# Ram Kumar & Ors v. State of U.P

- **Citation:** (2021) 11 ILRA 884
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-18
- **Case number:** Criminal Appeal No. 875 of 1981
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-ors-v-state-of-u-p-46673
- **Pages:** 9

## Headnote

Criminal Law - Juvenile Justice (Care and
Protection of Children) Amendment Act, 2021 -
Sections 18 & 21 - Indian Penal Code, 1860 -
Section 302 - Murder - juvenile in conflict with
law cannot be sentenced to death or to
undergo life imprisonment - further maximum
period of which a juvenile may be sent to a
Special Home is only three years (Para 15)

Sessions Judge convicted appellant Sangram, under
Section
302
&
sentenced
him
to
undergo
imprisonment for life - plea of juvenility was raised
before High Court during pendency of Criminal Appeal
- Juvenile Justice Board declared appellant Sangram
as juvenile on the date of the incident i.e. on
08.01.1981 - accused-appellant was aged about 15
years 05 months and 22 days on the date of incident
11 All. Ram Kumar & Ors. Vs. State of U.P.
885
i.e. on 08.01.981 - In year 2021 accused aged about
56 years - Held accused could not be kept along with
other Juveniles in Juvenile Special Home in this age
group - High Court confirmed conviction of the
accused/appellant - However sentence modified to
the period already undergone by appellant as
appellant already undergone about more than three
years imprisonment (Para 31, 32)

Allowed. (E-5)

Cases Relied on :

## Text

884 INDIAN LAW REPORTS ALLAHABAD SERIES

vii.
Total
compensation
:
Rs.
19,11,513/- + Rs. 50,000/- = Rs. 19,61,513/-

18. In view of the above, the appeal
preferred by the claimants is partly allowed.
Award and decree passed by the Tribunal shall
stand modified to the aforesaid extent. The
amount be deposited by the respondentInsurance Company within a period of 12 weeks
from today with interest at 7.5%. The amount
already deposited be deducted from the amount
to be deposited.

19. In view of the ratio laid down by
Hon'ble Gujarat High Court in case of Smt.
Hansagori P. Ladhani Vs. The Oriental
Insurance Company Ltd., reported in 2007
(2) GLH 291, the total amount of interest,
accrued
on
the
principle
amount
of
compensation is to be apportioned on financial
year to financial year basis and if the interest
payable to claimant for any financial year
exceeds Rs. 50,000/-, Insurance Company/owner
is/are entitled to deduct appropriate amount
under the head of ''Tax Deducted at Source' as
provided u/s 194A(3)(ix) of the Income Tax At,
1961 and if the amount of interest does not
exceeds Rs. 50,000/- in any financial year,
registry of the Tribunal is directed to allow the
claimant to withdraw the amount without
producing the certificate from the concerned
Income-Tax Authority. The aforesaid view has
been reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal From
Order No. 23 of 2001 (Smt. Sudesna and others
Vs. Hari Singh and another) and in First Appeal
From Order No. 2871 of 2016 (Tej Kumari
Sharma Vs. Chola Mandlam M.S. General
Insurance Co. Ltd.) decided on 19.03.2021 while
disbursing the amount.

20. On depositing the amount in the
Registry of Tribunal, Registry is directed to first
deduct the amount of deficit court fees, if any.
Considering the ratio laid down by the Hon'ble
Apex Court in the case of A.V. Padma Vs.
Venugopal reported in 2012 (1) GLH (SC)
442, the order of investment is not passed
because respondents are neither illiterate nor
rustic villagers.

21. We are thankful for both the counsels
for getting the appeal decided without record
and ably assisting the Court.
----------
(2021)11ILR A884
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.11.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 875 of 1981

Ram Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
S.H.
Ibrahim,
Dharmenra
Kumar
Tiwari,
Ravindra Kumar Dwivedi

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Juvenile Justice (Care and
Protection of Children) Amendment Act, 2021 -
Sections 18 & 21 - Indian Penal Code, 1860 -
Section 302 - Murder - juvenile in conflict with
law cannot be sentenced to death or to
undergo life imprisonment - further maximum
period of which a juvenile may be sent to a
Special Home is only three years (Para 15)

Sessions Judge convicted appellant Sangram, under
Section
302
&
sentenced
him
to
undergo
imprisonment for life - plea of juvenility was raised
before High Court during pendency of Criminal Appeal
- Juvenile Justice Board declared appellant Sangram
as juvenile on the date of the incident i.e. on
08.01.1981 - accused-appellant was aged about 15
years 05 months and 22 days on the date of incident
11 All. Ram Kumar & Ors. Vs. State of U.P.
885
i.e. on 08.01.981 - In year 2021 accused aged about
56 years - Held accused could not be kept along with
other Juveniles in Juvenile Special Home in this age
group - High Court confirmed conviction of the
accused/appellant - However sentence modified to
the period already undergone by appellant as
appellant already undergone about more than three
years imprisonment (Para 31, 32)

Allowed. (E-5)

Cases Relied on :

1. Pradeep Kumar Vs St. of U.P. 1995 SCC (Cri) 395

2. Upendra Kumar Vs St. of Bihar : 2005 (3) SCC 592

3. Vaneet Kumar Gupta @ Dharminder Vs St.of Pun.
2009 (17) SCC 587

4. Satish @ Dhanna Vs St. of M.P. & ors. 2009 (14)
SCC 187

5. Vikram Singh Vs St. of Har. 2009 (13) SCC 645

6. Dharambir Vs State : 2010 (2) SCC 344

7. Bhim @ Uttam Ghosh Vs St. of W.B. 2010 (14) SCC
571

8. Lakhan Lal Vs St. of Bihar : 2011 (2) SCC 251

9. Amit Singh Vs St. of Mah. and another : 2011 (13)
SCC 744

10. Kalu @ Amit Vs St. of Har. : 2012 (3) SCC (Cri)
761

11. Vijay Singh Vs St. of Delhi : 2012(3) SCC (Cri)
1044

12. Babla @ Dinesh Vs St.of Uttarakhand : 2012 (3)
SCC (Cri) 1067

13. Mahesh & ors. Vs St. of Raj. & ors. 2019 (3)
Crimes 60 (SC)

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The instant criminal appeal under Section
374 (2) Cr.P.C. has been filed by appellants, Ram
Kumar and Sangram, against the judgment and
order dated 25.11.1981 passed by the III Additional
Sessions Judge, Faizabad in Sessions Trial No. 195
of 1981 : State Vs. Ram Kumar and others relating
to Case Crime No. NIL of 1981, under Sections 307
and 323 I.P.C., which was later on converted under
Section 302 I.P.C., Police Station Ibrahimpur,
District Faizabad, whereby the III Additional
Sessions Judge, Faizabad, convicted the appellants,
Ram Kumar and Sangram, under Section 302 read
with Section 34 Indian Penal Code, 1860 and
sentenced them to undergo imprisonment for life,
however, accused Ram Sundar has been acquitted
of the charges.

(2) It transpires from the record that a Coordinate Bench of this Court, vide order dated
11.10.2018, partly allowed the instant appeal. The
operative portion of the order dated 11.10.2018 is
reproduced as under :-

"28. In view of the aforesaid discussion,
the present appeal is partly allowed and the accusedappellants are convicted under Section 304 Part I
IPC instead of Section 302 IPC and their sentence is
modified for life to 10 years rigorous imprisonment.

29. The accused-appellants are on bail.
Their bail bonds are cancelled and sureties are
discharged. After they complete their sentence they
would be free forthwith."

(3) Subsequently, appellant no.2-Sangram has
filed application for condonation of delay in filing
the modification application (C.M. Application No.
115040 of 2019) and the application for
modification of the judgment and order dated
11.10.2018 (C.M. Application No.115042 of 2019).
A Co-ordinate Bench of this Court, vide order dated
18.11.2019, condoned the delay in filing the
modification application and rejected the application
for modification. The order dated 18.11.2019 is
reproduced as under :-

"(C.M.A. No. 115040 of 2019- Delay
& C.M.A. No. 115042 of 2019 - Modification
Application)
886 INDIAN LAW REPORTS ALLAHABAD SERIES

Heard
learned
counsel
for
the
applicant and perused the record.

In view of the facts stated in the
accompanying affidavit filed in support of
application for condonation of delay in filling
the application for modification of order dated
11.10.2018, delay is condoned.

Further, by means of application for
modification,
the
appellant
has
sought
modification
of
judgment/order
dated
11.10.2018 passed in Criminal Appeal No. 875
of 1981 by a Division Bench of this Court
(Hon'ble prashant Kumar, J. and Ho'nble Dinesh
Kumar Singh, J.).

After hearing learned counsel for
appellant and going through the record, we are
of the considered opinion that the application
moved by the appellant for modification of
judgment/order dated 11.10.2018 passed in
Criminal Appeal No. 875 of 1981 by a Division
Bench of this Court (Hon'ble prashant Kumar, J.
and Ho'nble Dinesh Kumar Singh, J.) is not
maintainable under the law as there is no
provision for modification/ review of the final
judgment/order
under
Code
of
Criminal
Procedure.

Accordingly,
the
application
for
modification is rejected."

(4) Feeling aggrieved by the aforesaid
judgment and order dated 11.10.2018, appellant
no.2-Sangram has approached the Hon'ble
Supreme Court by filing Criminal Appeal No.
907 of 2021 (arising out of SLP (Crl.) No. 6432
of 2021) : Sangram Vs. The State of Uttar
Pradesh & Anr. The Hon'ble Supreme Court,
vide judgment and order dated 27.08.2021,
condoned the delay in filing the appeal and
disposed of the appeal. The order dated
27.08.2021 is reproduced as under :-

"1 Delay condoned.

2 Leave granted.

3 The appeal arises out of a judgment
of a Division Bench of the High Court of
Judicature at Allahabad dated 11 October 2018
in Criminal Appeal No 875 of 1981.

4. By a judgment dated 25 November
1981, the appellant was convicted by the IIIrd
Additional Sessions Judge, Faizabad in Sessions
Trial No 195 of 1981 for an offence punishable
under Section 302 of the Indian Penal Code
1860.

5. During the pendency of the appeal
before the High Court, a plea of juvenility was
raised on behalf of the appellant on the ground
that on 8 January 1981, when the incident took
place, the appellant was about fifteen years of
age. The order of the High Court dated 22
November 2017 (Annexure P-3) records, thus:

"Principal Magistrate, Juvenile Justice
Board, Ambedkar Nagar vide his letter dated
13.10.2017 has sent the enquiry report regarding
the declaration of juvenility of appellant No.
2(Sangram).

According to the said report, appellant
No. 2(Sangram) juvenile on the date of occurrence
i.e. 08.01.1981. Let this report be kept on the
record.

As
prayed,
list
this
appeal
on
08.12.2017."

6. The appeal was disposed of by the
High Court on 11 November 2018, without
considering the issue as to whether the appellant
was a juvenile on the date on which the alleged
offence is stated to have been committed.

7. Subsequently, the appellant moved
CM Application No 115042 of 2019. By an order
dated 27 September 2019, the application was
directed to be listed before the Division Bench
which had disposed of the appeal. However, the
application was dismissed by an order dated 18
November 2019 on the ground that there is no
provision for modification/review of the final
judgment and order under the Code of Criminal
Procedure 1973. The appeal has accordingly
travelled to this Court.

8. The plea of juvenility was raised
before the High Court during the pendency of
11 All. Ram Kumar & Ors. Vs. State of U.P.
887
the appeal. The order of the High Court dated 22
November 2017 indicates that the Principal
Magistrate of the Juvenile Justice Board,
Ambedkar Nagar has submitted his report with a
letter dated 13 October 2017. The plea of
juvenility has not been decided by the High
Court. In this view of the matter, it would be
necessary to remit the proceedings back to the
High Court to consider the issue of juvenility. It
is a settled principle of law that the plea of
juvenility can be raised at any stage of the
proceedings.

9. The High Court shall consider the
plea of juvenility which has been raised by the
appellant with reference to which a report dated
13 October 2017 of the Principal Magistrate,
Juvenile Justice Board, Ambedkar Nagar has
been submitted. We clarify that we have not
expressed any view on the merits of the plea of
juvenility which shall be decided by the High
Court in accordance with law. If the plea of
juvenility succeeds before the High Court,
necessary consequences under the law shall then
follow.

10. For the aforesaid purpose, we
remit the proceedings back to the High Court
which shall be dealt with on the file of Criminal
Appeal No 875 of 1981 before the appropriate
Division Bench according to the roster of work
assigned by the Chief Justice. The High Court is
requested to take up the matter and dispose it of
in terms of the aforesaid directions within a
period of three months from the date of receipt
of a certified copy of this order.

11. An application for bail, being IA
No 90943 of 2021, has been moved in these
proceedings on behalf of the appellant. We grant
liberty to the appellant to move the High Court
of Judicature at Allahabad for the grant of bail
which may be considered expeditiously by the
High Court.

12. In the event that the appellant
requires the benefit of legal aid, a legal aid
counsel shall be made available by the High
Court.

13. The appeal is accordingly disposed
of.

14. Pending application, if any, stands
disposed of."

(5) In these backgrounds, the instant
criminal appeal has come up before this Court.

(6) At the outset, Sri Ravindra Kumar
Dwivedi, learned Counsel appearing on behalf
of the appellant no.2-Sangram, has pointed out
that though appellant no.2-Sangram has sent a
letter from the Jail for providing him the
services of amicus curiae as he is unable to
engage the Counsel of his choice, but
subsequently, son of the appellant no.2-Sangram
has engaged him to argue the present appeal.

(7) Heard Shri Ravindra Kumar Dwivedi,
learned Counsel appearing on behalf of the
appellant no.2-Sangram and Ms. Smiti Sahay,
learned
Additional
Government
Advocate
appearing on behalf of the State.

(8) It has been pointed out by the learned
Counsel for the parties that no appeal against the
judgment and order dated 11.10.2018 passed by
the Co-ordinate Bench of this Court has been
preferred by the appellant no.1-Ram Kumar.
However, the judgment and order dated
11.10.2018 passed by the Co-ordinate Bench of
this Court has been challenged by the appellant
no.2-Sangram before Apex Court and the Apex
Court, vide order dated 27.08.2021, disposed of
the criminal appeal preferred by the appellant
no.2 and remitted the matter to this Court for
deciding the plea of juvenility which has been
raised by the appellant no.2-Sangram with
reference to which a report dated 13 October
2017 of the Principal Magistrate, Juvenile
Justice Board, Ambedkar Nagar has been
submitted. Hence, the instant criminal appeal
has been listed before this Court only with
respect to test the plea of juvenility which has
been raised by the appellant no.2-Sangram only
888 INDIAN LAW REPORTS ALLAHABAD SERIES
with reference to which a report dated 13
October 2017 of the Principal Magistrate,
Juvenile Justice Board, Ambedkar Nagar has
been submitted.

(9) Learned counsel for appellant no.2Sangram did not raise any argument about
finding returned by a Co-ordinate Bench of this
Court vide judgment and order dated 11.10.2018
on the point of conviction of accused-appellant
no.2 in the aforesaid offences but before this
Court, only submission of the learned Counsel
for the appellant no.2-Sangram is that the plea of
juvenility was raised before this Court during
pendency of the instant appeal by filing an
application in this regard (C.M. Application No.
23429 of 2017) and a Co-ordinate Bench of this
Court, vide order dated 31.08.2017, disposed of
the aforesaid application with a direction to the
Juvenile
Justice
Board,
Faizabad
(now
Ambedkar Nagar) to inquire into the matter and
report to this Court and the appellant no.2 was
also directed to appear before the Juvenile
Justice Board, Ambedkar Nagar.

(10) It has been argued by the learned
Counsel for the appellant no.2-Sangram that
pursuant to the order dated 31.08.2017, the
appellant no.2-Sangram had appeared before the
Juvenile Justice Board, Ambedkar Nagar and
filed Transfer Certificate of Class-5, wherein the
date of the appellant no.2-Sangram has been
mentioned as 16.07.1965. Thereafter, the
Juvenile Justice Board, Ambedkar Nagar, vide
order dated 11.10.2017, after hearing the parties
and going through the record, declared the
appellant no.2-Sangram as juvenile on the date
of the incident i.e. on 08.01.1981. He argued that
no appeal/revision has been filed against the
order dated 11.10.2017 passed by the Juvenile
Justice Board and also no objection on behalf of
the State or the complainant had also been filed
challenging the report dated 11.10.2017 passed
by the Juvenile Justice Board. He further argued
that as the accused-appellant no.2 (Sangram) is
languishing in jail since 07.05.2018 and has
been declared Juvenile on 11.10.2017 in conflict
with law by the Juvenile Justice Board,
Ambedkar Nagar, therefore, he confined his
submission to the extent of imposition of
sentence/treatment only.

(11) The learned AGA has admitted the
fact that no appeal/revision has been filed
against the order dated 11.10.2017 passed by the
Juvenile Justice Board and also no objection on
behalf of the State or on behalf of the
complainant had also been filed challenging the
report dated 11.10.2017 passed by the Juvenile
Justice Board.

(12) The report of Juvenile Justice Board,
Ambedkar Nagar dated 11.10.2017 reveals that
accused-appellant no.2-Sangram was aged about
15 years 05 months and 22 days on the date of
incident i.e. on 08.01.981. It transpires from the
report of the Juvenile Justice Board, Ambedkar
Nagar dated 11.10.2017 that inquiry was
conducted as per Rules and opportunity was
given to the complainant as well as accusedappellant no.2-Sangram to lead evidence.
Opinion formed by the Juvenile Justice Board,
Ambedkar Nagar is based on the Transfer
Certificate of Class-5 of appellant no.2Sangram, which was proved by the Headmaster
of the concerned school by placing relevant
document of the said school. No appeal has been
filed against the order dated 11.10.2017 passed
by Juvenile Justice Board, Ambedkar Nagar
declaring accused-appellant no.2 (Sangram)
Juvenile in conflict with law as would be clear
from the admission made by the learned AGA in
this regard before this Court. It also appears that
no objection on behalf of State is raised
challenging the report dated 11.10.2017 passed
by Juvenile Justice Board, Ambekdar Nagar.
Thus, we are of the view that report dated
11.10.2017 passed by Juvenile Justice Board,
after making thorough inquiry, is liable to be
accepted and we, accordingly, accept the same.
11 All. Ram Kumar & Ors. Vs. State of U.P.
889

(13) Now, since the appellant no.2Sangram was Juvenile on the date of incident i.e.
on 08.01.1981 and no argument has been
advanced about conviction of accused-appellant
no.2 for the aforesaid offences, therefore, this
Court has to take into consideration provisions
of Sections 18 and 21 of the Juvenile Justice
(Care and Protection of Children) Amendment
Act, 2021 (hereinafter referred to as "JJ Act,
2021")
to
pass
order
in
respect
of
accused/appellant no.2-Sangram (Juvenile in
conflict with law).

(14) At this juncture, it would be apt to
reproduce Sections 18 and 21 of the JJ Act,
2021, which are as under :-

"Section 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 1[or a child above
the age of sixteen years has committed a heinous
offence and the Board has, after preliminary
assessment under section 15, disposed of the
matter], 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 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 wellbeing 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 wellbeing 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
890 INDIAN LAW REPORTS ALLAHABAD SERIES
adult, then the Board may order transfer of the
trial of the case to the Children's Court having
jurisdiction to try such offences."

"Section 21 : Order that may not 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 such
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."

(15) From 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
of which a juvenile may be sent to a Special
Home is only three years.

(16) It is pertinent to mention here that if
the submission raised by learned counsel for
appellant no.2-Sangram as well as learned
A.G.A. are taken into consideration, the
accused/appellant
no.2-Sangram
declared
Juvenile in conflict with law under JJ Act, 2021
can be sent to Special Home for a maximum
period of three years or other treatments to deal
with juvenile in conflict with law have also been
given under Section 15 of JJ Act, 2021.

(17) In the present case, as is evident from
record and submission raised by learned counsel
appearing for appellant no.2-Sangram, appellant
no.2-Sangram is languishing in jail since
07.05.2018 and has undergone about more than
three years imprisonment.

(18) 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.

(19) In Pradeep Kumar Vs. State of U.P. :
1995 SCC (Cri) 395, the Apex Court, on finding
that accused was below 16 years on the date of
commission of offence, held that as per the then
provisions of Uttar Pradesh Children Act, he
cannot be sentenced to life and as the accused had
crossed 30 years, directed his release from Jail.

(20) In Upendra Kumar Vs. State of Bihar
: 2005 (3) SCC 592, under similar circumstances,
the Apex Court sustained the conviction under
Section 302 IPC, however, quashed the life
sentence and ordered release of juvenile from jail.

(21) In Vaneet Kumar Gupta @
Dharminder Vs. State of Punjab : 2009 (17)
SCC 587, accused, who was sentenced to life
under Section 302 read with 149 I.P.C., was found
to be a Juvenile at the time of commission of the
offence. The Apex Court noticing the fact that he
is in jail for several years, directed his release from
jail.

(22) Similar view has also been taken in
Satish @ Dhanna Vs. State of M.P. and others :
2009 (14) SCC 187 and in Vikram Singh Vs.
State of Haryana : 2009 (13) SCC 645.

(23) In Dharambir Vs. State : 2010 (2) SCC
344, appellant was sentenced to life. In the course
of his Criminal Appeal before Apex Court, in the
enquiry conducted, it was found that at the time of
commission of offence, he was below 18 years of
age and was a juvenile in conflict with law and by
the time his appeal reached the Supreme Court, he
had reached 35 years of his age and had spent 2
years, 4 months and 4 days in jail. So, even as per
Section 15 of the JJ Act, 2000 he has to be sent to
the Special Home for the balance 8 months. The
Apex Court noticing that sending him to Special
Home will not be in the interest of other juveniles
in the Home, directed his release from jail.

(24) In Bhim @ Uttam Ghosh Vs. State
of West Bengal 2010 (14) SCC 571, appellant
was sentenced to 5 years rigorous imprisonment.
It was established before the Apex Court that on
11 All. Ram Kumar & Ors. Vs. State of U.P.
891
the date of offence, he was a juvenile in conflict
with law and he is entitled to the benefit of JJ
Act, 2000 and by that time, he has become 42
years old. But, he was in jail for less than 3
years. In the circumstances, the Apex Court did
not detain him in jail for the remaining period
but directed his release from jail.

(25) In Lakhan Lal Vs. State of Bihar :
2011 (2) SCC 251, accused who was sentenced
to life under Section 302 read with 34 I.P.C. was
found to be a Juvenile in conflict with law at the
time of commission of the offence. By the time
his appeal reached to Supreme Court, he had
crossed 40 years age. He was in jail for more
than 7 years. Under these circumstances,
referring to Dharambir Vs. State (supra), the
Apex Court set aside his life sentence and
directed his release.

(26) In Amit Singh Vs. State of
Maharashtra and another : 2011 (13) SCC
744, accused was found guilty under Section
396, 506, 341, 379 read with 120-B I.P.C. and
Section 25 (1-B), 5 read with 27 of Arms Act.
Apart from the other sentence of imprisonment,
he was also sentenced to life and his sentences
were confirmed by Bombay High Court. The
Apex Court also dismissed his Special Leave
Petition. Subsequently, he filed a Writ Petition
before Supreme Court under Article 32 of
Constitution claiming juvenility which was
considered and he was found to be eligible for
benefit under JJ Act, 2000 and considering the
fact that by that time he had been in jail for 12
years, Court held that he was in jail for more
than the maximum period for which a juvenile
may be confined in a Special Home and directed
his release from jail.

(27) In Kalu @ Amit Vs. State of Haryana
: 2012 (3) SCC (Cri) 761, the Apex Court, while
confirming conviction of the appellant under
Section 302 read with Section 34 I.P.C., since the
appellant was a Juvenile in conflict with law
within the meaning of JJ Act, 2000 on the date
when the offence was committed, he was already
in Jail for 9 years and attained majority long back,
directed his release from jail and also noticing
Section 19 of JJ Act, 2000 held that he shall not
incur
any
disqualification
because
of
his
conviction.

(28) In Vijay Singh Vs. State of Delhi :
2012(3) SCC (Cri) 1044, appellant who was
convicted and sentenced to undergo 5 years
rigorous imprisonment under Section 307 IPC,
claimed that he was a Juvenile in conflict with law
on the date of commission of offence and Court on
the basis of the date of birth mentioned in his
School Leaving Register and his Original
Admission Register accepted his plea of juvenility
and noticing that the appellant is in jail for more
than 3 years directed his release from jail.

(29) In Babla @ Dinesh Vs. State of
Uttarakhand : 2012 (3) SCC (Cri) 1067, appellant
was sentenced to life under Section 302 read with
149 I.P.C. and on the basis of the report of the
Sessions Judge, Court accepted that the appellant
was Juvenile in conflict with law on the date of
commission of offence and since he was in jail for
more than 3 years out of the maximum period
prescribed under Section 15 of JJ Act, 2000, set
aside his life sentence and directed his immediate
release from jail.

(30) In Mahesh and others Vs. State of
Rajasthan and others : 2019 (3) Crimes 60 (SC),
the Apex Court has held as under :-

"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."
892 INDIAN LAW REPORTS ALLAHABAD SERIES

(31) Keeping in mind the aforesaid legal
propositions of law and also considering the
facts and circumstances of the case, period of
imprisonment, the age of the accused/appellant
no.2-Sangram as on date, the efflux of time
since the date of occurrence, we are of the
considered view that no fruitful purpose would
be served by remanding the matter to Juvenile
Justice
Board
as
accused-appellant
no.2
(Sangram) has already served out more than
three years sentence. Moreover, he was aged
about 15 years 05 months and 22 days on the
day of incident and by now must have crossed
the age of 56 years. Therefore, he could not be
kept along with other Juveniles in Juvenile
Special Home in this age group.

(32) In view of the aforesaid, we confirm
the judgment and order dated 11.10.2018 passed
by the Co-ordinate Bench of this Court so far as
the conviction of the accused/appellant no.2Sangram. However, so far as sentence imposed
vide judgment and order dated 11.10.2018 to
appellant no.2-Sangram is concerned, the same
is modified to the period already undergone by
appellant
no.2-Sangram.
Appellant
no.2Sangram shall be set at liberty if not wanted in
any other case.

(33) The appeal is, accordingly, partly
allowed.

(34) Let a copy of this judgment be sent to
the
trial
court
concerned
forthwith
for
compliance and further necessary action.
----------
(2021)11ILR A892
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 981 of 1983
Faqirey & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri P.N. Lal, Sri P.K. Srivastava, Sri Javed Habib

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 324 & 307 - Quantum of sentence -
"Proper Sentence" - principle of proportionality
- Sentence should not be either excessively
harsh or ridiculously low - While determining
the quantum of sentence, the court should bear
in mind the principle of proportionately -
Sentence should be based on facts of a given
case
-
Gravity
of
offence,
manner
of
commission of crime, age and sex of accused
should be taken into account - principle of
proportionality between the crime committed
and the penalty imposed are to be kept in mind
- Discretion of Court in awarding sentence
cannot be exercised arbitrarily or whimsically
(Para 16)

Incident took place in year 1981, appellant
were convicted in the year 1983 - at present
appellant no. 1 aged about 62 years & appellant
no. 3 more than 75 years - appellant never
intended to assault but it happened at the spur
of moment without any premeditation due to an
altercation that took place between the injured
and the accused-appellants - doctors, who were
examined in the trial court, have not stated
anywhere in their statements that the injuries
sustained by the injured were fatal to life and
they were likely to cause death - two months'
imprisonment has already been undergone by
them during trial and after conviction - it was
the first offence of the accused and after
conviction the accused had not indulged in any
other criminal activity - Appellant pressed
appeal on quantum of sentence - Held - Court
altered the conviction from section 307/34
I.P.C. to section 324 I.P.C. - accused-appellants
are
convicted
with
the
period
already
undergone by them in prison during trial and
after conviction - Accused-appellants directed to
deposit fine of Rs. 10,000/- to be paid to the
injured (Para 20, 21, 22)