(Ranjan Gogoi and R. Banumathi, JJ.)
Chaddu __________________________________________ Appellant;
v.
State of Uttar Pradesh and Another _________________ Respondent(s).
Criminal Appeal No(s). 257 of 2018 [Arising out of Special Leave Petition (Criminal) No. 599 of 2015], decided on February 9, 2018
The Order of the court was delivered by
Order
1. Leave granted.
2. The challenge in the present appeal is against the conviction of the accused appellant under Section 302/34 IPC and the sentence of rigorous imprisonment for life imposed. The said challenge is primarily founded on the ground that on the date of occurrence the accused appellant was a juvenile. The date of occurrence is 11th June, 2001 and accused appellant claimed his date of birth as 1st July, 1984. It may also be noted, at the outset, that the accused appellant had raised the plea of juvenility for the first time before the High court which was rejected by the impugned order.
3. In view of the consistent pronouncements of this Court that the plea of juvenility can be raised at any point of time we have examined the matter. We have also considered the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (herein after referred to as the “Rules”), which 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;
(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 sub-rule (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 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 sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off 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.”
4. The accused appellant in support of his plea of juvenility has relied upon a School Certificate showing his date of birth as 1st July, 1984. The said certificate has been verified by the State Authority and in paragraph 3 v. of the counter affidavit of respondent No. 1 – State of U.P. filed by Brij Pal Singh Solanki s/o Shri Jai Singh Solanki, Circle Officer, Chibra Mau, Kannauj, Uttar Pradesh, it has been mentioned that enquiries have revealed that the said certificate was issued by the Headmaster, Md. Rashid, of Md. Rafi Shiksha Niketan, Junior High School, Bishungarh, U.P. In the said paragraph 3 v. of the counter affidavit it has also been stated that the Family Register maintained by the Gram Panchayat shows the date of the birth of the accused appellant as 3rd February, 1978 which has been struck off and replaced by the date 1st July, 1984.
5. Under the provisions of Rule 12 of the Rules it is the matriculation certificate or school certificate or the birth certificate given by a corporation or a municipal authority or a panchayat, in that order, which has to be relied on for determination of the date of birth of a accused claiming to be a juvenile. As the School Certificate of the accused appellant, duly verified, shows his date of birth as 1st July, 1984, following the mandate of Rule 12 of the Rules we accept the same and hold that on the date of the occurrence i.e. 11th June, 2001 the appellant was a juvenile. As the appellant is in custody for a period longer than the maximum period for which a juvenile can be detained under the provisions of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, we while maintaining the conviction of the accused appellant under Section 302/34 IPC direct for his immediate release from the custody unless his custody is required in connection with any other case.
6. The appeal is partly allowed as indicated above.
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 599/2015
Chaddu __________________________________________ Petitioner
v.
State of Uttar Pradesh & Anr ______________________ Respondent(s)
Date: 09-02-2018 This petition was called on for hearing today.
(Before Ranjan Gogoi and R. Banumathi, JJ.)
For Petitioner(s) Mrs. Rachana Joshi Issar, AOR [A.C]
Ms. Vandana Mishra, Adv.
Mr. K. Vaijayanthi, Adv.
Mr. Shailabh Pandey, Adv.
Mr. Davesh Vashishtha, Adv.
Mr. Syed Asif Iqbal, Adv.
For Respondent(s)
Mr. Adarsh Upadhyay, AOR
Mr. Anurag Kishore, Adv.
Ms. Nidhi, AOR
UPON hearing the counsel the Court made the following
ORDER
7. Leave granted.
8. The appeal is partly allowed in terms of the signed order.
9. The accused appellant shall be released from the custody forthwith unless his custody is required in connection with any other case.
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