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CASE NO.: Review Petition (crl.) 1105  of  2000

PETITIONER: RAM DEO CHAUHAN @ RAJ NATH CHAUHAN

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       10/05/2001

BENCH: K.T. Thomas

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   After reading the draft judgment prepared by my esteemed brother  Sethi,  J.   supported by  reasons  forcefully  and lucidly  advanced there could not have been much  difficulty for me to concur with it.  However, having regard to certain aspects revolving on the issue whether a young man should be hanged  by  neck  till he is dead pursuant to  the  judgment pronounced  by us, I am unble to resist the urge to look  at the  question  of  sentence once again in an effort  to  see whether  there  is  any legally permissible  outlet  through which  his life can be spared from the hangmans noose.   In my  thoughtful rumination on that alternative option I  feel inclined  to respectfully dissent from my learned  brothers conclusion that there is no scope to alter the death penalty imposed on the petitioner.

   At  the  outset I may state that I have no doubt  in  my mind regarding the correctness of the observations of Sethi, J, that the sentence cannot be altered on the reasoning that the  trial  court  did not adjourn  the  proceedings,  after pronouncing the conviction, for the purpose of providing the convicted  person  time  to  reflect   on  the  question  of sentence.   The trial judge chose to pronounce the  sentence on  the  same day of pronouncing the verdict of  conviction. When  the Code of Criminal Procedure was amended in 1978 (By Act  45 of 1978) a proviso was introduced to sub-section (2) of  Section  309 of the Code by which an interdict has  been added  that no adjournment shall be granted for the purpose only  of enabling the accused persons to show cause  against the  sentence proposed to be imposed on him. We make a note that  the  said proviso does not make a distinction  between offences  punishable with death or imprisonment for life and the  other  offences, in relation to the application of  the said  proviso.  The proviso thus reflects the  parliamentary concern  that  the rule in all cases must be  that  sentence shall be passed on the same day of pronouncement of judgment in  criminal cases as far as possible, and perhaps by way of exception  the  said rule can be relaxed by  adjourning  the case to another day for passing orders on the sentence.

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   In  Muniappan vs.  State of Tamil Nadu {1981(3) SCC  11} this  Court emphasised the need to make a genuine effort  to elicit  all  relevant  information   from  the  accused  for considering  the question whether the extreme penalty is  to be  awarded or not.  In Allauddin Mian and ors.  vs.   State of Bihar {1989(3) SCC 5} a two Judge Bench of this Court {S. Natarajan, J and A.M.  Ahmadi, J (as he then was)} and again in Malkiat Singh and ors.  vs.  State of Punjab {1991(4) SCC 341}  a three Judge Bench (A.M.  Ahmadi, V.  Ramaswamy and K Ramaswamy,  JJ) have indicated the need to adjourn the  case to   a  future  date  after   pronouncing  the  verdict   of conviction.   In those two decisions the direction contained in the proviso to sub-section (2) of Section 309 of the Code was not considered, presumably because it was not brought to the  notice of the court.  Hence in State of Maharashtra vs. Sukhdev  Singh and anr.{1992(3) SCC 700} the two Judge Bench (A.M.    Ahmadi  and  K.    Ramaswamy,  JJ)  considered  the implication  of  the  said  proviso  also.   Learned  judges observed that the proviso to Section 309(2) does not entitle an  accused to adjourn though it does not prohibit the court from  granting  such adjournment in serious cases.  This  is what Ahmadi J (as he then was) observed for the Bench:

   If the court feels that the interest of justice demands that  the matter should be adjourned to enable both sides to place  the  relevant  material touching on the  question  of sentence  before  the  court, the  above  extracted  proviso cannot preclude the court from doing so.

   It  must  be remembered that two  alternative  sentences alone  are permitted for imposition as for the offence under Section  302 IPC  imprisonment for life or death.  Thus  no court   is  permitted  to  award   a  sentence   less   than imprisonment  for  life as for the offence of  murder.   The normal  punishment for the offence is life imprisonment  and death  penalty  is now permitted to be awarded only in  the rarest  of  the  rare cases when the lesser  alternative  is unquestionably  foreclosed.{vide Bachan Singh vs.  State of Punjab,  1980  (2) SCC 684}.  The requirement  contained  in Section  235(2) of the Code (the obligation of the Judge  to hear the accused on the question of sentence) is intended to achieve  a purpose.  The said legislative provision is meant for  affording benefit to the convicted person in the matter of  sentence.  But when the Sessions judge does not  propose to  award death penalty to a person convicted of the offence under  Section 302 IPC what is the benefit to be secured  by hearing  the  accused on the question of sentence.   However much it is argued the Sessions judge cannot award a sentence less  than imprisonment for life for the said offence.  If a Sessions  Judge  who convicts the accused under Section  302 IPC  (with  or without the aid of other sections)  does  not propose  to award death penalty, we feel that the Court need not  waste  time on hearing the accused on the  question  of sentence.   We  therefore  choose to use this  occasion  for reiterating  the  legal position regarding the necessity  to afford  opportunity  for  hearing  to  the  accused  on  the question of sentence.

   (1)  When the conviction is under Section 302 IPC  (with or  without the aid of Section 34 or 149 or 120B of IPC)  if the  Sessions Judge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the  accused on the question of sentence.  Section 235(2) of the  Code  will  not  be violated if the  sentence  of  life

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imprisonment is awarded for that offence without hearing the accused on the question of sentence.

   (2)  In  all  other  cases the  accused  must  be  given sufficient  opportunity  of  hearing  on  the  question   of sentence.

   (3)  The  normal  rule  is that  after  pronouncing  the verdict of guilty the hearing should be made on the same day and the sentence shall also be pronounced on the same day.

   (4)  In  cases where the Judge feels or if  the  accused demands  more  time for hearing on the question of  sentence (especially  when the Judge propose to impose death penalty) the  proviso  to Section 309(2) is not a bar  for  affording such time.

   (5)  For any reason the court is inclined to adjourn the case  after  pronouncing  the  verdict of  guilty  in  grave offences  the  convicted person shall be committed  to  jail till  the  verdict on the sentence is  pronounced.   Further detention will depend upon the process of law.

   But  what causes concern to me is whether the new  point advanced  by  Shri S.  Muralidhar, learned counsel  for  the convicted person in this review petition, that the interdict contained in Section 22(1) of the Juvenile Justice Act, 1986 (for short the Juvenile Act) can have impact on the question of  death  penalty imposed on the petitioner.  The power  of review  of  Supreme Court as envisaged under Article 137  of the  Constitution  is  no  doubt   wider  than  the   review jurisdiction conferred by other statutes on the Court.

   Article  137  of the Constitution empowers  the  Supreme court  to  review  any judgment pronounced  or  order  made, subject  of  course  to the provisions of any  law  made  by Parliament  or  any  rule  made under  Article  145  of  the constitution.  Rule 1 or O.XL of the Supreme court Rules can be quoted:

   The  Court  may  review its judgment or order,  but  no application  for  review  will  be entertained  in  a  civil proceeding  except  on the ground mentioned in  Order  XLVII Rule  1 of the Code, and in a criminal proceeding except  on the ground of an error apparent on the face of the record.

   A  Constitution  bench of this Court has considered  the scope of the review jurisdiction of this court vis-a-vis the fore-quoted  rule in PN Iswara Iyer vs.  Registrar,  Supreme Court of India (1980 (4) SCC 680.

   The following observations made in the said decision are apposite now.  Hence there are extracted below:

   The  rule, on its face, affords a wider set of  grounds for  review for orders in civil proceedings, but limits  the ground vis-Ã -vis criminal proceedings to errors apparent on the  face of the record. If at all, the concern of the  law to  avoid  judicial error should be heightened when life  or liberty  is  in peril since civil penalties are  often  less traumatic.   So, it is reasonable to assume that the framers of  the  rules could not have intended a restrictive  review over  criminal orders of judgments.  It is likely to be  the other way about.  Supposing an accused is sentenced to death by  the  Supreme Court and the deceased shows up in  court

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and the court discovers the tragic treachery of the recorded testimony.   Is  the court helpless to review and set  aside the sentence of hanging?  We think not.  The power to review is in article 137 and it is equally wide in all proceedings. The  rule  merely canalises the flow from the  reservoir  of power.   The stream cannot stifle the source.  Moreover, the dynamics  of  interpretation  depend on the  demand  of  the context  and the lexical limits of the test.  Here  record means  any material which is already on record or may,  with the  permission  of  the court, be brought  on  record.   If justice  summons the judges to allow a vital material in, it becomes part of the record;  and if apparent error is there, correction becomes necessitous.

   In  Suthendraraja vs.  State {1999 (9) SCC 323} a  three Judge  Bench,  following the aforesaid observations  of  the Constitution  Bench,  has  said  the  scope  of  review  in criminal  proceedings  has been considerably widened by  the pronouncement  in the aforesaid judgment. We are proceeding to  consider the point raised by the learned counsel for the petitioner  after  informing  ourselves  of  the  width  and dimensions of the review jurisdiction of this Court.

   Shri  S.   Muralidhar, learned counsel, made  a  fervent plea  for  giving  all  the benefits to  the  petitioner  as provided  in Section 22(1) of the Juvenile Act.  We made  it clear  to the learned counsel, during the arguments, that we were  not  inclined to reopen the whole gamut to such a  far reaching  extent.   However,  we  offered  to  consider  the contention  based  on Section 22(1) of the Juvenile Act  for the  limited purpose of deciding whether the death  sentence imposed  on the petitioner is liable to be reviewed and  the lesser alternative can be awarded.

   Section  22(1)  of  the  Juvenile   Act  says  that   no delinquent  juvenile shall be sentenced to death, (of course this  sub-section  also  says  that  no  juvenile  shall  be sentenced  to imprisonment).  We have already held on  facts that  petitioner did not succeed in proving that he was aged below 16 years on the date of occurrence.  As petitioner was arrested  on  the  same day of occurrence it  is  immaterial whether the crucial date for reckoning the age of juvenility is  the date of occurrence or date of arrest.  Hence we  are not inclined to consider whether the petitioner was entitled to  be treated as a juvenile for the purpose of dealing with him under the provisions of the Juvenile Act.

   But  I  am  inclined  to approach the  question  from  a different  angle.  Can death sentence be awarded to a person whose  age is not positively established by the  prosecution as  above 16 on the crucial date.  If the prosecution failed to  prove positively that aspect, can a convicted person  be allowed to be hanged by neck till death in view of the clear interdict contained in Section 22(1) of the Juvenile Act.  A peep  into  the historical background of how  death  penalty survived  Article 21 of the Constitution would be useful  in this context.

   Apart  from  the two schools of thought putting  forward their  respective  points of view stridently - one  pleading for  retention of death penalty and the other for  abolition of  it   a serious question arose whether the law  enabling the  State  to  take  away the life of a person  by  way  of punishment  would be hit by the forbid contained in  Article

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21  of  the  Constitution.  In Bachan Singh  vs.   State  of Punjab (supra) the majority Judges of the Constitution Bench saved  the  death  penalty  from being chopped  out  of  the statute  book  by  ordering  that death  penalty  should  be strictly restricted to the tiniest category of the rarest of the   rare  cases  in  which   the  lesser  alternative   is unquestionably foreclosed.

   The question here, therefore, is whether the plea of the petitioner  that  he was below the age of 16 on the date  of his arrest could unquestionably be foreclosed.  If it cannot be  so foreclosed, then imposing death penalty on him would, in my view, be violative of Article 21 of the Constitution.

   The fact that the trial court and the High Court did not accept  his  plea  on that score, or the fact  that  in  our judgment  we  did not upset such finding, is not  enough  to hold  that petitioners plea regarding his juvenility as  on the  crucial  date does not survive for  consideration.   In this  context  we  may  point out that  the  petitioner  was defended  in  the trial court by a counsel provided  by  the Court.   In  the  High Court when the appeal was  heard  the petitioner  was unable to engage a counsel.  Hence the  High court  appointed an advocate on State brief.  In this  Court also  when we heard the appeal the petitioner did not have a counsel  on  his  own engagement and hence we  appointed  an advocate  as amicus curiae to argue for him.  It is only now when  the  review  petition  is filed  that  the  petitioner engaged  his own counsel.  The reason for pointing out those aspects  is to inform ourselves as to the disability of  the petitioner  for  effectively  giving   instructions  to  his counsel  at least when the matter was before the High  Court for the statutory appeal and in this Court for the appeal by special  leave.   It  is  reasonable  to  presume,  in  such circumstances,  that  the  amicus  curiae  or  the  advocate appointed  on State brief, would not have been able even  to see  the petitioner, much less to collect instructions  from him, during the second and third tiers.  We bear in mind the aforesaid  handicap  of the petitioner when we look back  to the  findings  already rendered by the courts regarding  the present claim based on juvenility.

   In  the High Court, the counsel appointed on State brief appeared  to have conceded that the petitioner was above the age  of  20.   How  could he have conceded on  such  a  very crucial  aspect,  particularly  when that  counsel  was  not engaged  by  the party himself.  The Division Bench  of  the High  Court has skirted the issue concerning his age only on the  strength  of  such  concession  made  by  the  advocate appointed  on State brief.  In this Court, when this  appeal was  heard  learned amicus curiae did not focus on  the  age factor  and  hence  we did not go into that  aspect  in  our judgment.   For  all  these  reasons we are  now  unable  to sidestep  that  aspect  when Shri  S.   Muralidhar,  learned counsel  for  the petitioner, focussed on it  and  addressed detailed arguments.

   There  are  four  items  of   evidence  with  which  the prosecution tried to establish that the petitioner was not a juvenile on 8.3.1992 (which is the relevant date).  They are the following:

   (1)  Father  of the petitioner was examined as DW-1  and during  his cross examination it was elicited from him  that his  first  child  was  born  when  he  was  aged  30;   the

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petitioner is his 4th child;  the interval between the birth of each child was three years.  On the basis of such answers prosecution worked out the age of the petitioner as 26 years on the date of occurrence.

   (2)  PW-4  in  his  evidence   said  that  when  accused petitioner worked as a domestic servant in the house of that witness  he  asked the petitioner about his age in 1991  and the petitioner then replied that he was then 20 years old.

   (3)  In Ext.25 the statement of the accused was recorded under  Section  161  of the Code of  Criminal  Procedure  on 8.3.1992.   In  that statement the accused said that he  was then 20 years old.

   (4)  On the sheet where the statement of the accused was recorded by the trial court under Section 235 of the Code on 20.9.1997,  the age of the accused was shown as 25 years and 6 months.

   As  against those materials Sh.  S.  Muralidhar, learned counsel, tried to project two materials:

   (i)  The school register proved by the Headmaster of the school  concerned (DW-2) which shows the entry made  against the  name  Ram Deo Chauhan which is said to be that  of  the accused.   As  per  the  said entry the date  of  birth  was 1.2.1997  (if  so he would have been eleven months short  of the age of 16 on the relevant date).

   (ii)  Dr.   B.C.   Roy (a court  witness)  examined  the petitioner  on 23.12.1997 for ascertaining his age.  In  the opinion of that doctor the petitioner would have been within the  range of 20 and 21 years on the said date.  (This means that  he would have been within the range of 15 to 16  years on the relevant date.

   We  are  unable  to  act on any  one  of  the  materials projected  by the prosecution for the purpose of reaching  a conclusion  regarding  the age of the petitioner as  on  the relevant  date.   The  exercise of hatching  or  brewing  up possible  date  or year of birth with the help of  scattered answers  given  by the father of the petitioner, all  during cross-examination,  is a very unsound course to be  adopted. At  any  rate  such an exercise cannot be sustained  to  the detriment  of  the person concerned.  Nor can I rely on  the testimony of PW-4 who said that the accused told him in 1991 that his age was 20.  Such a statement cannot be regarded as reaching  anywhere  near  the proximity of  reliability  for fixing  up  the  correct  age of a  person.   The  statement recorded  under Section 161 of the Code is not permitted  by law  to  be used except for contradicting the author of  the statement.   Hence  it  is impermissible to look  into  that material  also.   The  sheet on which the statement  of  the accused  was recorded under Section 235 of the Code contains some  columns  in the prefatory portion, one among them  was regarding  the  age.  The statement of the accused  actually starts  only  after making such entries in  those  prefatory columns.   Unless  the person who filled up  such  prefatory columns  is  examined  for  showing   how  he  gathered  the information  regarding all such columns the entries  therein cannot  be  regarded  as legal evidence.  At  any  rate,  we cannot  proceed  on  a presumption that  such  columns  were

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filled up by the accused himself.

   Now,  while  switching  over to the other side,  if  the school register can be accepted as reliable and the relevant entry  can  be  taken  as   unmistakably  referring  to  the petitioner-accused  then  he  would certainly  have  been  a juvenile  on the relevant date.  But the trial court did not accept  that  evidence due to the reasons mentioned  in  the judgment.   Those reasons cannot be said to be weak.  It  is not  shown  that  the school register was  maintained  by  a public  servant in the discharge of his official duty or  by any  other  person  in the performance of a  duty  specially enjoined by the law of the country in which such register is kept.   Thus  the entry in the school register remains  away from  the range of acceptability as proof positive regarding the date of birth of the petitioner.

   But  the evidence of the court witness (Dr.B.C.  Roy) is a material which creates reasonable doubts in our mind as to the  possibility of the petitioner having been below the age of  16 on the relevant date.  Dr.  B.C.  Roy who reached the said  conclusion  was  an Associate  Professor  in  Forensic Medicine.    He  examined  the   petitioner  on   20.12.1997 focussing on the anatomical features.  He then subjected the petitioner  to  a  radiological examination and  obtained  a report  thereof.   On the basis of the data  collected  from such examination he formed his opinion that petitioner could be  above 20 years on the date of examination, but he  could not  be  above  the  age of 21 years.   If  his  opinion  is acceptable  it  means  that the petitioner could  have  been below  the  age  of 16 years though it is possible  that  he could have been above that age also but not beyond 17.

   In  his  report the doctor has detailed all the data  on which  he  reached  his  conclusion.  I do  not  propose  to extract  all  such data here except pointing out  that  such data  collected by Dr.  B.C.  Roy are in consonance with the guidelines   provided   in  the    text-books   on   medical jurisprudence.  (vide Modis Medical Jurisprudence and Jhala &  Rajus Medical Jurisprudence).  Ossification test is done for  multiple joints, for which the radiological report  was obtained.   The margin of error according to authorities  on medical  jurisprudence  can be two years either way  as  the maximum.   In  this  context  it is useful  to  extract  the relevant  passage from Jhala & Rajus Medical  Jurisprudence (6th Edn., page 198):

   If  ossification  test  is done for a single  bone  the error  may be two years either way.  But if the test is done for  multiple  joints  with overlapping age  of  fusion  the margin  of  error may be reduced.  Sometimes this margin  is reduced to six months on either side.

   Of  course the doctors estimates of age is not a sturdy substitute  for  proof as it is only his opinion.  But  such opinion  of an expert cannot be sidelined in the realm where we  grope  in the dark to find out what would possibly  have been the age of a citizen for the purpose of affording him a constitutional  protection.   In  the absence of  all  other acceptable materials, if such opinion points to a reasonable possibility  regarding the range of his age it has certainly to  be  considered.  When the possibility of the  petitioner having  been  a  juvenile  on the relevant  date  cannot  be excluded  from  the conclusion by adopting  such  reasonable

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standards,  the interdict contained in Section 22(1) of  the Juvenile  Act cannot be bypassed for awarding death  penalty to  the petitioner so long as the death penalty is permitted to  survive Article 21 only if the lesser alternative can be foreclosed  unquestionably.   In other words, if the age  of the  petitioner cannot be held to be unquestionably above 16 on  the  relevant  date  its corollary is  that  the  lesser sentence  also cannot unquestionably be foreclosed.  We have to  abide by the declaration of law made by the majority  of Judges  of  the  Constitution Bench in Bachan  Singhs  case (supra).

   For  the aforesaid reasons I am persuaded to allow  this review  petition  and  alter  the   sentence  of  death   to imprisonment  for life.  The review petition is disposed  in the above terms.