Pawan Vs. State of
Uttaranchal  INSC 428 (26 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1000 OF 2006 Pawan
State of Uttaranchal ..Respondent WITH CRIMINAL APPEAL NO. 394 OF 2009 (Arising
out of S.L.P. (Crl.)No.5209/2006) Arjun .. Appellant Versus State of
Uttaranchal ..Respondent WITHCRIMINAL APPEAL NO. 1036 OF 2006 Aamir ..
State of Uttaranchal ..Respondent WITH CRIMINAL APPEAL NO. 1743 OF 2007 Babu ..
Appellant Versus State of Uttaranchal ..Respondent JUDGEMENT R.M. Lodha, J.
Leave granted in
S.L.P. (Crl.) No.5209/2006.
The appellants in
these four appeals suffered death sentence for the offence punishable under
Section 302/34 IPC, at the hands of Additional Distt. & Sessions Judge,
First Fast Track Court, Nainital. The trial court also convicted the appellants
for the offences punishable under Sections 376 and 377, IPC and sentenced them
to life imprisonment. Each of the appellants was also convicted for the offence
punishable under Section 201/34, IPC and sentenced to undergo seven years
rigorous imprisonment and fine of Rs.2,000/- and in default in payment of fine,
additional imprisonment of six months. Since death sentence was awarded, the trial
court made a reference to the High Court for confirmation. The appellants
challenged the judgment of the trial court in separate appeals before the High
Court of Uttaranchal at Nainital. The death reference and appeals were heard
together. Vide judgment dated July 12, 2005, the High Court maintained the
conviction of the appellants under Sections 302/34, 376 and 201/34, IPC. The
sentence of death awarded under Sections 302/34, IPC to each of the appellants
was commuted to that of rigorous imprisonment for life. The sentence awarded by
the trial court under Sections 376 and 201/34, IPC, was maintained. The High
Court, however, acquitted the appellants of charge under Section 377, IPC and
their conviction and sentence under this count was set aside. It is from the
judgment dated July 12, 2005 that these four criminal appeals by special leave
2. Amar Singh (PW-4)
is a migrant labourer from Nepal.
He and his minor
daughter Sushma aged six years were residing in the locality known as Raj Mahal
Hotel Compound Mallital, Nainital. On September 25, 2003 at about 8.00 A.M.
Sushma left her home
to ease herself. When she did not return for quite some time, she was looked
for in the market, around the lake and near about by her father but of no
efforts when her whereabouts could not be known, PW-4 reported her
disappearance (Ext.Ka-10) at around 4.00 P.M. at Police Station, Mallital. The
night became horrendously eventful for PW-4; he and three migrant labourers
from Nepal, namely, Veer Bahadur (PW-2), Puran (PW-3) and Mangal (PW-5) were
waiting for Sushma to return.
At about 1.30 A.M.,
four persons came from the side of the road up to vacant plot of one Sardarji
in that locality and were seen throwing the dead body of a girl from the gunny
bag in that plot. The gunny bag was also thrown over there. PW-2, PW-3, PW-4
and PW-5 raised alarm and caught hold of them;
they were Babu (A-1),
Aamir (A-2), Pawan (A-3) and Arjun (A- 4) and the dead body was of Sushma
(victim). A-1, A-2, A-3 and A-4 were taken to the Police Station, Mallital.
3. PW-4 lodged the
written report at about 2.00 A.M.
(September 26, 2003)
and a case under Sections 302/201/34 IPC was registered against A1, A-2, A-3
and A-4. Their formal arrest was made. In the morning of September 26, 2003 at
about 6.30 A.M. seizure memo of the dead body was prepared by the investigating
officer Bachhan Singh Rana (PW- 11). Dr. K.S. Dhami (PW-1) conducted
post-mortem of dead body of Sushma at about 1.00 P.M. The accused persons were
also sent for medical examination. On the basis of the disclosure statement A-1
and A-2, two feet long electric wire of yellow colour from the house of Ramesh
Monga situate near Sanwal School where the accused were then residing was
recovered vide Memo (Ext. Ka-6-A)
4. On September 27,
2003, while A-1, A-2, A-3 and A-4 were in District Jail, Nainital, their
underwears were seized and sent for chemical examination to Forensic Science
Laboratory, Agra. The Pyajama and other items of victim were also sent to Forensic
Science Laboratory, Agra.
5. After receipt of
the post-mortem report, the offences under Sections 376 and 377 IPC were also
6. Aamir's statement
under Section 164, Cr.P.C. was recorded by the Judicial Magistrate, Nainital on
October 7, 2003.
7. The investigating
officer on completion of investigation submitted charge sheet against A-1, A-2,
A-3 and A-4 for the offences punishable under Sections 302/34, 376, 377 and
201/34 IPC. The Chief Judicial Magistrate, Nainital, took cognizance and committed
the case to the Sessions Judge, Nainital which was transferred to the court of
Additional Distt. & Sessions Judge, First Fast Track Court, Nainital.
8. The defence of the
accused persons was one of simple denial. They stated that they have been falsely
implicated in the case.
9. Dr. K.S. Dhami
(PW-1) who conducted post mortem examination on the dead body of victim found
are separated. Hymen ruptured.
inside the vagina. Rectum - laceration & abrasion around the external
region on separation of gluteal fold large rectal canal is visible which is
dilated. Spintsers are damaged.
There is blood
present in the anal canal. Mucosa is also damaged. Both rectal and vaginal
smears are taken. There is well defined ligature mark on the upper part of neck
slightly depressed and encircling the neck horizontally and completely.
Colour is reddish
& margins are ecchymosed. On dissection of ligature mark there is extra
vassion of blood into the sub cutaneous tissue under the ligature mark as well
as adjacent structures."
Dr.K.S. Dhami (PW-1)
recorded cause of death being asphyxia as a result of strangulation. These
injuries according to Dr. K.S. Dhami were sufficient in the ordinary course of
nature to cause death.
10. On the basis of
the medical evidence, no doubt is left that victim died of homicidal death and
that she was raped before being murdered. The medical evidence shows that her
hymen was ruptured; labiamajora separated and there was reddish secretion
inside the vagina. These are indicative of having the sexual assault.
Dr. K.S. Dhami
further opined the rape on the deceased is possible to have occurred during the
time of 8.00 A.M. on 6 September 25, 2003 to the night (intervening night
between September 25 and 26, 2003). The evidence of Dr. K.S. Dhami has gone
unchallenged in so far as A-3 and A-4 are concerned and in his cross
examination on behalf of A-1 and A-2, nothing has been elicited which may cast
doubt with regard to his testimony.
11. There is no eye
witness account and the case depends wholly upon circumstantial evidence.
12. When a case rests
on circumstantial evidence, such evidence must satisfy oft-quoted tests viz:
(1) the circumstances from which an inference of guilt is sought to be drawn,
must be cogently and firmly established; (2) those circumstances should be of
definite tendency unerringly pointing towards the guilt of the accused; (3) the
circumstances taken cumulatively should form a chain so complete that there is
no escape from the conclusion that within all human probabilities the crime was
committed by the accused and none else; and (4) the circumstantial evidence in
order to sustain conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused and such evidence
should 7 not only be consistent with the guilt of the accused but should be
inconsistent with his innocence.
13. Where the entire
case hinges on circumstantial evidence, great care must be taken in evaluating
circumstantial evidence to ensure that the circumstances on which the
prosecution relies are wholly consistent with the sole hypothesis of the guilt
of the accused.
14. Legal principles
with regard to the circumstantial evidence in criminal trial have been
explained by this Court time and again; the first in long line of these cases
being Hanuman Govind Nargundkar v. State of M.P. [AIR (1952) SC 343] and of
late, State of U.P. v. Satish (2005)3 SCC 114. Reference to all these decisions
is not necessary as we have already noticed these principles in preceding
paragraphs. However, Mr.T.V. George, learned counsel appearing for A-3,
referred to a decision of this Court in the case of Shankarlal Gyarasilal Dixit
vs. State of Maharashtra, (1981) 2 SCC 35 which we may refer to.
The learned counsel
relied upon the following observations made therein:
8 ".....It is
not to be expected that in every case depending on circumstantial evidence, the
whole of the law governing cases of circumstantial evidence should be set out
in the judgment. Legal principles are not magic incantations and their
importance lies more in their application to a given set of facts than in their
recital in the judgment. The simple expectation is that the judgment must show
that the finding of guilt, if any, has been reached after a proper and careful
evaluation of circumstances in order to determine whether they are compatible
with any other reasonable hypothesis.
The High Court, it
must be said, has referred to the recent decisions of this Court in Mahmood v.
State of U.P. (1976) 1 SCC 542 and Chandmal v State of Rajasthan (1976) 1 SCC
621 in which the rule governing cases of circumstantial evidence is reiterated.
But, while formulating its own view the High Court, with respect, fell into an
error in stating the true legal position by saying that what the court has to
consider is whether the cumulative effect of the circumstances establishes the
guilt of the accused beyond the "shadow of doubt". In the first
place, `shadow of doubt', even in cases which depend on direct evidence is
shadow of "reasonable" doubt. Secondly, in its practical application,
the test which requires the exclusion of to her alternative hypotheses is far
more rigorous than the test of proof beyond reasonable doubt."
15. It needs no
emphasis that while evaluating circumstantial evidence, which of course has to
be done carefully, the circumstances must be of such a nature as to be capable
of supporting the exclusive hypothesis that the accused is 9 guilty of the
crime of which he is charged and the circumstances so shown by the prosecution
are compatible with no other reasonable hypothesis.
16. The following
circumstances were relied upon by the prosecution, and accepted by the trial
court in order to establish the charges against A-1, A-2, A-3 and A-4:
(i) On September 25,
2003, at about 8.00 A.M., victim left her home to ease herself.
(ii)Victim did not
return to her house and all efforts on that day in search of her and her
whereabouts did not yield any result.
(iii) On that very
day i.e. September 25, 2003, a missing report was lodged by Amar Singh (PW-4)
at about 4.00 P.M. at Police Station, Mallital.
(iv) In the
intervening night of September 25/26, 2003, PW-4 and others were sitting
outside their huts waiting for the victim, then about 1.30 A.M. in the night
they saw accused coming towards the vacant plot of one Sardarji with a gunny
bag and were seen throwing the dead body of victim.
(v) PW-2, PW-3, PW-4
and PW-5 seeing the accused persons, raised an alarm and apprehended all of
them at the spot.
(vi) A-1, A-2, A3 and
A-4 made extra-judicial confession of their guilt before PW-1, PW- 2, PW-3 and
(vii) The accused
persons were then taken to the Police Station, Mallital and in the intervening
night of September 25/26, 2003, at about 2.00 A.M., First Information Report
(viii) At the
instance and on the disclosure statement of A-1 and A-2, piece of wire was
recovered from the house of Ramesh Monga.
(ix) On September 27,
2003, the underwears of A-1, A-2, A-3 and A-4 were attached and sent for
chemical examination. The chemical examination report confirmed that the
underwears were stained with human semen and spermatozoa.
(x) A-2 made a confession
of his guilt before the Judicial Magistrate on October 7, 2003.] (xi) The
medical evidence that victim was subjected to rape and carnal inter course.
(xii) The medical
evidence also indicative of the fact that the offences of rape, carnal inter-course
and murder were committed, in all probability, by more than one person.
(xiii) No enmity
between PW-2, PW-3, PW-4 and PW-5 against A-1, A-2, A-3 and A-4 nor PW-1, PW-2,
PW-3 and PW-4 had any special relations with the police.
(xiv) No explanation
by A-1, A-2, A-3 and A-4 as to how the dead body of victim came into their
possession and their act of disposing of the dead body in the midnight.
1 1 (xv) The fact
that the victim was subjected to rape and carnal intercourse itself indicate
the mental bend of mind of the accused and further the motive to commit her
murder and then attempt to dispose of her dead body surreptitiously to screen
themselves from legal punishment.
and presence of semen and spermatozoa on the underwears of A-1, A-2, A-3 and
(xvii) Vaginal and
anal/rectal smear of the victim and the confirmation of human blood and human
semen and spermatozoa.
17. The High Court
discarded the circumstances mentioned at serial Nos. (vi), (viii) and (x) and
the prosecution case of carnal intercourse. Despite that, the High Court was
convinced that all other circumstances have been cogently and firmly
18. In so far as
circumstances (i) & (ii) are concerned, none of the accused persons
disputed the said circumstances. The circumstance (iii) is a matter of record
and fully proved. As a matter of fact there was no serious challenge with
regard to proof of circumstance (iii) by the counsel for the accused persons.
19. Mr. T.V. George,
the learned counsel for A-3 highlighted inconsistencies in the ocular version
of PW-2, PW-3, PW-4 and PW-5 to bolster up his contention that their evidence
deserves rejection. He referred to variations in the first information report
and the deposition of these witnesses. With reference to the site plan
(Ext.Ka-13), the learned counsel sought to contend that Hotel Rajmahal and its
compound have not been shown and it was not probable for these witnesses to see
in the midnight the dead body being thrown from the gunny bag. He argued that
circumstances (iv), (v) and (xiv) cannot be held to be established.
20. PW-4 is the
father of victim. PW-2, PW-3 and PW-5 are migrant labourers from Nepal like
PW-4. They all were residing in the same compound viz, Rajmahal Hotel Compound.
If despite frantic search throughout the day, the girl could not be traced,
there was nothing unusual if they were sitting outside the hut of PW-4 in the
night with a hope that the girl may return or somebody may leave her. In the night
at about 1.30 A.M., they saw four persons carrying one gunny bag and going
towards plot of one Sardarji. They saw those persons throwing a dead body from
the gunny bag in that plot. The dead body was of Sushma. They raised alarm and
caught hold of the accused persons. They took the accused persons to the police
station and handed them over to the police. PW-4 lodged F.I.R. and all of them
came back to the place near the dead body. Sans insignificant and minor
contradictions here and there, all these four witnesses are consistent in their
version on material aspects as noticed above. Merely because the names of two
witnesses were not mentioned in the F.I.R., their presence does not become
doubtful. Omission of the names of two witnesses in the F.I.R. is not material
particularly because it is not necessary that all the names of the witnesses be
mentioned in the F.I.R.. It is true that in the site plan (Ext. Ka-13), Hotel
Rajmahal and its compound have not been shown but the site map basically
reflects the place from where dead body of the deceased was recovered and the
place from where the accused persons are said to have been apprehended. Site
map also reflects the place from where gunny bag containing hawai chappal of
the deceased was recovered. However, the evidence of PW-2, PW-3, PW-4 and PW-5
leaves no manner of doubt that Hotel Rajmahal is situate in that vicinity and
near the Hotel Sitakiran which is shown in the site plan. PW-2 is specific that
Hotel Sitakiran is situate near Hotel Rajmahal. In the site plan drain has been
shown in the east to Hotel Sitakiran. Sanwal School has also been shown in the
site plan. PW-2 in his deposition has also stated that Sanwal School is in the
east of the hotel. The testimony of PW-4 also shows that Sanwal School is situate
at a short distance of his hutment. All these witnesses reside in that
locality. Seen thus, merely because Hotel Rajmahal and its compound have not
been shown in the site plan, it does not in any way affect the deposition of
PW-2, PW-3, PW-4 and PW-5.
21. The submission of
the learned counsel that in the absence of any light at the place of
occurrence, it was highly improbable that PW-2, PW-3, PW-4 and PW-5 saw the
four accused persons carrying gunny bag and going to the vacant plot of
Sardarji and throwing a dead body does not appear to us to be of substance. The
testimony of PW-3 and PW-5 in respect of light stands corroborated by the
testimony of investigating officer (PW-11) who has also deposed that there was
light at the gate of the Sanwal School and also near the hutment of PW-4.
Significantly, none of these witnesses (PW- 2, PW-3, PW-4 and PW-5) has been
cross-examined in this regard.
22. Having carefully
gone through the deposition of PW-2, PW-3,and PW-4 and PW-5, we find ourselves
in agreement with the view of the trial court as well as that of the High Court
that circumstances (iv), (v) and (vii) are clearly proved.
23. That the
underwears of the accused were seized on September 27, 2003 when they were in
jail and these articles were sent for chemical examination is not in dispute.
That the evidence pertaining to chemical examination of underwears shows that
those underwears were found stained with human semen and spermatozoa is also
not in dispute. Mr. T.V.
counsel, however, strenuously urged that merely because underwears were found
stained with human semen by itself cannot be used as an incriminating
circumstance against the accused. Learned counsel in this regard placed
reliance upon the following decisions: (1) Shankarlal Gyarasilal Dixit vs.
State of Maharashtra, (1981) 2 SCC 35; (2) Subhash Chand vs. State of Rajasthan
(2002) SCC 702 and Sadashiv Ramrao Hadbe vs. State of Maharashtra And Anr.,
(2006) 10 SCC 92.
24. Learned counsel
heavily relied upon paragraph 28 of the report in the case of Shankarlal
Gyarasilal Dixit which reads thus:
of a blood-stain of the `B' Group measuring 0.5 cm in diameter on the
appellant's pant and of dried stain of semen on his underpant are circumstances
far too feeble to establish that the appellant raped or murdered Sunita. `B'
Group is not an uncommon group of blood and no effort was made to exclude the
possibility that the blood of the appellant belonged to the same group. As
regards the dried stain of semen on the appellant's underpant, he was a grown
up man of 30 years and no compelling inference can arise that the stain was
caused during the course of the sexual assault committed by him on the
Gyarasilal Dixit, the presence of a dried stain of semen on the underpant of
the accused, aged 30 years, was held too feeble a circumstance to establish the
guilt. The aforesaid observation cannot be read to mean that in no case
presence of dried stain of semen on the underpant/underwear of the accused can
be considered as an incriminating circumstance against the accused.
25. Paragraph 19 of
the report in Subhash Chand relied upon by learned counsel reads thus:
"In the present
case the age of the accused was about 21 years at the time of the incident. On
his arrest he was subjected to medical examination and found to be a potent and
Presence of semen
stain on underwear, assuming that the underwear belonged to the accused, though
there is no evidence adduced in this regard, is not by itself an incriminating
piece of evidence connecting the accused with the crime in question. So also
the discovery of Group B bloodstain on the underwear cannot be treated as an
incriminating piece of evidence against the accused connecting him with the
crime because there is no evidence that the underwear belonged to the accused
and further the possibility of the underwear being stained with the blood of
the person to whom it belonged, or the accused if he was wearing it has not
been ruled out."
It would be seen that
in the case of Subhash Chand there was no evidence that the underwear belonged
to the accused and further the possibility of the underwear being stained with
the blood of the person to whom it belonged or the accused if he was wearing
was not ruled out.
26. In the case of
Sadashiv Ramrao Hadbe, this Court made the following observations:
"It is true that
the petticoat and the underwear allegedly worn by the appellant had some semen
but that by itself is not sufficient to treat that the appellant had sexual
intercourse with the prosecutrix. That would only cause some suspicion on the
conduct of the appellant but not sufficient to prove the case, as alleged by
observation has to be read in the light of the observation made in paragraph 6
of the report that the prosecution evidence was found to have many
contradictions and the whole incident seemed to be highly improbable.
27. As a matter of
fact there is no challenge with regard to proof of the circumstances (ix) and
(xvi). The challenge is on relevance of these circumstances on the ground that
the accused persons are labourers and they do not change their underwears daily
and merely because their underwears were found to have semen stains, that by
itself cannot be used as an incriminating circumstance. We find no merit in
this contention. In our opinion, the circumstances (ix) and (xvi) do provide
link in forming the chain together with other circumstances against the accused
persons and do not deserve to be ignored. Circumstances (ix) & (xvi) have
rightly been held to be established by the trial court as well as High Court.
28. In so far as
circumstances (xi), (xii) & (xvii) are concerned, the evidence of Dr. K.S.
Dhami (PW-1) establishes that victim was subjected to rape and murder. Mr. T.V.
counsel for A-3, however, sought to urge that the injuries and medical evidence
make it highly improbable that four persons raped the minor girl. Firstly, no
question or suggestion has been put to PW-1 in this regard. Secondly, and more
importantly, semen stain with spermatozoa were found on the underwears of all
the four accused. Thirdly, chemical examination of the vaginal smear of the
victim has also confirmed presence of human blood, semen and spermatozoa. In
view of this evidence, rape of victim by more than one culprit can be safely
held to be established. The medical evidence proves beyond reasonable doubt
that the victim died of homicidal death and that she was raped before being
murdered. Circumstances (xi), (xii) and (xvii) to this extent are clearly
29. Nothing has been
brought on record that PW-2, PW-3, PW-4 and PW-5 had any enmity with A-1, A-2,
A-3 and A-4 or had any special relations with the police. That A-1, A-2, A-3
and A-4 were seen throwing the dead body of the victim in the intervening night
of September 25/26, 2003 is also established. The circumstances (xiii), (xiv)
and (xv), thus, have rightly been held to be proved by the trial court as well
as High Court.
30. Ms. Ranjana
Narayan, amicus-curiae for A-4 submitted that circumstances (vi) , (viii) &
(x) and part of circumstances (xi) & (xii) having not been held established
by the High Court, there is break in the chain and the link having been
snapped, it cannot be held that chain is complete. It is true that the
circumstances (vi), (viii) & (x) and part of circumstances (xi) &
(xii) with regard to
carnal intercourse have not been held to be proved but on a careful
consideration of the remaining circumstances which have been sufficiently proved
by prosecution, we are of the considered view that the proved circumstances
complete the chain cumulatively and there is no escape from the conclusion that
within all human probabilities the crime was committed by the accused and none
else as the proved circumstances unerringly point towards the guilt of the
accused. We are, therefore, unable to accept the submission of the
31. Mr. L.C. Goyal,
learned counsel for A-1 and A-2 submitted that these accused were not given
sufficient opportunity to defend themselves and constitutional mandate was
flouted and also they were denied their statutory right to be defended by a
pleader as envisaged under Sections 303 and 304 Cr.P.C.
32. We deem it proper
to refer to the consideration of this aspect by the High Court which is as
"In regard to
the submission that the trial stand vitiated for want of compliance of the
constitutional mandate as well as the legal provisions it need to be stated
that the accused were committed to the Court of Sessions on 20.12.2003 by the
C.J.M., Nainital and when the accused were brought before the court of Sessions
in pursuance of the commitment of the case date for framing of the charge was
fixed by the Sessions Judge, Nainital.
The date fixed for
the purpose was 2.3.2004.
Before this date the
sessions trial was transferred to the court of Additional Sessions Judge/1
F.T.C., 2 2 Nainital for disposal according to law and on receipt of the record
this transferee court fixed 16.3.2004 for framing of the charge. The Additional
Sessions Judge took up the case for this purpose on 16.3.2004 and in the
presence of all the four accused persons framed charges against them for the
offences as mentioned above and for the commission of which the accused were
later on convicted. The order sheet of the said date does not reflect the
presence of the defence lawyer or even the public prosecutor before the learned
Additional Sessions Judge and perhaps the charges were framed after perusal of
the documents of the prosecution without referring that the Judge was of the
opinion that there were grounds for presuming that the accused have committed
offences which are exclusively triable by the court as envisaged by Section 228
of the `Code'. Record also reveal that till that date neither the accused have
engaged their own lawyer nor they were provided with a defence lawyer at the
expense of the state as provided under Sections 303 and 304 of the `Code'. The
learned Additional Sessions Judge however after framing the charges and making
an endorsement that the accused pleaded not guilty and claimed to be tried,
fixed 24.3.2004 for recording of the evidence of the prosecution and directed
the prosecution witnesses to be summoned. On 24.3.2004 A.D.G.C.
(Criminal) moved an
application for adjournment of the trial in view of the prosecution witnesses
having not been served with summons and on his prayer the trial was adjourned
to 7.4.2004 for recording of the evidence of the prosecution. However no lawyer
was appointed on this date also as Amicus Curiae for the accused. On 7.4.2004,
as is evident from the record and the order sheet of the said date, three
prosecution witnesses, P.W.1, P.W.2 and P.W.3 were examined by the prosecution,
and on the same day Sri M.A. Khan, Advocate was appointed Amicus Curiae. The
Amicus Curiae cross-examined all these three witnesses on behalf of two accused
Babu and Aamir only which indicate that only these two accused were provided
the Amicus Curiae by the learned Additional Sessions Judge. The witnesses were
cross-examined by a lawyer on behalf of other two accused Pawan and Arjun which
indicate that they have engaged the lawyer of their choice after the charges
against them have already been framed in the trial.
There can be no doubt
that although the charges were framed against the accused on 16.3.2004 without
the accused being represented by their counsel and without recording of the satisfaction
of the Judge that there are grounds for presuming that the accused have
committed the offences with which they were being charged as envisaged by
Section 228 of the `Code', but we are of the considered view that there was
enough evidence and material available on record at that time to form an
opinion that there was sufficient ground for proceeding against the accused.
The reason being that at the stage of framing of the charge the Judge is not
required to enter into detailed scrutiny and consideration of the material and
evidence which is available in the form of the record of the investigation or
the documents submitted with the charge sheet and therefore as the allegations
stand against the accused supported by the collected evidence even the above
infraction in the compliance of the legal provision do not indicate any
prejudice having been caused to the accused and in a situation like this the
above aspect would not entail vitiation of the entire trial against the
Amicus Curiae to the two
accused in the case was provided on the day, that is, 7.4.2004 when three
prosecution witnesses were examined in the trial. Sri M.A. Khan, Advocate was
appointed Amicus Curiae for the two accused and he proceeded to cross-examine
all the three witnesses on that date itself. Learned Senior Counsel Sri Panwar
submitted that a duty is cast on Sessions Judge to see that raw and
inexperienced juniors are not appointed to defend an accused in capital
punishment cases and in support of the argument learned counsel pressed into
service the reported decisions Panchu Gopal Das vs. State; A.I.R.
1968 Cal. 38, and
Mohd. Kunnumal vs. State of Kerala; A.I.R. 1963 Ker. 54. The argument was
advanced on the assumption that the Amicus Curiae appointed by the learned Additional
Sessions Judge was an inexperienced Advocate, but we find nothing on record to
sustain the submission made in that behalf. It appears that Sri M.A. Khan,
Advocate was practicing in criminal side in the Sessions Court at Nainital and
judicial notice can be taken of the fact that he is at present a Brief Holder
of the State of Uttaranchal in the High Court and is conducting criminal
appeals in the High Court. This indicate that Sri Khan has long standing as a
criminal lawyer and was rightly appointed as Amicus Curiae to defend the
accused in capital punishment case. Further he was assigned the case to defend
the two accused at the expense of the state on the day when the three
prosecution witnesses were examined but the learned Amicus Curiae had not sought
adjournment to avail some time to prepare the case. This indicate that the
learned Amicus Curiae has not felt handicapped and must have prepared the case
to his satisfaction so as to proceed with the cross-examination of the
witnesses on that very day and looking at the cross-examination of the
witnesses we do not find that for this reason any prejudice was caused to the
two accused for whom he was appointed Amicus Curiae."
We agree with the
view of the High Court.
33. Now, we deal with
the contention of juvenility of Babu (A-1) and Aamir (A-2). The learned counsel
submitted that A- 1 and A-2 were `juvenile' within the meaning of Juvenile
Justice (Care and Protection of Children) Act, 2000 (for short `the Act, 2000')
on the date of incident and the trial held by Additional Sessions Judge,
Nainital, under the Code of Criminal Procedure was illegal. With regard to the
age of A-2, reliance is placed on his statement recorded under Section 313,
Cr.P.C. wherein his age has been recorded as 17 years and a school leaving
certificate indicating his date of birth as March 12, 1987. For A-1, his school
leaving certificate which records his date of birth July 16, 1988 is being
relied. The learned counsel would submit that juvenility can be claimed at any
stage; even for the first time before this Court. He referred to Section 7A of
the Act, 2000.
34. Section 7A came
to be inserted in the Act, 2000 with effect from August 22, 2006. It reads
to be followed when claim of juvenility is raised before any court. - (1)
Whenever a 2 6 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 of
the offence, the court shall make an enquiry, 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:
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.
(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 order, and the sentence if any, passed by a court shall be deemed
to have no effect."
35. Proviso to
sub-section (1) does lay down that a claim of juvenility may be raised at any
stage, even after final disposal of the case. In the case of Gurpreet Singh v.
State of Punjab, (2005) 12 SCC 615, the claim of juvenility under Juvenile
Justice Act, 1986 was raised for the first time before this Court.
It was held:
"It appears that
this point was not raised either before the trial court or the High Court. But
it is well settled that in such an eventuality, this Court should first
consider the 2 7 legality or otherwise of conviction of the accused and in
case the conviction is upheld, a report should be called for from the trial
court on the point as to whether the accused was juvenile on the date of
occurrence and upon receipt of the report, if it is found that the accused was
juvenile on such date and continues to be so, he shall be sent to juvenile
home. But in case it finds that on the date of the occurrence, he was juvenile
but on the date this Court is passing final order upon the report received from
the trial court, he no longer continues to be juvenile, the sentence imposed
against him would be liable to be set aside. Reference in this connection may
be made to a decision of this Court in Bhoop Ram v. State of U.P.
(1989) 3 SCC 1, in
which case at the time of grant of special leave to appeal report was called
for from the trial court as to whether the accused was juvenile or not which
reported that the accused was not a juvenile on the date of the occurrence but
this Court, differing with the report of the trial court, came to the
conclusion that the accused was juvenile on the date the offence was committed
and as he was no longer a juvenile on the day of judgment of this Court,
sentence awarded against him was set aside, though the conviction was
36. A benefit of Act,
2000 was sought for the first time by claiming juvenility before this Court in
the case of Murari Thakur and Another v. State of Bihar, AIR 2007 S.C. 1129 but
negated. This Court said:
for the appellant firstly submitted that the appellants are entitled to the
benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000 as
amended by the amendment of 2006. We are of the opinion that this point cannot
be raised at this stage because neither was it taken before the Trial Court nor
2 8 before the High Court. Even otherwise we do not find any merit in the said
contention. The question of age of the accused appellants is a question of fact
on which evidence, cross-examination, etc. is required and, therefore, it
cannot be allowed to be taken up at this late stage. Hence, we reject this
submission of the learned counsel for the appellant."
37. The question is :
should an enquiry be made or report be called for from the trial court
invariably where juvenility is claimed for the first time before this Court.
Where the materials placed before this Court by the accused, prima facie,
suggest that the accused was `juvenile' as defined in the Act, 2000 on the date
of incident, it may be necessary to call for the report or an enquiry be
ordered to be made. However, in a case where plea of juvenility is found
unscrupulous or the materials lack credibility or do not inspire confidence and
even, prima facie, satisfaction of the court is not made out, we do not think
any further exercise in this regard is necessary. If the plea of juvenility was
not raised before the trial court or the High Court and is raised for the first
time before this court, the judicial conscience of the court must be satisfied
by placing adequate and satisfactory material that the accused had not attained
age of eighteen years on the date of commission of offence; sans such material
any further enquiry into juvenility would be unnecessary.
38. As regards A-2,
two documents are relied upon to show that he had not attained age of eighteen
years on September 25/26, 2003. His age (17 years) mentioned by the trial court
at the time of recording his statement under Section 313 Cr.P.C.
observation based on physical appearance which is hardly determinative of age.
The other document is the school leaving certificate issued by Headmaster, Prem
Shiksha Niketan, Bilaspur, Rampur which does not inspire any confidence as it
seems to have been issued on October 16, 2006 after A-2 has already been
convicted. Primary evidence like entry from the birth register has not been
produced. We find it difficult to accept Annexure P-3 (school leaving
certificate) relied upon by counsel. For A-1, the only document placed on
record is a school leaving certificate which has been procured after his
conviction. In his case also, entry from the birth register has not been
produced. We are not impressed or satisfied with such material. There being no
satisfactory and adequate material, prima facie, we are not persuaded to call
for report about the age of A-1 and A-2 on the date of commission of offence.
39. In the light of
our discussion aforenoted , we find that the view taken by the High Court is
the only possible view on a proper appraisement of evidence and no other view
is possible and it has not committed any error in upholding the conviction of
the accused persons for the offences punishable under Sections 302/34; 376 and
201/34 IPC. The sentence awarded to them calls for no interference.
40. In the result,
all the four appeals fail and are dismissed.
Accused Babu is on
bail. His bail bonds are cancelled. We direct the trial court to take immediate
steps for putting him back in jail to serve out the remaining part of the