Shah Nawaz Vs State of U.P.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1531 OF 2011 (Arising out of S.L.P. (Crl.) No.3361 of 2011)

Shah Nawaz .... Appellant (s)

Versus

State of U.P. & Anr. .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 10.12.2010 passed by the High Court of

Judicature at Allahabad in Criminal Revision No. 716 of 2009

whereby the High Court dismissed the criminal revision filed

by the appellant herein.

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3) Brief facts:

(a) The appellant claims to have born on 18.06.1989 in

Village and Post Dadheru Kala, Police Station Charthawal,

District Muzaffarnagar, U.P. He was admitted in Class I in

Nehru Preparatory School, Khurd, Muzaffarnagar on

05.07.1994 and studied there till 20.05.1998. Thereafter, on

04.07.1998, he got admission in Class VI in the National High

School Dadheru, Khurd-O-Kalan, Muzaffarnagar and studied

there till Class X. The date of birth in the mark sheet is

mentioned as 18.06.1989.

(b) On 04.06.2007, a First Information Report (in short “the

FIR”) was lodged by Khatizan, wife of Nawab-the deceased,

against the appellant herein and three others for the alleged

occurrence which culminated into Crime Case No. 215 of 2007

at Police Station Charthawal, District Muzaffarnagar, U.P.

under Sections 302 and 307 of the Indian Penal Code, 1860

(in short “the IPC”).

(c) On 12.06.2007, the mother of the appellant submitted an

application before the Juvenile Justice Board (in short “the

Board”), Muzaffarnagar, U.P. stating that the appellant was a

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minor at the time of the alleged occurrence. After examining

the witnesses, the Board, vide judgment and order dated

24.01.2008, declared the appellant juvenile under the

provisions of the Juvenile Justice (Care and Protection of

Children) Act, 2000 (hereinafter referred to as “the Act”).

(d) Against the judgment of the Board, Khatizan - the wife of

the deceased filed Criminal Appeal No. 11 of 2008 before the

Additional Sessions Judge, Muzaffarnagar, U.P. under Section

52 of the Act. The State – respondent No.1 did not file any

appeal. Vide judgment dated 13.01.2009, the Additional

Sessions Judge allowed the appeal and set aside the order

dated 24.01.2008 passed by the Board.

(e) Challenging the judgment dated 13.01.2009 passed by

the Additional Sessions Judge, the appellant filed Criminal

Revision No. 716 of 2009 before the High Court of Allahabad.

The High Court, by the impugned judgment dated 10.12.2010,

dismissed the criminal revision. Hence this appeal by way of

special leave.

4) Heard Mr. Dinesh Kumar Garg, learned counsel for the

appellant and Mr. R.K. Gupta, learned counsel for the State.

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Despite notice, no one has entered appearance on behalf of

respondent No.2.

5) Before considering the merits of the claim of the

appellant and the stand of the State, let us consider Rule 12 of

the Juvenile Justice (Care and Protection of Children) Rules,

2007 (hereinafter referred to as ‘the Rules’) which reads as

under:-

“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;

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(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 sub-rule (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.”

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6) In the light of the above procedure to be followed in

determining the age of the child or juvenile, let us consider

various decisions of this Court.

7) In Raju and Anr. vs. State of Haryana (2010) 3 SCC

235, this Court had admitted “mark sheet” as one of the proof

in determining the age of the accused person. In that case,

the appellants therein Raju and Mangli along with Anil alias

Balli and Sucha Singh were sent up for trial for allegedly

having committed an offence punishable under Section 302

read with Section 34 of the IPC. Accused Sucha Singh was

found to be a juvenile and his case was separated for separate

trial under the Act. Others were convicted under Section 302

read with Section 34 of the IPC and were sentenced to

imprisonment for life and to pay a fine of Rs. 5,000/-. Apart

from contending on the merits of the prosecution case, insofar

as appellant No. 1, Raju, is concerned, the counsel appearing

for him submitted that on the date of the incident that is on

(31.03.1994), he was a juvenile and as per his mark sheet,

wherein his date of birth was recorded as 1977, he was less

than 17 years of age on the date of the incident. Learned

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counsel submitted that having regard to the recent decision of

this Court in Hari Ram vs. State of Rajasthan & Anr.,

(2009) 13 SCC 211, appellant No. 1 must be held to have been

a minor on the date of the incident and the provisions of the

Act would apply in his case. Learned counsel further

contended that the appellant No. 1 would have to be dealt with

under the provisions of the said Act in keeping with the

decision in the aforesaid case. On merits, while accepting the

claim of the learned counsel for accused-appellant, this Court

altered the conviction and sentence and convicted under

Section 304 Part I read with Section 34 IPC instead of Section

302 read with Section 34 IPC. As far as appellant No. 1,

namely, Raju was concerned, while accepting the entry

relating to date of birth in the mark sheet referred his case to

the Board in terms of Section 20 of the Act to be dealt under

the provisions of the said Act in keeping with the provision of

Section 15 thereof. It is clear from the said decision that this

Court has accepted mark sheet as one of the proof for

determining the age of an accused person.

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8) Similarly, this Court has treated the date of birth in

School Leaving Certificate as valid proof in determining the age

of an accused person. In Bhoop Ram vs. State of U.P. (1989)

3 SCC 1, this Court considered whether the appellant therein

is entitled lesser imprisonment than imprisonment for life and

should have been treated as a “child” within the meaning of

Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The

following conclusion in para 7 is relevant which reads as

under:-

“7…..The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column “date of birth”. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars…. ”

It is clear from the above decision that this Court relied on the

entry made in the column “date of birth” in the School Leaving

Certificate.

9) In Rajinder Chandra vs. State of Chhattisgarh and

Anr. (2002) 2 SCC 287, this Court once again considered the

entry relating to date of birth in the mark sheet and concluded

as under:

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“5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.

10) In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this

Court held that while dealing with a question of determination

of the age of an accused, for the purpose of finding out

whether he is a juvenile or not, a hyper-technical approach

should not be adopted while appreciating the evidence

adduced on behalf of the accused in support of the plea that

he is a juvenile and if two views may be possible on the same

evidence, the court should lean in favour of holding the

accused to be juvenile in borderline cases.

11) In Ravinder Singh Gorkhi vs. State of U.P. (2006) 5

SCC 584 with regard to the entries made in School Leaving

Certificate, this Court has observed as under:-

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“17. The school-leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 1-8-1967 and his name was struck off from the roll of the institution on 6-5-1972. The said school-leaving certificate was not issued in the ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school-leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced.”

12) In Pradeep Kumar vs. State of U.P. 1995 Supp (4) SCC

419, this Court considered the commission of offence by

persons below 16 years of age. The question before a three-

Judge Bench was whether each of the appellants in those

appeals was a child within the meaning of Section 2(4) of the

U.P. Children Act, 1951 and as such on conviction under

Section 302 read with Section 34 IPC should have been sent to

an approved school for detention till the age of 18 years. At

the time of granting special leave, appellant, by name, Jagdish

produced High School Certificate, according to which he was

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about 15 years of age at the time of occurrence. Appellant -

Krishan Kant produced horoscope which showed that he was

13 years of age at the time of occurrence. So far as appellant -

Pradeep was concerned, a medical report was called for by this

Court which disclosed that his date of birth as 07.01.1959 was

acceptable on the basis of various tests conducted by the

medical authorities. In the above factual scenario/details, this

Court concluded as under:-

“3. It is thus proved to the satisfaction of this Court that on the date of occurrence, the appellants had not completed 16 years of age and as such they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction under Section 302/34 of the Act”

After saying so and after finding that the appellants were aged

more than 30 years, this Court directed not to send them to

an approved school under the U.P. Children Act for detention,

while sustaining the conviction of the appellants under all the

charges framed against them, quashed the sentences awarded

to them and ordered their release forthwith.

13) The applicability of the Act and the Rules in respect of

“Juvenile” and “Juvenile in conflict with law” have been

elaborately considered by this Court in Hari Ram (supra).

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After analyzing the Scheme of the Act and various Rules

including Rule 12 and earlier decisions of this Court laid down

various principles to be followed. After applying those

principles and finding that the appellant therein was 16 years

of age on the date of the commission of the alleged offence and

had not been completed 18 years of age, remitted the matter to

the Board for disposal in accordance with law.

Discussion on merits:

14) In the light of the above principles, now let us consider

the claim of the appellant. According to him, on 18.06.1989,

he was born in Village and Post Dadheru Kala, Police Station

Charthawal, District Muzaffarnagar, U.P. On 05.07.1994, he

was admitted in Class I in Nehru Preparatory School, Khurd,

Muzaffarnagar. The appellant left the said school on

20.05.1998. On 04.07.1998, he was admitted in Class VI in

the National High School Dadheru, Khurd-O-Kalan,

Muzaffarnagar, U.P. On 21.05.2004, he left the said school,

namely, National High School as he failed in High School.

From Class VI till Class X the appellant remained and studied

continuously in the aforesaid school. The date of birth in the

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mark sheet is mentioned as 18.06.1989. The alleged

occurrence took place on 04.06.2007. The FIR was lodged on

04.06.2007 which culminated into Crime Case No. 215 of

2007 at Police Station Charthawal, District Muzaffarnagar,

U.P. under Sections 302 and 307 of the IPC. On 12.06.2007,

the mother of the appellant submitted an application before

the Board at Muzaffarnagar stating that the appellant was a

minor at the time of alleged occurrence. The appellant was

provided a School Leaving Certificate dated 11.07.2007 from

Nehru Preparatory School, Khurd, Muzaffarnagar. The mother

of the appellant made a statement dated 26.07.2007 regarding

the age of her son. She was cross-examined at length. On

16.10.2007, the statement of clerk of Nehru Preparatory

School was recorded by the Board. The said clerk brought the

entire records maintained by the School. The said clerk was

also cross-examined at length.

15) The Board, vide judgment and order dated 24.01.2008,

declared the appellant juvenile under the Act. Against the

judgment of the Board, the complainant Smt. Khatizan, wife of

deceased Nawab filed Criminal Appeal No. 11 of 2008 under

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Section 52 of the Act before the learned Additional Sessions

Judge, Muzaffarnagar. It is relevant to point out that the

State, who is the prosecuting agency did not file any appeal.

The Additional Sessions Judge, Muzaffarnagar recorded the

statement of Guljar Hussain, Principal of Nehru Preparatory

School, Dadheru, Khurd-O-Kalan, Muzaffarnagar on

07.08.2008. By order dated 13.01.2009, the Additional

Sessions Judge allowed the said appeal filed by the

complainant and set aside the order dated 24.01.2008 passed

by the Board.

16) Aggrieved by the order of the Additional Sessions Judge,

the appellant filed Criminal Revision No. 716 of 2009 before

the High Court. The High Court dismissed the said Revision

mainly on the ground that in the absence of any matriculation

or equivalent certificate and considering the language used in

Rule 12 with reference to only “Certificate” and not “mark

sheet”, dismissed the Revision petition.

17) We have already referred to the decision of this Court

about the entry relating to the date of birth made in the mark

sheet of High School examination. The appellant has

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produced mark sheet of High School examination issued by

the school authority, namely, National High School, Dadheru,

Khurd-O-Kalan, Muzaffarnagar. A perusal of the above said

certificate makes reference to appellant’s Roll No., his name,

Date of Birth, name of the school, details regarding various

subjects, maximum marks, marks obtained and ultimate

result in the examination. The certificate contained signature

of the Clerk Salim Ahmed, who prepared the same, the

signature of the examiner and signature and seal of the Head

Master. It is dated 21.05.2004.

18) Another document relied on by the appellant is School

Leaving Certificate dated 11.07.2007 issued by Nehru

Preparatory School, Khurd, Muzaffarnagar wherein it noted

the registration no., name of the school, student’s name, date

of birth (18.06.1989) written in words also, Father’s name,

occupation, caste, residential address, date of admission in

school, date of leaving of school. The certificate contained the

signature and seal of the Head Master and the same is dated

11.07.2007.

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19) The documents furnished above clearly show that the

date of birth of the appellant had been noted as 18.06.1989.

Rule 12 of the Rules categorically envisages that the medical

opinion from the medical board should be sought only when

the matriculation certificate or school certificate or any birth

certificate issued by a corporation or by any Panchayat or

municipality is not available. We are of the view that though

the Board has correctly accepted the entry relating to the date

of birth in the mark sheet and school certificate, the Additional

Sessions Judge and the High Court committed a grave error in

determining the age of the appellant ignoring the date of birth

mentioned in those documents which is illegal, erroneous and

contrary to the Rules.

20) We are satisfied that the entry relating to date of birth

entered in the mark sheet is one of the valid proof of evidence

for determination of age of an accused person. The School

Leaving Certificate is also a valid proof in determining the age

of the accused person. Further, the date of birth mentioned in

the High School mark sheet produced by the appellant has

duly been corroborated by the School Leaving Certificate of the

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appellant of Class X and has also been proved by the

statement of the clerk of Nehru High School, Dadheru, Khurd-

O-Kalan and recorded by the Board. The date of birth of the

appellant has also been recorded as 18.06.1989 in School

Leaving Certificate issued by the Principal of Nehru

Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar

as well as the said date of birth mentioned in the school

register of the said school at S. No. 1382 which have been

proved by the statement of the Principal of that school

recorded before the Board. Apart from the clerk and the

Principal of the school, the mother of the appellant has

categorically stated on oath that the appellant was born on

18.06.1989 and his date of birth in his academic records from

preparatory to Class X is the same, namely, 18.06.1989, hence

her statement corroborated his academic records which clearly

depose his date of birth as 18.06.1989. Accordingly, the

appellant was a juvenile on the date of occurrence that is

04.06.2007 as alleged in the FIR dated 04.06.2007.

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21) We are also satisfied that Rule 12 of the Rules which was

brought in pursuance of the Act describes four categories of

evidence which have been provided in which preference has

been given to school certificate over the medical report.

22) In the light of the above discussion, we hold that from the

acceptable records, the date of birth of the appellant is

18.06.1989, the Additional Sessions Judge and the High Court

committed an error in taking contrary view. While upholding

the decision of the Board, we set aside the orders of the

Additional Sessions Judge dated 13.01.2009 and the High

Court dated 10.12.2010. Accordingly, the appellant is

declared to be a juvenile on the date of commission of offence

and may be proceeded in accordance with law. The appeal is

allowed.

...…………………………………J. (P. SATHASIVAM)

...…………………………………J. (DR. B.S. CHAUHAN)

NEW DELHI; AUGUST 05, 2011.

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SHAH NAWAZ Vs STATE OF U.P.

SHAH NAWAZ Vs STATE OF U.P.