the FIR was rightly relied upon by the courts below as dying declaration on part of Ganeshram.- if the testimony of PW1-Sajan Bai is eschewed from consideration, the deposition of PW2-Saman Bai, along with the dying declaration of Ganeshram, completely clinch the matter against the appellants. Additionally, the recoveries of the weapons in question viz., lathi, sword and axe also lend sufficient corroboration to the case of the prosecution.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 989 OF 2007
DEVILAL AND OTHERS …APPELLANTS
VERSUS
STATE OF MADHYA PRADESH …RESPONDENT
J U D G M E N T
Uday Umesh Lalit, J.
1. This appeal, at the instance of Devilal son of Chetaram Gujar
and his two sons Gokul and Amrat Ram, is directed against the
judgment and order dated 14.09.2006 passed by the High Court1
in
Criminal Appeal No.700 of 1999.
1 High Court of Madhya Pradesh, Bench Indore
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
2
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 Special Judge (SC/ST), Mandsaur, Madhya Pradesh under
Sections 302 read with 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 (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’,
for short).
3. The instant crime arose out of F.I.R. No.212 of 1998 registered
at 11.10 p.m. on 19.07.1998 with Police Station Manasa, District
Neemach, Madhya Pradesh. The reporting made by one Ganeshram
was to the following effect:-
“I am resident of village Khera Kushalpura. On
14.7.98, there had been quarrel between Devilal
son of Jetram Gurjar and me in village Khera
Kusalpura. Today, in the evening I was coming
from Binabas after doing my work and going by
walk to my house. At about 8 p.m., while going
towards my house on public road when I had
reached in front of the house of Devilal Gurjar
then after seeking me Devilal armed with
Kulhari, his son Gokul armed with Talwar and
Amritlal armed with lathi had come there.
Devilal had abused me and called me as Chamar
and stated that Chamars have advanced too
much. He told me that he shall finish me. He
had attacked me from sharp side of Kulhari with
intention to kill me. The first blow hit me on the
bone (calf) of right leg. Gokul had given second
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
3
sword blow on my bone (calf) of left leg. My
both legs were cut and I fell down there itself.
Then Amritram had given lathi blow on my right
fist and left hand and my right fist was fractured.
These persons had again called me Chamar and
told me that if I shall fight with them again.
They had kicked me on my face below both eyes
and there is swelling. Then I shouted for help.
My mother Gattu Bai, wife Sajan Bai and sisterin-law Saman Bai had run from home and
reached there, they protected me. When Saman
Bai was protecting me then Devilal had given
blow on her left elbow. Later, my mother, wife
and sister-in-law lifted me and taken me to
home. Kanhaiyalal had brought tractor from
Barbua. …Satyanarain, my sister-in-law Saman
Bai have put me in the tractor and brought me to
police station. I am lodging report, I have heard
the report, it is correct. Action may be taken.
My hand is fractured and I cannot sign. I have
put my thumb impression.”
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
injured Ganeshram. It was found that the general condition of the
injured was not good; that he was unable to speak; and that his blood
pressure could not be recorded. The injuries found on the person of
Ganeshram were recorded in report Exhibit P/23 and Ganeshram was
referred to Surgical Specialist, District Hospital, Mandasaur vide
Reference Form Exhibit P/25 at about 12.45 a.m. on 20.07.1998.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
4
However, while PW9-Dr. Kothari was completing the formalities,
Ganeshram expired at 1.00 a.m.. PW9-Dr. Kothari, therefore,
recorded the information of death in Exhibit P/26 under his signature.
5. At about 9.45 a.m. on 20.07.1998, application Exhibit P/17
was received by PW9-Dr. Kothari, pursuant to which post-mortem
was conducted on the dead body of Ganeshram. The observations
with respect to external and internal injuries suffered by the deceased
were as under:-
“16. The following external injuries were
present on his person –
1. Incised wound with dimension of five
X four and a half X three and a half
cm. which is present on left leg in
which broken pieces of Tibia and
Fibula bone were found. Much of
blood was found to have coagulated
near about the wound.
2. Incised wound with dimension of four
and a half X three and a half X two and
a half cm. which was present on right
leg through which tibia and Febula
bone was clearly visible and in which
much blood was found coagulated.
3. Cyanosed mark on lower part of right
hand four and half X two and a half
cm. dimension.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
5
4. Cyanosed mark on left hand three and
a half X two and a half cm. dimension.
5. Incised wound on left eyebrow two X
one X half cm dimension.
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 found
coagulated. Blood lumps were stuck in the
brain and brain was found contracted.
Tympanium, rib, pleura, Trachea and throat
were found contracted. Both the lungs
were found dry and contracted. After
cutting the lungs blood etc. yeast etc. did
not come out.
2. Heart – left chamber of the heart was
found empty. Right side chamber was full
of blood. The velum membrane of the
intestine morsel pipe all were pale and
contracted Membrane in the stomach was
contracted and was pale and stomach was
empty small intestine and large intestine
were contracted and was 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 left and right
both were found broken. Right
radius ALNA was found fractured.
Left numerous was found broken.”
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
6
The cause of death was stated to be excessive bleeding from
the injuries suffered by the deceased.
6. During the course of investigation, PW8-Shankar Rao
prepared site map Exhibit P/18 and arrested accused Devilal, Gokul
and Amrat Ram vide Exhibits P/5 to 7.
Pursuant to disclosure statement made by accused Gokul vide
Exhibit P/8, a sword was recovered. Similarly, pursuant to the
disclosure statement made by accused Amrat Ram, vide Exhibit P/9,
a lathi was recovered, while pursuant to disclosure statement made by
accused Devilal, vide Exhibit P/10, an axe was recovered.
Statements of Sajan Bai (PW1), Saman Bai (PW2),
Kanhaiyalal (PW3) Satya Narayan (PW4), Amarlal (PW6) and Gatto
Bai were also recorded by PW8-Shankar Rao.
7. After completion of investigation, the appellants along with
Gattubai wife of accused Devilal were tried in Special Offence Case
No. 88 of 1998 as stated above.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
7
8. In support of its case, the prosecution relied upon the
eyewitness account through PW1-Sajan Bai, PW2-Saman Bai and
PW7-Lakshminarayan.
a) PW1-Sajan Bai, wife of the deceased, in her
examination-in-chief stated:-
“2. The event is of 19th of Seventh month.
The time was evening between 7 to 8 o’clock. I
had returned after doing labour and myself, my
mother-in-law and Devrani were sitting on otla
outside the house. I heard the call of my
husband that rush I am being beaten.
3. All the three of us rushed and reached in
front of Devi Lal’s house. We saw there that
Gokul, Amrit Ram and Devi Lal were beating
my husband and Gatto Bai was standing there.
Gokul was having sword, Amrit Ram was
having lathi. Devilal was having axe in his
hand. My husband’s hands and legs had been
cut. His hands were broken and legs were cut.
While beating these were telling DHED Caste
CHAMARS have become arrogant (DHED JAT
CHAMARON KE BHAV BADH GAYE
HAIN).
4. I, my mother-in-law, my Devrani lifted
Ganeshram and brought to our house. My
husband was having injury on eye and head also.
Then my Jeth Kanhiyalal came at home.
5. My Jeth went to Badkua to bring tractor
wherefrom he came with Ratan Ba’s tractor.
Then Ganeshram was put in tractor and brought
to Manasa Police Station. My husband lodged
report at the police station, myself, my Jeth, my
Devrani, two Devars, mother-in-law and Devi
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
8
Lal of Badkuan also went to manage in the
tractor. My husband could read and write but
hands had been broken, therefore did not sign
had put thumb impression.
6. They were taken to the hospital from the
Police Station. Treatment was given there.
Ganeshram breathed his last within 2 to 3 hours
there itself.”
In her cross-examination the witness stated:-
“10. The police had taken my statement which
was read over to me yesterday. Then said did
not read over yesterday. Had read over to all the
three of us separately. We were made to
understand what statement we have to make in
the court. The Government Advocate who
examined today had read over.”
b) PW2-Saman Bai, sister-in-law of the deceased, stated:-
“2. On dated 19th of seventh month, at about
7-8 p.m., we had come from our work and we
were sitting on Otley. My sister-in-law, motherin-law and I all three were sitting there. At the
time of fight, Ganeshram had shouted for help.
After hearing shout, we all the three had run and
reached there in front of the house of Devilal.
3. All the four accused persons were beating
Ganeshram and they were telling that they shall
kill him. They were continuously calling him
Chamar. Gokul was armed with Talwar, Devilal
was armed with Kulhari, Amritram was armed
with lathi and Gattubai was having Mogri of
washing cloth.”
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
9
c) PW7-Laxminarayan, brother of the deceased, in his
examination-in-chief stated:-
“3. This incident has taken place nearly 7
months ago. Ganeshram was coming to house
by motor. Motor comes at 7 p.m. This incident
has taken place during the evening. Ganeshram
was coming. On the way, a quarrel started in
front of the house of Devilal. I was standing
outside my house on the “Otle”. I heard shouts
on which I have gone to see what is happening.
I saw that Gokul, Amritram, Devilal were
beating my brother. Devilal had an axe, Gokul
had a sword and Amritram had a truncheon.
Gatthubai had a “Tenpa” (a piece of wood). I
was standing slightly away. I was standing at a
distance of around 15-20 steps away.
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 my mother, my sister-in-law Sajanbai
and my wife Samanbai went to the place where
quarrel was taking place. Then, all three of them
brought Ganeshram to the house.
7. Hands and legs of Ganeshram have been
incised.
8. Then, my brother Kanhaiyyalal went to
Badkuan and brought a tractor from there. We
took Ganeshram to Manasa by tractor.
Ganeshram had lodged a report at Manasa P.S.
Statements were recorded over there and then
we went to hospital. Doctors have provided
treatment over there and during the course of
treatment Ganeshram had died.”
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
10
In his cross-examination the witness stated:-
“28. I have returned back from the place of
incident and sent my mother, sister-in-law and
wife, a fact which I have not told to the police.
Police has not held inquiry in this regard
because of which I have not told this fact.
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 of PW9-Dr. Kothari, who in his cross-examination
accepted:-
“24. I agree with Modi’s Medical jurisprudence
that breathing intermittently, not catching the
pulse speed, non tracing of blood pressure,
spreading of eye pupils and reacting weakly on
throwing light spreading of blackness on the
pupils and eye brows of the injured Ganesh – all
these symptoms are of immediately following
unconscious at the spot in the state of injured
and will not get consciousness till death.
25. Such type of injured persons lose their
memory at once on getting injury.
26. If the incident takes place at 8 o’clock
evening then the patient will become
unconscious at once and will not remain in the
state of speaking.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
11
27. All this condition was of the injured
Ganesh.”
9. After considering the evidence on record, the Trial Court
found that the FIR recorded at the instance of the deceased could be
relied upon as dying declaration and that the statements of PW1-
Sajan Bai, PW2-Saman Bai and PW7-Laxminarayan as well as the
recoveries at the instance of accused Devilal, Gokul and Amrat Ram
proved the case of prosecution. By its judgment and order dated
01.05.1999, the trial Court found that the offence under Section 302
read with 34 IPC was proved by the prosecution as against accused
Devilal, Gokul and Amrat Ram. It was, however, found that the case
was not proved against the fourth accused Gattubai. It was further
found that none of the accused could be held guilty under offences
punishable under SC/ST Act.
Thus, the appellants were convicted under Sections 342 read
with 34 IPC and by a separate order recorded on the same day they
were sentenced to suffer imprisonment for life with fine of Rs.5,000/-
each, in default whereof to undergo further imprisonment for two
years.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
12
10. Being aggrieved, Criminal Appeal No. 700 of 1999 was
preferred by accused Devilal, Gokul and Amrat Ram in the High
Court. It was submitted before the High Court that considering the
medical evidence on record and the statement of PW9-Dr. Kothari, it
was unlikely that the deceased could have made any statement before
the police, on the basis of which the FIR was recorded in the present
case. The further submission was that, as admitted by PW1-Sajan
Bai, in her cross-examination, the witnesses were tutored. These
submissions were not accepted by the High Court. It, however,
accepted that the version of PW7-Laxminarayan could not be relied
upon as the same was not consistent with the statement of PW2-
Saman Bai and the name of PW7-Laxminarayan was also not
mentioned in the FIR. The High Court thus affirmed the conviction
and sentence recorded against accused Devilal, Gokul and Amrat
Ram and dismissed Criminal Appeal No. 700 of 1999 by its
judgment and order dated 14.09.2006 which decision is presently
under challenge.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
13
11. During the pendency of this appeal, by Order dated
08.04.2009 this Court released accused Devilal and Gokul on bail as
they had undergone imprisonment for nine years and four months.
I.A. No. 4224 of 2017 was, thereafter, filed submitting inter
alia that accused Amrat Lal was a juvenile on the day the offence
was committed and that in the light of the decision of this Court in
Hari Ram vs. State of Rajasthan and another2
, the submission of
his juvenility could be raised for the first time before this Court.
12. By Order dated 3.10.2018 this Court directed the Sessions
Judge, Neemach to conduct an inquiry into the issue of juvenility of
Amrat Ram and submit a report to this Court. In the inquiry so
conducted, statements of concerned persons including Assistant
Teacher, Government Primary School, Khushalpura, were recorded
and the documents were considered, whereafter, it was found that the
date of birth of accused Amrat Ram was 23.03.1981 and that he was
16 years 11 months and 26 days on the date of offence. Accordingly,
the in-charge District and Sessions Judge, Neemach has forwarded
report dated 03.12.2018 to this Court.
2 (2009) 13 SCC 211
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
14
13. In this appeal, we have heard Mr. Sushil Kumar Jain, learned
Senior Advocate on behalf of the appellants and Mr. Harmeet Singh
Ruprah, learned Advocate appearing for the respondent-State.
14. At the outset, we must deal with the issue of juvenility of
Amrat Ram.
15. The incident in the present case had occurred in July, 1998
when the Juvenile Justice Act, 1986 (‘the 1986 Act’, for short) was in
force. The age of juvenility for a male juvenile under the 1986 Act
was 16 years. Since Amrat Ram was 16 years 11 months as on the
date when the offence was committed, he was certainly not a juvenile
within the meaning of 1986 Act. However, the age of juvenility was
raised to 18 years in terms of the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000 (‘the 2000 Act’, for
short). Section 20 of the 2000 Act dealing with proceedings pending
against a juvenile on the date the 2000 Act came into force, states:-
“20. Special provision in respect of pending
cases.- Notwithstanding anything contained in
this Act, all proceedings in respect of a juvenile
pending in any court in any area on the date on
which this Act comes into force in that area,
shall be continued in that court as if this Act had
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
15
not been passed and if the court finds that the
juvenile has committed an offence, it shall
record such finding and instead of passing any
sentence in respect of the juvenile, forward the
juvenile to the Board which shall pass orders in
respect of that juvenile in accordance with the
provisions of this Act as if it had been satisfied
on inquiry under this Act that a juvenile has
committed the offence:
Provided that the Board may, for any adequate
and special reason to be mentioned in the order,
review the case and pass appropriate order in
the interest of such juvenile.
Explanation.- In all pending cases including
trial, revision, appeal or any other criminal
proceedings in respect of a juvenile in conflict
with law, in any court, the determination of
juvenility of such a juvenile shall be in terms of
clause (1) of section 2, even if the juvenile
ceases to be so on or before the date of
commencement of this Act and the provisions
of this Act shall apply as if the said provisions
had been in force, for all purposes and at all
material times when the alleged offence was
committed.”
16. Where an offender was more than 16 years of age on the day
when the incident had occurred (and therefore was not a juvenile
within the meaning of the 1986 Act) but was less than 18 years of age
on the day of the incident, the question as to what extent benefit can
be given in terms of the provisions of the 2000 Act, was considered
by this Court in some cases. In Mumtaz alias Muntyaz vs. State of
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
16
Uttar Pradesh (now Uttarakhand)3
, after noting the earlier
decisions, this Court observed:-
“ 18. The effect of Section 20 of the 2000 Act
was considered in Pratap Singh v. State of
Jharkhand4
and it was stated as under: (SCC p.
570, para 31)
“31. Section 20 of the Act as quoted
above deals with the special provision in
respect of pending cases and begins with
a non obstante clause. The sentence
‘notwithstanding anything
contained in this Act, all
proceedings in respect of a juvenile
pending in any court in any area on
the date on which this Act came
into force’
has great significance. The proceedings in
respect of a juvenile pending in any court
referred to in Section 20 of the Act are
relatable to proceedings initiated before
the 2000 Act came into force and which
are pending when the 2000 Act came into
force. The term “any court” would
include even ordinary criminal courts. If
the person was a “juvenile” under the
1986 Act the proceedings would not be
pending in criminal courts. They would
be pending in criminal courts only if the
boy had crossed 16 years or the girl had
crossed 18 years. This shows that Section
20 refers to cases where a person had
3 (2016) 11 SCC 786
4 (2005) 3 SCC 551
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
17
ceased to be a juvenile under the 1986 Act
but had not yet crossed the age of 18
years then the pending case shall continue
in that court as if the 2000 Act has not
been passed and if the court finds that the
juvenile has committed an offence, it shall
record such finding and instead of passing
any sentence in respect of the juvenile,
shall forward the juvenile to the Board
which shall pass orders in respect of that
juvenile.”
19. In Bijender Singh v. State of Haryana5
, the
legal position as regards Section 20 was stated in
the following words: (SCC pp. 687-88, paras 8-
10 & 12)
“8. One of the basic distinctions between
the 1986 Act and the 2000 Act relates to
the age of males and females. Under the
1986 Act, a juvenile means a male
juvenile who has not attained the age of
16 years, and a female juvenile who has
not attained the age of 18 years. In the
2000 Act, the distinction between male
and female juveniles on the basis of age
has not been maintained. The age-limit is
18 years for both males and females.
9. A person above 16 years in terms of the
1986 Act was not a juvenile. In that view
of the matter the question whether a
person above 16 years becomes
“juvenile” within the purview of the 2000
5 (2005) 3 SCC 685
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
18
Act must be answered having regard to
the object and purport thereof.
10. In terms of the 1986 Act, a person
who was not juvenile could be tried in
any court. Section 20 of the 2000 Act
takes care of such a situation stating that
despite the same the trial shall continue in
that court as if that Act has not been
passed and in the event, he is found to be
guilty of commission of an offence, a
finding to that effect shall be recorded in
the judgment of conviction, if any, but
instead of passing any sentence in relation
to the juvenile, he would be forwarded to
the Juvenile Justice Board (in short “the
Board”) which shall pass orders in
accordance with the provisions of the Act
as if it has been satisfied on inquiry that a
juvenile has committed the offence. A
legal fiction has, thus, been created in the
said provision. A legal fiction as is well
known must be given its full effect
although it has its limitations. …
11.***
12. Thus, by reason of legal fiction, a
person, although not a juvenile, has to be
treated to be one by the Board for the
purpose of sentencing, which takes care
of a situation that the person although not
a juvenile in terms of the 1986 Act but
still would be treated as such under the
2000 Act for the said limited purpose.”
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
19
20. In Dharambir v. State (NCT of Delhi)6
the
determination of juvenility even after conviction
was one of the issues and it was stated: (SCC p.
347, paras 11-12)
“11. It is plain from the language of the
Explanation to Section 20 that in all
pending cases, which would include not
only trials but even subsequent
proceedings by way of revision or appeal,
etc., the determination of juvenility of a
juvenile has to be in terms of clause (l) of
Section 2, even if the juvenile ceases to be
a juvenile on or before 1-4-2001, when
the 2000 Act came into force, and the
provisions of the Act would apply as if
the said provision had been in force for all
purposes and for all material 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 alleged to
have committed an offence and has not
completed eighteenth year of age as on
the date of commission of such offence.
Section 20 also enables the court to
consider and determine the juvenility of a
person even after conviction by the
regular court and also empowers the
court, while maintaining the conviction,
to set aside the sentence imposed and
forward the case to the Juvenile Justice
6 (2010) 5 SCC 344
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
20
Board concerned for passing sentence in
accordance with the provisions of the
2000 Act.”
21. Similarly in Kalu v. State of Haryana7
, this
Court summed up as under: (SCC p. 41, para 21)
“21. Section 20 makes a special provision
in respect of pending cases. It states that
notwithstanding anything contained in the
Juvenile Act, all proceedings in respect of
a juvenile pending in any court in any
area on the date on which the Juvenile Act
comes into force in that area shall be
continued in that court as if the Juvenile
Act had not been passed and if the court
finds that the juvenile has committed an
offence, it shall record such finding and
instead of passing any sentence in respect
of the juvenile forward the juvenile to the
Board which shall pass orders in respect
of that juvenile in accordance with the
provisions of the Juvenile Act as if it had
been satisfied on inquiry under the
Juvenile Act that the juvenile has
committed the offence. The Explanation
to Section 20 makes it clear that in all
pending cases, which would include not
only trials but even subsequent
proceedings by way of revision or appeal,
the determination of juvenility of a
juvenile would be in terms of clause (l) of
Section 2, even if the juvenile ceased to
be a juvenile on or before 1-4-2001, when
the Juvenile Act came into force, and the
7 (2012) 8 SCC 34
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
21
provisions of the Juvenile Act would
apply as if the said provision had been in
force for all purposes and for all material
times when the alleged offence was
committed.”
22. It is thus well settled that in terms of Section
20 of the 2000 Act, in all cases where the
accused was above 16 years but below 18 years
of age on the date of occurrence, the proceedings
pending in the court would continue and be
taken to the logical end subject to an exception
that upon finding the juvenile to be guilty, the
court would not pass an order of sentence against
him but the juvenile would be referred to the
Board for appropriate orders under the 2000 Act.
What kind of order could be passed in a matter
where claim of juvenility came to be accepted in
a situation similar to the present case, was dealt
with by this Court in Jitendra Singh 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 the Juvenile Justice
Act, 1986 indicate that given the nature of
the offence committed by the appellant,
advising or admonishing him [clause (a)]
is hardly a “punishment” that can be
awarded since it is not at all
commensurate with the gravity of the
crime. Similarly, considering his age of
about 40 years, it is completely illusory to
expect the appellant to be released on
probation of good conduct, to be placed
8 (2013) 11 SCC 193
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
22
under the care of any parent, guardian or
fit person [clause (b)]. For the same
reason, the appellant cannot be released
on probation of good conduct under the
care of a fit institution [clause (c)] nor can
he be sent to a special home under
Section 10 of the Juvenile Justice Act,
1986 which is intended to be for the
rehabilitation and reformation of
delinquent juveniles [clause (d)]. The
only realistic punishment that can
possibly be awarded to the appellant on
the facts of this case is to require him to
pay a fine under clause (e) of Section
21(1) of the Juvenile Justice Act, 1986.”
23. In Jitendra Singh v. State of U.P.8
, having
found the juvenile guilty of the offence with
which he was charged, in accordance with the
law laid down by this Court as stated above, the
matter was remanded to the jurisdictional
Juvenile Justice Board constituted under the
2000 Act for determining appropriate quantum
of fine. The view taken therein is completely
consistent with the law laid down by this Court
and in our opinion the decision in Jitendra
Singh v. State of U.P. 8 does not call for any
reconsideration. The subsequent repeal of the
2000 Act on and with effect from 15-1-2016
would not affect the inquiry in which such claim
was found to be acceptable. Section 25 of the
2015 Act makes it very clear.”
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
23
17. Recently, in Satya Deo alias Bhoorey vs. State of Uttar
Pradesh9
, this Court observed:-
“19. This position of law and principle in Mumtaz
case3 was affirmed by this Court for the first time
in Hari Ram v. State of Rajasthan2
in the following
words: (SCC p. 223, para 39)
“39. The Explanation which was added in
2006, makes it very clear that in all pending
cases, which would include not only trials but
even subsequent proceedings by way of
revision or appeal, the determination of
juvenility of a juvenile would be in terms of
clause (l) of Section 2, even if the juvenile
ceased to be a juvenile on or before 1-4-2001,
when the Juvenile Justice Act, 2000, came
into force, and the provisions of the Act would
apply as if the said provision had been in force
for all purposes and for all material times
when the alleged offence was committed. In
fact, Section 20 enables the court to consider
and determine the juvenility of a person even
after conviction by the regular court and also
empowers the court, while maintaining the
conviction, to set aside the sentence imposed
and forward the case to the Juvenile Justice
Board concerned for passing sentence in
accordance with the provisions of the Juvenile
Justice Act, 2000.”
20. In light of the legal position as expounded above
and in the aforementioned judgments, this Court at this
stage can decide and determine the question of
9 (2020) 10 SCC 555
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
24
juvenility of Satya Deo, notwithstanding the fact that
Satya Deo was not entitled to the benefit of being a
juvenile on the date of the offence, under the 1986 Act,
and had turned an adult when the 2000 Act was
enforced. As Satya Deo was less than 18 years of age
on the date of commission of offence on 11-12-1981,
he is entitled to be treated 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 was
guilty of the offence with which he was charged, the matter must be
remitted to the jurisdictional Juvenile Justice Board for determining
appropriate quantum of fine that should be levied on Amrat Ram.
19. We now turn to the basic issue whether the appellants were
rightly held guilty by the courts below.
20. Mr. Sushil Kumar Jain, learned Senior Advocate for the
appellants has submitted that given the cross-examination of PW9-Dr.
Kothari, it would be impossible to believe that Ganeshram could have
made any reporting to the police as alleged. It is submitted that,
according to the FIR, the incident had occurred around 8.00 p.m.,
while the FIR was recorded after more than three hours. Mr. Jain has
further submitted that, as accepted by PW1-Sajan Bai, witnesses were
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
25
clearly tutored and, as such, the value of the testimony of PWs 1 and
2 stands diminished to a great extent. Relying on the crossexamination of PW7-Laxminarayan, it is submitted that the front of
the house of accused Devilal where the incident was stated to have
occurred was not visible for the alleged eye witnesses.
The submissions are countered by Mr. Harmeet Singh Ruprah,
learned Advocate for the State. It is submitted that the testimonies of
PWs 1 and 2 are quite consistent; their presence was recorded right
from the initial stage of reporting of the crime; that the distance
between the houses was just about 100 feet and; that there was no
effective cross-examination on the issue whether they had enough
opportunity to witness the incident.
21. The testimony of PW9-Dr. Kothari, shows that Ganeshram
was alive when the initial examination was undertaken by PW9-Dr.
Kothari. According to the witness, when he examined Ganeshram,
the blood pressure could not be detected. However, that by itself does
not mean that Ganeshram was not in a physical condition to make any
reporting to the police two hours earlier. Paragraph 24 of the
deposition of PW9-Dr Kothari shows that if the symptoms stated
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
26
therein were present, it could possibly be said that the concerned
person would not be in a position to speak. First of all, such assertion
is purely an opinion of an expert. Secondly, nothing is available on
record to show that Ganeshram had shown these symptoms either
soon after the incident or when his statement was recorded by PW8
Shankar Rao. No questions were put to PW1-Sajan Bai, PW2 Saman
Bai and PW8-Shankar Rao in that behalf. We, therefore, reject the
submission advanced on this score and find that the FIR was rightly
relied upon by the courts below as dying declaration on part of
Ganeshram.
22. The FIR itself referred to the presence of PW1-Sajan Bai and
PW2-Saman Bai. The substantive testimony of both these witnesses
clearly discloses that the appellants had opened an assault on
Ganeshram which led to his death. The assertion on part of PW1-
Sajan Bai that her earlier statement recorded during investigation was
read over to her does not mean that she was tutored to follow the line
of prosecution. It is relevant to note that no such questions were put
to PW2-Saman Bai.
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
27
Thus, even if the testimony of PW1-Sajan Bai is eschewed
from consideration, the deposition of PW2-Saman Bai, along with the
dying declaration of Ganeshram, completely clinch the matter against
the appellants.
Additionally, the recoveries of the weapons in question viz.,
lathi, sword and axe also lend sufficient corroboration to the case of
the prosecution.
23. In the premises, we affirm the view taken by the courts below
and find the appellants guilty of the offence with which they were
charged. Their appeal, therefore, deserves dismissal. The conviction
and sentence recorded by the courts below, insofar as accused Devilal
and Gokul are concerned, are, therefore, affirmed and the present
appeal insofar as these two accused are concerned is dismissed.
24. However, even while holding the appellant Amrat Ram to be
juvenile in terms of the 2000 Act and guilty of the offence with which
he was charged, we set aside the sentence of life imprisonment
imposed upon him and remit the matter to the jurisdictional Juvenile
Justice Board for determining appropriate quantum of fine that should
Criminal Appeal No.989 of 2007
Devilal and ors. vs. State of Madhya Pradesh
28
be levied on appellant Amrat Ram in keeping with the directions
issued by this Court in Jitendra Singh vs. State of U.P8
.
25. Since Devilal and Gokul were released on bail by this Court
vide Order dated 08.04.2009, they are directed to surrender before the
concerned Police Station within two weeks from today, failing which
the bail bonds furnished at the time of their release on bail shall stand
forfeited and they shall immediately be arrested by the concerned
police to undergo the sentence imposed upon them. A copy of this
Order shall immediately be transmitted by the Registry of this Court
to the jurisdictional Chief Judicial Magistrate and the concerned
Police Station for compliance.
26. The appeal is disposed of in afore-stated terms.
……………………..J.
[Uday Umesh Lalit]
……………………..J.
[Indira Banerjee]
……………………..J.
[K.M. Joseph]
New Delhi;
February 25, 2021.
