Udai Kumar Alias Lochu & Anr. vs The State

Court
Delhi High Court

$~7 & 8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
# CNR No. DLHC010093382004
+ CRL.A. 134/2004, CRL.M.A. 95/2013
UDAI KUMAR ALIAS LOCHU & ANR. .....Appellants

Through: Mr. Jagat Rana, Adv.

versus
THE STATE .....Respondent
Through: Mr. Shoaib Haider, APP for the State.

8
# CNR No. DLHC010093832004
+ CRL.A. 177/2004, CRL.M.A. 1919/2013
BALMIKI KUMAR .....Appellant

Through: Mr. Jagat Rana, Adv.

versus
THE STATE .....Respondent
Through: Mr. Raj Kumar, APP for the State.

CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
ORDER (ORAL)
1. Hybrid mode.
2. The instant Appeals have been directed against the Judgment dated
06.02.2004 (hereinafter referred to as the “Impugned Judgment”) and the
Order on Sentence dated 12.02.2004 (hereinafter referred to as the
“Impugned Order”) passed by the learned Additional Sessions Judge, Delhi,
whereby Appellant Balmiki Kumar in CRL.A. 177 of 2004 was sentenced to


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undergo rigorous imprisonment for a period of three years and to pay a fine
of Rs.10,000/- for the offence punishable under Section 393 of the Penal
Code, in default whereof to undergo rigorous imprisonment for a period of
09 months, rigorous imprisonment for a period of 07 years for the offence
punishable under Section 398 of the Penal Code and rigorous imprisonment
for a period of 03 years and to pay a fine of Rs.10,000/- for the offence
punishable under Section 5 of the Explosive Substances Act, 1908, in
default whereof to undergo rigorous imprisonment for a period of nine
months. The Appellants Vinod Kumar and Uday Kumar were each
sentenced to undergo rigorous imprisonment for a period of 03 years and to
pay a fine of Rs.10,000/- for the offence punishable under Section 5 of the
Explosive Substances Act, 1908, in default whereof to undergo rigorous
imprisonment for a period of 09 months.
3. During the pendency of the Appeals, CRL.M.A. 1919 of 2013 and
CRL.M.A. 95 of 2013 have been filed by the Appellants under Section 7-A
of the Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as the “JJ Act, 2000”) seeking a declaration that they
were juveniles on the date of commission of the offence and for
consequential relief in accordance with law.
4. Shorn of unnecessary details, the facts, in brief, leading to the present
Appeals are as under:-
a. It is the case of the Prosecution that on 26.11.1997 at about 09.30 PM,
the Appellants reached House No. T-236/4, Indira Colony, Narela,
Delhi, with the intention of committing robbery. At that time, Balmiki
Kumar was allegedly armed with a bomb, an iron punch and a steel
chain, whereas his associates were carrying toy pistols and knives.


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b. Purshotam Kumar, who was residing in the aforesaid premises as a
tenant, was in his room when he heard sounds coming from outside.
Upon opening the door, he found the Appellants in the compound of the
house. On being questioned, one of the offenders brandished a knife
while the others pointed toy pistols at him. Purshotam Kumar thereafter
started moving backwards and reached the room of his employer,
Harender Kumar Kukreja, who in turn dragged Purshotam Kumar into
the room and shut the door.

c. Thereafter, an alarm was raised and, on hearing the cries for help,
persons from the locality gathered at the spot. Balmiki Kumar was
overpowered by the members of the public, whereas the others escaped.
The Police were summoned to the spot and Balmiki Kumar was handed
over to the Police.
d. During investigation, Balmiki Kumar was arrested and one bomb, one
iron punch and one steel chain were recovered from his possession. At
his instance, his associates, namely Uday Kumar and Vinod Kumar,
were arrested from a room in Kachhi Colony, Swatantra Nagar, Narela,
Delhi. One bomb and a knife were recovered from the possession of
Vinod Kumar, whereas a revolver was recovered from the possession of
Uday Kumar.
e. Charges for the offence punishable under Section 393 read with Section
34 of the Penal Code were framed against the accused persons. Separate
charges were also framed against the accused persons for the offence
punishable under Section 398 of the Penal Code and under Section 5 of
the Explosive Substances Act, 1908. The accused persons pleaded not
guilty to the charges and claimed trial.


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f. After considering the evidence brought on record, the learned Trial
Court held Appellant Balmiki Kumar guilty of the offences punishable
under Sections 393 and 398 of the Penal Code and Section 5 of the
Explosive Substances Act, 1908. Appellants Vinod Kumar and Uday
Kumar were acquitted of the charges under Sections 393 and 398 of the
Penal Code, but were held guilty and convicted for the offence
punishable under Section 5 of the Explosive Substances Act, 1908.
5. Learned counsel for the Appellants has, during the pendency of the
Appeals, raised the issue of juvenility. It has been submitted that Uday
Kumar was born on 10.12.1982, Vinod Kumar was born on 05.07.1984 and
Balmiki Kumar was born on 05.07.1980. It has been further submitted that
this Court, vide orders dated 14.01.2013 and 31.07.2013, directed the
learned Trial Court to hold an enquiry into the age of the Appellants. The
learned Additional Sessions Judge thereafter conducted the age
determination enquiry and submitted the report dated 18.08.2017.
6. The question which arises for consideration is as to whether the
Appellants were “children in conflict with law” on the date of commission
of the offence and, if so, what would be the consequence of such finding
upon the conviction and sentence recorded by the learned Trial Court.
7. The issue as noticed above is no longer res integra and is covered by
the decision of the Constitution Bench of the Hon’ble Supreme Court in
Pratap Singh v. State of Jharkhand , (2005) 3 SCC 551 . The questions
which arose for consideration before the Hon’ble Supreme Court were as to
whether the date of occurrence or the date of production before the Court
would be relevant for determining the age of the juvenile and whether the JJ
Act, 2000 would apply to a proceeding initiated under the Juvenile Justice


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Act, 1986 and pending when the JJ Act, 2000 came into force.
8. The aforesaid questions were answered by the Hon’ble Supreme
Court by holding that the reckoning date for determination of the age of a
juvenile is the date of commission of the offence and not the date when the
person is produced before the Court or the competent authority. It was
further held that the JJ Act, 2000 would apply to a pending proceeding
initiated under the Juvenile Justice Act, 1986 where the person had not
completed eighteen years of age as on 01.04.2001.

9. A perusal of the above noted conclusion shows that the date for
determining the age of a juvenile is the date when the offence was
committed. The offence in the present case was committed on 26.11.1997.
However, the Hon’ble Supreme Court, while considering the second
question in Pratap Singh (supra), made it clear that the JJ Act, 2000 would
apply to a proceeding which was pending when the JJ Act, 2000 came into
force, subject to the conditions noticed therein.
10. The judgment of the Hon’ble Supreme Court in Pratap Singh (supra)
was subsequently explained in Hari Ram v. State of Rajasthan &Anr.,
(2009) 13 SCC 211 which has been reproduced hereunder:
“49. The effect of the proviso to Section 7-A introduced by the
amending Act makes it clear that the claim of juvenility may be
raised before any court which 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 the Act and the
Rules made thereunder which includes the definition of “juvenile”
in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased
to be so on or before the date of commencement of the Act.

50. The said intention of the legislature was reinforced by the
amendment effected by the said amending Act to Section 20 by
introduction of the proviso and the Explanation thereto, wherein
also it has been clearly indicated that in any pending case in any


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court the determination of juvenility of such a juvenile has to be in
terms of Section 2(l) even if the juvenile ceases to be so “on or
before the date of commencement of this Act” and it was also
indicated that the provisions of the Act would apply as if the said
provisions had been in force for all purposes and at all material
times when the alleged offence was committed.

58. Of the two main questions decided in Pratap Singh case
[(2005) 3 SCC 551 : 2005 SCC (Cri) 742] , one point is now well
established that the juvenility of a person in conflict with law has to
be reckoned from the date of the incident and not from the date on
which cognizance was taken by the Magistrate. The effect of the
other part of the decision was, however, neutralised by virtue of the
amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006,
whereunder the provisions of the Act were also made applicable to
juveniles who had not completed eighteen years of age on the date
of commission of the offence.”

11. Section 20 of the JJ Act, 2000, as explained by the Hon’ble Supreme
Court in Hari Ram (supra), is particularly relevant in respect of pending
cases. The Explanation to Section 20 makes it clear that in all pending cases,
including trial, revision and appeal, the determination of juvenility is to be
made in terms of Section 2(l), even if the juvenile had ceased to be so on or
before the commencement of the JJ Act, 2000. The Hon’ble Supreme Court
further held that Section 20 enables the Court to consider and determine the
juvenility of a person even after conviction by the regular Court and, while
maintaining the conviction, to set aside the sentence imposed and forward
the case to the Juvenile Justice Board for passing appropriate orders in
accordance with the Act.
12. The manner of determination of age is also prescribed under the
juvenile justice legislation. Section 94(2) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 gives precedence to the date of birth
certificate from the school or the matriculation or equivalent certificate from


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the concerned examination Board, followed by the birth certificate issued by
a municipal authority or panchayat and, only in the absence of the aforesaid
documents, medical age determination. The learned Additional Sessions
Judge followed the aforesaid statutory framework while conducting the age
determination enquiry which has been reproduced hereunder:
“(2) In case, the Committee or the Board has reasonable grounds for
doubt regarding whether the person brought before it is a child or not,
the Committee or the Board, as the case may be, shall undertake the
process of age determination, by seeking evidence by obtaining –

i. the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence
thereof;
ii. the birth certificate given by a corporation or a municipal
authority or a panchayat;
iii. and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.”


13. In the present case, the learned Additional Sessions Judge, after
conducting the age determination enquiry, recorded a categorical finding
with respect to each of the Appellants. In the case of Uday Kumar, the date
of birth recorded in the certificate issued by DM High School, Shekhpura
was 10.12.1982. The said record was accepted by the learned Court below
and his age was computed as 14 years, 11 months and 16 days on
26.11.1997.
14. In the case of Vinod Kumar, the records of DM High School,


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Shekhpura as well as the Bihar Vidyalaya Pariksha Samiti, Patna recorded
his date of birth as 05.07.1984. The learned Additional Sessions Judge found
no material to doubt the said records and computed his age as 13 years, 04
months and 21 days on 26.11.1997.
15. As regards Balmiki Kumar, the school leaving certificate and
admission record of DM High School, Shekhpura recorded his date of birth
as 05.07.1980. The said documents remained unimpeached and his age was
accordingly computed as 17 years, 04 months and 21 days on 26.11.1997.

16. The medical age estimation reports were also noticed by the learned
Additional Sessions Judge. However, in view of the availability of the
school records, the medical evidence was not made the foundation for
determination of age and was only taken into consideration for lending
assurance to the conclusion arrived at on the basis of the documentary
evidence.
17. Thus, the age determination report dated 18.08.2017 concludes that
Uday Kumar, Vinod Kumar and Balmiki Kumar were aged 14 years, 11
months and 16 days, 13 years, 04 months and 21 days, and 17 years, 04
months and 21 days, respectively, on the date of commission of the offence.
All three Appellants were, therefore, children in conflict with law on the
said date.
18. In view of the categorical findings recorded pursuant to the enquiry
directed by this Court, there is no reason to differ from the conclusion that
none of the Appellants had completed eighteen years of age on 26.11.1997.
19. The fact that the offence was committed in the year 1997, when the
Juvenile Justice Act, 1986 was in operation, does not alter the position. The
subsequent statutory development and the law declared by the Hon’ble


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Supreme Court in Pratap Singh (supra) and Hari Ram (supra) make it clear
that the age of the Appellants is required to be determined with reference to
the date of commission of the offence and that the subsequent enlargement
of the threshold to eighteen years is to be given effect in the manner
prescribed by the statute in pending proceedings.
20. Consequently, Uday Kumar, Vinod Kumar and Balmiki Kumar were
juveniles/children in conflict with law on the date of commission of the
offence.

21. Having arrived at the aforesaid conclusion, the next question is as to
the effect of such finding upon the sentence imposed by the learned Trial
Court.
22. Section 7-A of the JJ Act, 2000 specifically contemplates that where a
claim of juvenility is raised before any Court, the Court shall make an
enquiry and record a finding as to whether the person was a juvenile on the
date of commission of the offence. Where such person is found to be a
juvenile, the sentence, if any, passed by the Court shall be deemed to have
no effect. The same position has been carried forward in the Act of 2015.
23. The Hon’ble Supreme Court in Hari Ram (supra) has further clarified
that in pending proceedings the Court may determine juvenility even after
conviction by the regular Court and, while maintaining the conviction, set
aside the sentence imposed and forward the case to the Juvenile Justice
Board for appropriate orders in accordance with the juvenile justice
legislation.
24. In the present case at hand, the nominal roll placed on record shows
that Appellant Vinod Kumar has undergone a period of 11 months and 06
days, apart from an under trial period of 01 month and 05 days, with


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remission earned of 02 months and 09 days. The unexpired portion of his
sentence has been recorded as 01 year, 10 months and 15 days.
25. Insofar as Appellant Uday Kumar is concerned, the nominal roll
records an under trial period of 01 month and 23 days and a period
undergone of 01 year, 01 month and 09 days, with remission earned of 01
month and 25 days. The unexpired portion of sentence has been recorded as
01 year, 08 months and 26 days.
26. As regards Appellant Balmiki Kumar, the nominal roll records an
under trial period of 27 days and a convict period of 02 years, 10 months
and 23 days, making the total period undergone 02 years, 11 months and 20
days. The remission earned is recorded as 08 months and the unexpired
portion of sentence as 03 years, 08 months and 20 days.
27. The JJ Act is a beneficial legislation intended to ensure that a child in
conflict with law is dealt with through the statutory framework governing
children and is not subjected to the ordinary sentencing regime applicable to
adult offenders.
28. In a similar set of facts, the Hon’ble Supreme Court, in a number of
decisions, has held that where an accused is found, even at the appellate
stage or at any subsequent stage of the proceedings, to have been a juvenile,
that is, to have not completed eighteen years of age on the date of
commission of the offence, such subsequent determination of juvenility does
not, by itself, render the conviction recorded by the regular Court
ineffective. However, the sentence imposed cannot be given effect to and
has to be set aside or rendered ineffective. In this regard, the Hon’ble
Supreme Court in Karan @ Fatiya v. State of Madhya Pradesh, (2023) 5
SCC 504 has held as reproduced hereunder:


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“ 37. Having considered the statutory provisions laid down in
Section 9 of the 2015 Act and also Section 7-A of the 2000 Act
which is identical to Section 9 of the 2015 Act, we are of the view
that merits of the conviction could be tested and the conviction
which was recorded cannot be held to be vitiated in law merely
because the inquiry was not conducted by JJB. It is only the
question of sentence for which the provisions of the 2015 Act would
be attracted and any sentence in excess of what is permissible
under the 2015 Act will have to be accordingly amended as per the
provisions of the 2015 Act. Otherwise, the accused who has
committed a heinous offence and who did not claim juvenility
before the trial court would be allowed to go scot-free. This is also
not the object and intention provided in the 2015 Act. The object
under the 2015 Act dealing with the rights and liberties of the
juvenile is only to ensure that if he or she could be brought into the
mainstream by awarding lesser sentence and also directing for
other facilities for welfare of the juvenile in conflict with law
during his stay in any of the institutions defined under the 2015
Act.

38. In view of the above discussion and the position in law as laid
down by the aforesaid judgments and many others referred to in
the above judgments, we approve the view taken by this Court
in Jitendra Singh [Jitendra Singh v. State of U.P., (2013) 11 SCC
193 : (2013) 4 SCC (Cri) 725] , Mahesh [Mahesh v. State of
Rajasthan, (2021) 18 SCC 582 : 2018 SCC OnLine SC 3655]
and Satya Deo [Satya Deo v. State of U.P., (2020) 10 SCC 555 :
(2021) 1 SCC (Cri) 61] .

39. For all the reasons recorded above, it is ordered as follows:
The conviction of the appellant is upheld; however, the sentence is
set aside. Further as the appellant at present would be more than
20 years old, there would be no requirement of sending him to the
JJB or any other child care facility or institution. The appellant is
in judicial custody. He shall be released forthwith. The impugned
judgment [Karan v. State of M.P., 2018 SCC OnLine MP 1849]
shall stand modified to the aforesaid extent.

40. Both the appeals stand partly allowed.”

The Hon’ble Supreme Court in Dinesh Kumar v. The State of
Haryana, Criminal Appeal No. 64 of 2011 decided on 12.08.2026, reiterated
the aforesaid legal position and held as reproduced hereunder:


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“ 26. The statutory position is settled by Hari Ram v. State of
1 2
Rajasthan ; Dharambir v. State (NCT of Delhi) ; and Jitendra
3
Singh @ Babboo Singh v. State of U.P. , whereby this Court
recognized that a person below eighteen on the date of an offence
committed even before 1st April, 2001 receives the benefit of the
2000 Act; This Court further held that a conviction on merits need
not be annulled merely because the person was tried by a regular
court; and however the adult sentence cannot survive.

27. The Principal Magistrate, Juvenile Justice Board, Sonepat
conducted an inquiry and, by order dated 12th October, 2012
accepted the appellant’s date of birth as 3rd February, 1981. The
Board calculated his age as seventeen years, six months and eleven
days by reference to 14th August, 1998, the date on which the FIR
was registered. The occurrence, however, is consistently alleged to
have taken place on 10th August, 1998. On that date, the appellant
was seventeen years, six months and seven days old. The four-day
difference in calculation is immaterial: since on either date he had
not completed eighteen years.

28. The record further shows that the Juvenile Justice Board
directed the appellant's immediate release after noting that he had
already undergone custody for more than three years. The
maximum period for which a juvenile could be sent to a special
home under Section 15(1)(g) of the 2000 Act was three years. The
order of juvenility has not been displaced, and this Court's order
dated 9th October, 2025 records that the proceedings culminated
in a declaration that Dinesh Kumar was a juvenile on the date of
the offence i.e., 10.08.1998.

29. We accordingly accept the declaration of juvenility. The
sentence of life imprisonment and the sentence of seven years'
rigorous imprisonment, together with the fine and default
stipulations imposed by the Trial Court, cannot operate against the
appellant. Ordinarily, the matter would be forwarded to the Board
for the appropriate disposition. That exercise has already been
completed: the Board has passed an order, found that the appellant
had undergone more than the statutory maximum and directed his
release. A fresh remand would be empty formality and contrary to
the rehabilitative object of the enactment.


1
(2009) 13 SCC 211
2
(2010) 5 SCC 344
3
(2013) 11 SCC 193


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30. The connected case furnishes direct parity. In Manoj v. State of
Haryana, Criminal Appeal No. 768 of 2011, decided on 6th August,
2025 this Court maintained the conviction arising from the same
trial but held that the juvenile appellant, having already undergone
more than the permissible maximum, need not surrender and
discharged his bail bonds. The same consequence must follow here.
Section 19 of the 2000 Act further provides that a juvenile dealt
with under the Act shall not suffer any disqualification attached to
a conviction under another law. The appellant shall therefore
receive the statutory protection against such disqualification, and
the competent Board/authority shall take the consequential steps
regarding the records in accordance with Section 19 and the
applicable rules.

31. As such, Interlocutory Application No. 27571 of 2024 is
allowed and the Order dated 12th October, 2012 of the Juvenile
Justice Board, Sonepat, together with the connected inquiry record,
is taken on record. The finding that the appellant Dinesh Kumar
was a juvenile on the date of the offence, 10th August, 1998 is
accepted.

32. The conviction of the appellant for the offences punishable
under Sections 302 read with 34 and 392 read with 34 IPC is
affirmed. The sentences imposed by the Additional Sessions Judge,
Sonepat on 18 September 2000 and affirmed by the High Court on
18 September 2009, including the substantive imprisonment, fine
and default stipulations, are set aside and shall be treated as
having no effect against the appellant in view of Section 7A(2) read
with Sections 15 and 20 of the Juvenile Justice (Care and
Protection of Children) Act, 2000. As the appellant has already
undergone detention exceeding the maximum period permissible
under the 2000 Act and has been released pursuant to the order of
the Juvenile Justice Board/ interim orders of this Court, he shall
not be required to surrender. His bail bonds, if subsisting, shall
stand discharged.

33. The Appellant shall not suffer any disqualification attached to
the conviction, in terms of Section 19 of the 2000 Act. The Juvenile
Justice Board, Sonepat shall ensure compliance with the
consequential statutory requirements concerning the records. In
the above terms, the Appeal is partly allowed.

34. Pending applications, if any, stands consigned to record.”



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29. In the facts and circumstances of the present case, and in view of the
categorical determination that the Appellants were “children in conflict with
law” on the date of commission of the offence, the sentences imposed by the
learned Trial Court cannot be given effect to in their present form.
Resultantly, the Order on Sentence dated 12.02.2004, passed against
Appellants Uday Kumar, Vinod Kumar and Balmiki Kumar are set aside.
The conviction recorded by the learned Trial Court is, however, maintained.
The consequences flowing from the finding of juvenility shall be governed
by the provisions of the applicable Juvenile Justice legislation and shall be
dealt with in accordance with law.
30. The present Appeals are, accordingly, disposed of alongwith the
pending applications, if any.
31. Copy be transmitted to the Court concerned and Prison Authorities for
information and compliance.



VIMAL KUMAR YADAV, J
SEPTEMBER 2, 2026/ ps/ij



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