MUMTAZ @ MUNTYAZversusSTATE OF U.P. (NOW UTTARAKHAND)

                            [2016] 3 S.C.R. 434



A                        MUMTAZ @ MUNTYAZ
                                     v.
                STATE OF U.P. (NOW UTTARAKHAND)
                     (Criminal Appeal No. 2084 of2009)
B                              JULYl,2016
        [V. GOPALA GOWDA AND UDAY UMESH LALIT, JJ]
           Penal Code, 1860 - s. 302 rw. s. 34 - Death of victim-
    informant 's nephew on sustaining burn injuries - FIR by informant-
    PW 1 that he along with his other nephew-PW 2 ll'itnessed appellant
c   and his associates setting his nephew on fire - PW 1 and 2 rushed
    there and put quilt on the victim - Recording of the dying declaration
    of the victim by SDM-PW 5 that the appellants had set him on fire -
    Certificate by PW 8-doctor that victim was in a '/it state of mind to
    give declaration - Thereafter, victim succumbed to· burn injuries -
D   Conviction and sentence u/s. 302134 by the courts below relying
    upon the testimony of PW 1 and 2 as well as the cMng declaration
    - On appeal, held: Even if the eyewitness account is taken to be
    inconsistent with the part of the dying declaration, once the dying
    declaration is found reliable, trustworthy and consistent with
    circumstantial evidence on record, such dying declaration by itself
E
    is adequate to bring home the· case against the accused - On facts,
    evidence of SDM-PW 5 and doctor-PW 8 found trustworthy and
    dying declaration held to be reliable - Defence of alleged grave
    provocation cannot be accepted since the victims was found with
    his hand tied - Thus, order of conviction and sentence of appellant-
F   M by the courts below upheld - As regards appellant-D, since ·he
    was juvenile in terms of the 2000 Act on the day of occurrence and
    guilty of offence ivith which he was tried, sentence of life
    imprisonment set aside and matter remitted to the Jurisdictional
    Juvenile Justice Board for determining the appropriate quantum of
    fine- Juvenile Justice (Care and Protection of Children) Act, 2000.
G
          Disposing of the appeals, the Court
          HELD: 1.1 PW-5-SDM clearly stated that all through the
    recording of his statement, the victim remained in fit condition
    and that the witness had got this fact confirmed from the Doctor
H   on duty; The dying declaration bears appropriate endorsement
                                  434
       MUMTAZ@ MUNTYAZ v. STATE OF U.P, (NOW                            435
                UTTARAKHAND)

of the Doctor on duty which endorsement was proved by PW-8-              A
doctor. There is nothing in ·the cross examination of either PW-5
or PW-8 nor in the dying declaration which could -raise any doubt.
The evidence in that behalf is trustworthy and· the dying
declaration is held to be reliable. [Para 14] [442-C~DJ
       1.2 It is true that the victim was found at 3:00 a.m. in the      B
house of the brother of appellant-M .. The eye witness account
shows that his hands were tied and he was set ablaze. The
memorandum of the seizure of burnt shawl clearly corroborates
said assertion. Therefore, mere presence of the victim in the
house of the brother of appellant itself does not support the theory
of grave provocation specially when the victim was found with            c
his hands tied. Not a single witness was examined "on behalf of
the defence nor is there any material to support such theory.
What kind of provocation and in what manner was if made are all
matters of evidence, which are completely absent on ·record. [Para
15] [442-F-G]                                                            D
       1.3 It is true that in the dying dedaration the deceased had
stated that he did not know the person who extinguished the fire
by pouri'ng water. It could be that while he was. in flame~, the
deceased could not identify the pers~n who tried to save him.
The prompt lodging of the FIR arid the fact that one pf the
eyewitnesses was having burn injuries establishes the presence           E
of the eyewitnesses. In any case, even if the eyew.itn~ss account
is taken to be inconsistent with this part of die dying declaration,
once the dying declaration is found reliable, trustworthy and
consistent with circumstantial evidence on record, such dying
declaration by itself is adequate to bring home. the ca,se against       F
the accused. [Para 16] f443-A-B]
       lA Having gone through the material on record, there is
no reason to upset the findings recordi;d by the trial court and
the High Court regarding conviction and sentence of appellant-
M. [Para 17] [443-C]
                                                                         G
       2.1 As regards D, the District and Sessions Judge, was
directed to cause inquiry with regard to juvenility of the appellant.
The report clearly shows that on considering the entirety of the
matter the claim was found to be acceptable. On the date of
occurrence D was more than 16 years of age but less than 18
years of age. In terms of the Juvenile Justice Act, 1986 which           H
436          SUPREME COURT REPORTS                     [2016) 3 S.C.R.


A was in force at that time, he was not a juvenile and was rightly
  tried and convicted by the trial court. While the appeal against
  his conviction and sentence was pending, on and with effect from
  1.04.2001, the 2000 Act came into force which repealed the 1986
  Act. The 2000 Act inter alia raised the age of juvenility from 16
  to 18 years and in terms of Section 20 of the 2000 Act, the
8
  determination of Juvenility was required to be done in all pending
  matters in accordance with Section 2(1) of the 2000 Act. [Paras
  18, 19) (443-B-G)
          2.2 In terms of Section 20 of the 2000 Act, in all cases where
  the accused was above 16 years but below 18 years of age on the
c date of occurrence, the proceedings pending in the court would
  continue and be taken to the logical end subject to an exception
  that upon finding the juvenile to be guilty, the court would not
  pass an order of sentence against him but the juvenile would be
   referred to the Board for appropriate orders under the 2000 Act.
  The subsequent repeal of the 2000 Act on and with effect from
D 15.01.2016 would not affect the inquiry in which such claim was
   found to be acceptable. Section 25 of the 2015 Act makes it very
   clear. Thus, while holding appellant D to be juvenile in terms of
   the 2000 Act as on the day of occurrence and guilty of the offence
   with which he was tried, the sentence of life imprisonment passed
E against him is set aside and the matter is remitted to the
   Jurisdictional Juvenile Justice Board for determining the
   appropriate quantum of fine that should be levied on the appellant
   D and the compensation that should be awarded to the family of
   the deceased, keeping in mind the directions issued in *Jitendra
   Singh and another v. State of U.P.'s case. [Paras 24, 26 and 27)
F
   (446-G-H; 447-G-H; 448-A]
          Laxman v. State of Maharashtra (2002) 6 SCC 710;
          Pratap Singh v. State of .Jharkhand and another 2005
          (1) SCR1019 : (2005) 3 SCC 551; Bijender Singh v.
          State of Haryana and another 2005 (2) SCR 1131 :
G         (2005) 3 SCC 685; Dharambir v. State (NCT of Delhi)
          and another 2010 (5) SCR137 : (2010) 5 SCC 344;
          4alu v., State of Haryana (2012) 8 SCC 34 - referred
          to.
          *.!itendra Singh and another v. State of U.P. (2013) 11
H
          sec 193 - relied on.
        MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                                 437
                 UTTARAKHAND)

                         Case Law Reference                                   A
      (2002) 6 sec no             referred to               Para 14
      2005 (1) SCR1019            referred to               Para 19
      2005 (2) SCR 1131           referred to               Para 21
      2010 (5) SCR137             referred to               Para 22            B

      (2012) s sec 34             referred to               Para23
      (2013) 11 sec 193           relied on                 Para 27
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2084 of2009.                                                              c
      From the Judgment and Order dated 23.04.2009 in Criminal Appeal
No. 270 of200 I of the High Court of Uttarakhand at Nainital.
                                  WITH
      Criminal Appeal No. 460 of20 I 0                                         D
      K. T. S. Tulsi, Sr. Adv. Prafulla Kumar Behera, Rakesh Kumar
Tewari, Kuber Boddh, S.S. Nehra, Advs. for the Appellant.
     Tanmaya Agarwal, Jatinder Kumar Bhatia, Advs. for the
Respondent.
                                                                               E
      The judgment of the Cou11 was delivered by
       UDAY U. LALIT, J. I. These appeals by special leave at the
instance of Appellants Mumtaz alias Muntyaz and Dilshad alias Pappu
challenge correctness of the decision of the High Court ofUttarakhand
at Nainital in Criminal Appeal No.270 of200 I affirming their conviction
                                                                               F
and sentence for offences punishable under Section 302 read with Section
34 of the Indian Penal Code (for short the "IPC") passed in Sessions
Trial N o.15 of 1991 on the file of the Additional Sessions Judge, Roorkee.
       2. On 27.12.1990 atabout6.30AM PW-I Radhey Shyam lodged
FIR Ext.A- I with Pol ice Station Manglaur that his nephew Pawan Kumar
                                                                               G
had left his house at about 8.00 PM on the previous day and that in the
intervening night of 26th and 27th December 1990 PW-I heard shrieks
of Pawan Kumar from the house of one Raees in the neighbourhood,
whereafter PW-I along with his other nephew PW-2 Anil Kumar came
out of the house and saw that the hands of Pawan Kumar were tied and
he was ablaze in the courtyard of the house ofRaees. Both PWs I and            H
438            SUPREME COURT REPORTS                          [2016) 3 S.C.R.



A     2 rushed there and put a quilt on Pawan Kumar. In this report, PW- I
      Radhey Shyam further stated that he had seen the appellants and their
      associates Naseem Khan and Anees Khan setting Pawan Kumar on
      fire. Soon after this reporting, the police came to the spot and sent
      Pawan Kumar to Primary Health Centre, Manglaur for medical attention.
      Aforesaid FIR Ext.A- I led to registration of Crime No.328 of 1990 at
B
      Police Station Manglaur relating to offences punishable under Sections
      307 and 342 IPC.

            3. At Primary Health Centre, a dying declaration Ext.A-24 of
      Pawan Kumar was recorded at 7.35 AM by PW-5 Satya Prakash Mishra,
      Sub~Divisional Magistrate in which Pawan Kumar stated that the
c     appellants had set him on fire. The translation of the relevant portion of
      the dying declaration Ext.A-24 is as under:
            "Two persons after pouring kerosene set me on fire. I was
            set on fire this morning at about 2.00- 2.30 AM. I was set
            on fire by Pappu, son of unknown, Rio Landhaura and
D           Mumtaz, son of unknown, Rio Landhaura. Mumtaz works
            in the flour mill of Pappu. When I was coming after running
            a VCR on the way, I was taken to house of a Pathani lady
            whose name is Joulie. Joulie. is wife of Raees, Rio
            Landhaura. In the presence of Joulie, Pappu and Mumtaz
 E          poured kerosene on me and set me on fire and ran away.
            When I sta11ed burning. I shouted and a person who is not
            known to me came there and extinguished fire by pouring
            water. Thereafter what happened I do not know. I do not
            know why Pappu and Mumtaz set me on fire. Pappu's
            flour mill is on Lakshar Road. Name of brother of Pappu is
 F          Zinda Hasan."
             Below the above dying declaration Ext.A-24, a cet1ificate to the
      effect that Pawan Kumar was in a fit state of mind to give the dying
      declaration was recorded by Dr. S.K. Mittal.
 G           4. On 27.12.1990 itself PW-2 Anil Kumar who had burnt his
      hands while trying to save Pawan Kumar, was examined by PW-7 Dr.
      N.D. Arora, who prepared injury report Ext.A-23. This report mentioned
      that when he came to the Primary Health Centre, there were burn injuries
      on the hands of PW-2 Anil Kumar.

 H           5. On 27 .12.1990 at about 4.30 PM Pawan Kumar succumbed
         MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                                 439
           UTTARAKHAND) [UDAY U. LAUT, J.]

  to burn injuries while he was being taken to Meerut for medical treatment.   A
  Crime No.328 of 1990 was thereafter converted to one under Section
  302 !PC. Afterthe death of Pawan Kumar, PW-6 Sub-Inspector Saudan
  Singh, Investigating Officer took the dead body in his possession at about
  5.30 PM on 27.12.1990 and prepared inquestreport Ext.A-9. Thereafter
. by letter Ext.A-8 he sent the body for post-mortem. PW-6 Investigating
                                                                                B
  Officer had interrogated the witnesses and had also taken in possession
  quilt, match box, shawl and kerosene from the spot vide Memorandum
  Ext.A-12, A-13, A-14 and A-16.
        6. PW-4 Dr. Rakesh Kumar conducted post-mortem on the dead
 body of Pawan Kumar at about 12.30 PM on 28.12.1990 and found
 ante-mortem injuries on the body and opined that the deceased had died         c
 due to shock from bufn injuries.
        7. After completion of investigation, charge-sheet Ext.A-16 was
 filed against the appellants as well as Naseem Khan and Anees Khan.
 The prosecution examined 9 witnesses. PW-1 Radhey Shyam and PW-
 2 Anil Kumar were examined as eye witnesses and so also PW-3                   D
 Narendra Kmnar who had seen the accused taking Pawan Kumar and
 setting him on fire. PW-4 Dr. Rakesh Kumar who had conducted post
 mortem on the dead body of deceased Pawan Kumar proved this post
 mortem report Ext.A-2. According to him, the cause of the death was
 shock from burn injuries. PW-5 Satya Prakash Mishra proved dying               E
 declaration Ext.A-4. The Investigating Officer Saudan Singh was
 examined as PW-6 who proved Site Plans Ext.A-4 and A-5, sample seal
 memo Ext.A-7, Inquest Report Ext. A-9, Seizure Memo of quilt Ext. A-
 l 0, Seizure Memo of burnt clothes offawan Ext.A- I I, Seizure Memo
 of burnt shawl Ext.A-14 and other relevant documents. PW-7 Dr. N.
 D. Arora was examined to prove injuries on the person of PW-2 Anil             F
 Kumar and injury report Ext. A-23. PW-8 Dr. R. D. Shanna proved the
 endorsement of Dr. S.K. Mittal on the dying declaration of Pawan Kumar
 Ext.A-22. No witness was examined on behalf of the defence.
        8. The Trial Court by its judgment and order dated 19.12.1994
 found the appellants guilty of the charges punishable under Section 302        G
 read with Section 34 IPC and sentenced them to imprisonment for life
 and also directed them to pay fine ofRs.5,000/-, in default whereof they
 were directed to undergo further imprisonment for one year. Naseem
 Khan and Anees Khan were however acquitted of all the charges.
        9. Aggrieved by the aforesaid conviction and sentence, the              H
440             SUPREME COURT REPORTS                            [2016] 3 S.C.R.


A     appellants preferred Criminal Appeal No.2007of1994 in the High Court
      of Judicature at Allahabad. The appeal was thereafter transferred to
      the High Court ofUttarakhand atNainital and re-numbered as Criminal
      Appeal No.270 of2001. The High Court by its judgment and order under
      appeal affirmed the conviction and sentence passed against the appellants.
      The High Court principally relied upon eye-witness account through PW-
B
      1 Radhey Shyam and PW-2 Anil Kumar as well as dying-declaration
      Ext.A-24.
             I 0. After granting special leave to appeal, by orders dated
      15.11.20 I 0 and 03.01.2011 appellant Mumtaz@Muntyaz and appellant
      Di Ishad@ Pappu respectively were ordered to be released on bail during
c     pendency of these appeals. Thereafter, on an application preferred by
      Dilshad @ Pappu seeking permission to take additional documents on
      record to submit that he was a juvenile on the date of the incident, following
      order was passed by this Court on 07.08.2014.
             "Application seeking permission documents on record is
D            allowed. It is submitted by Mr. K.T.S. Tulsi, learned senior .
             counsel that the appellant Di Ishad.@ Pappu was a juvenile
             on the date of occurrence i.e. 27.12.1990 inasmuch as his
             date of birth is 22.07 .1974, as is reflected from the School
             leaving Certificate, contained in Annexure A-I at page 9.
 E           Learned senior counsel wou Id submit that an inquiry shou Id
             be held by the District and Sessions Judge, Roorkee, and
             the report be made available to th is Com1 and thereafter
             the hearing may take place.          ·
             Regard being had to the language employed in Section 7A
 F           of the Juvenile Justice (Care and Protection of Children)
             Act, 2000, it is directed that the concerned District &
             Sessions Judge, Roorkee shall cause an inquiry with regard
             to juvenility of the appellant, Dilshad @ Pappu, after
             following the procedure as engrafted under Rule 12 of the
             Juvenile Justice (Care and Protection of Children) Rules,
G            2007 and submit his report within a period of30 days from
             the date of receipt of the order passed today. Learned
             District & Sessions Judge shall submit the documents
             forming the basis of his report."
            11. An appropriate enquiry was thereafter conducted by the First
H     Additional and District Sessions Judge, Roorkee, Haridwar who by his
        MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                                  441
          UTTARAKHAND) [UDAY U. LAUT, J.]

report dated 05.09.2014 concluded as under:-                                    A
      " 13. Hence from the above discussion the date of birth of
      Dilshad@Pappu is discernible from Exhibits Ka4 to Ka5.
      The entries made therein have not been controverted by
      the Counsel appearing for the State and there is nothing on
      record to refute or rebut the factum of date of birth as                  8
      entered in above Exhibits. Hence the inquiry under Rule
      12 of Juvenile Justice (Care and Protection of Children)
      Rules, 2007 has beeu fully satisfied. The Cou11 accordingly
      determines that Dilshad@Pappu date ofbit1h is 22-7-1974
      (Twenty two July Nineteen Seventy Four) and on date of
      occurrence i.e. 27-12-1990 he was 16 years 5 months and
                                                                                c
      5 days old and hence a juvenile as per Juvenile Justice (Care
      and Protection of Children) Act, 2000.
      14. Let a certified copy of the findings of this Court be
      forwarded to the Hon'ble Supreme Court of Indian in
      compliance of its order."                                                 D

       12. On 14.01.2015 when the matters were taken up, the counsel
appearing for the State submitted that the decision of this Court in Jitendm
Singh and another v. State of U.P. 1 which was relied upon by the
counsel for the appellants required re-consideration. On and with effect
from 15.0l.2016, the Juvenile Justice (Care and Protection of Children)         E
Act, 2015 (hereinafter referred to as "the 2015 Act") came into force
which repealed the Juvenile Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred to as "the 2000 Act").
        13. The matters were thereafter taken up for hearing. We heard
Mr. K.T.S. Tulsi, learned Senior Advocate in support of these appeals           F
and Mr. Tanmaya Agarwal, learned Advocate for the State. In so far as
the appeal ofMumtaz@ Muntyaz is concerned the submissions of the
learned Senior Advocate as detai.led in his Written Submissions were as
under:-
       "l. There are several discrepancies, inconsistencies and                 G
       contradictions that raise a serious doubt about the reliability
       of the dying declaration. When all the attendant
       circumstances are taken together, the cumulative effect is
       that the d) ing declaration fails the test of credibility.
'(2013)11SCCl93                                                                 H
442             SUPREME COURT REPORTS                           [2016] 3 S.C.R.



A           2. The prosecution case and the dying declaration itself
            furnishes the defense of grave provocation as a result of
            which every nonnal human being will be deprived of the
            power of self-control. The fact that the deceased is found
            at the house of appel Iant's brother at 03 :00 am with whose
            wife he was suspected to be having an illicit liaison it
B
            estabiishes grave provocation. The case would fall within
            the exception 4 of Section 300 ofIPC making him liable for
            sentence only under Section 304 part-II of !PC."
              14. We have gone through dying declaration Ext.A-24 and the
      examination of PW-5 Satya Prakash Mishra. The witness clearly stated
c     that all through the recording of his statement, Pawan Kumar remained
      in fit condition and that.the witness had got this fact confirmed from the
      Doctor on duty. The dying declaration bears appropriate endorsement
      of the Doctor on duty namely Dr. S.K. Mittal which endorsement was
      proved by PW-8 Dr. R. D. Sharma. There is nothing in the cross
D     examination of either PW-5 or PW-8 nor in the dying declaration Ext.A-
      24 which could raise any doubt. Relying on the law laid down by this
      Court in L"xnum v. St"te of M"lwr"shtra 2 , we find the evidence in
      that behalf trustworthy and hold dying declaration Ext. A-24 to be reliable.
      We, therefore, reject the first submission advanced by the learned Senior
      Advocate for the appellant Mumtaz@ Muntyaz.
E
           . 15. The second submission advanced by the learned Senior
      Advocate is based on the theory or defence ofalleged grave provocation.
      It is true that deceased Pawan Kumar was found at 3:00 a.m. in the
      house of the brother of appellant Mumtaz@ Muntyaz. The eye witness
      account shows that his hands were tied and he was set ablaze. The
 F    memorandum of the seizure of burnt shawl clearly corroborates said
      assertion. Therefore, mere presence of Pawan Kumar in the house of
      the brother of appellant Mumtaz alia Muntyaz by 'itself does not support
      the theory of grave provocation specially when Pawan Kumar was found
      with his hands tied. Not a single witness was examined on behalf of the
      defence nor is there any material to support such theory. What kind of
G
      provocation and in what manner was it made are all matters of evidence,
      which are completely absent on record. In the circumstances, we do
      not find any circumstance or material to support the second submission
      advanced on behalf of accused Mumtaz @ Muntyaz. We, therefore,
      reject the second submission as well.
H     '(2002) 6sec110
        MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                                 443
          UTTARAKHAND) [UDAY U. LAUT, J.]

       I 6. It is true that in the dying declaration Ext. A-24, the deceased    A
had stated that he did not know the person who extinguished the fire by
pouring water. It could be that while he was in flames, the deceased
could not identify the person who tried to save him. The prompt lodging
of the FIR and the fact that one of the eyewitnesses was having burn
injuries establishes the presence of the eyewitnesses. In any case, even
                                                                                B
ifthe eyewitness account is taken to be inconsistent with this part of the ··-- "'
dying declaration, once the dying declaration is found reliable, trustworthy
and consistent with circumstantial evidence on record; such dying
declaration by itself is adequate to bring home the case against the
accused.
      I 7. Having gone through the material on record, we do not see
                                                                                c
any reason to upset the findings recorded by the Trial Court and the
High Court regarding conviction and sentence of appellant Mumtaz@
Muntyaz. Confirming his conviction and sentence we dismiss Criminal
Appeal No.2084 of2009 preferred by appellant Mumtaz@ Muntyaz.
       I 8. As regards Dilshad@Pappu, by order dated 7.08.20 I 4 District       D
and Sessions Judge, Roorkee was directed to cause inquiry with regard
to juvenility of the appellant. The report dated 5.09.20 I 4, clearly shows
that on considering the entirety of the matter the claim was found to be
acceptable. The counsel appearing for the Stat~ could not refute or
rebut the fact that his date of birth was 22.07.1974 and that on the date       E
of occurrence he was 16 years 5 months and 5 days old.
        19. Thus, on the date of occurrence Di Ishad @ Pappu was more
than 16 years of age but less than 18 years of age. In terms of the
Juvenile Justice Act, 1986(hereinafter referred to as "the 1986 Act")
which was in force at that time, he was not a juvenile and was rightly       F
tried and convicted by the Trial Court vide its judgment dated 19.12.1994. ·
While the appeal against his conviction and sentence was pending, on
and with effect from 1.04.2001, the 2000 Act came into force which
repealed the 1986Act. The 2000 Act inter alia raised the age ofjuvei1ility
from 16 to 18 years and in terms of Section 20 of· the 2000 Act, the
determination ofJuvenility was required to be done in all pending matters    G
in accordance with Section 2( I) of the 2000 Act.
       20. The effect of Section 20 of the 2000 Act was considered in
Pratap Singh v. State of Jlwrklumd and <mother3 and it was stated
"31. Section 20 ofthe Act as quoted above deals with the special provision
'(2005) 3 sec 55 t                                                              H
444             SUPREME COURT REPORTS                           [2016] 3 S.C.R.



A     in respect of pending cases and begins with a non obstante clause. The
      sentence "notwithstanding anything contained in this Act, all proceedings
      in respect of a juvenile pending in any court in any area on the date on
      which this Act came into force" has great significance. The proceedings
      in respect of a juvenile pending in any court referred to in Section 20 of
      the Act are relatable to proceedings initiated before the 2000 Act came
B
      into force and which are pending when the 2000 Act came into force.
      The term "any court" would include even ordinary criminal courts. If
      the person was a "juvenile" under the 1986 Act the proceedings would
      not be pending in criminal courts. They would be pending. in criminal
      courts only if the boy had crossed 16 years or the girl had crossed 18
c     years. This shows that Section 20 refers to cases where a person had
      ceased to be a juvenile under the 1986 Act but had not yet crossed the
      age of 18 years then the pending case shall continue in that court as if
      the 2000 Act has not been passed and ifthe cotn1 finds that the juvenile
       has committed an offence, it shall record such finding and instead of
       passing any sentence in respect of the juvenile, shall forward the juvenile
D
       to the Board which shall pass orders in respect oft!rntjuvenile."
             21. In Bijender Singh v. St(lfe of H"ry"n" mu/ "nother, the
      legal position as regards Section 20 was stated in following words:
             "8. One of the basic distinctions between the 1986 Act and
 E           the 2000 Act relates to the age of males and females.Under
             the I 986Act, ajuvenile means a male juvenile who has not
             attained the age of 16 years, and a female juvenile who has
             not attained the age of 18 years. In th.e 2000 Act, the
             distinction between male and female juveniles on the basis
             of age has not been maintained. The age-limit is 18 years
 F           for both males and females.
             9. A person above 16 years in terms of the 1986 Act was
             not a juvenile. In that view of the matter the question whether
             a person above 16 years becomes "juvenile" within the
             purview of the 2000 Act must be answered having regard
 G           to the object and purport ~hereof.
             10. In tenns of the 1986Act, a person who was notjuvenile
             could be tried in any court. Section 20 of the 2000 Act takes
             care of such a situation stating that despite the same the
             trial shall continue in that court as if that Act has not been
 H
      -----
      • (2005) 3 sec 685
        MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                             445
          UTTARAKHAND) [UDAY U. LAUT, J.]

      passed and in the event, he is found to be guilty of                 A
      commission of an offence, a finding to that effect shall be
      recorded in the judgment of conviction, if any, but instead
      of passing any sentence in relation to the juvenile, he would
      be forwarded to the Juvenile Justice Board (in short "the
      Board") which shall pass orders in accordance with the
                                                                           B
      provisions of the Act as if it has been satisfied on inquiry
      that a juvenile has committed the offence. A legal fiction
      has, thus, been created in the said provision. A legal fiction
      as is well known must be given its full effect although it has
      its limitations ........... ..
      11. ............ .                                                   c
      12. Thus, by reason oflegal fiction, a person, although not
      a juvenile, has to be treated to be one by the Board for the
      purpose of sentencing, which takes care of a situation that
      the person although not a juvenile in terms of the 1986 Act
      but still would be treated as such under the 2000 Act for            D
      the said limited purpose."
       22. In Dlum1111bir v. State (NCTof Delhi) and another' the
determination of juvenility even after conviction was one of the issues
and it was stated:
                                                                           E
      "11. It is plain from the language of the Explanation to
      Section 20 that in all pending cases, which would include
      not only trials but even subsequent proceedings by way of
      revision or appeal, etc., the determination ofjuvenility ofa
      juvenile has to be in terms of clause (I) of Section 2, even if
      the juvenile ceases to be ajuvehile on or before 1-.4-2001,          F
      when the Act of2000 came into force, and the provisions
      of the Act would apply as if the said provision had been in
      force for all purposes and for all material times when the
      alleged offence was committed.
      12. Clause (I) of Section 2 of the Act of2000 provides that          G
      'juvenile in conflict with law" means a 'juvenile" who is
      alleged to have committed an offence and has not completed
      eighteenth year of age as on the date of commission of
      such offence. Section 20 also enables the court to consider
'(20IOJ s sec 344                                                          H
446             SUPREME COURT REPORTS                           [2016] 3 S.C.R.



A           and detennine the j uven iIity ofa person even after conviction
            by the regular court and also empowers the court, while
            maintaining the conviction, to set aside the sentence imposed
            and forward the case to the Juvenile Justice Board
            concerned for passing sentence in accordance with the
            provisions of the Act of2000."
B
            23. Similarly in K(l/u v. S/(lfe ofH"rymw 6 this Court summed up
      as under:
             "21. Section 20 makes a special provision in respect of
             pending cases. It states that notwithstanding anything
             contained in the Juvenile Act, all proceedings in respect of
c            a juvenile pending in any court in any area on the date on
             which the Juvenile Act comes into force in that area shall
             be continued in that court as if the Juvenile Act had not
             been passed and if the court finds that the juvenile has
             committed an offence, it shall record such finding and
D            instead of passing any sentence in respect of the juvenile
             forward the juvenile to the Board which shall pass orders
             in respect of that juvenile in accordance with the provisions
             of the Juvenile Act as if it had been satisfied on inquiry
             under the Juvenile Act that the juvenile has committed the
             offence. The Explanation to Section 20 makes it clear that
 E
             in all pending cases, which would include not only trials but
             even subsequent proceedings by way ofrevision or appeal,
             the detennination ofjuvenility ofajuvenile would be in terms
             of clause (I) of Section 2, even if the juvenile ceased to be
             a juvenile on or before 1-4-2001, when the Juvenile Act
 F           came into force, and the provisions ofthe Juvenile Act would
             apply as if the said provision had been in force for all
             purposes and for all material times when the alleged offence
             was committed."
             24. It is thus well settled that in terms of Section 20 of the 2000
 G    Act, in all cases where the accused was above 16 years but below 18
      years of age on the date of occurrence, the proceedings pending in the
      Court would continue and be taken to the logical end subject to an
      exception that upon finding thejuvenile to be guilty, the Court would not
      pass an order of sentence against him but the juvenile would be referred
      to the Board for appropriate orders under the 2000 Act.
 H    ,, t2012i s sec 34
        MUMTAZ@ MUNTYAZ v. STATE OF U.P. (NOW                                   447
          UTTARAKHAND) [UDAY U. LAUT, J.]

        25. What kind of order could be passed in a matter where claim           A
of juvenility came to be accepted in a situation similar to the present
case, was dealt with by this Court in Jitendra Si11glz (llld (lnotlter v.
St(lfe of U.P. (supra) in following terms:
      "32. A perusal· of the "punishments" provided for under
      the Juvenile Justice Act, 1986 indicate that given the nature              B
      of the offence committed by the appellant, advising or
      admonishing him [clause (a)] is hardly a "punishment" that
      can be awarded since it is not at all commensurate with the
      gravity of the crime. Similarly, considering his age of about
      40 years, it is completely illusory to expect the appellant to
      be released on probation of good conduct, to be placed
                                                                                 c
      under the care of any parent, guardiap or fit person [clause
      (b )]. For the same reason, the appellant cannot be released
      on probation of good conduct under the care of a fit institution
      [clause (c)] nor can he be sent to a special home under
      Section I 0 ofthe Juvenile Justice Act, 1986 which is intended             D
      to be for the rehabilitation and reformation of delinquent
      juveniles [clause (d)]. The only realistic punishment that
      can possibly be awarded to the appellant on the facts of
      this case is to require him to pay a fine under clause (e) of
      Section 21 (I) of the Juvenile Justice Act, 1986."
                                                                                 E
       26. In Jitendra Si11glt (111t/ mwtlzer v. St(lfe of U.P. (supra),
having found the juvenile guilty of the offence with which he was charged,
in accordance with the law laid down by this Court as stated above,
the matter was remanded to the jurisdictional Juvenile Justice Board
constituted under the 2000 Act for determining appropriate quantum of
fine. The view taken therein is completely consistent with the law laid          F
down by this Court and in our opinion the decision in Jitem/r(l Singh
and a11otller v. State of U.P. (supra) does not call for any reconsideration.
The subsequent repeal of the 2000 Act on and with effect from 15.01.2016
would not affect the inquiry in which such claim was found to be
acceptable. Section 25 of the 2015Act makes- it very clear.                      G
       27. Thus, while holding appellant Dilshad@Pappu to be juvenile
in terms of the 2000 Act as on the day of occurrence and guilty of the
offence with which he was tried, we set aside the sentence of life
imprisonment passed against him and remit the matter to the Jurisdictional
Juvenile Justice Board for determining the appropriate quantum of fine           H
448                SUPREME COURT REPORTS                     T2016J3 S.C.R.


A     that should be levied on the appellant Dilshad @ Pappu and the
      compensation that should be awarded to the family of the deceased,
      keeping in mind the directions issued in Jitendra Singh and another v.
      State of U.P. (supra).
             28. Criminal Appeal No.2084 of 2009 is thus dismissed while
B     Criminal Appeal No.460 of20 I 0 is allowed to the aforesaid extent and
      the matter as regards Appellant Dilshad @Pappu stands remitted to the
      Jurisdictional Juvenile Justice Board for detennination as aforesaid. The
      bail bonds furnished by Appellant Mumtazalias Muntyaz are cancelled
      and he shall be taken in custody forthwith to undergo the sentence
      awarded to him.
c
      Nidhi Jain                                             Appeals disposed of.