Full Judgment Text
1
REPORTABLE
2023 INSC 1012
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3548 OF 2023
(ARISING OUT OF SLP (CRL) No. 7957 OF 2021)
PAWAN KUMAR …APPELLANT
Versus
STATE OF UTTAR PRADESH & ORS. …RESPONDENTS
J U D G M E N T
SUDHANSHU DHULIA, J.
Leave granted.
2. The appellant before this Court has been convicted by the
Additional Sessions Judge, Barabanki in Sessions Trial No.85 of
1996 for offences under Sections 302 and 307 read with Section
34 of Indian Penal Code, 1860 and has been sentenced to life
imprisonment under Section 302/34 and rigorous imprisonment
Signature Not Verified
Digitally signed by for 7 years under Section 307/34 with default stipulations. The
ASHA SUNDRIYAL
Date: 2023.11.21
14:49:43 IST
Reason:
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conviction and sentence of the appellant was upheld in appeal by
the High Court, in its order dated 07.05.2019.
3. There were four accused in the case, which were Gaya
Prasad Mishra, Gulab Chandra, Pawan Kumar and Babadeen.
The accused Babadeen passed away during the trial and his case
stood abated and the remaining three were convicted for the
offences as stated above. The said conviction has been upheld by
the High Court of Judicature of Allahabad (Lucknow Bench).
Meanwhile, as far as Gaya Prasad Mishra and Gulab Chandra
are concerned, who are the father and brother of the present
appellant respectively, they were released prematurely after
remaining in jail for more than 19 years, under the remission
policy of the State. Consequently, they have not filed any petition
before this Court.
4. The appellant before this Court apart from challenging the
impugned order on merits has also raised a claim of being a
juvenile at the time of the alleged commission of the crime (dated
01.12.1995), a plea which has been dismissed by the Trial Court
and the High Court.
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5. Before us, the learned counsel for the appellant, Ms.
Vanshaja Shukla has submitted that the plea of juvenility may be
considered first as the claim of the appellant indeed was that at
the time of the incident, he was a juvenile and his plea of
juvenility had not been considered in the true letter and spirit of
the applicable law. Consequently, before going through the case
on its merits, we have heard the counsel for the appellant at
length on the plea of juvenility.
6. We must state at the very outset that the appellant has
been raising the claim of juvenility right since the time of his
trial, although belatedly. The trial court as well as the appellate
court after an enquiry have found that the appellant was not
juvenile at the time of the incident. Since this plea was raised
before this Court as well, this court had asked for a report from
the concerned Additional Sessions Judge, Barabanki and
consequently a report was filed on an earlier occasion before this
Court, to which we shall refer in a while. However, the last report
(dated 28.09.2022) filed by the Additional Sessions Judge,
Barabanki differs from the earlier findings, and the claim of the
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appellant being a juvenile at the time of the commission of crime
has been accepted. We shall be referring to this report later.
7. The facts of this case must also be stated here. On
01.12.1995, while the father and brother of the Complainant
Guru Prasad Mishra were irrigating their land, water flushed
towards the adjacent field belonging to one Gaya Prasad Mishra.
The present appellant, who is the son of Gaya Prasad Mishra
reported this to his father and shortly thereafter Gaya Prasad
Mishra along with his two sons, Gulab Chandra and Pawan
Kumar (the present appellant), and one ‘Babadeen’ came to the
spot armed with “ ” and started assaulting the father and
lathis
brother of the complainant. After hearing the ‘hue and cry’, the
complainant along with some village persons reached the spot
and he was also assaulted by the accused persons. This incident
resulted in grievous injuries on all and ultimately in the death of
one Ganga Prasad, brother of the complainant. An FIR as Crime
No.86 of 1995 was then filed in Subeha Police Station in
Barabanki District, under Sections 307, 504 and 323 IPC against
the four named accused as mentioned above. As the brother of
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the complainant (Ganga Prasad) died the same day, Section 302
was added in the FIR.
8. Undoubtedly, the appellant belongs to the aggressor group
and had attacked the deceased and caused injuries and
ultimately the death of one of the injured persons. It is also true
that some of the assailants, including the present appellant, were
armed with “ lathis ”. We have placed these facts on record to
show the nature of the incident. The accused have committed a
heinous crime. Yet they are not hardened criminals. It is also
not a premeditated coldblooded murder.
9. While having his statement recorded under Section 313 of
CrPC the age of the appellant was recorded as 18 years and upon
further inquiry the appellant claimed that he was less than 16
years of age at the time of the commission of the offence, i.e., on
01.12.1995. At the relevant time, Juvenile Justice Act, 1986 was
in force where a juvenile in case of a boy, was one who had not
completed sixteen years of age. This age however, was increased
to eighteen years by the Juvenile Justice (Care and Protection of
Children) Act, 2000 as we shall see later. A formal plea of
juvenility was raised at the stage of trial. In support of his plea,
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the appellant produced the Scholar Register of the National Inter
College, Barabanki which recorded his D.O.B. as 05.07.1980
which meant that on the date when the offence was committed,
the appellant would be 15 years, 6 months, and 26 days old.
However, during crossexamination the clerk of National Inter
College who had produced the Scholar Register, admitted that
the entry was made on the basis of a transfer certificate issued by
Purva Madhyamik Vidhyalaya (hereafter referred to as High
School, Kamela), which was not placed on record. Further, the
Gram Panchayat Officer was examined who produced the Family
Register of the appellant where D.O.B. of the appellant was
recorded as 1975. The day and month of his birth were not
mentioned in this Family Register. In any case, as per the Family
Register of the Gram Panchayat, the appellant would be around
20 years of age at the time of the commission of the offence.
In view of this contradiction, a bone ossification test was
conducted under the supervision of the Chief Medical Officer of
District Hospital, Barabanki where the age of the appellant was
recorded as approximately 19 years. Thus, by order dated
21.08.1999 it was concluded by the Trial Court that the benefit of
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juvenility cannot be extended to the appellant and he was
directed to face the trial.
10. The appellant filed a Criminal Revision before the High
Court against the said order dated 21.08.1999 passed by the
Additional Sessions Judge, Barabanki. The High Court dismissed
his criminal revision on 16.09.1999. At the stage of filing the
criminal revision the trial was almost complete and the High
Court did not consider it appropriate to interfere with the trial at
such a belated stage.
11. The Additional Sessions Judge, Barabanki continued with
the trial, where all the accused persons (except Babadeen),
including the appellant were convicted for offences under
sections 302/34 and 307/34 of the IPC for which they were
sentenced to life imprisonment and 7 years of rigorous
imprisonment, respectively. One of the coaccused, Babadeen
died on 12.12.1998 during the trial and proceedings against him
stood abated by order dated 04.01.1999 passed by the Trial
Court.
12. Against the order of conviction dated 11.02.2000 passed by
the Trial Court all the accused filed their appeal before the High
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Court of Judicature at Allahabad (Lucknow Bench). During the
pendency of the appeal, the appellant filed a Criminal
Miscellaneous Application under Section 391 of the CrPC for
placing additional evidence on record regarding his juvenility.
Accordingly, the appellant produced Transfer Certificate dated
05.07.1995 issued by High School, Kamela based on which the
Scholar Register of National Inter College, Barabanki which had
recorded the age of the appellant as 05.07.1980. Nevertheless,
the High Court vide its order dated 07.05.2019, dismissed the
Criminal Appeal of all the three accused, including the plea of
juvenility raised by the appellant. The High Court also noted that
the State Government had meanwhile remitted the sentence of
the other two coaccused as both had undergone more than 19
years of imprisonment. However, the appellant was directed to
surrender and to carry out his sentence. While rejecting the plea
of juvenility, the reasons given by the High Court are as follows:
“20...It is undisputed that juvenility can
be examined at any stage, if raised by
the accused person. In the present case,
appellant no. 3 has raised the point of his
juvenility before the trial court, which
was dealt with after examining the court
witnesses and evidences placed by
means of parivar register, radiological
9
report, C.M.O. report and the scholar
register of Rashtriya Inter College and
rejected by the court below vide order
dated 21.08.1999. As no good ground
has been taken in the present appeal of
juvenility of appellant no. 3. It is also
relevant to mention here that aforesaid
st
order dated 21 August, 1999 was
challenged by the appellant no. 3 in
Criminal Revision No. 271 of 1999, which
was also dismissed by this Court vide
order dated 16.09.1999”.
The appellant had mostly remained on bail during the
period of trial and appeal, but consequent to the decision of the
High Court, he surrendered on 29.07.2019 and since then he has
been in jail. By now he has served a sentence of about 4 ½ years.
13. The specific grievance of the appellant in the present case is
that the Trial Court had not accepted the veracity of the Scholar
Register of National Inter College, Barabanki because it was
based on a Transfer Certificate issued by High School, Kamela
which was not on record. However, when the appellant had
placed the same on record, in his application under Section 391
of CrPC, the same ought to have been considered.
14. This Court passed order dated 08.10.2021 and directed the
Trial Court to submit a fresh report on the plea of juvenility
raised by the appellant, after appreciating the additional
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evidence. The order dated 08.10.2021 of this Court reads as
under:
“…Learned counsel for the petitioner submits
by reference to additional documents that
CM No.96164/2012 was filed under Section
391 of the Cr.P.C for taking on record
additional documents in the form of transfer
certificate showing the date of birth of the
applicant as 05.07.1980. She has also filed a
document regarding listing of the
applications as on 29.01.2020 before the
High Court of Judicature at Allahabad,
Lucknow Bench to show such application as
pending as on 01.11.2012 for disposal. It is
thus, her submission that the application
seeking to bring on record additional
documents in support of the plea of juvenility
was never dealt with.
Our attention has been invited at para 20
of the impugned order which recognizes that
plea of juvenility was raised before the trial
Court and was rejected by the order dated
21.08.1999. It has been observed that no
ground has been taken in the appeal of
juvenility of appellant No.3 possibly because
a Criminal Revision was filed against the
order dated 21.08.1999 being Criminal
Revision No.271/1999 which was also
dismissed by the High Court on 16.09.1999.
It is correct that in the grounds of appeal
before the High Court no plea of juvenility
was raised. The plea of the petitioner is
predicated only on CM No.96164/2012 filed
seeking to raise the plea of juvenility based
on the additional grounds.
In view of the aforesaid facts and
circumstances, we are of the view that the
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additional documents brought on record
ought to have been examined and they
require examination as to whether the
petitioner can raise the plea of juvenility.
We thus, refer the matter to the trial Court
for recording evidence on the basis of the
certificates sought to be produced by the
petitioner as a transfer certificate and submit
a report to this Court….”
15. Accordingly, the First Additional Sessions Judge, Barabanki
in compliance of the order of this Court had submitted a Report
dated 28.02.2022. According to this report, the D.O.B of the
appellant should be taken as recorded in the Family Register,
which is 1975 and therefore at the time of the commission of the
offence he was not a juvenile. The Trial Court had examined the
entry of the Scholar Register of the National Inter College,
Barabanki where the D.O.B of the appellant was 05.07.1980. The
D.O.B entered in the Scholar Register was based on a Transfer
Certificate dated 05.07.1995 issued by High School, Kamela
which had also been placed on record by the appellant, however,
the original records of High School, Kamela were not produced
and the evidence of the Family Register and bone ossification test
was also against the appellant. By comparing these evidences,
the Trial Court declared the D.O.B of the appellant to be 1975
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and consequently, the report of the Additional Sessions Judge
dated 28.02.2022 declared that the appellant was not a juvenile
on the date of the commission of the alleged offence.
16. The report dated 28.02.2022 was examined by this Court
and it was felt that the Trial Court did not examine the Transfer
Certificate of the appellant, which was placed before it. Hence,
the issue was again remitted back to the Additional Sessions
Judge, Barabanki on 15.07.2022 by this Court for fresh
consideration on the aspect of juvenility and another report was
directed to be filed. The Order of this Court dated 15.07.2022 is
as follows:
“We have perused the report of the First
Additional Sessions Judge, Barabanki
dated 28.02.2022 but that report does
not analyze the transfer certificate
which is the document sought to be
relied upon by the petitioner as an
additional document before the High
Court for which an application had
been filed before it. That is what is
required to be considered.
Undisputedly, the other documents do
not go in favour of the petitioner and
show the age as more than 16 years.
It appears that the District Judge has
not analysed the document or its
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veracity which is what is required to be
considered.
We have thus, no option but to remit the
matter back to the District Judge,
Barabanki to appreciate the purport of
our order and carry out the enquiry in
that behalf and then submit a report to
us.
Learned counsel for the petitioner
states that the original document is in
the possession of the petitioner and will
be filed with an affidavit before the
District Judge.
The enquiry report to be submitted
within a period of three months from
the date of the receipt of this order.
List on the enquiry report being
received.”
17. In compliance of the said order the Additional Sessions
Judge, Barabanki filed a fresh report dated 28.09.2022. In this
report the D.O.B has been determined as 05.07.1980. If this
report is accepted then the appellant was 15 years, 4 months,
and 26 days old at the time of commission of the crime which
occurred on 01.12.1995. The relevant observation of the report
is given as under:
“ 18. In the end, it is humbly submitted
that the date of birth of Pawan Kumar,
right from the first school where he was
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admitted, up to the last school where
he has studied, as per the relevant
documents of each school has
remained the same i.e., 05.07.1980
(Annexure1) which has been issued by
the Principal of Presecondary School
Kamela, mentioning his date of birth as
05.07.1980, matches with the date of
birth of Pawan Kumar as has been
mentioned in the relevant
registers/documents of each and every
school, where the petitioner has
studied at different stages of his
education”.
18. On behalf of the appellant, we have heard ld. counsel Ms.
Vanshaja Shukla and learned senior counsel Mr. Ardhendumauli
Kumar Prasad, Additional Advocate General (AAG) for the State of
Uttar Pradesh. Before we deal with the submissions made by
both sides, it would be prudent to examine some of the relevant
statutory provisions.
19. The age of a juvenile has to be determined on the basis of
the date of the alleged commission of the crime. The present
incident which involved the appellant in a crime inter alia under
Section 302 IPC was allegedly committed on 01.12.1995. At the
relevant point of time, the Act which was in force for juvenile
offenders was known as Juvenile Justice Act, 1986. In the said
Act, Section 2(h) defined juvenile as follows:
15
“(h) “juvenile” means a boy who has
not attained the age of sixteen years
or a girl who has not attained the age
of eighteen years”
In the case of the present appellant, the relevant age apparently
was 16 years. In order to be a juvenile, he should not have
attained the age of 16 years. Till the time the sessions court
finally convicted the appellant, inter alia, under Section 302 of
the IPC, the above provision of law was in force. The Trial court’s
decision is of 11.02.2000.
20. Meanwhile, during the pendency of the appeal before the
High Court, the Juvenile Justice (Care and Protection of
Children) Act, 2000 came into force on 01.04.2000, inter alia,
repealing the 1986 Act. There were some major changes in the
2000 Act. The first and foremost was the definition of juvenile
itself. Section 2(k) defined the “juvenile” as follows:
“(k) “juvenile” or “child” means a
person who has not completed
eighteenth year of age”
The definition of “juvenile in conflict with law” under Section 2(l),
1
which stood amended in 2006 is as follows:
1
Prior to the 2006 amendment, it reads as follows:
(l) “juvenile in conflict with law” means a juvenile who is alleged to
have committed an offence. (w.e.f. 22.08.2006)
16
“(l) “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”
The 1986 Act made a distinction between a boy and a girl as to
their claim of juvenility. In the case of boys, it was 16 years,
whereas for girls it was 18 years. The 2000 Act, not only
removed this distinction but also raised the age of juvenility from
16 years to 18 years.
21. The majority opinion of 4:1 in a Constitution Bench decision
of this Court in the case of v.
Pratap Singh State of
Jharkhand and Another (2005) 3 SCC 551 , held as follows:
“(a) The reckoning date for the
determination of the age of the juvenile is
the date of the offence and not the date
when he is produced before the authority
or in the court.
(b) The 2000 Act would be applicable in a
pending proceeding in any
court/authority initiated under the 1986
Act and is pending when the 2000 Act
came into force and the person had not
completed 18 years of age as on
01.04.2001.”
17
Subsequent to the decision in Pratap Singh (supra) certain
amendments were made in the 2000 Act. Section 7A was
introduced which reads as follows:
“[ 7A. Procedure to be followed when
claim of juvenility is raised before any
court .—(1) Whenever a claim of juvenility
is raised before any court or a court is of
the opinion that an accused person was a
juvenile on the date of commission of the
offence, the court shall make an enquiry,
take such evidence as may be necessary
(but not an affidavit) so as to determine
the age of such person, and shall record a
finding whether the person is a juvenile
or a child or not, stating his age as nearly
as may be:
Provided that a claim of juvenility may be
raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such claim shall
be determined in terms of the provisions
contained in this Act and the rules made
thereunder, even if the juvenile has
ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a
juvenile on the date of commission of the
offence under subsection (1), it shall
forward the juvenile to the Board for
passing appropriate order, and the
sentence if any, passed by a court shall
be deemed to have no effect.]”
The definition of “juvenile in conflict with law” was also amended
which we have already referred above.
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22. In addition, comprehensive Rules known as Juvenile Justice
(Care and Protection of Children) Rules, 2007, were also made,
inter alia, laying down a detailed procedure as to the
determination of the age of a juvenile. Rule 12 of the said Rules is
as follows:
“12. Procedure to be followed in
determination of Age.—(1) In every case
concerning a child or a juvenile in conflict
with law, the court or the Board or as the
case may be the Committee referred to in
Rule 19 of these rules shall determine the
age of such juvenile or child or a juvenile
in conflict with law within a period of
thirty days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case
may be the Committee shall decide the
juvenility or otherwise of the juvenile or
the child or as the case may be the
juvenile in conflict with law, prima facie
on the basis of physical appearance or
documents, if available, and send him to
the observation home or in jail.
(3) In every case concerning a child or
juvenile in conflict with law, the age
determination inquiry shall be conducted
by the court or the Board or, as the case
may be, the Committee by seeking
evidence by obtaining—
(a)(i) the matriculation or equivalent
certificates, if available; and in the
absence whereof;
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(ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
(iii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;
(b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical
opinion will be sought from a duly
constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot
be done, the Court or the Board or, as the
case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the
child or juvenile by considering his/her
age on lower side within the margin of
one year.
and, while passing orders in such case
shall, after taking into consideration such
evidence as may be available, or the
medical opinion, as the case may be,
record a finding in respect of his age and
either of the evidence specified in any of
the clauses (a)(i), (ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive
proof of the age as regards such child or
the juvenile in conflict with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be
below 18 years on the date of offence, on
the basis of any of the conclusive proof
specified in subrule (3), the court or the
Board or as the case may be the
Committee shall in writing pass an order
stating the age and declaring the status
of juvenility or otherwise, for the purpose
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of the Act and these rules and a copy of
the order shall be given to such juvenile
or the person concerned.
(5) Save and except where, further inquiry
or otherwise is required, inter alia, in
terms of Section 7A, Section 64 of the Act
and these rules, no further inquiry shall
be conducted by the court or the Board
after examining and obtaining the
certificate or any other documentary proof
referred to in subrule (3) of this rule.
(6) The provisions contained in this rule
shall also apply to those disposed of
cases, where the status of juvenility has
not been determined in accordance with
the provisions contained in subrule (3)
and the Act, requiring dispensation of the
sentence under the Act for passing
appropriate order in the interest of the
juvenile in conflict with law.”
(emphasis supplied)
23. Although, during the pendency of the appeal before the
Allahabad High Court (Lucknow Bench), the Juvenile Justice
(Care and Protection of Children) Act, 2015 had come into force
repealing the 2000 Act and subsequent to the 2015 Act,
comprehensive and detailed Model Rules relating to “juvenile in
conflict with law” known as Juvenile Justice (Care and Protection
of Children) Model Rules (hereinafter referred to as ‘JJ Rules,
2016’) were laid down. Rule 94 of the JJ Rules, 2016 also
repeals the 2007 Rules.
21
“94. Repeal.—The Juvenile Justice
(Care and Protection of Children)
Rules, 2007 notified vide G.S.R.
679(E) dated 26th October, 2007 and
as amended vide GSR 903(E) dated
26th December 2011, are hereby
repealed:
Provided that any action taken or
order issued under the provisions of
the Rules of 2007 prior to the
notification of these rules shall, in so
far it is not inconsistent with the
provisions of these rules, be deemed to
have been taken or issued under the
provisions of these rules.”
Nevertheless, the 2015 Act contains an important Section,
which is Section 25, which reads as follows:
“25. Special provision in respect of
pending cases.—Notwithstanding
anything contained in this Act, all
proceedings in respect of a child
alleged or found to be in conflict with
law pending before any Board or
court on the date of commencement of
this Act, shall be continued in that
Board or court as if this Act had not
been enacted.”
24. In Satya Deo alias Bhoorey v. State of Uttar Pradesh
, the impact of Section 25 of the 2015 Act has
(2020) 10 SCC 555
been explained in detail. The expression “all proceedings” would
not only mean the trial but will also include revision or appeal.
22
Consequently, since at the commencement of 2015 Act the
proceedings of the present appellant were pending before the
High Court (the appeal was decided on 07.05.2019), Section 25 of
the 2015 Act would be attracted. It would mean that what would
be applicable in the present case would be the 2007 Rules,
including Rule 12 which we have referred above. This aspect has
also been examined in great detail in Hariram v. State of
Rajasthan and Another (2009) 13 SCC 211.
25. In other words, what would be applicable in the present
case regarding the determination of the age of the appellant
would be the 2000 Act and the Rules framed therein i.e., 2007
rules. Rule 12 has an important bearing in the present case,
which we have already referred above. The first document under
the 2007 Rules which has to be considered for determination of
the age of a person who is claiming juvenility is the matriculation
certificate and the settled position here is that the appellant had
not done his matriculation and there is no question of the
appellant having such a certificate. The other document which
then becomes relevant is the school leaving certificate of Primary
School, Bhatgawan, which is also his certificate of age.
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26. One important aspect which was missed by the High Court
as well as the Additional Sessions Judge in his report dated
28.02.2022, was the provisions of Rule 12 of the 2007 Rules
which are applicable for determination of age in the present case
and, in particular, the provision under subrule (3)(b) of Rule 12
which states that “in the case exact assessment of the age cannot
be done, the Court or the Board or, as the case may be, the
committee for the reasons to be recorded by them, may, if
considered necessary give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year” . We are of the considered view that in the present case,
even assuming for the sake of argument that there were some
conflicting aspects as to the age of the appellant but since the
margin of age was so thin, the aforesaid benefit ought to have
been given to the appellant.
27. From perusal of the report dated 28.09.2022 the following
facts emerge. The appellant had attended three schools during
his life time. The first was the Primary School at Bhatgawan in
Barabanki. The second was High School, Kamela, Barabanki and
the third was National Inter College, Ranapur, Barabanki (in
24
chronological order). The admitted position is that the appellant
had not completed his matriculation at the time of the incident in
the year 1995 and therefore the only evidence he could place
before the authorities was the copy of the admission register of
National Inter College and the transfer certificate of the college,
which had recorded his date of birth to be 05.07.1980. The
appellant took admission in National Inter College, Barabanki on
25.07.1995 and thereafter since he could not pay his tuition fee,
his name was removed as a student from the college register on
30.12.1995. The date of birth which was registered in the said
school was 05.07.1980. The date of birth, however, was not
taken to be the correct date of birth in the earlier findings, since
the appellant had not produced any certificate before the inquiry
officer on the basis of which the date of birth i.e., 05.07.1980 was
registered in the school register of National Inter College. In the
subsequent enquiry though he submitted the transfer certificate
from the earlier school register but the same could not be verified
to the satisfaction of the inquiry officer and consequently the date
of birth as claimed by the appellant (05.07.1980) was not
accepted. In the latest enquiry, which has been conducted by the
Additional Sessions Judge, Barabanki dated 28.09.2022, the
25
appellant had produced relevant certificates of all three schools
he had attended.
28. First is the certificate from Primary School Bhatgawan,
Barabanki, which was the first school attended by the appellant
and where his date of birth recorded was 05.07.1980. The
Sessions Judge himself has seen the school register of the school
and had taken the statement of the principal of the school to
consider the veracity of the school register. The other documents
examined were the transfer certificates of High School, Kamela
and National Inter College and the relevant registers of the said
schools. The Additional Sessions Judge, who did not doubt the
veracity of any of these documents which were placed before him,
has given a categorical finding that what has been consistent is
that, in all the schools that he has attended, his date of birth
remains the same i.e., 05.07.1980.
29. However, there are two certificates which have not been
considered by the Additional Sessions Judge in his latest report.
The first is the Family Register in which the year in which
appellant was born is recorded as 1975. As deposed by the
concerned Gram Panchayat Officer, there is no precise date of
26
birth recorded in the Family Register and what has been
recorded, is that the appellant was born in the year 1975. All the
same this certificate will not have the same evidentiary value as
the school certificates in the present case. Moreover, the entry is
also not a precise entry. Under the 2007 Rules (i.e., Rule 12), the
school certificates are given more importance than a Panchayat
Register. The school leaving certificate of the first school
attended by the appellant which is Primary School, Bhatgawan
will be a certificate that is liable to be considered and the
certificate is a valid proof of evidence for determination of the age
of the appellant. [ v.
Shah Nawaz State of Uttar Pradesh and
2
Another (2011) 13 SCC 751 ]. The second certificate is the
medical report of the appellant i.e., Bone Ossification Test
conducted on 05.02.1996 which is about two months after the
alleged incident where the certificate of the test show that he was
about 19 years of age. The Radiologist (CW3) who had
conducted the test was examined in the trial, on being
questioned about the veracity of the report by the defence, he
said that although he had examined the appellant and conducted
the Bone Ossification Test but, he did not give the precise years
2 Paragraph 24
27
i.e., 19 years to be the age of the appellant. According to him
this has been done by the Chief Medical Officer (CMO). The
C.M.O was never examined in the trial. In any case, a bone
ossification test, which is primarily done to determine the age,
does not give the precise age but is at best an approximation.
30. Further, it must also be kept in mind that the medical
opinion based on Bone Ossification Test, is not entirely accurate.
This Court in the case of Vinod Katara v. State of U.P. 2022
has held the following:
SCC OnLine SC 1204
60. The bone ossification test is not an
exact science that can provide us with
the exact age of the person. As
discussed above, the individual
characteristics such as the growth rate
of bones and skeletal structures can
affect the accuracy of this method. This
Court has observed in Ram Suresh
Singh v. Prabhat Singh, (2009) 6 SCC
681 : (2010) 2 SCC (Cri) 1194,
and Jyoti Prakash Rai v. State of
Bihar, (2008) 15 SCC 223 : (2009) 3
SCC (Cri) 796, that the ossification test
is not conclusive for age determination
because it does not reveal the exact age
of the person, but the radiological
examination leaves a margin of two
years on either side of the age range as
prescribed by the test irrespective of
whether the ossification test of multiple
joints is conducted. The courts in India
28
have accepted the fact that after the
age of thirty years the ossification test
cannot be relied upon for age
determination. It is trite that the
standard of proof for the determination
of age is the degree of probability and
not proof beyond reasonable doubt.
31. In a case of juvenility where two views are possible, this
Court has held that a liberal approach should be undertaken.
This position was laid down by this Court in the case of Arnit
v. where it was held that:
Das State of Bihar (2000) 5 SCC 488
“19……….
(ii) a hypertechnical approach should
not be adopted while appreciating the
evidence adduced on behalf of the
accused in support of the plea that he
was a juvenile and if two views may
be possible on the same evidence, the
court should lean in favour of holding
the accused to be a juvenile in
borderline cases; and”
This proposition of taking a liberal view and about extending the
benefit of juvenility where two views are available has been
reiterated by this Court in numerous subsequent decisions such
as Mukarrab and Others v. State of Uttar Pradesh (2017) 2
, v.
SCC 210 Ashwani Kumar Saxena State of Madhya
3
Pradesh (2012) 9 SCC 750 as well as Rishipal Singh Solanki
3 Para 13
29
v. State of Uttar Pradesh (2022) 8 SCC 602 which concluded
as follows in para 33.8:
33.8. If two views are possible on the
same evidence, the court should lean
in favour of holding the accused to be
a juvenile in borderline cases. This is
in order to ensure that the benefit of
the JJ Act, 2015 is made applicable
to the juvenile in conflict with law. At
the same time, the court should
ensure that the JJ Act, 2015 is not
misused by persons to escape
punishment after having committed
serious offences.
32. Even if the medical report which shows the age of the
appellant as 19 years is taken to be correct even then in a case
where an exact assessment of age was not possible, considering
the conflicting reports and documents in our considered opinion,
the provision given in subrule 3(b) of Rule 12 would come into
play and the Court ought to have given the appellant a benefit of
one year in the present case.
Consequently, we accept the report of the Additional
Sessions Judge, Barabanki dated 28.09.2022 and declare that
the appellant was a juvenile on the date of the commission of
crime i.e., on 01.12.1995.
30
33. The other two coaccused i.e., Gaya Prasad Mishra and
Gulab Chandra have been convicted and sentenced inter alia to
life imprisonment. Although both of them have been prematurely
released by the State Government under its remission policy, yet
the fact remains that they were convicted (along with the
appellant), for the offences under Sections 302/34 and 307/34 by
the Trial Court in trial as well as by the High Court in appeal after
examining the entire evidence in detail. The role assigned to the
present appellant is no different than the role assigned to the
other two accused who were convicted under Sections 302 and
307 read with Section 34 IPC. It is exactly the same role and
clearly section 34 of the Indian Penal Code is also attracted. We
have already declared the appellant as a juvenile, but there is
also an order of conviction against the appellant, which is based
on the evidence placed by the prosecution against the other two
accused and the present appellant, which is common. It is not
possible therefore to take a different view for the present
appellant than what has been taken by the Trial Court and the
Appellate court against the other two accused regarding their
conviction. Therefore, we sustain the conviction of the appellant
under Sections 302 and 307 IPC read with Section 34 IPC, but all
31
the sentences which have been awarded to him are hereby
quashed as such sentences cannot be given to a juvenile, in view
of Section 16 of the Juvenile Justice Act, 2000.
34. The appeal is partly allowed on the question of juvenility as
indicated hereinabove, and the order of the High Court will stand
modified to this extent. The appellant is presently in jail. He
should be around 43 years of age as of now. Considering all the
relevant aspects including the fact that the appellant has already
been declared a Juvenile by this Court and in view of Sections 15
and 16 of Juvenile Justice Act, 2000, since the maximum period
for which a juvenile can be detained is three years and the
appellant has already undergone imprisonment for 4 ½ years, we
hereby order that the appellant be released forthwith, unless he is
required in some other crime.
..……….………………….J.
[SANJAY KISHAN KAUL]
...………………………….J.
[SUDHANSHU DHULIA]
New Delhi
November 21, 2023.
32
ITEM NO.1501 COURT NO.2 SECTION II
(FOR JUDGMENT)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).
7957/2021
(Arising out of impugned final judgment and order dated 07-05-
2019 in CRLA No.106/2000 passed by the High Court Of
Judicature At Allahabad, Lucknow Bench)
PAWAN KUMAR Appellant(s)
VERSUS
THE STATE OF UTTAR PRADESH & ORS. Respondent(s)
([ HEARD BY : HON'BLE SANJAY KISHAN KAUL and HON'BLE SUDHANSHU
DHULIA, JJ. ]........... )
Date : 21-11-2023 This petition was called on for pronouncement of
judgment today.
For Appellant(s) Ms. Vanshaja Shukla, AOR
Mr. Rishad Murtaza, Adv.
Ms. Ankeeta Appanna, Adv.
For Respondent(s) Mr. Rohit K. Singh, AOR
Ms. Tania Sharma, Adv.
The Court pronounced the following
J U D G M E N T
Hon’ble Mr. Justice Sudhanshu Dhulia
pronounced the judgment for the Bench comprising
Hon’ble Mr. Justice Sanjay Kishan Kaul and His
Lordship.
Leave granted.
The appeal is partly allowed and the
appellant be released forthwith in terms of the
signed reportable judgment.
Pending application, if any, stands disposed
of.
(ASHA SUNDRIYAL) (POONAM VAID)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[Signed reportable judgment is placed on the file]