Allowed

Vinod Kumar v. State

Rajasthan HC14 May 2019CRLA/450/2003

Case brief

AI extract

What is this about?

The High Court allowed an appeal dismissing conviction under Section 302 IPC. After ascertaining the appellant's date of birth from school records, the court declared him a juvenile on the date of the offence. Relying on the Juvenile Justice Act, 2000 and Supreme Court precedents, the court terminated all proceedings and ordered his release, noting he was an adult by the time of judgment.

What did the court decide?

Impugned judgment set aside; all proceedings terminated; appellant set at liberty if not wanted in other cases; record returned to trial court.

Vinod Kumar Vs State — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Criminal Appeal No. 450/2003

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Vinod Kumar S/o Shri Manchharam, by caste Rawal (Brahmin) R/o Village Janapur, Tehsil Pindwara, District Sirohi (At present confined in Central Jail, Jodhpur)

----Appellant

Versus

State of Rajasthan

----Respondent For Appellant(s) : Mr. K.R. Bhati For Respondent(s) : Mr. N.S. Bhati, PP Mr. B.S. Rathore for complainant.

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HON'BLE MR. JUSTICE SANDEEP MEHTA HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

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Date of Pronouncement :- 14/05/2019 Judgment Reserved on :- 08/05/2019

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(Per Hon’ble Mehta,J.)

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Through this appeal under Section 374 (2) Cr.P.C., the appellant Vinod Kumar has approached this Court for assailing the judgment impugned dated 26.03.2003 passed by learned Addl. Sessions Judge (Fast Track), Sirohi in Sessions Case No.49/2001 (28/99) whereby the appellant was convicted and sentenced as below:-

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Under Section 302

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Life Imprisonment and a fine of Rs.2,000/-. In default of payment of fine to further undergo one year‘s imprisonment.

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(2 of 5)

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[CRLA-450/2003]

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An incident of violence took place in the intervening night of 06.10.1998 and 07.10.1998 in the Rawal Brahmin Hostel, Sirohi. The FIR (Ex.P/7) was lodged by Dinesh Kumar to the SHO PS Sirohi on 07.10.1998 at 9:00 am alleging that his cousin brother Paresh Kumar Rawal had been murdered by inflicting a knife blow. Charge sheet for offence under Section 302 IPC was came to be filed against the accused appellant Vinod Kumar whereas proceedings qua the co-accused Mahendra Kumar, who was attributed offence under Section 212 IPC were deferred.

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It is relevant to mention here that the school record of the appellant was seized by the IO during the course of the investigation and the seizure memo Ex.P/10 refers to the identity card of the appellant issued from the Govt. Senior Secondary School, Sirohi, wherein his date of birth was recorded as 27.07.1981. While the trial of the case was underway, the Juvenile Justice (Care and Protection) Act, 2000 came into force. As per Section 2(l) of the Act of 2000, “juvenile in conflict with law ” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence. Section 7A of the Act of 2000 deals with the procedure to be followed when claim of juvenility is raised before the court and is reproduced hereinbelow for ready reference:-

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“Section 7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission

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(3 of 5)

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[CRLA-450/2003]

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of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

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Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

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(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any passed by a court shall be deemed to have no effect.”

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By the clear import of this provision, the Act of 2000 was made retrospective in effect and operation and thus, the trial court ought to have considered the case of the appellant for inquiry under the Act of 2000. However, no such course of action was adopted by the trial court.

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While filing appeal in this Court, a pertinent ground was raised imploring the Court that the trial of the appellant is vitiated with the coming into force of the Act of 2000:

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(4 of 5)

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[CRLA-450/2003]

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“(9) The accused is a Juvenile offender. His date of Birth recorded in School record is 27.07.1981. During the trial with her coming in force of the Act of 2000, the accused could not be tried by the ordinary court. The trial is, therefore vitiated. The New Act has impact on the trial of the accused. If it has no impact on the trial, it has bearing on the question of sentence. The Juvenile Act is beneficial Act and it is to be construed in favour of the accused.”

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The sentences awarded to the appellant was suspended vide order dated 04.02.2004 passed in D.B. Criminal Misc. Bail Application No.126/2004. However, the appellant did not fulfill the conditions of the bail order and thus, the bail granted to him was cancelled and his bail bonds were forfeited vide order dated 23.03.2011. He was re-arrested and presented before this Court on 13.07.2011 on which day, it was directed that he shall be sent to prison for serving the remainder of his sentences. The appeal was listed for hearing on 26.04.2019. On that day, considering the facts as recorded in the seizure memo Ex.P/10, we directed that the school record of the appellant should be summoned so as to ascertain his correct date of birth.

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In furtherance of this direction, we have recorded the statement of Shri Dushyant Singh, Junior Assistant, Govt. Senior Secondary School, Siorhi as CW-1. He stated that the date of birth of the appellant Vinod Kumar is entered in the scholar register of the school as 27.07.1981.

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(5 of 5)

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[CRLA-450/2003]

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In this background and considering the judgment of Hon’ble Supreme Court in the case of Pratap Singh vs State of Jharkhand 2005 (1) ACR 819 (SC), manifestly, the said date has to be accepted to be the true and correct date of birth of the appellant herein. As a consequence, the appellant herein was below the age of 18 years when the alleged incident took place i.e., 07.10.1998. In view of the clear language of Section 7A of the Act of 2000 and the principles enunciated by Hon’ble the Supreme Court in the case of Raju vs State of Haryana : 2019 Cr.L.R. (SC) 265, we have no hesitation in declaring that the appellant was juvenile on the date of incident. The appellant has remained in prison for the last nearly eight years. Thus, in light of the observations made in the case of Raju (supra), no useful purpose would be served by remanding the matter to the trial court so also he cannot be sent to Juvenile Home because by now, he is nearly 36 years of age.

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Thus, while setting aside the impugned judgment dated 26.03.2003 passed by learned Addl. Sessions Judge (Fast Track), Sirohi in Sessions Case No.49/2001 (28/99), we hereby terminate all the proceedings taken against the accused appellant in the case at hand. He shall be set at liberty, if not wanted, in any other case. The appeal is allowed for the reasons stated above. Record be returned to the trial court forthwith.

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(VINIT KUMAR MATHUR),J

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(SANDEEP MEHTA),J

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Sudhir Asopa

Vinod Kumar v. State

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Vinod Kumar v. State

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