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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2084 OF 2009

Mumtaz@ Muntyaz          ….Appellant

Versus

State of U.P. (Now Uttarakhand)      …. Respondent

WITH  CRIMINAL APPEAL NO.460 OF 2010

Dilshad @ Pappu               ….Appellant

Versus

State of U.P. (Now Uttarakhand)      …. Respondent

J U D G M E N T  

Uday U. Lalit, J.

1. These appeals by special leave at the instance of Appellants Mumtaz

alias Muntyaz and Dilshad alias Pappu challenge correctness of the decision

of the High Court of Uttarakhand at Nainital in Criminal Appeal No.270 of

2001 affirming their conviction and sentence for offences punishable under

Section 302 read with Section 34 of the Indian Penal Code (for short the

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“IPC”) passed in Sessions Trial No.15 of 1991 on the file of the Additional

Sessions Judge, Roorkee.

2. On 27.12.1990 at about 6.30 AM PW-1 Radhey Shyam lodged FIR

Ext.A-1 with Police Station Manglaur that his nephew Pawan Kumar had

left  his  house  at  about  8.00  PM  on  the  previous  day  and  that  in  the

intervening night of  26th and 27th December  1990 PW-1 heard shrieks of

Pawan  Kumar  from  the  house  of  one  Raees  in  the  neighbourhood,

whereafter  PW-1 along with his other nephew PW-2 Anil Kumar came out

of the house and saw that the hands of Pawan Kumar were tied  and he was

ablaze  in the courtyard of the house of Raees.  Both PWs 1 and 2 rushed

there and put a quilt on Pawan Kumar.  In this report, PW-1 Radhey Shyam

further stated that he had seen the appellants and their associates Naseem

Khan  and  Anees  Khan  setting  Pawan  Kumar  on  fire.   Soon  after  this

reporting, the police came to the spot and sent Pawan Kumar to Primary

Health Centre, Manglaur for medical attention.  Aforesaid FIR Ext.A-1 led

to registration of Crime No.328 of 1990 at Police Station Manglaur relating

to offences punishable under Sections 307 and 342 IPC.

3.  At  Primary Health  Centre,  a  dying declaration Ext.A-24 of  Pawan

Kumar  was  recorded  at  7.35  AM  by  PW-5  Satya  Prakash  Mishra,

Sub-Divisional Magistrate in which Pawan Kumar stated that the appellants

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had set him on fire.   The translation of the relevant portion of the dying

declaration Ext.A-24 is as under: “Two persons after pouring kerosene set me on fire.  I was set on fire this morning at about 2.00 – 2.30 AM.  I was set on fire by Pappu, son of unknown, R/o Landhaura and Mumtaz,   son of unknown, R/o Landhaura.  Mumtaz works in the flour mill of Pappu.  When I was coming after running a VCR on the way, I was taken to house of  a Pathani lady whose name is Joulie. Joulie  is  wife  of  Raees,  R/o  Landhaura.   In  the  presence  of Joulie, Pappu and Mumtaz poured kerosene on me and set me on fire and ran away.  When I started burning, I shouted and a person who is not known to me came there and extinguished fire by pouring water.  Thereafter what happened I do not know. I do not know why Pappu and Mumtaz set me on fire.  Pappu’s flour mill is on Lakshar Road.  Name of brother of Pappu is Zinda Hasan.”

Below the above dying declaration Ext.A-24, a certificate to the effect

that Pawan Kumar was in a fit state of mind to give the dying declaration

was recorded by Dr. S.K. Mittal.

4. On 27.12.1990 itself PW-2 Anil Kumar who had burnt his hands while

trying to save Pawan Kumar, was examined by PW-7 Dr. N.D. Arora, who

prepared injury report Ext.A-23.  This report mentioned that when he came

to the Primary Health Centre, there were burn injuries on the hands of PW-2

Anil Kumar.   

5. On 27.12.1990 at about 4.30 PM Pawan Kumar succumbed to burn

injuries while he was being taken to Meerut for medical treatment.  Crime

No.328 of  1990 was thereafter  converted to one under Section 302 IPC.

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After  the  death  of  Pawan  Kumar,  PW-6  Sub-Inspector  Saudan  Singh,

Investigating Officer took the dead body in his possession at about 5.30 PM

on 27.12.1990 and prepared inquest  report  Ext.A-9.   Thereafter  by letter

Ext.A-8 he sent the body for post-mortem.  PW-6 Investigating Officer had

interrogated the witnesses and had also taken in possession quilt, match box,

shawl and kerosene from the spot vide Memorandum Ext.A-12, A-13, A-14

and A-16.

6. PW-4  Dr. Rakesh Kumar conducted post-mortem on the dead body of

Pawan Kumar at  about 12.30 PM on 28.12.1990 and found ante-mortem

injuries on the body and opined that the deceased had died due to shock

from burn injuries.

7. After  completion  of  investigation,  charge-sheet  Ext.A-16 was  filed

against  the  appellants  as  well  as  Naseem  Khan  and  Anees  Khan.   The

prosecution examined 9 witnesses.   PW-1 Radhey Shyam and PW-2 Anil

Kumar were examined as eye witnesses and so also PW-3 Narendra Kumar

who had seen the accused taking Pawan Kumar and setting him on fire.

PW-4 Dr. Rakesh Kumar who had conducted post mortem on the dead body

of  deceased  Pawan  Kumar  proved  this  post  mortem  report  Ext.A-2.

According to  him,  the  cause  of  the death was shock from burn injuries.

PW-5  Satya  Prakash  Mishra  proved  dying  declaration  Ext.A-4.   The

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Investigating Officer Saudan Singh was examined as PW-6 who proved Site

Plans Ext.A-4 and A-5, sample seal memo Ext.A-7, Inquest Report Ext. A-9,

Seizure Memo of quilt Ext. A-10, Seizure Memo of burnt clothes of Pawan

Ext.A-11,  Seizure  Memo  of  burnt  shawl  Ext.A-14  and  other  relevant

documents.  PW-7 Dr. N. D. Arora was examined to prove injuries on the

person of PW-2 Anil Kumar and injury report Ext. A-23.  PW-8 Dr. R. D.

Sharma proved the endorsement of Dr. S.K. Mittal on the dying declaration

of  Pawan Kumar Ext.A-22.   No witness  was  examined on behalf  of  the

defence.  

8. The Trial Court by its judgment and order dated 19.12.1994 found the

appellants  guilty  of  the  charges  punishable  under  Section  302 read  with

Section  34  IPC  and  sentenced  them  to  imprisonment  for  life  and  also

directed  them  to  pay  fine  of  Rs.5,000/-,  in  default  whereof  they  were

directed to undergo further imprisonment for one year.  Naseem Khan and

Anees Khan were however acquitted of all the charges.

9. Aggrieved by the aforesaid conviction and sentence,  the appellants

preferred Criminal Appeal No.2007 of 1994 in the High Court of Judicature

at Allahabad.  The appeal was thereafter transferred to the High Court of

Uttarakhand  at  Nainital  and  re-numbered  as  Criminal  Appeal  No.270  of

2001. The High Court by its judgment and order under appeal affirmed the

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conviction  and  sentence  passed  against  the  appellants.   The  High  Court

principally relied upon eye-witness account through PW-1 Radhey Shyam

and PW-2 Anil Kumar as well as dying-declaration Ext.A-24.

10.  After granting special leave to appeal, by orders dated 15.11.2010 and

03.01.2011 appellant Mumtaz @ Muntyaz and appellant Dilshad @ Pappu

respectively were ordered to be released on bail during pendency of these

appeals.   Thereafter,  on  an  application  preferred  by  Dilshad  @  Pappu

seeking permission to take additional documents on record to submit that he

was a juvenile on the date of the incident, following order was passed by this

Court on 07.08.2014.  “Application seeking permission documents on record is

allowed.   It  is  submitted by Mr. K.T.S.  Tulsi,  learned senior counsel that the appellant Dilshad @ Pappu was a juvenile on the date of occurrence i.e. 27.12.1990 inasmuch as his date of birth  is  22.07.1974,  as  is  reflected  from the  School  leaving Certificate,  contained  in  Annexure  A-1  at  page  9.   Learned senior counsel would submit that an inquiry should be held by the  District  and  Sessions  Judge,  Roorkee,  and  the  report  be made available to this Court and thereafter the hearing may take place.

Regard being had to the language employed in Section 7A of  the Juvenile  Justice  (Care and Protection of  Children) Act, 2000, it is directed that the concerned District & Sessions Judge, Roorkee shall cause an inquiry with regard to juvenility of  the  appellant,  Dilshad  @  Pappu,  after  following  the procedure as engrafted under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and submit his report within a period of 30 days from the date of receipt of the

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order passed today.  Learned District & Sessions Judge shall submit the documents forming the basis of his report.”

11. An  appropriate  enquiry  was  thereafter  conducted  by  the  First

Additional  and  District  Sessions  Judge,  Roorkee,  Haridwar  who  by  his

report dated 05.09.2014 concluded as under:- “13. Hence  from the  above  discussion  the  date  of  birth  of Dilshad @ Pappu is discernible from Exhibits Ka4 to Ka5.  The entries made therein have not been controverted by the Counsel appearing for the State and there is nothing on record to refute or rebut the factum of date of birth as entered in above Exhibits. Hence the inquiry under Rule 12 of Juvenile Justice (Care and Protection  of  Children)  Rules,  2007 has  been fully  satisfied. The Court accordingly determines that Dilshad @ Pappu date of birth is 22-7-1974 (Twenty two July Nineteen Seventy Four) and on date of occurrence i.e. 27-12-1990 he was 16 years 5 months and 5 days old and hence a juvenile as per  Juvenile Justice (Care and Protection of Children) Act, 2000.

14. Let  a  certified  copy  of  the  findings  of  this  Court  be forwarded  to  the  Hon’ble  Supreme  Court  of  Indian  in compliance of its order.”  

12. On 14.01.2015 when the matters were taken up, the counsel appearing

for the State submitted that the decision of this Court in Jitendra Singh and

another  v. State  of  U.P.1 which was  relied  upon by the  counsel  for  the

appellants required re-consideration.  On and with effect from 15.01.2016,

the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter

referred to as “the 2015 Act”) came into force which repealed the Juvenile

1 (2013) 11 SCC 193

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Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to

as “the 2000 Act”).

13. The  matters  were  thereafter  taken  up  for  hearing.   We heard  Mr.

K.T.S. Tulsi, learned Senior Advocate in support of these appeals and Mr.

Tanmaya Agarwal, learned Advocate for the State.  In so far as the appeal of

Mumtaz  @ Muntyaz  is  concerned the submissions  of  the learned Senior

Advocate as detailed in his Written Submissions were as under:- “1.  There  are  several  discrepancies,  inconsistencies  and contradictions that raise a serious doubt about the reliability of the dying declaration.  When all the attendant circumstances are taken  together,  the  cumulative  effect  is  that  the  dying declaration fails the test of credibility.

2. The prosecution case and the dying declaration itself furnishes the defense of grave provocation as a result of which every normal human being will be deprived of the power of self-control.  The fact that the deceased is found at the house of appellant’s brother at 03:00 am with whose  wife  he  was  suspected  to  be  having  an  illicit  liaison  it establishes  grave  provocation.   The  case  would  fall  within  the exception 4 of Section 300 of IPC making him liable for sentence only under Section 304 part-II of IPC.”

14. We  have  gone  through  dying  declaration  Ext.A-24  and  the

examination of PW-5 Satya Prakash Mishra.  The witness clearly stated that

all  through the recording of his statement,  Pawan Kumar remained in fit

condition and that the witness had got this fact confirmed from the Doctor

on duty.  The dying declaration bears appropriate endorsement of the Doctor

on duty namely Dr. S.K. Mittal which endorsement was proved by PW-8 Dr.

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R. D. Sharma.  There is nothing in the cross examination of either PW-5 or

PW-8 nor in the dying declaration Ext.A-24 which could raise any doubt.

Relying  on  the  law  laid  down  by  this  Court  in  Laxman v. State  of

Maharashtra2,  we find  the  evidence  in  that  behalf  trustworthy and  hold

dying declaration Ext.  A-24 to  be  reliable.  We,  therefore,  reject  the  first

submission  advanced  by  the  learned  Senior  Advocate  for  the  appellant

Mumtaz @ Muntyaz.

15. The second submission advanced by the learned Senior Advocate is

based on the theory or defence of alleged grave provocation.  It is true that

deceased Pawan Kumar was found at 3:00 a.m. in the house of the brother of

appellant  Mumtaz @ Muntyaz.   The eye witness account  shows that  his

hands were tied and he was set ablaze.  The memorandum of the seizure of

burnt shawl clearly corroborates said assertion.  Therefore, mere presence of

Pawan Kumar in the house of the brother of appellant Mumtaz alia Muntyaz

by itself does not support the theory of grave provocation specially when

Pawan Kumar was found with his hands tied.   Not a single witness was

examined on behalf of the defence nor is there any material to support such

theory.   What kind of provocation and in what manner was it made are all

matters  of  evidence,  which  are  completely  absent  on  record.   In  the

2 (2002) 6 SCC 710

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circumstances, we do not find any circumstance or material to support the

second  submission  advanced  on  behalf  of  accused  Mumtaz  @ Muntyaz.

We, therefore, reject the second submission as well.

16. It is true that in the dying declaration Ext. A-24,  the deceased had

stated that he did not know the person who extinguished the fire by pouring

water.  It  could be  that  while  he  was  in  flames,  the  deceased  could not

identify the person who tried to save him.  The prompt lodging of the FIR

and the fact that one of the eyewitnesses was having burn injuries establishes

the  presence  of  the  eyewitnesses.   In  any  case,  even  if  the  eyewitness

account is taken to be inconsistent with this part of the dying declaration,

once the dying declaration is found reliable, trustworthy and consistent with

circumstantial  evidence  on  record,  such  dying  declaration  by  itself  is

adequate to bring home the case against the accused.

17. Having gone through the material on record, we do not see any reason

to  upset  the  findings  recorded  by  the  Trial  Court  and  the  High  Court

regarding  conviction  and  sentence  of  appellant  Mumtaz  @  Muntyaz.

Confirming  his  conviction  and  sentence  we  dismiss  Criminal  Appeal

No.2084 of 2009 preferred by appellant Mumtaz @ Muntyaz.  

18. As  regards  Dilshad@Pappu,  by  order  dated  7.08.2014 District  and

Sessions  Judge,  Roorkee  was  directed  to  cause  inquiry  with  regard  to

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juvenility of the appellant. The report dated 5.09.2014, clearly shows that on

considering the entirety of the matter the claim was found to be acceptable.

The counsel appearing for the State could not refute or rebut the fact that his

date of birth was 22.07.1974 and that on the date of occurrence he was 16

years 5 months and 5 days old.

19. Thus, on the date of occurrence Dilshad @ Pappu was more than 16

years of age but less than 18 years of age.  In terms of the Juvenile Justice

Act, 1986(hereinafter referred to as “the 1986 Act”) which was in force at

that time,  he was not a juvenile and was rightly tried and convicted by the

Trial Court vide its judgment dated 19.12.1994. While the appeal against his

conviction and sentence was pending, on and with effect from 1.04.2001, the

2000 Act came into force which repealed  the 1986 Act.  The 2000 Act inter

alia raised the age of juvenility from 16 to 18 years and in terms of Section

20 of  the 2000 Act,  the determination of Juvenility was required to be done

in all pending  matters in accordance with Section 2(1) of the 2000 Act.  

20. The effect of Section 20 of the 2000 Act was considered in  Pratap

Singh v. State of Jharkhand and another3 and it was stated as under:

“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

3 (2005)3 SCC 551

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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 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.”

21. In  Bijender  Singh  v.   State  of  Haryana  and  another4, the  legal

position as regards Section 20 was stated in  following words:

“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 Act must be answered having regard to the object and purport thereof.

4 (2005) 3 SCC 685

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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.”

22. In  Dharambir v.  State  (NCTof  Delhi)  and  another5 the

determination of juvenility even after conviction was one of the issues

and it was stated:

“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 Act of 2000 came into force, and the provisions of the Act would apply as if the

5 (2010) 5 SCC 344

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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 Act of  2000 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  Board concerned for  passing sentence in accordance with the provisions of the Act of 2000.”

23. Similarly in  Kalu v.   State  of  Haryana6 this Court  summed up as

under:

“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 provisions of the Juvenile Act would apply

6 (2012) 8 SCC 34

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as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed.”

24. 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.

25. 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 and another  v.   State of U.P.

(supra) in following terms:

“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  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

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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.”

26. In Jitendra Singh and another v.  State of U.P. (supra), 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 and another  v.  State of U.P.

(supra) does not call for any reconsideration.  The subsequent repeal of the

2000 Act on and with effect from 15.01.2016 would not affect the inquiry in

which such claim was found to be acceptable.  Section 25 of the 2015Act

makes it very clear.

27. Thus,  while  holding  appellant  Dilshad  @ Pappu  to  be  juvenile  in

terms of the 2000 Act as on the day of occurrence and guilty of the offence

with which he was tried,  we set  aside the sentence of  life imprisonment

passed against him and remit the matter to the Jurisdictional Juvenile Justice

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Board  for  determining the   appropriate  quantum of  fine  that  should  be

levied on  the appellant Dilshad @ Pappu and the compensation  that should

be awarded  to the family of the deceased, keeping in  mind the directions

issued in Jitendra Singh and another v.  State of U.P. (supra).   

28. Criminal Appeal No.2084 of 2009 is thus dismissed while Criminal

Appeal No.460 of 2010 is allowed to the aforesaid extent and the matter as

regards  Appellant  Dilshad  @ Pappu  stands  remitted  to  the  Jurisdictional

Juvenile  Justice  Board  for  determination  as  aforesaid.    The  bail  bonds

furnished by Appellant Mumtaz alias Muntyaz are cancelled and he shall be

taken in custody forthwith to undergo the sentence awarded to him.  

…….………………….J                                            (V. Gopala Gowda)  

……………………….J (Uday Umesh Lalit)  

New Delhi July 1, 2016