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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-à-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.