challenge the same. The postmortem report could not have been taken into consideration at all. It is noteworthy that the opinion of the postmortem expert regarding nature of injury was heavily relied upon by the JJB to conclude that it was a case of murder. In these circumstances, it was imperative upon the JJB to afford an opportunity to the appellant to contest the said opinion. The JJB, without granting such opportunity, committed illegality.

30. The case of the prosecution rested mainly upon evidence of PW-2 Atul Sharma and PW-3 Sachin Sharma. Perusal of evidence of both these witnesses shows that the appellant had reached the scene of crime after Maya Devi had already been given brick blows. The witnesses do not say that appellant was already present when the other accused gave brick brows to Maya Devi. They had also described role of the appellant. These witnesses say that both appellant and Ashish had started abusing their Bua and they also gave fist blows. This part of the testimonies of these witnesses virtually clinches the issue in favour of the appellant. At the maximum, role of appellant was of giving abuses and fist blows to the deceased. It is apparent that the appellant was not present at the scene of crime when brick blows were given to the deceased. This conclusion is fortified from the fact that the appellant was acquitted by the JJB for the offences u/s 341/427/149 IPC i.e. offence of wrongfully restraining, causing damage to the motorcycle and being member of unlawful assembly. This shows that appellant was not present at the scene of crime from inception.

31. If it was so, there was no question of having any common intention of committing murder on the part of the appellant. It is to be noted that appellant has been held guilty only with aid of Sec. 34 IPC. There was no opportunity for appellant to develop any common intention with the other accused to commit murder of Maya Devi.

32. At this stage, we also have to keep in mind the principle of innocence contained in Rule 3 (2) of JJ Rules, 2007. Same reads as under:

3. Fundamental principles to be followed in administration of these rules :

(1) X X X X X.

(2) The following principles shall, inter alia, be fundamental to the application interpretation and impeachmentation of the Act and the rules made hereunder:

I. Principle of presumption of innocence:

(a) A juvenile or child or juvenile in conflict with law is presumed to be innocent of any malafide or criminal intent up to the age of eighteen years.

(b) The juvenile’s or juvenile’s in conflict with law or child’s right to presumption of innocence shall be respected throughout the process of justice and protection, from the initial contact to alternative care, including aftercare.

(c) Any unlawful conduct of a juvenile or a child or a juvenile in conflict with law which is done for survival, or is due to environmental or situational factors or is done under control of adults, or peer groups, is ought to be covered by the principles of innocence.

(d) The basic components or presumption of innocence are:

(i) Age of innocence: Age of innocence is the age below which a juvenile or child or a juvenile in conflict with law cannot be subjected to the criminal justice system. The Beijing Rule 4 (1) clearly lays down that “the beginning of the age of criminal responsibility shall not be fixed at too low an age level bearing in mind the facts of mental and intellectual maturity”. In consonance with this principle, the mental and intellectual maturity of juvenile or child or a juvenile in conflict with law below eighteen years in considered insufficient throughout the world.

(ii) Procedural protection of innocence: All procedural safeguards that are guranteed by the Constitution and other statutes to the adults and that go in to strengthen the juvenile’s or child’s right to presumption of innocence shall be guaranteed to juveniles or the children or juveniles in conflict with law.

(iii) Provisions of Legal aid and Guardian Ad Litem: Juveniles in conflict with law have a right to be informed about the accusations against them and a right to be legally represented. Provisions must be made for guardian ad litem, legal aid and other such assistance through legal services at State expense. This shall also include such juveniles right to present his case before the competent authority on his own.

33. It is clear in the present case that the appellant was in the company of his parents and other relatives, many of whom were adults. As such, the principle of innocence would also apply to the facts and circumstances of the present case. As such, the act of giving abuses and fist blows (assuming the same to be proved) will not amount to any offence, as far as appellant is concerned. The learned JJB did not consider the matter in the right perspective.

34. Various contentions were also advanced by learned Counsel for appellant questioning presence of the witnesses at the spot and ultimately questioning their creditworthiness. However, in my view, there is no need to go that deep while deciding this appeal because even assuming the presence of the witnesses at the spot, their testimonies fail to bring home guilt as far as appellant is concerned, as has been indicated in the paragraphs hereinabove.

35. In view of the above, the impugned judgment convicting the appellant for the offence u/s 302/34 IPC and order on sentence cannot be sustained and are hereby set aside.

36. Learned Addl. PP submitted that if the conviction is not sustained, matter shall be remanded back for decision afresh.

37. In my view, it is too late in the day to remand the matter. The incident is of 2009. The appellant faced enquiry till 2011. He has been pursuing this appeal thereafter. In my considered opinion, no purpose will be served by remanding the matter back to the JJB. This request is, therefore, declined.

38. As a result, the appeal is allowed. Appellant stands acquitted. Bail bonds furnished by the appellant are accepted further for a period of 6 months u/s 437-A CrPC.

39. A copy of the judgment be placed in the trial court record. TCR be sent back immediately.

40. Appeal file be consigned to Record Room.

Announced in the open court on 15th day of May, 2018.

                                                                 Digitally signed by
                                                                 SANJAY BANSAL
                                               SANJAY            Location:
                                               BANSAL            Karkardooma Court
                                                                 Date: 2018.05.17
                                                                 15:25:43 +0530

                                                             (SANJAY BANSAL)
                                                   Special Judge (NDPS) / ASJ /
                                                       NE / KKD Courts / Delhi.

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