Review Petition (C) No. 1378 of 2009 in Writ Petition (C) No. 457 of 2005. Case: Ramdeo Chauhan alias Rajnath Chauhan Vs Bani Kant Das and Ors.. Supreme Court (India)
| Case Number | Review Petition (C) No. 1378 of 2009 in Writ Petition (C) No. 457 of 2005 |
| Counsel | For Petitioner: Jyoti Mendiratta, Adv. and For Respondent: M/S.Corporate Law Group |
| Judges | Aftab Alam and Asok Kumar Ganguly, JJ. |
| Issue | Maintenance of Internal Security Act, 1971; Juvenile Justice (Care and Protection of Children) Act, 2000; Juvenile Justice (Care and Protection of Children) (Amendment) Act, 2006; Protection of Human Rights Act, 1993 - Sections 2, 3, 12, 12(6), 36(2); Juvenile Justice Act, 1986; Indian Penal Code - Sections 302, 323, 325, 326; Criminal ... |
| Citation | AIR 2011 SC 615, 2011 (59) BLJR 20, 2011 CriLJ 985, JT 2010 (12) SC 516, 2011 (1) KCCR 689, 2011 (1) MLJ 819 (SC), 2010 (12) SCALE 184, 2010 (10) UJ 5399 (SC) |
| Judgement Date | November 19, 2010 |
| Court | Supreme Court (India) |
Judgment:
Asok Kumar Ganguly, J.
1. This case has a chequered background. The facts, therefore, are to be appreciated in their sequence.
2. A criminal case was registered against the petitioner under Section 302 IPC, on an FIR lodged by Bani Kant Das (first respondent), elder brother of Bhabani Charan Das (the deceased), in view of the offences committed by the petitioner on 8.3.1992. After investigation and preparation of charge sheet, the case was committed for trial to the Court of Sessions and charges were framed against the petitioner under Sections 302, 323, 325 and 326 of IPC.
3. On 31.3.1998, the Trial Court held the petitioner guilty of murdering four members of Bhabani Charan Das's family and that all the charges under Sections 302, 323, 325 and 326 of IPC against him were proved beyond all reasonable doubt. The Trial Court also opined that the crime fell within the category of `rarest of rare cases' and the petitioner deserved death penalty.
4. However, the defence raised the plea that at the time of commission of the crime, the petitioner was below 16 years of age. To determine the actual age of the petitioner, Dr. Bhushan Chandra Roy, Associate Professor of Forensic Medicine of Guwahati Medical College, with a team of doctors, examined him on 23.12.1997. The defence examined the father of the petitioner, Mr. Firato Chauhan and also placed reliance on the school admission register. The school register was held to be unreliable, as it was not properly maintained. Further, the petitioner's father estimated the petitioner's age to be 19 years at the time of occurrence of the crime.
5. However, on the basis of the physical and radiological examination done of the petitioner, the doctor was definitely of the opinion that his age was above 20 years but could not be more than 21 years on the date of the examination. This examination was conducted more than 5 ½ years after the date of commission of the crime.
6. Dr. Bhushan Chandra Roy, who was a prosecution witness, subjected the petitioner to scientific tests including radiological tests. The medical opinion of Dr. Bhushan Chandra Roy was a joint opinion and he consulted the doctor in the Department of Radiology and Dr. Kanak Chandra Das, the Medical Officer on duty in the Department of Radiology.
7. About the age of the petitioner, trial Court accepted the opinion of the team of doctors headed by Dr. Bhushan Chandra Roy.
8. The Trial Court's finding about the age of the petitioner is as follows:
On the basis of the physical examination and radiological examination done on Ramdeo Chauhan alias Raj Nath Chauhan, they are of opinion that the age of the individual is above 20 years.
9. The Trial Court, after considering the medical evidence about the age of the petitioner along with the evidence of the father of the petitioner, came to the following conclusion:
Then the accused cannot be below sixteen years of age at the time of alleged occurrence to attract the provisions of Juvenile Justice Act, 1986 as the alleged occurrence took place before six years.
10. On appeal by the petitioner, the High Court, vide its judgment dated 1.2.1999, confirmed the conviction and sentence of death against the petitioner. Before the High Court the Counsel for the petitioner specifically submitted, that he was not challenging the finding of the Trial Court on the point of age of the accused- petitioner.
11. The appeal from the High Court judgment was dismissed by a Bench of this Court, comprising K.T. Thomas and R.P. Sethi, JJ, on 31.7.2000 and death sentence was upheld. In that judgment, this Court did not advert to the question of age of the petitioner as it was possibly not argued.
12. A review petition (hereinafter, the first review petition) was filed against the abovementioned judgment of this Court. After notice was issued, a two Judge Bench of this Court held that the question of conviction of the petitioner under Section 302 IPC cannot be reopened. However, considering the fact that the petitioner raised an important question that he was a juvenile at the relevant time and there is a legal prohibition against sentencing a juvenile, the first review petition was referred to a larger Bench comprising K.T. Thomas, R.P. Sethi and S.N. Phukan, JJ.
13. In the larger Bench decision dated 10.5.2001, Sethi, J., inter-alia, held- "From the evidence produced and the material placed before the courts below, there is not an iota of doubt in my mind to hold that the petitioner was not a child or near or about the age of being a child within the meaning of the Juvenile Justice Act or the Children Act."
14. Thomas, J gave a dissenting judgment with respect to imposition of death sentence upon the accused. His Lordship observed that the Court had already held on facts that the petitioner had been unable to prove that he was below 16 years of age on the date of the crime. However, Thomas J. approached the question from a different angle and questioned whether death sentence could be awarded to a person whose age was not positively established by the prosecution as above 16 years on the crucial date? The learned Judge opined that if the age of the petitioner could not be held to be unquestionably above 16 on the relevant date (and there was a doubt created in view of the medical report of Dr. Bhushan Chandra Roy), its corollary was that the lesser sentence also could not unquestionably be foreclosed, as per the Constitution Bench judgment in the case of Bachan Singh v. State of Punjab (1982) 3 SCC 24. Thus, the learned Judge opined that the sentence of death be altered to one of imprisonment for life.
15. Phukan, J., gave a concurring opinion with Sethi, J. and opined that the imposition of sentence of death could not be reopened on review. However, His Lordship observed that if any motion was made in terms of Sections 432, 433 and 433A of the Code of Criminal Procedure and/or Article 72 or Article 161 of the Constitution, the same may be appropriately dealt with.
16. In the words of Phukan, J., "the factors which have weighed with my learned Brother Mr. Justice Thomas can be taken note of in the context of Section 432(2) of the Code."
17. Even before the judgment on the first review petition was pronounced on 10.5.2001, the petitioner had already filed on 17.8.2000 a petition before the Governor of Assam praying for mercy and for commutation of his death sentence to one of life imprisonment.
18. At about the same time when the petition for commutation was pending, Dr. Ved Kumari, Professor of the Faculty of Law, University of Delhi, wrote a fairly detailed article titled "Has a child been executed in India?" The said article came to be noticed by National Human Rights Commission (NHRC). Thereupon, NHRC sent a notice to Dr. Ved Kumari. In the meantime, the judgment in the review petition, as aforesaid, was pronounced by this Court on 10.5.2001.
19. On 21.5.2001, the full Commission of NHRC, consisting of the Chairperson, Mr. Justice J.S. Verma, as also two of its judicial members, namely, Dr. Justice K. Ramaswany and Justice Ms. Sujata V. Manohar, and the other member Sri Virendra Dayal, held its proceedings, in which the judgment rendered in the review proceeding was perused.
20. NHRC, upon considering the materials on record, made the following recommendations:
The Commission is of the view that the above opinion of Thomas, J. in the judgment disposing of the review petition and the above quoted observations of Phukan, J. are very strong reasons to support the view and this is a fit case for commutation of the sentence of Ram Deo Chauhan @ Raj Nath Chauhan in the above case from death sentence to that of imprisonment for life. This Commission is of the considered view that the case, placing reliance on the views of Thomas, J. and Phukan, J., who were two of the three learned Judges, constituting the Bench deserves the highest consideration by the executive authority while considering the question of commutation of sentence of the said Ram Deo Chauhan @ Raj Nath Chauhan.
Accordingly, this Commission makes the above recommendation in terms of the opinion of Thomas, J. for due consideration by the Governor of Assam and/or the President of India, as the case may be, in the event of a mercy petition being filed for the purpose.
21. Thereafter, on 28.1.2002, the Governor of Assam commuted the death sentence of the petitioner to one of life imprisonment. The Order of the Governor runs as under:
The Governor of Assam after careful consideration of the mercy petition and other relevant records is pleased to commute the sentence of death to that of imprisonment for life of the above named condemned prisoner.
22. Challenging the aforesaid order of the Governor, of Assam, the relatives of the deceased filed a writ petition under Article 32 of the Constitution of India before this Court. In...
To continue reading
Request your trial
-
Review Petition No. 506/2011 in Execution Petition No. 38/1998. Case: Formosa Plastics Corporation Vs Ashok K. Chauhan and Ors.. High Court of Delhi (India)
...it cannot be treated as an error apparent on the face of the record. In Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das and Ors. JT 2010 (12) SC 516, it was held that a question which was open to be raised in the original proceeding, but not raised is not an error apparent on In Inder Cha......
-
W. P. No. 3939 of 2004. Case: Bharat Vs State of Chhattisgarh. Chhattisgarh High Court
...((1990) 2 SCC 611: (AIR 1990 SC 1396) and Ram Deo Chauhan alias Raj Nath Chauhan v. Bani Kanta Das and others ((2010) 14 SCC 209: (AIR 2011 SC 615). The petitioner has referred to the provisions contained in Section 433-A of the Cr.P.C. to argue that a person convicted for life cannot be re......
-
Review Petition No. 506/2011 in Execution Petition No. 38/1998. Case: Formosa Plastics Corporation Vs Ashok K. Chauhan and Ors.. High Court of Delhi (India)
...it cannot be treated as an error apparent on the face of the record. In Ramdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das and Ors. JT 2010 (12) SC 516, it was held that a question which was open to be raised in the original proceeding, but not raised is not an error apparent on In Inder Cha......
-
W. P. No. 3939 of 2004. Case: Bharat Vs State of Chhattisgarh. Chhattisgarh High Court
...((1990) 2 SCC 611: (AIR 1990 SC 1396) and Ram Deo Chauhan alias Raj Nath Chauhan v. Bani Kanta Das and others ((2010) 14 SCC 209: (AIR 2011 SC 615). The petitioner has referred to the provisions contained in Section 433-A of the Cr.P.C. to argue that a person convicted for life cannot be re......