NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

     CRIMINAL APPEAL NO(s). 1890 OF 2011

PRATAP SINGH @ PIKKI  …..Appellant(s)

VERSUS

STATE OF UTTARAKHAND …..Respondent(s)

J U D G M E N T

Rastogi, J.

1. The appellant(accused no. 1) along with three others tried

for an offence under Sections 147, 148, 302/149 and 323/149 of

the Indian Penal Code(hereinafter being referred to as “IPC”).  The

appellant and one Vikas Kirola were convicted under Section 304

Part II/34 IPC and sentenced to undergo rigorous imprisonment

for  10 years and other two persons Manoj  Singh Rautela  and

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Deepak Pathak were acquitted vide judgment dated 12th January,

1998.

2. Both the unsuccessful convicted persons preferred criminal

appeal against the judgment dated 12th January, 1998 before the

High Court of Uttarakhand.   In the case of appellant, the High

Court  observed that  according to  his  marksheet of  Secondary

School  Certificate  Examination  1993,  his  date  of  birth is  13th

June, 1977 while the incident was of 18th June, 1995 and he was

not a  juvenile on the date of the  incident.   At  the same time,

Vikas Kirola, whose date of birth was 26th December, 1977 on the

basis of his secondary school certificate was given the benefit of

Juvenile in view of Section 2(k) of the Juvenile Justice (Care and

Protection of Children) Act, 2000 and their conviction under

Section 304 Part II/34 IPC came to be confirmed vide impugned

judgment of the High Court dated 9th November, 2010 which has

been challenged by the appellant in the instant appeal.

3. The facts in brief which are essential to be stated for

adjudication of this appeal are that complainant Mukesh

Sah(PW­1) lodged FIR stating interalia that on 18th  June, 1995,

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his cousin brother Rajesh Sah had gone to see Jagjit Singh night

at Mallital, Nainital.   At about 10.30 PM, Manoj Joshi, friend of

Rajesh Sah, had come and informed that some boys had

committed Marpit with his brother(Rajesh Sah) near the flat and

his situation was serious and  was admitted to B.D. Pandey

Hospital.   On this information, the complainant immediately

rushed to B.D. Pandey Hospital and saw that his brother Rajesh

was in operation theatre.  When his brother was brought out, he

was unconscious and after  some  time at  about  12.25 AM, he

succumbed to his injuries.   He also came to know that in the

Marpit committed with his brother, Harshwardhan Verma,

Sanjay Goswami and Deepak Verma also sustained injuries.  He

further came to know that in Jagjit Singh night, his

brother(Rajesh  Sah) along  with  Harshvardhan  Verma,  Deepak

Verma,  Pankaj  Verma,  Sanjay Goswami and Tanmay Tiwari  @

Fatty were there and on their next row, some girls were sitting to

whom some boys were passing indecent remarks.  Complainant’s

brother Rajesh stopped those boys not to do so, on which one of

those boys slapped Rajesh and gone from there by threatening to

see  him.  When Jagjit  Singh night  was going to  end and  the

people were coming out of it, Rajesh Sah along with his friends

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proceeded towards  his  house  and  near the fountain  at  about

10.00  PM in the  night, 5­6 boys assaulted  Rajesh  by lathis­

dandas.  After sustaining injuries, Rajesh fell down on the earth

but even then, those persons continued beating him.   Some of

the companions of Rajesh, namely, Harshvardhan Verma,

Deepak Verma and others tried to intervene, who too sustained

injuries.   Injured Rajesh was then immediately brought to B.D.

Pandey Hospital.  The persons accompanying  Rajesh  informed

the names of accused as Pratap Singh Bisht, Vikas Kirola, one

Pathak and also about 2­3 other boys, however, their names were

not known.   

4. On the said complaint,  FIR  (Exhibit  Ka­1)  was  lodged by

PW­1 Mukesh Sah on 19th June, 1995 at 1.20 AM at P.S. Mallital,

Distt. Nainital.   Injured Rajesh Sah was primarily  medically

examined on 18th  June, 1995 at 10.10 PM by PW­5 Dr. Rajeev

Kumar, who after the examination, prepared injury report

(Exhibit Ka­3).   Similarly injured Harshvardhan Verma was

examined at 1.10 AM on 19th  June, 1995 and his injury report

(Exhibit Ka­4) was prepared.   Injured Sanjay Goswami was

examined on 19th  June, 1995 at 1.15 AM and his injury report

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(Exhibit  Ka­5)  was prepared.  Likewise, injured Deepak Verma

was examined on 19th  June,  1995 at  1.20 AM and his injury

report (Exhibit  Ka­6)  was  also  prepared  by the same  medical

officer.  In the intervening night of 18th/19th June, 1995 at about

12.30 AM,  injured Rajesh Sah succumbed  to  his injuries  and

autopsy on the dead body was conducted on 19th June, 1995 at

11.45 AM and post­mortem report (Exhibit Ka­2) was prepared by

PW­4 Dr. J.P. Bhatt.   On 19th  June, 1995, inquest of his dead

body was conducted by the I.O. and inquest report (Exhibit Ka­8)

was  prepared.   The Investigating  Officer  during the course  of

investigation, recorded the statements of the witnesses and on

completing the investigation,  he filed the charge sheet (Exhibit

Ka­14).

5. The following injuries were found on the body of the

deceased:­

1. Traumatic Swelling present over left tempora – parieto – occpital region size 15 cm X 12 cm.   On cutting clotted blood present in the sub­cut tissues.

2. Stitched wound size 5 cm long on left side parietal region 3 cm  away from midline.   On cutting clotted blood present in the subcutaneous tissues.

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3. Stitched wound size 4.5 cm long on left  side parietal region, 1 cm medial and posterior to injury no. 2.

4. Stitched wound 7 cm long on left side on parieto occipital region 1 cm medial and posterior to injury no. 3.

5. Lacerated wound size  7 cm X 1 cm X bone deep present over  left parieto­ occipital region 10 cm above and posterior to upper brain of left pinna of ear.  Underlying bone is fractural, Dark coloured blood is coming out on removing the guaze packing.  On cutting injury no. 3, 4 and 5, clotted blood present in the subcutaneous tissues.  Injury no. 2 to 5 are present over injury no. 1.   All the injuries above­mentioned are dressed and bandaged.

6. Lacerated wound 1 cm X .3 cm X bone deep on the occipital bone over skull (Top of Skull) present slightly right of midline.   On cut, clotted blood is present in the subcutaneous tissues.

7. Abrasion 1.5 cm X .5 cm present obliquely downwards on the right side face 1 cm below outer aspect of right eye.   On cutting clotted blood is present in the subcutaneous tissues.

8. Contusion 6 cm X 4 cm on the dorsum of left hand with a lacerated wound 2.5 cm X 1 cm X muscle deep just above 2nd knuckle and two abrasions of .5 cm X .5 cm each on the lateral aspect of the contusion. On cutting clotted blood is present in the subcutaneous tissues.

9. Abraded contusion 12 cm X 6 cm over back of left upper arm in its middle portion.  On cutting, clotted blood is present.

10. Abraded contusion 6 cm X 4 cm on the front of left side of chest 6 cm below left  nipple  at  5 o’ clock  position.  On  cutting clotted  blood present in the subcutaneous tissues.

11. Abraded contusion 2 cm X 1 cm on the back in the lower region 1 cm to the left  of  midline.  On cutting  clotted blood is  present  on  the subcutaneous tissues.

6. After receiving the charge sheet, CJM, Nainital committed

the case to the Court of Sessions after giving necessary copies to

the accused persons as required under Section 207 CrPC.

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Charges were framed against the appellant along with other

persons under Sections 147,148, 302/149 and 323/149 IPC.

7. The prosecution of the case examined PW­1 Mukesh

Sah(complainant), PW­2  Sanjay  Goswami (injured eyewitness),

PW ­3 Harshvardhan Verma (injured eyewitness), PW ­4 Dr. J.P.

Bhatt,  Radiologist who conducted the post mortem, PW ­5 Dr.

Rajiv Kumar, who examined the injuries on the body of deceased

and that of injured witness and PW ­6 SI Prem Singh, IO of the

case.

8. The accused appellant in his statement under Section 313

CrPC denied the allegations and stated that he was falsely

implicated in the case.

9. After hearing learned counsel for the parties, Sessions

Judge held the appellant along with Vikas Kirola guilty for the

offence under Section 304 Part II/34 IPC and sentenced both of

them to 10 years rigorous imprisonment vide judgment dated 12th

January, 1998 and the conviction and sentence of the appellant

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came  to  be confirmed  by the  High  Court on  dismissal of the

appeal under the impugned judgment dated 9th November, 2010.

10. The main thrust of the submission of Mr. Siddharth Luthra,

learned senior counsel for the appellant is that there is a sole

testimony of PW­3 Harshvardhan Verma on record. The

statement of PW­2 Sanjay Goswami cannot be read into evidence

because the opportunity of cross­examination had not been

provided to the defence.   The examination in  Chief of PW­2

Sanjay Goswami was recorded on 27th  March, 1997.   On that

day, the cross was deferred and later on, it was not possible for

the prosecution to produce him for cross examination as he died

on 30th  March, 1997.   Thus, the solitary statement of the

prosecution witness of PW­3 Harshvardhan Verma has not been

corroborated by any other evidence on record and on his sole

testimony, he could not be held guilty and it is the manifest error

which has been committed by both the Courts below and needs

to be interfered with by this Court.  

11. Learned counsel further submits that the appellant

obtained a birth certificate from the competent authority on 14th

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September, 2010 in which his recorded date of birth is 28th June,

1977 and he too was juvenile on the date of incident,  i.e. 18 th

June, 1995 and in support of the certificate (P­10­page 101 of the

paper book), application was filed under Section 391 CrPC that

has not been properly considered by the High Court while

dismissing the appeal preferred by him under the impugned

judgment dated 9th November, 2010.

12. Mr. Jatinder Kumar Sethi, learned Deputy A.G. appearing

for the respondent, in support of the finding recorded by both the

Courts further submits that the submission made is nothing but

a reiteration of what being considered by the trial Judge and also

by the High Court in detail needs no further indulgence by this

Court.

13. We  have  heard learned  counsel for the  parties  and  with

their assistance  perused the evidence  adverted  by the  Courts

below to examine the finding of guilt which has been recorded

against the appellant(A­1) under the impugned judgment.

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14. After careful consideration of the evidence of PW­3

Harshvardhan Verma who himself is an injured eye­witness and

made a statement in his deposition that he was one of them who

accompanied the deceased Rajesh Sah, were sitting on the chairs

and looking the programme of Jagjit Singh night.   On the next

row, some girls were sitting, to whom some boys were passing

indecent remarks.  Deceased Rajesh Sah stopped them not to do

so and in course of time, some altercation and after that a scuffle

took place.  The police persons intervened and stopped the scuffle

at  about 9.30 PM.   After  Rajesh Sah and his friends saw the

program and moved towards the fountain and on the way, the

road leading towards the main road, some boys met them, out of

whom, Pratap Singh Bisht, Deepak Pathak, Manoj Rautela and

Vikas Kirola were identified by him.  When Rajesh Sah(deceased)

proceeded to talk to those persons, the accused assaulted Rajesh

Sah with dandas and due to the injuries sustained by him, he fell

down, however, even then the accused persons including

appellant(A­1) continued to beat him.   He tried to intervene but

he too was beaten and was injured by the accused persons.  On

seeing the accumulation of crowd, the appellant(A­1) ran away.

After that, Rajesh Sah was brought to the hospital, however, he

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became unconscious before reaching the hospital and blood was

oozing from his head and succumbed to injuries at 12.30 AM in

the night.

15. PW­2 Sanjay Goswami who too was injured eye­witness of

the incident supported the case of the prosecution and

examination­in­chief was recorded on 27th March, 1997.  On that

day, the cross was deferred on the application of the accused but

later on 30th March, 1997 unfortunately he died and it was not

possible for the prosecution to produce him for cross­

examination.

16. The presence of PW­3 Harshvardhan Verma cannot be

doubted.   The medical evidence supports the prosecution story

including his injury report, supported by the post­mortem report

of deceased (Rajesh Sah) furnished by PW­4 Dr. J.P. Bhatt.   We

are of the considered view that the evidence of PW­3

Harshvardhan Verma is reliable, believable and inspire implicit

confidence  as  well as the corroboration  of statement  of  PW­2

Sanjay Goswami.

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17. The appellant in his statement under Section 313 CrPC did

not produce any evidence in support of his defence and made a

bald statement.   The involvement of the accused appellant(A­1)

has been established by the deposition of PW­3 Harshvardhan

Verma, the injured eye­witness.  After going through the records

of the case, we find no reason to deviate from the concurrent view

taken  by the two  Courts below  and finding of guilt recorded

against the appellant being in conformity with the evidence

produced by the prosecution and the order of conviction of the

appellant for offence under Section 304 Part II/34 IPC needs no

interference by this Court.

18. The submission of the learned counsel for the appellant is

that he was a juvenile on the date of incident and his date of

birth as per the birth certificate issued on 14th September, 2010

was 28th June, 1977 which was not properly appreciated by the

High Court in passing the impugned judgment.  The submission

is without substance for the reason that documentary evidence

has come on record that the appellant passed out his Secondary

School Examination in the year 1993 from CBSE and marksheet

was issued to him by the Education Board on 5th June, 1993 in

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which his recorded date of birth is 13th June, 1977.  In 1995, he

passed out his Senior School Certificate Examination from CBSE,

his recorded date of birth is 13th  June, 1977 which clearly

establishes that he was more than 18 years of age by few days on

the date of incident, i.e. 18th June, 1995.

19. The strength of the appellant’s case is that birth certificate

issued to him by the competent authority dated 14th September,

2010 recorded his date of birth as 28th June, 1977 which shows

that he was less than 18 years of age on the date of  incident.

Taking note of the later birth certificate issued by the competent

authority which was obtained by him on 14th September, 2010,

this Court vide  its Order dated 9th  January, 2019 directed the

appellant to file copy  of the  affidavit  which  was filed  by  him

before the competent authority on the basis of which birth

certificate  was obtained by him on 14th  September,  2010 with

liberty to the learned counsel for the State also to file affidavit of

the concerned  Officer to place on record the factual position

about the genuineness of the stated birth certificate, if so

required.

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20. In compliance of the Order of this Court dated 9th January,

2019, the appellant has placed on record the application under

RTI furnished by him obtaining the affidavit and other

documents which he furnished on which the date of birth

certificate was issued to him by the competent authority dated

14th September, 2010.  In response to the RTI application, he was

informed  that  such record on  transportation has been missed

somewhere and is not available.  It goes without saying that it is

the appellant who furnished the relevant documentary evidence

before the competent authority on which a birth certificate was

issued to him on 14th September, 2010.  No supporting evidence

has been placed on record  to justify the  later  birth certificate

obtained by him in absence thereof, no credence can be attached

to it.   At the same time, under the scheme of Juvenile

Justice(Care and Protection of Children) Act, 2000, it clearly

manifests  that the age of juvenility  prior to Act,  2000 was 18

years but the law having changed, with retrospective effect one

can always claim benefit of juvenility.

21. It has been settled that the person below 18 years at the

time of incident can claim benefit of Juvenile Justice Act at any

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time and taking note of the scheme of the Act and Rule 12 of the

Juvenile Justice(Care and Protection of Children) Rules, 2007 in

particular, it lays down the procedure in determination of age.

22. The relevant rule is as under:­

 “12.Procedure to be followed in determination of age.—(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these Rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall  decide the  juvenility  or  otherwise of the  juvenile  or the  child or  as  the  case  may be the juvenile in conflict with law, prima facie on the basis of physical appearance  or  documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining—

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

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(b) and only in the absence of either (i), (ii) or (iii)  of clause (a)  above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment  of the age cannot be done,  the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may,  if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in  the  absence  whereof,  clause (b) shall  be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub­rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of  juvenility  or otherwise, for the purpose of the Act and these Rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7­A, Section 64 of the Act and these Rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate  or any other documentary proof referred to  in sub­rule  (3)  of this Rule.

(6) The  provisions contained in this  Rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub­rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

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23.  In terms of the scheme of Rule 12 of the Juvenile Justice

(Care and Protection of Children) Rules 2007, the committee

constituted has been entrusted to hold inquiry by seeking

evidence in support of the respective claim has to first consider if

there is a matriculation certificate available, in the first instance.

In absence thereof, the date of birth certificate from the school

(other than the play school) first attended; and in absence, the

birth certificate given by the Corporation or a Municipal

Corporation or  a Panchayat  in  the descending  form has to be

considered as the basis for the purpose of determination of age of

the juvenile.

24. In the instant case, admittedly, the secondary school

certificate was issued to the appellant  in the year 1993 on 5 th

June,  1993  in  which his recorded  date  of  birth is  13th  June,

1977.  In the given circumstances, when the appellant has failed

to place any supporting material on record while obtaining the

date of birth certificate at the later stage on  14th  September,

2010, the reliable evidence on record can be discerned from his

own certificate issued by the statutory board(CBSE) from where

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he passed out Secondary and Senior School Examination in the

year 1993 and 1995 where his recorded date of birth is 13 th June,

1977.   In the given circumstances this Court is clear in its view

that the appellant was not a juvenile and has crossed the age of

18 years by few days on the date of incident, i.e. 18th June, 1995

and the protection of the Juvenile Justice Act was not available

to him.

25. Learned counsel for the appellant alternatively requests that

the sentence awarded to the appellant is excessive and the

incident is of June, 1995 with no previous criminal record and

the appellant was also just at his tender age and undoubtedly,

the incident took place on the spur of moment without any pre­

meditation and by passage of time, he has settled with his family

who are dependent on him and at least the sentence awarded to

him needs interference  by this  Court  which  has  neither  been

looked into by the trial Court nor considered by the High Court

while dismissing the appeal in the instant proceedings.

26. To examine the question of sentencing, we refer the decision

of this Court in Gopal Singh Vs. State of Uttarakhand 2013(7)

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SCC 545 which eloquently laid down the principles of

proportionality of sentencing policy.   The relevant paras are

stated as under:­

“18.  Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation  and to lead an acceptable life in the  prevalent  milieu, the effect  — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value­based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative  aspects  put forth in  a  condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts  of the case and rationalised  judicial  discretion. Neither the personal  perception of  a  Judge nor  self­ adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should

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not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.

19.  A court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a  methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational  parameters, regard  been  had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of the court in such situations becomes a complex one. The same has to be performed with due reverence for the rule  of law and the collective  conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori notion.”

27. We do find substance in what being submitted by the

learned counsel for the appellant and in the first place, it is to be

noted that the trial Court, while awarding sentence to the

appellant has not made any analysis of the relevant facts as can

be discerned from the judgment (page 96­97 of the paper book)

dated 12th  January, 1998.   Even the High Court has not

considered the issue of quantum of sentence.   From the factual

position which emerge from the record, it is to be noticed that

they were young boys having no previous enmity and were

collectively  sitting  and watching  Jagjit  Singh night.  On some

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comments made to the girls sitting in front of the deceased, some

altercation took place and they entered into a scuffle and without

any pre­meditation, the alleged unfortunate incident took place

between two group of young boys and it is informed to this Court

that the appellant has served the sentence of more than three

years and five months.  Taking into consideration in totality that

the incident is of June 1995 and no other criminal antecedents

has been brought to our notice, and taking overall view of the

matter, we find force in the submission of the appellant that the

quantum of sentence is excessive and deserves to be interfered by

this Court.   

28. Considering the overall facts of the case in totality with the

nature of crime, the tender age of the appellant at the time of

offence, subsequent conduct and other ancillary circumstances,

including that no untoward incident has been reported against

him and the mitigating circumstances, it is appropriate that in

the obtaining factual score, the sentence of rigorous

imprisonment be altered to the period already  undergone for

offence under Section 304 Part  II/34 IPC, to meet the ends of

justice.

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29. The appeal is allowed to the extent indicated above.

30. Pending application(s), if any, stand disposed of.

…..……………………J. (A.M. KHANWILKAR)

………………………..J. (AJAY RASTOGI)

New Delhi July 12, 2019

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