SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Karan @ Ghoni vs State Of Punjab on 7 August, 2018

Crl. Appeal S 4 SB of 2017 {1}

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Misc. 38 and 40 of 2017 in/and
Crl. Appeal S 4 SB of 2017 (OM)
Date of decision: 7.8.2018

Karan @ Ghoni
…Appellant
Versus
State of Punjab
…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Hitesh Verma, Advocate,
for the applicant/appellant.

Ms. Rajni Gupta. Sr. DAG, Punjab.

JAISHREE THAKUR, J.

1. This is an appeal that has been filed against the impugned

judgment and order of sentence dated 13.10.2016 passed by the Additional

Sessions Judge, Hoshiarpur in Sessions case No. 7 dated 24.3.2015, vide

which the appellant was convicted under Section 376 IPC and sentenced to

undergo rigorous imprisonment for a period of seven years.

2. In brief, the facts are that a statement was made by the

prosecutrix in which it was alleged that her date of birth was 7.10.2000 and

she was a student of 9th Class. It was further alleged that on 5.12.2014,

when she left her house for Gurudwara Shahidan, then the appellant herein

caught her and forcibly took her towards the Northern side of the road. She

raised noise and requested the appellant to let her go to but of no avail. It

1 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {2}

was further alleged that the appellant took her for about 1/2 kilometer away

and there committed the offence of rape. It was further alleged that on the

next day i.e. 6.12.2014 at about 5 p.m., she managed to escape and on

reaching her house, she disclosed the entire episode to her mother. It is on

these allegations that the FIR was registered and the appellant was arrested

on 8.12.2014. After completion of the investigation, the challan was

presented and since the offence was triable by the Sessions Court, the same

was committed by the Illaqa Magistrate to the Sessions Court.

3. The prosecution examined as many as 13 witnesses and after

closure of prosecution evidence, statement of the appellant under Section

313 of the Code of Criminal Procedure was recorded, in which he denied all

the allegations and pleaded innocence. The trial court, after going through

the record and hearing learned counsel for the parties, convicted the

appellant, as stated above.

4. Learned counsel for the appellant herein submits that during the

pendency of the trial itself, an application was filed for declaring the

appellant to be a juvenile. It was contended that his date of birth was

5.12.1997 and on the date when the alleged occurrence took place he was a

juvenile and, therefore, he should be treated as such. Vide order dated

8.9.2016 passed by the trial court, a Board of Doctors was constituted and

an opportunity was given to the appellant to produce evidence in support of

his claim of being a juvenile. On 17.9.2016 one witness was produced by

the appellant and an application was moved to summon the record from the

concerned department regarding his age. However, the trial court in a hasty

2 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {3}

manner declined the request of the appellant and closed his evidence, vide

order dated 19.9.2016, without appreciating the fact that the summoning of

record was necessary for determining the issue.

5. Against the said order, a Criminal Revision 3591 of 2016 was

filed but during the pendency of the revision petition closing the evidence of

the appellant, the trial court convicted him and resultantly, the revision

petition was dismissed as withdrawn with liberty to the appellant to take the

plea of juvenility while filing the appeal qua the judgment of conviction.

Consequently, the appellant, while filing the appeal, annexed his date of

birth certificate dated 17.10.2016 as Annexure A/1 which was taken on

record. By order dated 10.1.2017, the appeal stands admitted and notice in

the Criminal Misc. Nos. 38 and 40 of 2017, one for suspension of sentence

and another for declaring the appellant as juvenile respectively, was issued

for 21.2.2017.

6. Learned counsel appearing on behalf of the applicant/appellant,

while assailing the judgment in appeal, contends that the Birth Certificate

dated 17.10.2016 has been issued by the Additional District Registrar,

Births and Deaths, Hoshiarpur, which would reflect that his date of birth

was recorded as 5.12.1997 and, therefore, on the date of the alleged

incident, the applicant/appellant was a juvenile and should have been treated

as such. It is also argued that since the appellant was a juvenile at that point

of time i.e. on the alleged date of occurrence, therefore, he was covered

under Section 15 (g) of the Juvenile Justice (Care and Protection of

Children ) Act, 2007 where the maximum sentence that could be awarded to

3 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {4}

a juvenile is three years and the appellant has already undergone a sentence

of 2 years, 2 months and 26 days, including remission of 15 days, as per the

custody certificate dated 18.7.2018 and, therefore, without assailing the

conviction, it is prayed that the sentence awarded to the appellant be

reduced to the period already undergone.

7. Per contra, learned counsel for the respondent–State submits

that the trial court, after appreciating the evidence brought on record, has

rightly convicted the appellant. She further submits that the application of

the applicant/appellant declaring him to be juvenile was rightly dismissed by

the trial court, while relying upon the report of the Board of Doctors so

constituted and as such, the application for declaring the applicant/appellant

as juvenile deserves to be dismissed.

8. I have heard learned counsel for the parties have also perused

the pleadings of the case.

9. As already noted, notice in the applications for suspension of

sentence and for declaring the applicant/appellant as juvenile was issued for

21.2.2017. By order dated 21.2.2017, this Court took notice of the

contention raised by the applicant/appellant that his date of birth is

5.12.1997 and that he was a juvenile at the time of alleged incident.

Consequently, a direction was given to the District Sessions Judge,

Hoshiarpur, to make an inquiry with respect of the said Birth Certificate and

submit a report in this regard. The report of the District Sessions Judge,

Hoshiarpur, has been received. During the inquiry by the District

Sessions Judge, statement of Bhupinder Singh Junior Assistant Office of

4 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {5}

Civil Surgeon, Hoshiarpur, was recorded and he deposed that in the original

Birth Register there is entry qua birth of Karan Sandhu son of Harmesh

Kumar showing place of birth Ghumiala, Police Station Mahilpur, at page

No. 233 against serial No. 12 dated 15.12.1997. Jaswinder Singh, Statistical

Assistant Office of the Civil Surgeon, Hoshiarpur, also deposed on the

similar lines.

10. The applicant/appellant was also summoned by the Court and

his statement was recorded, wherein he stated that he was born on 5.12.1997

in Village Ghumiala, District Hoshiarpur. He also produced birth certificate

bearing No. T-118334 dated 17.10.2016, while stating that he got the

certificate after making application to the office of the Chief Medical

Officer, Hoshiarpur. Dr. Sewa Singh, Additional District Registrar, Civil

Hospital, Hoshiarpur was also summoned who affirmed the date of birth of

the applicant/appellant, while narrating that the certificate was issued on an

application filed by one Mukesh Sandhu, who happens to be brother of the

applicant. A copy of the application was also produced on record.

11. Another statement was recorded of Jaswinder Singh,

Superintendent, who also stated that on 17.10.2016 Mukesh Sandhu had

filed an application for issuance of birth certificate of Karan Sandhu and on

perusal of the record, the said certificate was prepared. Statement of Dr.

G.S. Kapoor was also recorded about signing of the birth certificate after the

same had been perused.

12. After perusal of the statements that have been recorded, the

District Sessions Judge, Hoshiarpur, came to the conclusion that there is

5 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {6}

possibility that the relevant entries in the register have been manipulated and

accordingly submitted the report. In the said report, the District Sessions

Judge, Hoshiarpur, took note of the fact that during the trial, the appellant

moved an application for conducting an inquiry qua his juvenility and on the

said application the trial court had directed the Chief Medical Officer,

Hoshiarpur, to constitute a Board of Directors so as to examine the

accused/appellant. His claim for being treated as juvenile was rejected

because at that time he had only relied on a ration card and had tendered in

evidence the certificate of the accused/appellant, which was singed by the

Head Teacher, Government Elementary School, Ghumiala, District

Hoshiarpur, reflecting his date of birth as 5.12.1995. The District

Sessions Judge formed an opinion that there could be possibility of

manipulation of the birth certificate.

13. Having perused the record and gone through the statements that

have been recorded, this Court finds it difficult to believe that all the public

servants, who were responsible for maintaining the record would either

manipulate or depose falsely to help the applicant/appellant. Responsible

officers like, Dr. Sewa Singh, Additional District Registrar, Civil Hospital,

Hoshiarpur and Jaswinder Singh, Superintendent of the office of Civil

Surgeon, Hoshiarpur, have, after verifying the original record, stated that

the date of birth as reflected on the record is 5.12.1997, as such the veracity

of such statements could not be doubted. Moreover, the date of birth

mentioned in the Birth Certificate is in consonance with the date mentioned

in the school leaving certificate.

6 of 7
12-08-2018 15:44:50 :::
Crl. Appeal S 4 SB of 2017 {7}

14. For the reasons afore-stated, Criminal Misc. 40 of 2017 is

allowed. The applicant/appellant is declared to be a juvenile on the date of

incident i.e. 5.12.2014, his date of birth being 5.12.1997.

15. Consequently, while upholding the impugned judgment of

conviction, the sentence awarded to the appellant is reduced to the period

already undergone by him because as terms of Section 15 (g) of the Juvenile

Justice (Care and Protection of Children) Act, the maximum sentence that

can be awarded to a juvenile for such incident is of three years.

16. The application as well as the appeal stand disposed of

accordingly.

7.8.2018 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

7 of 7
12-08-2018 15:44:50 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation