# Dhurandher Singh (In Jail) v. State

- **Citation:** (2020) 1 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Criminal Appeal No. 3136 of 1983
- **Bench:** Govind Mathur, C.J. Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhurandher-singh-in-jail-v-state-45056
- **Pages:** 6

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 374(2) - Indian Penal Code, 1860
- Section 302 & Juvenile Justice (Care
and Protection of Children) Act, 2015 -
1 All. Dhurandher Singh Vs. State
175
Section 2(35),18, 21 - Claim to be juvenile
- upon enquiry of juvenile justice board it
was found that as per high school
certificate, appellant was 17 years 2
months and 14 days at the time of incidentsentence imposed is modified to the period
already undergone. (Para 6 to 16)

No child in conflict with law shall be sentenced
to death or for life imprisonment without the
possibility of release, for any offence, either
under the provisions of this Act or under the
provisions of the Indian Penal Code (45 of
1860) or any other law for the time being in
force. (Para 11)

Criminal Appeal partly allowed. (E-6)

List of cases cited: -

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
R.I. for one year u/s 147 and five years' R.I. u/s
307/149 IPC. In revision this court converted
the conviction into sections 147, 323/149,
324/149 and 325/149 IPC and observed that all
the offences were committed in the same
transaction, so separate sentences need not be
recorded. The revisionists were sentenced to
period of imprisonment already under gone by
each of them with fine of Rs. 500/- each. It was
further observed that the incident took place
about 8-years ago and injured can be
compensated with fine. It was held that short
term sentences now are not likely to serve any
useful purpose.

38. Satsen Vs. State of U. P. 2014
(84) ACC 606, - in this case the appellant
was convicted for the offence punishable
u/s 307 IPC, but considering the fact that
the incident is 33 years' old, appeal came
up for hearing after 32-years and the
appellant is also ill, the sentence of three
years' R.I. awarded by the trial Court was
converted into fine of Rs. 30,000/-, out of
which Rs. 25,000/- was to be paid to the
injured, if he is alive or his legal heirs.

39. Having an overall consideration
of the fact situation and also time lag in
between, the court is of the view that
sentence of imprisonment of revisionist for
offence under section 304-II/34 I.P.C. is
reduced to the period already undergone to
meet the ends of justice. The fine of Rs.
2,00,000/- is directed to be paid to the
legal heirs of the deceased, Pramod
Kumar, as compensation. The appellant,
Lutawan, is directed to deposit Rs.
2,00,000 (Two lakhs) before the trial court
within two months and on receipt of the
amount same shall be released in favour of
the legal heirs of the deceased, Pramod.
Any amount deposited towards fine by the
appellant shall be adjusted. This amount
shall be paid to the mother of the deceased
or if she is not alive to her legal heirs. In
case of failure of deposit of the amount by
the appellant he shall be taken into custody
forthwith and required to serve out the
remaining sentence as per the order of the
trial court except for offence under Section
3(2)(V) of SC/ST Act.

40. The judgment and order of the
trial court is set aside. The appellant is on
bail his bail bond and sureties are
discharged.

41. The office is directed to send
back the record of the court below along
with copy of this judgment and order for
compliance.

42. This criminal appeal is partly
allowed.
----------
(2020)1ILR A174

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 3136 of 1983

Dhurandher Singh ...Appellant(In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri T. Rathore, Sri Kamal Kumar, Sri Namit
Srivastava, Sri Rakesh Kumar Singh

Counsel for the Opposite Party:
D.G.A., A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) - Indian Penal Code, 1860
- Section 302 & Juvenile Justice (Care
and Protection of Children) Act, 2015 -
1 All. Dhurandher Singh Vs. State
175
Section 2(35),18, 21 - Claim to be juvenile
- upon enquiry of juvenile justice board it
was found that as per high school
certificate, appellant was 17 years 2
months and 14 days at the time of incidentsentence imposed is modified to the period
already undergone. (Para 6 to 16)

No child in conflict with law shall be sentenced
to death or for life imprisonment without the
possibility of release, for any offence, either
under the provisions of this Act or under the
provisions of the Indian Penal Code (45 of
1860) or any other law for the time being in
force. (Para 11)

Criminal Appeal partly allowed. (E-6)

List of cases cited: -

1. Mahesh and Ors. Vs. St. of Raj. & ors,
reported in 2019(3) Crimes 60 (SC)

(Delivered by Hon'ble Vivek Varma, J.)

1. Heard learned counsel for the
appellant and learned A.G.A., for the
State.

2. This appeal has been filed against
the judgment and order dated 26.11.1983
passed by Sessions Judge, Ballia in
Sessions Trial No. 96 of 1983, whereby
the appellant Dhurandhar Singh has been
convicted for offence punishable under
Section 302 IPC and has been sentenced to
undergo imprisonment for life and was
further convicted under Section 25 Arms
Act and sentenced to one year R.I. Both
the sentences were directed to run
concurrently.

3. At the outset, learned counsel for
appellant submitted that an application
was filed on 22.05.16 to decide the appeal
of the appellant as a juvenile in conflict
with law. The said application was
supported by an affidavit in which class -
V and VII school leaving certificate of the
appellant issued by the Headmaster of the
Primary Vidalaya, Ibrahimabad, Ballia, as
well as High School Examination 1986
Certificate issued by the Board of High
School and Intermediate Education, U.P.
studied from Sudisthi Baba Inter College,
Ballia, was enclosed disclosing the date of
birth of the appellant as 03.01.66. It was
contended that from the above material it
is ascertainable that on the date of
commission of the crime, that is 17.03.83,
the appellant was below 18 years in age
and therefore was entitled to the benefit of
the provisions of Juvenile.

4. By an order dated 28.07.16, the
learned AGA was granted three weeks
time to obtain instructions and to file
counter affidavit in response to the
application filed by the appellant.

5. Pursuant to the above order, a
counter affidavit was filed on behalf of the
State. Thereafter, by order dated 22.08.16,
the Juvenile Justice Board, Ballia was
directed to consider and decide the claim
of juvenility set up by the appellant, after
affording opportunity of hearing to both
the parties, in accordance with Rules,
preferably within a period of two months
from the date of receipt of record.

6. A report of the Juvenile Justice
Board, Ballia dated 6.11.16 is placed
before us. From a perusal of record it
reveals that accused-appellant was aged
about 17 years 02 months and 14 days on
the date of incident i.e.17.03.83. The
Juvenile Justice Board, while conducting
inquiry on the claim of juvenility, had
issued notice to the informant. However,
neither the informant appeared nor he
submitted any objection with regard to the
age of the appellant. In the inquiry so
176 INDIAN LAW REPORTS ALLAHABAD SERIES
conducted, the statement of Srikrishna
Ram (paricharak) and representative of
the Principal of Sri Sudisthi Baba Inter
College, Ballia was recorded. He had
produced the scholar register and cross list
of the institution. In the cross list, roll
number was entered as 1443545 and the
date of birth is mentioned as 03.01.66. The
witness was also cross examined. The
statement of Santosh Kumar (Assistant
Teacher)
of
Primary
Vidalaya,
Ibrahimabad, Balia was also recorded and
he was also cross examined.

7. The inquiry by the Juvenile Justice
Board had been conducted as per Rules.
Opportunity was given to complainant as
well as accused-appellant to lead evidence
and thereafter on the basis of date of birth
recorded in educational certificate, it had
come to a definite conclusion that the
appellant was 17 years 2 months and 14
days old at the time of the incident.

8. Further, no appeal/revision has
been
filed
against
the
order
dated
16.11.2016 passed by Juvenile Justice
Board
declaring
accused-appellant
Juvenile, and that no objection on behalf
of State had also been filed challenging the
report
dated
16.11.2016
passed
by
Juvenile Justice Board. Thus, we accept
the report and hold that the appellant was a
juvenile as defined by Section 2(35) of the
Juvenile Justice (Care and Protection of
Children) Act, 2015, on the date of the
incident.

9. Now, since the appellant was a
Juvenile in conflict with law, on the date
of incident, and presently he has crossed
63 years age, and further no other ground
of appeal having been raised before us,
therefore, at this stage the Court has to
take into consideration provisions of
Section 18 and 21 of Juvenile Justice
(Care and Protection of Children) Act,
2015 and to pass appropriate orders.

10. For ready reference section 18 of
Juvenile Justice (Care and Protection of
Children) Act, 2015 is extracted below.

"18. Orders regarding child
found to be in conflict with law.-

(1). Where a Board is satisfied
on inquiry that a child irrespective of age
has committed a petty offence, or a serious
offence, or a child below the age of sixteen
years has committed a heinous offence,
then, notwithstanding anything contrary
contained in any other law for the time
being in force, and based on the nature of
offence, specific need for supervision or
intervention, circumstances as brought out
in the social investigation report and past
conduct of the child, the Board may, if it
so thinks fit,-

a. allow the child to go home
after advice or admonition by following
appropriate inquiry and counselling to
such child and to his parents or the
guardian;

b. direct the child to participate
in
group
counselling
and
similar
activities;

c. order the child to perform
community service under the supervision
of an organisation or institution, or a
specified person, persons or group of
persons identified by the Board;

d. order the child or parents or
the guardian of the child to pay fine:

Provided that, in case the child
is working, it may be ensured that the
provisions of any labour law for the time
being in force are not violated;

e. direct the child to be released
on probation of good conduct and placed
under the care of any parent, guardian or
1 All. Dhurandher Singh Vs. State
177
fit person, on such parent, guardian or fit
person executing a bond, with or without
surety, as the Board may require, for the
good behaviour and child's well-being for
any period not exceeding three years;

f. direct the child to be released
on probation of good conduct and placed
under the care and supervision of any fit
facility for ensuring the good behaviour
and child's well-being for any period not
exceeding three years;

g. direct the child to be sent to a
special home, for such period, not
exceeding three years, as it thinks fit, for
providing reformative services including
education, skill development, counselling,
behaviour
modification
therapy,
and
psychiatric support during the period of
stay in the special home:

Provided that if the conduct and
behaviour of the child has been such that,
it would not be in the child's interest, or in
the interest of other children housed in a
special home, the Board may send such
child to the place of safety.

2. If an order is passed under
clauses (a) to (g) of sub-section (1), the
Board may, in addition pass orders to-

i. attend school; or

ii. attend a vocational training
centre; or

iii. attend a therapeutic centre; or

iv. prohibit the child from
visiting, frequenting or appearing at a
specified place; or

v.
undergo
a
de-addiction
programme.

3.
Where
the
Board
after
preliminary assessment under section 15
pass an order that there is a need for trial
of the said child as an adult, then the
Board may order transfer of the trial of the
case to the Children's Court having
jurisdiction to try such offences."

11. It is also relevant to quote section
21 of the Act.

"21. Order that may be passed
against a child in conflict with law:

No child in conflict with law shall
be sentenced to death or for life imprisonment
without the possibility of release, for any
offence, either under the provisions of this Act
or under the provisions of the Indian Penal
Code (45 of 1860) or any other law for the
time being in force."

12. From the perusal of the aforesaid
provisions it is noticed that a juvenile in
conflict with law cannot be sentenced to
undergo life imprisonment, and further the
maximum period for which a juvenile may be
sent to a special home is only three years.

13. Further, the accused appellant
because of his age, as on today cannot be sent
to special home. However, as is evident from
record that the appellant has already undergone
about 9 months of imprisonment as un under
trial and partly as convict.

14. At this juncture, it would be
appropriate to look into the ratio laid down
by Apex Court while dealing with the
similar situation like in the case in hand.

15. The Hon'ble Supreme Court in
Mahesh and others vs. State of Rajasthan
and others, reported in 2019(3) Crimes 60
(SC) has held as follows:
178 INDIAN LAW REPORTS ALLAHABAD SERIES

"5. The position in law in this regard
is somewhat unsettled as has been noticed
and dealt with by this Court in Jitendra
Singh alias Babboo Singh and another
versus State of Uttar Pradesh1 wherein in
paragraphs 24 to 27 four categories of
cases have been culled out where
apparently different approaches had been
adopted by this Court. The net result is
summed up in paragraph 28 of the
aforesaid report which explains the details
of the categorization made in the earlier
paragraphs of the said report. Paragraph
28 of the said report, therefore, would
require a specific notice and is reproduced
below:

"28. The sum and substance of
the above discussion is that in one set of
cases this Court has found the juvenile
guilty of the crime alleged to have been
committed by him but he has gone
virtually unpunished since this Court
quashed the sentence awarded to him. In
another set of cases, this Court has taken
the view, on the facts of the case that the
juvenile is adequately punished for the
offence committed by him by serving out
some period in detention. In the third set
of cases, this Court has remitted the entire
case for consideration by the jurisdictional
Juvenile Justice Board, both on the
innocence or guilt of the juvenile as well
as the sentence to be awarded if the
juvenile is found guilty. In the fourth set of
cases, this Court has examined the case on
merits and after having found the juvenile
guilty of the offence, remitted the matter to
the jurisdictional Juvenile Justice Board
on the award of sentence."

6. The validity of the conviction
in respect of the incident which occurred
almost
two
decades
back,
in
our
considered view, ought to be decided in
these appeals and the entire of the
proceedings
including
the
punishment/sentence awarded should not
be interfered with on the mere ground that
the accused appellants were juveniles on
the date of commission of the alleged
crime. Judicial approaches must always be
realistic and have some relation to the
ground realities. We, therefore, adopt one
of the possible approaches that has been
earlier adopted by this Court in the four
categories of cases mentioned above to
examine the correctness of the conviction
of the accused appellants under the
provisions of the IPC, as noticed above.

7. In this regard, having perused
the materials on record we find no ground
whatsoever to take a view different from
what has been recorded by the learned
trial Court and affirmed by the High
Court. The conviction of the accused
appellants under Sections 323, 324, 325,
427, 455 read with Section 149 IPC
accordingly shall stand affirmed.

8. This will bring us to a
consideration of the sentence to be
awarded.
Here
again,in
the
four
categories of cases that have been noticed
in Jitendra Singh (supra) and in several
subsequent decisions of this Court in
Abdul Razzaq vs. State of Uttar Pradesh,
Mohd. Feroz Khan alias Feroz vs. State of
Andhra Pradesh, Mumtaz alias Muntyaz
vs. State of Uttar Pradesh and Mahendra
Singh vs. State of Rajasthan different
approaches have been adopted. In some
cases, the question of punishment has been
left to be determined by the Juvenile
Justice Board in view of the provisions of
Section 20 of the Act of 2000. In other
cases, the issue of punishment has been
dealt with by the Court having regard to
the fact that on the date when the Court
had considered the issue the juvenile(s)
have advanced in age.

9. The present is a case where
the accused appellants though juveniles on
1 All. Dharmendra Kumar Vs. State of U.P.
179
the date of commission of the alleged crime
are, as on today, middle aged persons. The
accused appellant - Mahesh in Criminal
Appeal arising out of Special Leave Petition
(Criminal) No.2934 of 2015 had undergone
the custody for a period of nearly one year
whereas the accused appellant - Arjun in
Criminal Appeal arising out of Special Leave
Petition (Criminal) No.5370 of 2015 had
suffered custody for about eight (08) months.
The maximum sentence, as already noted, is
three years. Having regard to the long efflux
of time we are of the view that it will not be
necessary, in the facts of the present cases, to
cause a remand of the matter to the Juvenile
Justice Board for a decision on the quantum
of sentence for the reason even if such a
remand is made and the Juvenile Justice
Board comes to a decision that in addition to
the period of custody suffered by the accused
appellants they need to suffer a further period
of custody, such custody can only be in a
remand home or a protection home to which
places the accused appellants, because of
their age as on today, cannot be sent.

10. On the contrary, having
regard to the period of custody suffered;
the age of the accused appellants as on
date; the efflux of time since the date of
occurrence and all other relevant facts
and circumstances we are of the view that
while maintaining the conviction of the
accused appellants the sentence imposed
should be modified to one of the period
undergone. We order accordingly."

16. In light of the above legal position
and having regard to the facts and
circumstances of the case, period of
imprisonment, the age of the accused
appellant as on date, the efflux of time since
the date of occurrence, we are of the view that
the while maintaining the conviction of the
accused appellant the sentence imposed is
modified to the period already undergone.

18. Accordingly, the appeal is
allowed in part. The accused appellant is
availing the benefit of bail by furnishing
adequate sureties and bonds, the same
stands discharged.

19. Lower Court record along with a
copy of this judgement be sent back
immediately to District Court concerned
for compliance and further necessary
action.
----------
(2020)1ILR A179

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE HARSH KUMAR, J.
THE HON'BLE UMESH KUMAR, J.

Criminal Appeal No. 4855 of 2015

Dharmendra Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajeev Kumar Saxena, Sri Rajesh
Kumar Singh, A.C., Sri Satya Dheer Singh
Jadaun

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Sections 498A, 304-B & 302 -Dowry
Protection,1961 - Section 4 - Appeal
against conviction.

Section 106 of Evidence Act discussed.

Section 106 of the Evidence Act and Burden of
proving facts especially within knowledge of
such person, - In a case of unnatural death of
wife of accused in a room occupied only by
both of them and in absence of evidence of
anybody else entering the room and facts