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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.  1349       OF 2012 (Arising out of SLP (Crl.) No.9023 of 2010)

BABLA @ DINESH .......Appellant  

VERSUS

STATE OF UTTARAKHAND ......Respondent  

J   U D G M E N T    

H.   L. Dattu, J.   

1. Leave granted.

2. This appeal is directed against the judgment and order passed by the  

High Court of Uttarakhand at Nainital in Criminal Appeal No.1481 of 2001  

dated  21.07.2009.   By  the  impugned  judgment,  the  High  Court  has  

confirmed the Order of conviction and sentence of the appellant passed by  

the Trial Court under Section 302 read with Section 149 of the Indian Penal  

Code, 1860 (for short ‘the IPC’).

3. The appellant was one of the accused before the Trial Court for the  

alleged offences punishable under Section 302 read with Sections 149 and  

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147  of  the  IPC.   The  Trial  Court  by  its  judgment  and  order  dated  

18.10.1995 in Sessions Trial No. 39 of 1992, convicted and sentenced the  

appellant for rigorous imprisonment of two years under Section 147 and  

imprisonment for life under Section 302 read with Section 149 IPC, both  

sentences  to  run  concurrently.   Aggrieved  by  the  order  so  made,  the  

appellant and others approached the High Court of Uttarakhand at Nainital  

by way of criminal appeal under Section 374(2) of the Code of Criminal  

Procedure, 1973 (for short ‘the Cr.P.C.’) on various grounds.   

4. Before the High Court,  apart  from others,  the learned counsel  for  

appellant raised the contention that the appellant was juvenile on the date of  

the commission or occurrence of the offence, i.e. on 01.12.1991.  The said  

contention was rejected by the High Court on the ground that it was not  

raised before the Trial Court and no evidence has been adduced in defence  

and no suggestion had been made to the witnesses during the trial and that  

the  appellant  admitted  his  age  as  20  years  at  the  time of  recording his  

statement under Section 313 of the Cr. P.C..  In conclusion, the Court has  

observed:

“11. Learned  counsel  for  the  appellants  contended  that   

appellants  Gadha  and  Babla,  were  minors  on  the  day  of  the   

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incident.  But no such suggestion was made to any of the witnesses   

nor  is  any  evidence  adduced  in  defence.   Rather  the  accused  /   

appellants Gadha and Babla have disclosed their age 20 years on   

the  day  when  their  statement  under  Section  313  Cr.P.C.  were   

recorded also makes out the case that their age was more than 16   

years on the day of the incident.  It is pertinent to mention here that   

on the day of the incident, and during the trial, Juvenile Justice Act,   

1986,  was applicable  to  the cases  of  Juveniles  and not  Juvenile   

Justice (Care and Protection of Children) Act 2000.”

5. After  issuing  notice  to  the  opposite  parties  in  the  special  leave  

petition,  by  our  Order  dated  18.04.2011,  we  had  directed  the  learned  

Sessions Judge or his nominee to conduct an inquiry into the question of  

the age of the appellant on the date of commission of offence and to submit  

a  report  as  envisaged  under  Rule  12  of  the  Juvenile  Justice  (Care  and  

Protection of Children) Rules, 2007 (for short ‘Rules, 2007).

6. Pursuant to the aforesaid direction, the inquiry report was submitted  

before this Court, but the same was not accepted, as it was merely based on  

the opinion of an individual doctor which was not in accordance with the  

procedure prescribed under Rule 12 of the Rules, 2007.  Therefore, by our  

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Order dated 01.11.2011, we had, once again, directed the learned Sessions  

Judge to conduct an inquiry as prescribed under Rule 12 of the Rules, 2007  

and submit his report.

7. Pursuant  to  the  directions  issued  by  us,  the  learned  Additional  

Sessions  Judge  has  conducted  inquiry  by  following  the  prescribed  

procedure under the Rules,  2007 and submitted his inquiry report  dated  

03.12.2011, wherein, it is concluded that the appellant was aged about 10-

15 years  on the date  of  the commission of  the  offence  i.e.  01.12.1991.  

Therefore, the appellant is juvenile within the meaning of the expression  

under Section 2(h) of the Juvenile Justice Act, 1986 and Section 2(k) of the  

Juvenile Justice (Care and Protection of Children) Act, 2000.    

8. This report is not disputed by the learned counsel for the respondent-

State.   

9. We have heard the learned counsel for the parties to the lis.  We have  

also carefully perused the judgment and order passed by the High Court.  

We are  of  the  opinion that  the  High Court  has  erred  in  dismissing  the  

appeal on the ground that no evidence was adduced and no suggestion was  

made to the witnesses regarding juvenility of the appellant during the trial.  

In our opinion, the issue of raising the plea for determination of juvenility  

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for the first time at the appellate stage is no more res integra.  This Court in  

Lakhan Lal v. State of Bihar, (2011) 2 SCC 251, has allowed such plea  

raised before this Court for the first time and, taking note of its previous  

decisions on this point, has observed thus :

“The fact  remains that  the issue as to whether the appellants   

were  juvenile  did  not  come  up  for  consideration  for  whatever   

reason, before the Courts below.  The question is whether the same   

could be considered by this Court at this stage of the proceedings.   

A somewhat similar situation had arisen in Umesh Singh and Anr.   

v. State of Bihar, (2000) 6 SCC 89 wherein this Court relying upon   

the earlier decisions in Bhola Bhagat v. State of Bihar, (1997) 8   

SCC 720, Gopinath Ghosh v. State of W.P. 1984 Supp SCC 228 and   

Bhoop Ram v. State of U.P., (1989) 3 SCC 1, while sustaining the   

conviction of the Appellant therein under all the charges, held that   

the sentences awarded to them need to be set aside. It was also a   

case where the appellant therein was aged below 18 years and was   

a child for the purposes of the Bihar Children Act, 1970 on the date   

of the occurrence.  The relevant paragraph reads as under (Umesh   

Singh case, SCC, pp.93-94, para 6) :

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“6. So far as Arvind Singh, appellant in Criminal Appeal No.   

659 of 1999 is concerned, his case stands on a different footing.   

On  the  evidence  on  record,  the  learned  Counsel  for  the   

appellant, was not in a position to point out any infirmity in the   

conviction  recorded  by  the  trial  court  as  affirmed  by  the   

appellate  court.   The  only  contention  put  forward  before  the   

court is that the appellant is born on 1-1-67 while the date of the   

incident is 14-15-1980 and on that date he was hardly 13 years   

old.   We called for  report  of  experts  being placed before  the   

court as to the age of the appellant,  Arvind Singh.  The report   

made  to  the  court  clearly  indicates  that  on  the  date  of  the   

incident he may be 13 years old.  This fact is also supported by   

the  school  certificate  as  well  as  matriculation  certificate   

produced before this Court which indicate that his date of birth   

is 1-1-1967.  On this basis, the contention put forward before the   

court is that although the appellant is aged below 18 years and   

is a child for the purpose of the Bihar Children Act, 1970 on the   

date of  the occurrence,  his trial having been conducted along   

with other accused who are not children is not in accordance   

with law.  However, this contention had not been raised either   

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before  the  trail  court  or  before  the  High  Court.   In  such   

circumstances,  this  Court  in  Bhola  Bhagat  v.  State  of  Bihar,   

1997 (8)  SCC 720, following the earlier  decision in Gopinath   

Ghosh v. State of West Bengal, 1984 Supp. SCC 228 and Bhoop   

Ram v. State of U.P., 1989 (3) SCC 1 and Pradeep Kumar v.   

State of U.P., 1995 Supp(4) SCC 419, while sustaining that the   

sentences awarded to them need to be set aside.  In view of the   

exhaustive discussion of the law on the matter in Bhola Bhagat   

case,  we  are  obviated  of  the  duty  to  examine  the  same  but   

following the same, with respect, we pass similar orders in the   

present  case.   Conviction  of  the  appellant  Arvind  Singh  is   

confirmed but the sentence imposed upon him stands set aside.   

He is, therefore, set at liberty, if not required in any other case.”

10. We are in respectful agreement with the view expressed by this Court  

in the aforesaid decision.   

11. We have carefully perused the report dated 03.12.2011 of the learned  

Additional  Sessions  Judge.   Since  the  report  is  made after  holding due  

inquiry  as  required  under  the  Act  and  the  Rules,  we  accept  the  same.  

Accordingly, we hold that the appellant was juvenile, as envisaged under  

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the Act and the Rules framed thereunder, on the date of commission of the  

offence.   

12. The Jail Custody Certificate, produced by the appellant suggests that  

he has undergone the actual period of sentence of more than three years out  

of the maximum period prescribed under Section 15 of the Act.   In the  

circumstance,  while  sustaining  the  conviction  of  the  appellant  for  the  

aforesaid offences,  the sentence awarded to him by the Trial  Court  and  

confirmed by the High Court is set aside.  Accordingly, we direct that the  

appellant  be  released  forthwith,  if  not  required  in  any other  case.   The  

appeal is partly allowed.  

...................................................................J. (H.L. DATTU)

...................................................................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI; SEPTEMBER 04, 2012.

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