Full Judgment Text
NON-REPORTABLE
2024 INSC 171
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION(CRL.) NO(S). 121 OF 2022
VINOD KATARA …PETITIONER(S)
VERSUS
STATE OF U.P. …RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. This writ petition arises from a very peculiar set of facts and
circumstances.
2. The petitioner herein was arraigned as an accused for the
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offence of murder committed on 10 September, 1982. The
petitioner along with three co-accused was convicted by the trial
Signature Not Verified
Court for the offence punishable under Section 302 read with
Digitally signed by
Nisha Khulbey
Date: 2024.03.05
14:49:31 IST
Reason:
Section 34 of the Indian Penal Code, 1860(hereinafter being
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referred to as ‘IPC’) vide judgment dated 6 January, 1986 and
were sentenced to undergo rigorous imprisonment for life.
3. The convicts including the petitioner herein preferred
Criminal Appeal No. 133 of 1986 before the Allahabad High Court.
During the pendency of appeal, the sentence awarded to the
petitioner by the trial Court was suspended and he was released
on bail. The said appeal came to be rejected vide judgment dated
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4 March, 2016 and the conviction of the petitioner and the
sentence awarded to him by the trial Court were affirmed. The
petitioner was taken into custody after the dismissal of the appeal
by the High Court.
4. The petitioner preferred Special Leave Petition (Crl.) No.6048
of 2016 assailing the judgment rendered by the Allahabad High
Court. The said Special Leave Petition was dismissed by this Court
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vide order dated 16 August, 2016.
5. The High Court of Judicature at Allahabad, while considering
a PIL bearing Crl.(PIL) Misc. W.P. No. 855 of 2012, vide order dated
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24 May, 2012 directed the Juvenile Justice Board(s) (hereinafter
being referred to as the ‘Board’) in the State of Uttar Pradesh to
hold enquiries for determination of age of the convicts who were
languishing in jail wherein the possibility was felt that the convict
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might have been a juvenile at the time of incident. Pursuant to the
said order of the High Court, the petitioner herein who was at the
relevant point of time lodged in District Jail, Mathura was
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subjected to examination by a Medical Board on 10 December,
2021. The Medical Board conducted X-rays of the skull and
sternum of the petitioner and gave an opinion that on the date of
the report, the petitioner herein was around 56 years of age. Based
on the said report of the Medical Board, the petitioner has
preferred the instant writ petition claiming that he was around 15
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years of age on the date of the incident i.e. 10 September, 1982
and has sought the following substantive relief :-
“In the light of the abovementioned facts and circumstances, the
petitioner through this instant petition prays before this Hon’ble
Court as under:-
A. issue a writ of mandamus or any other similar writ, order or
direction thereby directing the respondent State to verify the claim
of juvenility and thereafter pass necessary orders as it deems fit
in the facts and circumstances of the case.”
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6. The matter was heard at length on 12 September, 2022, and
this Court passed an order with the following pertinent directions:-
“(i) We direct the Sessions Court, Agra to examine the claim of the
writ applicant to juvenility in regard with law within one month
from the date of communication of this order;
(ii) The concerned Sessions Court shall also examine the
authenticity and genuineness of the Family Register sought to be
relied upon by the writ applicant convict considering that the
document does not appear to be contemporaneous. This
document assumes importance, more particularly in light of the
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fact that the ossification test report may not be absolutely helpful
in determining the exact age of the writ applicant on the date of
the incident. If the Family Register on record is ultimately found
to be authentic and genuine, then we may not have to fall upon
the ossification test report. In such circumstances, the Presiding
Officer concerned shall pay adequate attention towards this
document and try to ascertain the authenticity and genuineness
of the same. If need be, the statements of the persons concerned
i.e. from the concerned government department may also be
recorded;
(iii) The Sessions Court shall ensure that the writ applicant
convict is medically examined by taking an ossification test or any
other modern recognized method of age determination;
(iv) The Sessions Court concerned shall submit its report as
regards the aforesaid to this Court within one month from the date
of communication of this order;
(v) The Registry is directed to forward one copy of this order to
Sessions Court, Agra;
(vi) We request the learned counsel appearing for the State to take
appropriate steps to facilitate the Sessions Court to complete the
enquiry.”
7. The inquiry in pursuance to the said direction was conducted
by the learned Additional District and Sessions Judge, Court No.
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5, Agra who has forwarded a report dated 21 October, 2022
opining that from the contemporaneous evidence placed during
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the inquiry, the date of birth of the petitioner was 2 July, 1960
and he was major on the date of the incident. The learned
Additional District and Sessions Judge took note of the fact that
medical examination of the convict Vinod Katara was conducted
by Medical Board in compliance of the directions given by this
Court and the Chairman of the Board had given an opinion that
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the probable age of accused Vinod Katara was between 55 to 60
years with a remark that estimation of age based on X-ray
examination becomes uncertain after the age of 25 years.
8. After receiving the report, this Court permitted learned
counsel for the petitioner as well as learned counsel for the
respondent to submit their response thereto. Final arguments
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were heard on 17 January, 2024.
9. Mr. Rishi Malhotra, learned counsel appearing for the
petitioner vehemently and fervently contended that the
conclusions drawn by the learned Additional District and Sessions
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Judge in the report dated 21 October, 2022 that it would not be
possible to determine the age of the accused accurately based on
the X-ray examination is unsustainable in light of the earlier
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medical report dated 10 December, 2021 wherein the Medical
Board has given a pertinent opinion that the age of the petitioner
as on the said date was around 56 years.
10. As per the learned counsel, if the entries made in the
contemporaneous documents relied upon by the Additional
District and Sessions Judge are perused, it would become evident
that the petitioner was born in the same year as his brother Ashok
Kumar, i.e., 1960 which would lead to a situation of serious
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anomaly. He urged that the documentary evidence presented by
the convict petitioner in the inquiry held by the learned Additional
District and Sessions Judge conclusively establishes that after the
birth of Ashok Kumar and before the birth of the petitioner, two
other sons were born to the petitioner’s parents in the intervening
years. However, both these children expired because of medical
complications. He vehemently contended that the attendance
register/school record on which the learned Additional District
and Sessions Judge placed implicit reliance is not a reliable piece
of evidence because the concerned Principal of the school neither
verified the documents nor was he examined in evidence.
11. Learned counsel further urged that the assumption drawn by
the learned Additional District & Sessions Judge that there has
been an overwriting in the family register wherein numerical ‘0’
has been changed to numerical ‘8’ is without any foundation. He
contended that as per Section 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (hereinafter being referred to as
the ‘JJ Act’), where contemporaneous reliable school record is not
available, the Court can place reliance either on other
documentary evidence or in absence thereof, the Medical Board’s
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opinion based on X-ray examination can be taken into account to
determine the age of the person claiming juvenility.
12. Learned counsel urged that school record produced during
inquiry is not a reliable piece of evidence and the family register
wherein the year of birth of the petitioner is shown to be 1968 as
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well as the medical report dated 10 December, 2021 deserve to
be given precedence and accepted for extending the prayer made
by the petitioner that he was a juvenile on the date of the incident.
He thus, submitted that the petitioner is entitled to consequential
relief of being released from prison.
13. Per contra , Mr. Ardhendumauli Kumar Prasad, learned AAG
vehemently opposed the submissions advanced by the learned
counsel for the petitioner and urged that the inquiry report has
been submitted by the learned Additional District and Sessions
Judge, as a consequence of direction given by this Court. Such
inquiry report is based on detailed process of collection of evidence
and analysis thereof.
14. He submitted that the inquiry officer, i.e., the learned
Additional District and Sessions Judge, after minute appreciation
and evaluation of the evidence has categorically found that the
date of birth of the petitioner as entered in the contemporaneous
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school record was 2 July, 1960, which is the actual date of birth
of the petitioner and as a consequence, the petitioner does not
deserve the relief claimed for.
15. We have given our thoughtful consideration to the
submissions advanced by learned counsel for the parties and have
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carefully perused the order dated 16 August, 2016 passed by this
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Court and so also the enquiry report dated 21 October, 2022
forwarded by the learned Additional District and Sessions Judge.
16. The learned Additional District and Sessions Judge recorded
evidence during the course of the inquiry and gave detailed
findings holding that the family register brought on record by the
petitioner was a forged document and was unreliable. It may be
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stated that a copy of the family register issued on 2 March, 2022
was placed on record by the petitioner during the course of inquiry.
The inquiry officer issued a notice to the Assistant Block
Development Officer, Panchayat, Fatehpur Sikri, Agra and in his
examination, the officer clearly stated that the original register on
the basis of which said family register has been prepared was not
available in the record of the Panchayat, Aulenda.
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17. The learned Additional District and Sessions Judge gave the
following opinion doubting the veracity of the family register relied
upon by the petitioner:-
“…This is also getting confirmed from Page No.133 of the Family
Register because probable date of birth of petitioner Shashi w/o
Vinod Kumar, is mentioned as 1965 on the said page. Generally,
age of wife is some years less than husband. In the instant
matter, in the family register, year of birth of wife of petitioner in
the family register is 1965 whereas year of birth of her husband
is mentioned as 1968 which is forged by which age of wife Shashi
is becoming 3 years more than her husband Vinod Kumar. In
general circumstances, it is not possible. It is clear from aforesaid
appreciation that family register produced by petitioner is not
authentic but a document doubtful in nature which does not
appear to be a credible document.”
18. The learned Additional District and Sessions Judge also
summoned the record from the Pre-Secondary School, Dabar,
Fatehpur Sikri and recorded the evidence of school officials. From
these documents which are admission register and the transfer
certificate, it transpired that the date of birth of the petitioner
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recorded in the school is 2 July, 1960.
19. Having minutely perused the inquiry report and the evidence
led during the inquiry, we are of the opinion that the conclusions
drawn by the learned Additional District and Sessions Judge that
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the actual date of birth of the accused petitioner is 2 July, 1960
and the opinion of the Medical Board that estimation of age based
on X-ray examination becomes uncertain after 25 years is apropos
and deserves to be accepted.
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20. Section 94(2) of the JJ Act provides for the mode of
determination of age. In the order of priorities, the date of birth
certificate from the school stands at the highest pedestal whereas
ossification test has been kept at the last rung to be considered,
only in the absence of the criteria Nos. 1 and 2, i.e. in absence of
both certificate from school and birth certificate issued by a
Corporation/Municipal Authority/Panchayat.
21. In the wake of above discussion, we find no merit in the writ
petition which is dismissed as such.
22. Pending application(s), if any, shall stand disposed of.
.……………………….J.
(B.R. GAVAI)
………………………..J.
(SANDEEP MEHTA)
NEW DELHI;
MARCH 05, 2024.
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