SUPREME COURT REITERATES THE FACTORS TO BE CONSIDERED TO ASCERTAIN THE AGE OF JUVENILE

A two Judge Bench of the Supreme Court comprising of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia passed a Judgment dated 21.11.2023, in Pawan Kumar v. The State of Uttar Pradesh & Ors. Criminal Appeal No. 3548 of 2023, and reiterated the factors to be considered to ascertain the age of a juvenile.

Facts

(i) In the present case, one, Guru Prasad Mishra, the Complainant filed a Complaint dated 01.12.1995 in the Subeha Police Station, Barabanki District, U.P. against one, Gaya Prasad Mishra, the Appellant’s father and Accused No. 1; Gulab Chandra, the Appellant’s brother and Accused No. 2; Pawan Kumar, the Appellant herein and  Accused No. 3 and lastly, Babadeen, the Accused No. 4, thereby alleging that at the time when the Complainant’s father and brother were irrigating their land, water flushed towards the adjacent field belonging to the Appellant and the Appellant reported to his father and shortly thereafter all the Accused came to the spot armed with lathis and assaulted the Complainant’s father and brother.

(ii) Based on the Complainant’s Complaint, an FIR was registered in Crime No. 86 of 1995 against the Accused No. 1-4 under offences punishable under Sections 307 of the Indian Penal Code 1860 (IPC) (Attempt to murder), 504 IPC (Intentional insult with intent to provoke breach of the peace) and 323 IPC (Punishment for voluntarily causing hurt) read with Section 34 of IPC (Acts done by several persons in furtherance of common intention).

(iii) Thereafter, the Complainant’s brother succumbed to his grievous injuries. The Police then added Section 302 IPC (Punishment for murder) in the FIR and filed a Charge-Sheet before the Ld. Additional Sessions Judge, Barabanki (Trial Court) in Session Trial No.85 of 1996.

(iv) Despite the Appellant’s assertion that he was less than 16 years old when the offence was committed, his age was recorded as 18 years in his statement made pursuant to Section 313 of the Code of Criminal Procedure 1973 (P.C.) (Power to examine the accused). In support of his plea, the Appellant produced the Scholar Register of the National Inter College, Barabanki which  recorded his D.O.B. as 05.07.1980.  However, under cross-examination, the National Inter College clerk who had presented the Scholar Register acknowledged that the entry had been made using a transfer certificate from Purva Madhyamik Vidhyalaya, also known as High School, Kamela which was not placed on record.

(v) Thereafter, to ascertain the age of the Appellant, the Gram Panchayat Officer was examined who produced the Family Register of the Appellant, where the Appellant’s Date of Birth was recorded as 1975 without mentioning the date and month.

(vi )In the contradiction between the Scholar Register and Family Register, a bone ossification test of Appellant-Accused No. 3 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.

(vii) The Ld. Trial Court, vide Order dated 21.08.1999, concluded that the benefit of juvenility cannot be granted to the Appellant-Accused No. 3 and thereby, ordered him to face the trial.

(viii) Aggrieved by the Trial Court Order dated 21.08.1999, the Appellant-Accused No. 3 filed a Criminal Revision bearing No. 271 of 1999 before the High Court of Judicature at Allahabad, Bench at Lucknow (High Court). The High Court dismissed the Criminal Revision filed by the Appellant, vide Order dated 16.09.1999, stating that it was inappropriate to intervene in the trial at the belated stage.

(ix) Thereafter the Ld. Trial Court passed an Order dated 11.02.2000 and convicted the Accused No. 1-3 and sentenced them to life imprisonment. However, the proceedings in respect of the Accused No. 4 were abated, as she died during the pendency of the trial.

(x) Aggrieved by the Trial Court Order dated 11.02.2000, all the Accused No. 1-3 filed Appeal bearing CRLA No. 106 of 2000 before the High Court.

(xi) During the pendency of the Appeal, the Appellant-Accused No. 3 filed a Criminal Miscellaneous Application bearing No. CM No. 96164 / 2012 before the High Court, seeking the plea of juvenility based on the additional grounds under Section 391 of Cr.P.C. (Appellate Court may take further evidence or direct it to be taken) by placing on record his Transfer Certificate dated 07.1995 issued by High School, Kamela based on which the Scholar Register of National Inter College, Barabanki had recorded the age of the Appellant as per his date of birth of 05.07.1980.

(xii) Thereafter, the High Court, vide its Order dated 07.05.2019, dismissed the Criminal Appeal filed by the Appellants-Accused No. 1-3, including the plea of juvenility raised by the Appellant-Accused No. 3 in CM No.96164/2012.

Supreme Court Analysis

Aggrieved by the High Court Order dated 07.05.2019, the Appellant-Accused No. 3 filed Criminal Appeal No. 3548 of 2023 before the Supreme Court. The Apex Court passed a Judgment dated 21.11.2023 and observed as follows:

1) That the Trial Court rejected the authenticity of the Scholar Register of National Inter College, Barabanki due to its reliance on a Transfer Certificate from High School, Kamela that was not documented. But, as the Appellant placed on record the Transfer Certificate under Section 391 of the CrPC, the Ld. Trial Court ought to have been taken it into consideration.

2) The Apex Court passed an Order dated 08.10.2021 by directing the Ld. Trial Court to submit a fresh report on the plea of juvenility raised by the Appellant, after appreciating the additional evidence. The Ld. Trial Court with the compliance of the Order dated 08.10.2021 submitted a Report on 28.02.2022, thereby, declaring that the Appellant was not a juvenile on the date of the commission of the alleged offence.

3) After perusal of the Report dated 28.02.2022 submitted by the Ld. Trial Court, the Apex Court felt that the Trial Court did not examine the Transfer Certificate of the Appellant properly, therefore, the issue was remitted back to the Ld. Trial Court on 15.07.2022 for   fresh consideration on the aspect of juvenility and the Supreme Court directed the Trial Court to submit a fresh report.

4) In compliance of the Apex Court Order dated 15.07.2022, the Ld. Trial Court submitted a Fresh Report dated 28.09.2022 by determining the age of the Appellant as per his Date of Birth of 05.07.1980, as mentioned in his School and College Certificates. The relevant para of the Report dated 28.09.2022 is as follows:

“18. In the end, it is humbly submitted that the date of birth of Pawan Kumar, right from the first school where he was 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 Pre ­secondary 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”.

5) While the Appeal before the High Court was pending, in the meantime, on 01.04.2000, the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) came into force. According to Section 2(k) of the JJ Act, a “juvenile” is defined as: “juvenile” or “child” means a person who has not completed eighteenth year of age”

6) That a matriculation certificate is used to determine the age of a person claiming juvenility, and it is established in the present case that the Appellant has not completed his matriculation and that he is not in possession of such a document.

7) Further, the provisions of Rule 12[1] of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (2007 Rules) (Procedure to be followed in determination of age), which are applicable for determining age in the present case, particularly the provision under sub rule (3)(b) of Rule 12, states that “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.” But both the High Court and the Trial Court overlooked the said provision of law in the present case while determining the age of the Appellant.

8) The Appellants had produced relevant certificates of all three schools that he had attended and his date of birth remained the same i.e., 05.07.1980 therein. The Bench held that under Rule 12 of the 2007 Rules, the school certificates are given more importance than a Panchayat Register. Hence, relying on the Appellant’s School Certificates, his age would be less than 16 years old when the offence was committed.

Conclusion

Thus, based on the aforesaid observations and laws, the Apex Court held that as the Appellant was a juvenile at the time of commission of offence, the sentence of life imprisonment awarded to the Appellant by the Trial Court were quashed, as the same cannot be awarded to a juvenile, in view of Section 16 of the JJ Act (Order that may not be passed against juvenile). As a result, the conviction of the Appellant was set aside. Thus, the Appeal filed by the Appellant-Accused No. 3 was allowed, and the Trial Court Order dated 11.02.2000 and the High Court Order dated 07.05.2019, convicting the Appellant-Accused No. 3 were set aside.

Suneel Kumar Jaiswal

Associate

The Indian Lawyer

 

[1] Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007: 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.