Full Text
HIGH COURT OF DELHI
CRL.A. 1221/2013,
JUDGMENT
Through : Mr.Ajai Kumar, Adv.
Through : Mr.Firoz Khan Ghazi, APP for the Stae along with SI Mohinder, P.S. Narela.
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S.SISTANI, J.
1. The appellant has filed the present appeal assailing the judgment dated 7.11.2012 and order on sentence dated 17.11.2012 by which the appellant was sentenced to undergo Rigorous Imprisonment for the offence under Section 363 IPC for a period of seven years and to pay fine of Rs.10,000/-, in default thereof further undergo Simple Imprisonment for a further period of one month. The appellant was also sentenced to undergo Rigorous Imprisonment for life for the offence under Section 376 (2) (f) IPC with the directions that he shall not be considered for any remissions unless he has undergone an actual sentence of Twenty years and to pay fine of Rs.50,000/-, in default thereof further simple imprisonment for five months. The appellant was 2015:DHC:1426 also sentenced to undergo Rigorous imprisonment for the offence under Section 380 IPC for a period of five years and to pay fine of Rs.10,000/-, in default of payment of fine shall further undergo Simple Imprisonment for a further period of one month.
2. The appeal stands admitted. Along with the appeal, appellant has filed the present application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 [hereinafter referred to as „the Act‟], for declaring the appellant as a juvenile.
3. The appellant was convicted for the offence under Sections 363, 376(2)(f), 380 of the Indian Penal Code and has been awarded imprisonment for life. The appellant has been incarcerated since December, 2011.
4. It is contended by counsel for the appellant that the appellant was a juvenile on the date of the alleged offence, as his date of birth is 27.1.1994. It is contended that the appellant was 17 years 7 months and 29 days on the date of the commission of the offence. In support of his claim of being a juvenile, the appellant relies on a transfer certificate as well as a photocopy of the certified copy of the student admission register where the appellant attended his school for the first time. It is also contended by counsel for the appellant that the plea of juvenility can be raised at any stage and in fact it can be raised even after final adjudication of the matter. Reliance is placed on Rule 12 of the Juvenile Justice (Care and Protection of Children ) Rules 2007 [hereinafter referred to as „the Rules‟]. We may notice that in response to this application a status report dated 14.1.2014 was filed by the State, which is reproduced below: “STATUS REPORT Hon‟ble Sir, It is submitted that the verification of petitioner Udai Kumar Yadav S/o Sh. Sita Ram Rai R/o Vill – Husse Pur Panchrukhia PS- Sahebganj Distt.- Muzaffer Pur, Bihar was conducted. As per school record he was student of Government Middle School, Hussepur, Sahebhanj, Muzafferpur, Bihar and his date of birth is 27.01.1994 with enrolment No.46/28.1.2002 in class 3rd. Copy of school report is enclosed. In view of the submissions made above the undersigned will abide by any directions/order which this Hon‟ble court choose to pass. (GULAM SHABIR)
STATION HOUSE OFFICER PS-NARELA, DELHI”
5. An additional status report dated 24.7.2014 was also filed by the State, which is also reproduced below: “STATUS REPORT Hon‟ble Sir, It is submitted that the verification of petitioner Udai Kumar Yadav S/o Sh. Sita Ram Rai R/o Vill – Husse Pur Panchrukhia PS- Sahebganj Distt.- Muzaffer Pur, Bihar was conducted. The Principal of Government Middle School, Hussepur, Sahebhanj, Muzafferpur, Bihar has given in writing that:-
1. As per school the record / report no such age proof document obtain by the school authority from the parents of student Udai Kumar at the time of admission in the school. There is a procedure of this school that at the time of admission the school authority do not require age proof of student.
2. Admission of student of Class 1 to 5th without obtaining age proof.
3. Admission is done at the verbal declaration of the guardians.
4. Admission of Udai Kumar was made by Devender Mishra who has been retired from service. Apart from this, statement of Sh. Lal Babu Ram, member Ward No. 1, Gram Panchayat Vill- Husse Pur got recorded who stated that no such record/information regarding correct date of birth of Udai Kumar. In view of the submission made above the undersigned will abide by any directions / order which this Hon‟ble Court choose to pass. (GULAM SABIR)
STATION HOUSE OFFICER PS-NARELA, DELHI”
6. Based on the additional status report, a Division Bench of this court in the order of 28.7.2014 directed the trial court to conduct an enquiry into the plea of juvenility of the appellant and submit a report to this court. During the enquiry an application was filed by the SHO, Narela, seeking permission of the court for getting the ossification / age determination test conducted in view of the fact that no authentic document of age was produced and the documents on which the appellant was relying prima facie did not appear to be authentic. Operative portion of the order dated 21.8.2014 passed by learned ASJ, reads as under:.... At this stage, application has been filed by the SHO Narela seeking permission for getting the ossification / age determination test of convict Udai Kumar Yadav conducted in view of the fact that till date no authentic document of age is being produced and the documents on which the convict is relying prima facie do not appear to be authentic. I have considered the rival contentions. In the interest of justice, permission is granted to get the ossification / age determination test conducted upon the convict Udai Kumar Yadav. Meanwhile, final report with regard to the verification of the documents furnished by the convict along with the list of witnesses to be examined by the prosecution and also the list of witnesses to be examined by the convict in age inquiry, be placed before this Court within 15 days from today. Be listed for evidence on the age inquiry on 8.9.2014.”
7. Thereafter the court of the Additional Sessions Judge who was directed to conduct the enquiry directed the Investigating Officer to collect and verify the documents regarding the age of the appellant, including Parivar Register, election card, ration card, details of family members with the date of birth, statement of the neighbours and statements of other witnesses, who could throw light on the age of the appellant. A final enquiry report has been submitted, as per which the appellant was approximately 22 years of age at the time of the incident. Counsel for the appellant submits that the report of the enquiry cannot be relied upon on the ground that the procedure laid down in terms of Rule 12 of the Rules, has not been followed.
8. Counsel for the State submits that since the documents relied upon by the appellant were unreliable, the trial court conducted a proper enquiry by examining the witnesses and conducting an ossification test on the appellant as well.
9. Counsel for the appellant submits that there is no document or statement on record, nor any finding has been recorded that the documents relied upon by the appellant are either forged or fabricated or do not fall within the list of prescribed documents as per Rule 12 (3) of the Rules. It is the case of the appellant that in the light of the first status report, no further enquiry was required.
10. Before the rival submissions of the parties can be considered, we deem it appropriate to reproduce Section 7A of the Act: “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 inquiry, 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 Sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence if any, passed by a court shall be deemed to have no effect.”
11. Rule 7A of the Act lays down the procedure to be followed when a claim of juvenility is to be raised before any court. Rule 12 lays down the procedure to be followed in determination of the age. Rule 12 of the Rules, is reproduced below:
12. It is no longer res integra that a plea of juvenility may be raised at any stage and even after the disposal of the case and delay in raising the plea of juvenility cannot by itself be a ground for rejection of such a claim. In the case of Abuzr Hossain @ Gulam Hossain Vs. State of West Bengal reported at 2012 (10) Scale 101, the court highlighted that for raising a claim with regard to the juvenility after conviction the claimant must produce some material, which may prima facie satisfy the court that an enquiry into the claim of juvenility is necessary and the final burden has to be discharged by the person, who claims juvenility. We deem it appropriate to reproduce paragraph 36 of the judgment, where the court has summarized the position:
13. The short question which comes up for consideration in this case is that once the appellant had produced the documents from the school attended by him i.e. the copy of the students attendance register, where the appellant attended school for the first time and the transfer certificate and in the absence of any finding that the aforesaid two documents were either forged, fabricated or procured what was the nature of enquiry required to be conducted by the learned Additional Sessions Judge.
14. In the enquiry so conducted one SW-1, Devinder Mishra, Incharge Teacher (Retd.) from MS Ussepur Pachrukhiya, Police Station Sahbganj, Mujjaffarpur, Bihar, produced the original admission record of the appellant, showing his date of birth as 27.1.1994. According to this witness there was no other document available in the school, showing the date of birth of the appellant on the basis of which the date of birth was mentioned. During cross-examination this witness testified that this date was entered into by him based on the date given to him by his mother and father. SW-2 Smt. Neeta Kumar, Incharge Principal at MS Hussepur, P.S. Sahebganj, Distt. Muzaffarpur, Bihar proved the original record of admission of the appellant showing his date of birth as 27.1.1994. This witness also testified that this date of birth was entered into on the basis of information provided by the parents. Both these witnesses have also testified that the child (appellant) was admitted into class 3, some children with the same date of birth were admitted in class 1 or class 2 based on the physical appearance, mental age by taking test of certain question to test the knowledge and I.Q. as well.
15. We may notice that as per the ossification test carried out the appellant was stated to be 22 years of age on the date of the incident. We may also notice that a detailed enquiry was conducted and the Additional Sessions Judge has put court questions to the witnesses and then given a report. It has not been pointed out to us that in this detailed report a conclusion has been reached that either the attendance register or the birth certificate as provided by the school were forged or fabricated, and in fact the original record was produced in support thereof.
16. Rule 12 (3) of the Rules provides that the age determination inquiry shall be conducted by the Court or the Board by seeking evidence by obtaining (i) a matriculation certificate or any certificates equivalent thereto, in the absence whereof (ii) date of birth certificate from the school (other than a play school) first attended; and in the absence whereof (iii) birth certificate given by a corporation or a municipal authority or a Panchayat. Clause (b) of sub-Rule 3 of Rule 12 makes it abundantly clear that only in the absence of (i), (ii) and (iii) of clause (a) the medical opinion is to be sought from a duly constituted Medical Board. Rule 12(3) (b) reads as under: “12. Procedure to be followed in determination of Age― (1) xxxxxxx (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.”
17. An argument has been raised before us that since the date of birth was provided by the parents of the appellant the basis on which certificate has been issued cannot be treated as authentic.
18. In the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh reported at (2012) 9 SCC 750, it was held that while conducting an enquiry of juvenility only procedure laid down under Rule 12 of the Rules need to be followed. In the said case the appellant had in support of his plea of juvenility produced the attested marksheets of the high school, upon which an objection was raised by the mother of the victim that no evidence had been adduced to show that the entry made in the school register was correct and normally parents do not give correct date of birth on the admission register. An enquiry was ordered and father of the appellant was examined, the court of Chief Judicial Magistrate got an ossification test conducted and the Chief Judicial Magistrate felt that the school record including mark-sheets could not be relied upon and consequently the application raising the plea of the juvenility was dismissed. An appeal against the said order was filed before the First Additional Sessions Judge. The First Additional Sessions Judge summoned the original record of the school, horoscope of the child was called and thereafter the appeal was dismissed, which order was confirmed by the High Court. In this backdrop the following observations were made by the Supreme Court, where the matter was decided:
19. It would also be useful to reproduce paragraphs 25 and 26 of the same judgment, wherein the court has highlighted that an enquiry is to be conducted as provided in the Rules of 2007 and not an enquiry as provided in the Code of Criminal Procedure:
20. The Court has also highlighted that the Rule 12 of the Rules enable the court to seek evidence and in that process the court can obtain matriculation and other certificates as per Rule 12 (3) (a) (i), (ii) and (iii) of the Rules and opinion from a Medical Board would arise only in the absence of the certificates. Paragraphs 31 to 35, 38-40 and 42-43 of the judgment read as under:
31. We also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in Rule 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
32. “Age determination inquiry” contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.
35. We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.
38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the principal of school and having noticed the fact that the appellant was born on 24.10.1990, what prompted the Court not to accept that admission register produced by the principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the School Admission Register. We are of the view the above document produced by the principal of the school conclusively shows that the date of birth was 24.10.1990 hence section 12(3)(a)(i)(ii) has been fully satisfied.
39. The Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register, which prompted the father of the appellant to produce a horoscope. The horoscope produced was rejected by the Court stating that the same was fabricated and that the Pandit who had prepared the horoscope was not examined. We fail to see what types of inquiries are being conducted by the trial courts and the appellate courts, when the question regarding the claim of juvenility is raised.
40. The Legislature and the Rule making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his / her age on lower side within the margin of one year.
42. In Shah Nawaz v. State of Uttar Pradesh and Another [(2011) 13 SCC 751], the Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a Corporation or a municipal authority or a panchayat or municipal is not available. The court had held entry related to date of birth entered in the mark sheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.
43. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.” [Emphasis added]
21. Similar view has been reiterated in the cases of Jodhbir Singh Vs. State reported at AIR 2013 SC 1 and Ranjeet Goswami Vs. State of Jharkhand & Anr. reported at (2014) 1 SCC 588.
22. In the case of Shah Nawaz v. State of U.P reported at (2011) 13 SCC 751 the Court while examining the scope of Rule 12 of the Rules, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. The Court had held that entry related to date of birth entered in the marksheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.
23. We are of the view that the trial court has completely misread Rule 12. Having once examined the authenticity of the documents produced by the appellant and on the basis of the evidence of the Principal and Teacher of the school of the appellant, only an enquiry as contemplated under Rule 12 could have been carried out. Having regard to the fact that the law laid down by the Supreme Court in the case of Ashwani Kumar Saxena (Supra), we find the trial court has conducted a roving and fishing enquiry and could not have directed conducting an ossification test on the appellant. The case of the Ashwani Kumar Saxena (Supra) is applicable to the facts of this case on all force. Resultantly the application is allowed. The appellant is declared to be a juvenile on the date of the commission of the offence, based on the birth certificate of the appellant.
24. In view of the enquiry conducted where the original record of the school was produced and the evidence of the teacher and principal has been recorded; and having reached to a conclusion that the appellant was a minor on the date of the incident and having regard to the fact that as per the provisions of Sections 15 and 16 of the Act, a juvenile can be sent to a special home for a period of three years, whereas the appellant has been in jail for about 3 years and 52 days (as per the nominal roll called today), no further enquiry is required to be ordered.
25. Ordinarily if a convict is held to be a juvenile, the case has to be remitted to the Juvenile Justice Board for an enquiry and for passing an appropriate order. We feel that no useful purpose would be achieved if the case of the appellant is remitted to the Juvenile Justice Board, as the appellant has already remained in custody for about 3 years and 52 days.
26. Similar view was taken by a Division Bench of this Court in Raju v.State (Govt. of NCT) of Delhi reported at 184 (2011) DLT 100 (DB). Para 10 of the same reads as under:-
10. The fact that the petitioner had not raised the plea of juvenility before the trial court or before the Division Bench at the stage of the appeal or even before the Supreme Court would not come in his way of seeking the remedy and relief that is sought by virtue of this petition in view of the clear and express provisions of Section 7-A of the said Act. Once we have determined that the petitioner was a „juvenile‟ as on the date of the incident, he has to be given the benefit thereof under the said Act. Sections 15 and 16 of the said Act clearly indicate that no juvenile can be kept in custody or detained for a period in excess of 3 years. In the present case, the appellant has already been in custody for over 10 years and 4 months as per the nominal roll on record. Therefore, it is clear that the petitioner has been in custody for a period far in excess of the maximum period of 3 years that is contemplated under the said Act. In these circumstances, he is eligible to be released forthwith. Insofar as the sentence is concerned, the same is deemed to have no effect in view of the provision of Section 7- A(2) of the said Act.”
27. The Apex Court also took a similar view in Satish @ Dhanna v. State of Madhya Pradesh & Ors. (2009) 14 SCC 187. Paragraphs 5 and 6 of the same read as under:
28. The Apex Court has reiterated the same view in its later judgments Amit Singh v. State of Maharashtra & Anr. reported at (2011) 13 SCC 744 and Ashwani Kumar Saxena v. State of M.P. (2012) 9 SCC 750.
29. The application stands disposed of, in above terms. CRL.A. 1221/2013
30. By a separate order the application of the appellant raising the plea of juvenility has been allowed. As per sections 15 and 16 of the Act, the punishment to be awarded to a juvenile is of three years. The appellant has already been served the period of sentence of 3 years and 52 days. The appeal is allowed and the appellant be released forthwith, unless he is wanted in any other case. CRL.M. (BAIL) 1926/2013
31. In view of the order passed in the appeal and in the application [CRL.M.A. 14484/2013] no further orders are required to be passed in the present application and the same stands disposed of.
32. Copy of the judgment be sent to the Jail Superintendent through e-mail and fax for compliance. G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J FEBRUARY 12, 2015 ssn