Dharambir @ Dharmender Kala v. State

SANJIV KHANNA, J.

S.P.GARG, J. OCTOBER 05, 2012 NA/tr

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 5th October, 2012 + CRL.M.A. 6282/2012 & CRL.A.1051/2009 DHARAMBIR @ DHARMENDER KALA ..... Appellant Through Ms. Nandita Rao, Advocate. versus STATE ..... Respondent Through Mr. Sanjay Lao, APP. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG SANJIV KHANNA J. (Oral) Dharambir @ Dharmender @ Kala stands convicted under Sections 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (IPC) by the impugned judgment dated 12th October, 2009. He has been sentenced to life imprisonment and to pay fine of Rs.1,500/- under Section 302 read with Section 34 IPC and rigorous imprisonment of three years and fine of Rs.1,000/- for the offence under Section 201 read with Section 34 IPC. In default of payment of fine of Rs.1,500/- and Rs. 1,000/-, he has to undergo simple imprisonment of two months each. The sentences are to run concurrently. The aforesaid conviction arises out of FIR No.1025/2004, police station Sultan Puri. 2. As per the charge sheet filed and the prosecution version, on 31st August, 2004, dead body of one Chela Ram was found from a well near MCD flats, Sector-20, Rohini. Later on statement of Sudha, daughter of Chela Ram was recorded, in which she implicated the appellant and her mother-Gianshree. 3. From the aforesaid, it is apparent that the date of occurrence in the present case was 31st August, 2004 or period prior thereto. 4. The contention of the appellant Dharambir is that on the date of occurrence, he was less than 18 years of age. The said contention, it appears, was not raised before the trial court and has been raised for the first time in the present application Crl.M.A.6282/2012. Along with the application, Dharambir has enclosed copy of the school leaving certificate wherein his date of birth has been mentioned as 1st April, 1987. He has also given details of his parents, brothers and sister in sequence. 5. As per the status report filed today, Dharambir"s father Kishan Lal is aged about 62 years and his mother is aged about 57 years. Father of Dharambir belongs to village Bhawani Ka Nagla, Police Station Karail, District Mainpuri (U.P.). As per the verification made by the police, Dharambir was born in the year 1987. He was admitted to MCD Government School, Sahipur, Delhi in the year 1992. At the time of admission, Dharambir"s date of birth was mentioned and recorded as 1st April, 1987 in the school records. However, at the time of admission, no birth certificate was submitted by the father of Dharambir. Dharambir studied in the said school from class-I to class- IV. He attended Government School, Nilothi, Delhi and studied in class-V and VI before he left the school in 1998. The date of birth mentioned in the records of Government School, Nilothi, Delhi is 1st April, 1987. Thereafter, Dharambir studied in Government School, village Pooth Kalan, Delhi in class-VI to class-VIII. In the said school"s records, the date of birth as mentioned was 1st April, 1987. As per the verification done by the police, Dharambir has a younger sister, whose date of birth is 15th January, 1994. 6. Recently Ashwani Kumar Saxena Vs. State of M.P., Criminal Appeal No.1403/2012 decided on 13th September, 2012, the Supreme Court examined and elucidated upon Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (Act, for short) and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (Rules, for short). The Supreme Court referred to their earlier decision in Hari Ram v. State of Rajasthan and Another (2009) 13 SCC 211, wherein it has been held that claim of juvenility can be raised before any court at any stage and if such a claim is made, the same has to be determined in accordance with the provisions of the Act and Rules even if the accused had ceased to be a juvenile on or before the date of commencement of the Act. An accused, who is juvenile, would be entitled to the benefit of the Act, i