MUMTAZ @ MUNTYAZ Vs. STATE OF U.P.(NOW UTTARKHAND) - Murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2084 of 2009, Judgment Date: Jul 01, 2016
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.
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
“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 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. 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 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
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 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 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. 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 Maharashtra[2], 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 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
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 another[3] 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 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 another[4], 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.
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 another[5] 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 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 Haryana[6] 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 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 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
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
-----------------------
[1] (2013) 11 SCC 193
[2] (2002) 6 SCC 710
[3] (2005)3 SCC 551
[4] (2005) 3 SCC 685
[5] (2010) 5 SCC 344
[6] (2012) 8 SCC 34