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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      1322      OF     2012   [@ SLP (CRL) NO. 5503 OF 2011]

Vijay Singh   …Appellant

VERSUS

State of Delhi                …Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

The sole accused is the appellant herein.  The challenge is to the  

judgment of the High Court of Delhi in Crl.A.669/1999 dated  

07.01.2011 by which the conviction and sentence of rigorous  

imprisonment for a period of five years imposed on the appellant  

for an offence punishable under Section 307, IPC and a fine of  

Rs.200/- with a default sentence of further rigorous  

imprisonment for 15 days came to be confirmed.   

2. At the time of filing of the Special Leave Petition in this matter,  

the point raised was that the petitioner (appellant) was a juvenile  

on the date of commission of the offence and reliance was placed  

upon the School Leaving Certificate issued by the Principal/Head

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Master of Primary School, Chitayan, Distt. Mainpuri, Uttar  

Pradesh.  The date of birth of the petitioner was noted as  

01.12.1981.  The alleged offence was stated to have been  

committed on 11.03.1998 and if the date of birth noted in the  

certificate is found to be true, the petitioner would have been 16  

years 3 months and 10 days on the date of incident, namely,  

11.03.1998.   

3. On hearing the learned counsel for the appellant, by an order  

dated 01.08.2011, while taking the said certificate on record,  

since for the first time such a claim was raised, the District and  

Sessions Judge, Itawa, Uttar Pradesh was directed to summon  

the Principal along with the original admission/School Leaving  

Registers and was directed to submit a report.  Thereafter a  

report was received from the District and Sessions Judge, Itawa  

stating that prima facie the date of birth of the appellant  

appeared to be 01.12.1981.  However, after examining the  

original records forwarded by the learned District Judge, Itawa, it  

was noticed that the report was not a full-fledged one.

4. The learned District Judge was, therefore, directed to examine  

the issue as to whether the appellant was a juvenile on  

11.03.1998, by summoning the parties before it and also  

examine any other document, to adduce and submit a report  

within a period of six weeks to the Court.  The said order was

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passed on 30.01.2012.  Pursuant to the said directions, the  

learned District Judge has now filed a detailed report dated  

26.03.2012. A perusal of the report discloses that the  

Principal/Head Master of Primary School, Chitayan, Distt.  

Mainpuri, Uttar Pradesh was examined as CW-1 on 05.03.2012,  

who is stated to have produced the counter foil of the School  

Leaving Certificate relating to the appellant marked as Exhibit  

CW-1/A according to which the date of birth of the appellant was  

01.12.1981. The document also disclosed that the appellant was  

admitted to the school on 01.08.1989 and relieved from the  

school on 01.07.1992 after passing 5th standard.  According to  

him, the Admission Register also disclosed that the date of birth  

of the appellant was noted as 01.12.1981.   

5. The learned District Judge, apart from ascertaining the said  

facts from the records, stated to have referred the appellant for  

examination by the Medical Board consisting of Dr. Sunil Kakkar  

(CW-2), Dr. Akansha (CW-3), Dr. Sameer Dhari (CW-4) and Dr.  

Kumar Narender Mohan (CW-5).  Dr. Sunil Kakkar (CW-2), HOD  

Radiology, Chairman, Standing Committee Age Determination  

Record stated before the learned District Judge that the  

appellant was examined by the Board on 01.03.2012 by the  

members of the Board consisting of a Physician, Dentist and  

another radiologist. On such examination, as per  the bone age

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report (Exhibit CW2/A), the Board opined that the age of the  

appellant was above 22 years and below 25 years as on the date  

of his examination, namely, on 01.03.2012. The other members  

of the Medical Board also confirmed the said view of the Medical  

Board.   

6. Based on the above factors, the District Judge has returned a  

finding that as on the date of the incident, namely, 11.03.1998,  

the age of the appellant was less than 18 years and, therefore, he  

was a ‘juvenile’  on that date.  The offence alleged against the  

appellant was that on 11.03.1998, he gave knife blows on the  

person of Shiv Shankar (PW-4) who demanded repayment of the  

money (Rs.3,000/-) lent to the appellant; that immediately after  

the occurrence since the injured was not fit for giving any  

statement, based on the statement of Subhash (PW-2), the FIR  

was registered and after the completion of investigation, the  

charge sheet was filed.   

7. Having regard to the overwhelming evidence led before the trial  

Court and on being convinced of the proof of guilt against the  

appellant, the appellant was convicted for the offence under  

Section 307, IPC imposing a sentence of five years’  rigorous  

imprisonment with a fine of Rs.200/- with a default sentence of  

15 days’  rigorous imprisonment.  The High Court, on a detailed  

analysis of the evidence available on record and the injuries

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sustained by the vicitim-PW-4, which was supported by medical  

evidence, dismissed the appeal.  In such circumstances, we do  

not find any scope to interfere with the order of conviction  

imposed on the appellant.   

8. In fact, as stated earlier this Special Leave Petition was  

entertained on 30.09.2011 since it was for the first time argued  

before this Court that the appellant was a juvenile on the date of  

occurrence as per the date of birth recorded in the School  

Leaving Certificate. When we consider the said submission in the  

light of the provisions of the Juvenile Justice Act, 1986  

(hereinafter called the Act) as repealed by the Juvenile Justice  

(Care & Protection of Children) Act, 2000, as well as, the  

subsequent amendment of 2006 read along with the Juvenile  

Justice (Care and Protection of Children) Rules, 2007, it has now  

become incumbent upon this Court to consider the said  

contention raised on behalf of the appellant in order to find out  

the correctness of the benefit claimed as a ‘juvenile’.  

9. The relevant provision which is required to be noted is Section  

7A of the Act in the present form which came to be inserted by  

the amendment Act of 33/2006 w.e.f. 22.08.2006.  The other  

provisions are Section 2 (l) the definition of ‘juvenile in conflict  

with law’, Section 20 of the Act and Rule 12 of the Juvenile  

Justice (Care and Protection of Children) Rules, 2007 which

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prescribe the procedure to be followed in the matter of  

determination of age.   

10. The application of the above provisions in the light of  

the subsequent amendment to the Act introduced in the year  

2006 and the Rules introduced in the year 2007 came to be  

considered in detail by this Court in the reported decision in  

Hari Ram v. State of Rajasthan and Anr.- 2009 (13) SCC  

211.  While dealing with Section 7-A, this Court has held as  

under in paragraph 23:

“23. Section 7-A makes provision for a claim of juvenility to be  raised before any court at any stage, even after final disposal of a  case and sets out the procedure which the court is required to  adopt, when such claim of juvenility is raised. It provides for an  inquiry, taking of evidence as may be necessary (but not affidavit)  so as to determine the age of a person and to record a finding  whether the person in question is a juvenile or not.”

11. By making a reference to Rule 12 vis-à-vis Section 7-A  

of the Act, Sub-rules(4) and (5) of Rule 12 were examined and the  

position has been set out as under in paragraph 27 of the  

judgment:

“27.Sub-rules (4) and (5) of Rule 12 are of special significance in  that they provide that once the age of a juvenile or child in  conflict with law is found to be less than 18 years on the date of  offence on the basis of any proof specified in sub-rule (3) the  court or the Board or as the case may be the Child Welfare  Committee appointed under Chapter IV of the Act, has to pass a  written order stating the age of the juvenile or stating the status  of the juvenile, and no further inquiry is to be conducted by the  Court or Board after examining and obtaining any other  documentary proof referred to in sub-rule (3) of Rule 12. Rule 12,  therefore, indicates the procedure to be followed to give effect to

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the provisions of Section 7-A when a claim of juvenility is raised.”

12. Again in paragraph 39 by making reference to the  

explanation to Section 20 which was introduced by Amendment  

Act 33/2006, the applicability of the benefit of amended  

definition of Section 2 (l) was considered and the position was  

clarified as under in the said paragraph:

“39. The Explanation which was added in 2006, makes it very  clear that in all pending cases, which would include not only  trials but even subsequent proceedings by way of revision or  appeal, the determination of juvenility of a juvenile would be in  terms of clause (l) of Section 2, even if the juvenile ceased to be a  juvenile on or before 1-4-2001, when the Juvenile Justice Act,  2000, came into force, and the provisions of the Act would apply  as if the said provision had been in force for all purposes and for  all material times when the alleged offence was committed. In  fact, Section 20 enables the court to consider and determine the  juvenility of a person even after conviction by the regular court  and also empowers the court, while maintaining the conviction,  to set aside the sentence imposed and forward the case to the  Juvenile Justice Board concerned for passing sentence in  accordance with the provisions of the Juvenile Justice Act,  2000.”

Ultimately in para 59, the position was set at rest to the  

following effect.

“59. The law as now crystallized on a conjoint reading of  Section 2(k), 2(l), 7-A, 20 and 49 read with Rules 12 and 98,  places beyond all doubt that all persons who were below the age  of 18 years on the date of commission of the offence even prior to  1.4.2001, would be treated as juveniles, even if the claim of  juvenility was raised after they had attained the age of 18 years  on or before the date of commencement of the Act and were  undergoing sentence upon being convicted.”

13. In the light of the said legal position, the claim of the  

appellant had to be necessarily considered and ascertain whether

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he had been a ‘juvenile’, as claimed by him, on the date of  

occurrence, namely, 11.03.1998.   

14. Going by Rule 12 of the Rules, in particular, sub-Rule  

(3), the age determination inquiry should be conducted by the  

Court or by the Board or the Committee by seeking evidence by  

obtaining (a) (i) the matriculation or equivalent certificate, if it is  

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 municipal authority or a panchayat; b)  

and 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.

15. Going by sub-rule 3(a)(ii) of aforesaid Rule 12, the date  

of birth certificate from the school (other than a play school) first  

attended,  comes at the second stage in the order of priority for  

consideration to ascertain the age of accused claiming to be a  

juvenile. In the case on hand, the appellant does not claim to be

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a matriculate.  Therefore, the question of matriculation or  

equivalent certificate and its availability does not arise.  The  

present claim as a juvenile is based on the School Leaving  

Certificate issued by the school in which the appellant stated to  

have studied up to 5th class, namely, Primary School, Chitayan,  

Distt. Mainpuri, Uttar Pradesh.  As per the said certificate, the  

date of birth recorded in the school admission register and the  

corresponding entry in the School Leaving Certificate was  

01.12.1981.  The appellant stated to have joined the school on  

01.08.1989 and left the school after subsequently completing his  

5th standard on 01.07.1992.  The correctness of the said  

certificate was examined by the learned District Judge, Itawa as  

directed by this Court as to be seen from the report dated  

26.03.2012.  The Principal/Head Master of the School also  

verified the admission register.  The counterfoil of the said School  

Leaving Certificate is placed before this Court.  A perusal of the  

report also discloses that the certificate was genuine, that the  

date of birth record therein has been found to be correct and  

once the said position could be ascertained based on the above  

report, applying Rule 12 (3) as well as sub-rules (4) and (5) the  

said Rule read along with Section 7A of the Act the appellant on  

11.03.1998 was 16 years 3 months and 10 days old.  The  

appellant, therefore, is covered by the decision of this Court in  

Hari Ram (supra).  Since the appellant was below 18 years of age

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on the date of commission of the offence, the provisions of the  

Act would apply in full force in his case.   

16. Having regard to the above conclusion, in the normal  

course we would have remitted the matter to the Juvenile Justice  

Court, Itawa for disposal in accordance with law.  However, since  

the offence was alleged to have been committed more than 10  

years ago and having regard to the course adopted by this Court  

in certain other cases reported in Jayendra & Anr. v. State of  

Uttar Pradesh - 1981 (4) SCC 149, Bhoop Ram v. State of  

U.P. - 1989 (3) SCC 1 which were subsequently followed in  

Bhola Bhagat v. State of Bihar - 1997 (8) SCC 720, Pradeep  

Kumar v. State of U.P.- 1995 Suppl.(4) SCC 419, Upendra  

Kumar v. State of Bihar - 2005 (3) SCC 592 and Vaneet  

Kumar Gupta alias Dharminder v. State of Punjab - 2009  

(17) SCC 587, we are of the view that at this stage when the  

appellant would have now crossed the age of 30 years, there is no  

point in remitting the matter back to the Juvenile Justice Court.  

Instead, following the above referred to decisions, appropriate  

orders can be passed by this Court itself.   

17. In Jayendra (supra) the challenge arose under Uttar  

Pradesh Children Act, 1951 which contained Section 27 which  

mandated that no child shall be sentenced to any term of  

imprisonment and if a child had been found to have committed

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an offence punishable with imprisonment then he could be sent  

to an approved school.  However, it had been determined by the  

Supreme Court through the reports of medical officers taking into  

account the general appearance, physical examination and  

radiological findings of the appellant Jayendra, that he had been  

a ‘child’ under the definition in  the Act at the time of commission  

of the offence.  However, at the time of hearing of the SLP by the  

Supreme Court, he had already attained the age of 23.  In the  

light of that, the Court upheld the conviction of the appellant  

Jayendra, but quashed the sentence imposed on him and  

directed that he be released forthwith.  The Court observed as  

under:-

“3. Section 2(4) of the Uttar Pradesh Children Act, 1951 (U.P. Act  1 of 1952) defines a child to mean a person under the age of 16  years. Taking into account the various circumstances on the  record of the case we are of the opinion that the appellant  Jayendra was a child within the meaning of this provision on the  date of the offence. Section 27 of the aforesaid Act says that  notwithstanding anything to the contrary in any law, no court  shall sentence a child to imprisonment for life or to any term of  imprisonment. Section 2 provides, insofar as it is material, that if  a child is found to have committed an offence punishable with  imprisonment, the court may order him to be sent to an  approved school for such period of stay as will not exceed the  attainment by the child of the age of 18 years. In the normal  course, we would have directed that the appellant Jayendra  should be sent to an approved school but in view of the fact that  he is now nearly 23 years of age, we cannot do so.

4. For these reasons, though the conviction of the appellant  Jayendra has to be upheld, we quash the sentence imposed upon  him and direct that he shall be released forthwith.”

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18. In Bhoop Ram (supra) also the case arose under the  

Uttar Pradesh Children Act, 1951.  The controversy there was  

surrounding the question whether the appellant had actually  

been a juvenile/child under the definition of the Act at the time  

of commission of the offence.  Although such a plea had been  

taken before both the trial Court as also the Sessions Court, the  

trial Court had merely taken into account such a plea for the  

purpose of awarding a reduced sentence of life imprisonment  

instead of death penalty for the offences he had been charged  

with and convicted for.  When the appeal reached the Supreme  

Court, this Court directed an enquiry by the Sessions Judge to  

determine if the appellant had been actually been a child at the  

time of the incident.  The Sessions Judge conducted an enquiry,  

taking into account the opinion of the Chief Medical Officer and  

the school certificate that had been produced by the appellant,  

and concluded that the appellant had not been a ‘child’  at the  

concerned time.  However, the Supreme Court rejected the  

finding of the Sessions Judge being based on surmises and  

essentially relying upon the school certificate produced by the  

appellant to conclude that he indeed had been a ‘child’  at the  

time when the offence had been committed.  On the question of  

sentencing, this Court followed the precedent in Jayendra  

(supra) and quashed the sentence, observing:-

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“8. Since the appellant is now aged more than 28 years of age,  there is no question of the appellant now being sent to an  approved school under the U.P. Children Act for being detained  there. In a somewhat similar situation, this Court held in  Jayendra v. State of U.P. that where an accused had been  wrongly sentenced to imprisonment instead of being treated as a  “child” under Section 2(4) of the U.P. Children Act and sent to an  approved school and the accused had crossed the maximum age  of detention in an approved school viz. 18 years, the course to be  followed is to sustain the conviction but however quash the  sentence imposed on the accused and direct his release  forthwith. Accordingly, in this case also, we sustain the  conviction of the appellant under all the charges framed against  him but however quash the sentence awarded to him and direct  his release forthwith. The appeal is therefore partly allowed  insofar as the sentence imposed upon the appellant are  quashed.”  

19. In Bhola Bhagat (supra) this Court had discussed the  

present issue at hand at quite some length.  Three of the  

appellants had taken the plea of juvenility in assailing the order  

of the High Court sentencing them to imprisonment for life for  

offences under Section 302/149, IPC.  The Supreme Court  

agreed with the findings of the lower Courts as regards the  

involvement of the appellants in the commission of the offence  

and held that the same had been established beyond reasonable  

doubt.  However, on the question of sentencing, the Court looked  

into the plea of juvenility as had been claimed by the appellants.  

The Court had noted the interplay of the two Acts in question viz.  

The Bihar Children Act, 1982 and the Juvenile Justice Act, 1986  

and that the Bihar Act had already been in force at the time of  

the commission of the offence.  It took note of the decisions of

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this Court in Bhoop Ram (supra) and Jayendra (supra) and  

emphasized that in these cases although the conviction was  

sustained the sentence had been quashed taking into account  

the fact that the appellants had crossed the age of juvenility and  

could not be sent to an ‘approved school’  as had been  

contemplated under the relevant Children’s Act.  The Court  

proceeded to discuss the three Judge Bench decision of this  

Court in Pradeep Kumar (supra) and quoted the following from  

that case:-

“12…………

“At the time of the occurrence Pradeep Kumar appellant, aged  about 15 years, was resident of Railway Colony, Naini, Krishan  Kant and Jagdish appellants, aged about 15 years and 14 years,  respectively, were residents of Village Chaka, P.S. Naini.”

At the time of granting special leave, two appellants therein  produced school-leaving certificate and horoscope respectively  showing their ages as 15 years and 13 years at the time of the  commission of the offence and so far as the third appellant is  concerned, this Court asked for his medical examination and on  the basis thereof concluded that he was also a child at the  relevant time. The Court then held: (SCC p. 420, paras 3 and 4)

“It is, thus, proved to the satisfaction of the 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 Sections 302/34 of the Act.

Since the appellants are now aged more than 30 years, there is  no question of sending them to an approved school under the  U.P. Children Act for detention. Accordingly, while sustaining the  conviction of the appellants under all the charges framed against  them, we     quash     the     sentences     awarded     to     them     and     direct     their    release     forthwith  . The appeals are partly allowed in the above  terms.”

(Emphasis supplied)

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20. The Court in its final conclusion in Bhola Bhagat  

(supra), adopted the same course as had been done in the  

aforementioned cases and observed:-

“15. The correctness of the estimate of age as given by the trial  court was neither doubted nor questioned by the State either in  the High Court or in this Court. The parties have, therefore,  accepted the correctness of the estimate of age of the three  appellants as given by the trial court. Therefore, these three  appellants should not be denied the benefit of the provisions of a  socially progressive statute. In our considered opinion, since the  plea had been raised in the High Court and because the  correctness of the estimate of their age has not been assailed, it  would be fair to assume that on the date of the offence, each one  of the appellants squarely fell within the definition of the  expression “child”. We are under these circumstances reluctant  to ignore and overlook the beneficial provisions of the Acts on the  technical ground that there is no other supporting material to  support the estimate of ages of the appellants as given by the  trial court, though the correctness of that estimate has not been  put in issue before any forum. Following the course adopted in  Gopinath Ghosh, Bhoop Ram and Pradeep Kumar cases while  sustaining the conviction of the appellants under all the charges  we quash the sentences awarded to them.

16. The appellants Chandra Sen Prasad, Mansen Prasad and  Bhola Bhagat, shall, therefore, be released from custody  forthwith, if not required in any other case. Their appeals  succeed to the extent indicated above and are partly allowed.”

21. In Upendra Kumar (supra), this Court reiterated the  

position that has been adopted in the aforementioned cases.  The  

appellant had been handed down a life imprisonment for his  

conviction under Section 302 of the IPC.  He had been a juvenile,  

as under the Juvenile Justice (Care & Protection of Children) Act,  

2000, on the day of the commission of the offence but, however,  

the protection of the Act had not been afforded to him.  Through

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the report of the Medical Board, it had been fully established that  

the appellant was between the age of 17 and 18 years on the date  

of the report which was dated some three months after the day of  

incident in question.  Even the order of sentence recorded the age  

of the appellant as 17 years.  The Court thus concluded that the  

appellant was liable to be granted the protection of the Juvenile  

Justice Act, 2000. As regards the course to be adopted as a  

sequel to such conclusion, this Court referred to the earlier  

decisions such as in the case of Bhola Bhagat (supra), Bhoop  

Ram (supra) etc.  The Court observed in this regard:-

“4. Mr Sharan has cited various decisions but reference may be  made only to the case of Bhola Bhagat v. State of Bihar since  earlier decisions on the issue in question have been noticed  therein. In Bhola Bhagat case referring to the decisions in the  case of Gopinath Ghosh v. State of W.B., Bhoop Ram v. State of  U.P. and Pradeep Kumar v. State of U.P. this Court came to the  conclusion that the accused who were juvenile could not be  denied the benefit of the provisions of the Act then in force,  namely, the Juvenile Justice Act, 1986.

5. The course this Court adopted in Gopinath Ghosh case as also  in Bhola Bhagat case was to sustain the conviction but, at the  same time, quash the sentence awarded to the convict. In the  present case, at this distant time, the question of referring the  appellant to the Juvenile Board does not arise. Following the  aforesaid decisions, we would sustain the conviction of the  appellant for the offences for which he has been found guilty by  the Court of Session, as affirmed by the High Court, at the same  time, however, the sentence awarded to the appellant is quashed  and the appeal is allowed to this extent. Resultantly, the  appellant is directed to be released forthwith if not required in  any other case.”

22. Similar course of action was taken in a recent decision

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of this Court in Vaneet Kumar Gupta alias Dharminder  

(supra). Challenge in that appeal was mainly on the award of  

sentence of life imprisonment to the appellant and to determine  

whether adequate material had been available on record to hold  

that the appellant had not attained the age of 18 years on the  

date of commission of the offence.  Upon an affidavit filed by the  

Deputy Superintendent of Police pursuant to inquiries made by  

him, it was reported that the age of the appellant as on the date  

of occurrence had been about 15 years.  The inquiry report  

inspired confidence of the Court and the Court held that the  

appellant cannot be denied the benefits of the Juvenile Justice  

(Care & Protection of Children) Act, 2000.  As regards the  

question of sentence, this Court observed:-

“12. The inquiry report, which inspires confidence,  unquestionably establishes that as on the date of occurrence, the  appellant was below the age of eighteen years; was thus, a  “juvenile”  in terms of the Juvenile Justice Act and cannot be  denied the benefit of the provisions of the said Act. Therefore,  having been found to have committed the aforementioned  offence, for the purpose of sentencing, he has to be dealt with in  accordance with the provisions contained in Section 15 thereof.  As per clause (g) of sub-section (1) of Section 15 of the Juvenile  Justice Act, the maximum period for which the appellant could  be sent to a special home is a period of three years.

13. Under the given circumstances, the question is what relief  should be granted to the appellant at this juncture. Indisputably,  the appellant has been in prison for the last many years and,  therefore, at this distant time, it will neither be desirable nor  proper to refer him to the Juvenile Justice Board. Accordingly,  we follow the course adopted in Bhola Bhagat v. State of Bihar;  sustain the conviction of the appellant for the offence for which  he has been found guilty by the Sessions Court, as affirmed by

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the High Court and at the same time quash the sentence  awarded to him.

14. Resultantly, the appeal is partly allowed to the extent  indicated above. We direct that the appellant shall be released  forthwith, if not required in any other case.”

23. Having regard to such a course adopted by this Court  

in the above reported decisions, and in the case on hand based  

on the report of the District and Sessions Judge, we are also  

convinced that the appellant was below 18 years of age on the  

date of commission of offence and the Juvenile Justice Act would  

apply in full force in his case also. While upholding the conviction  

imposed on the appellant, we set aside the sentence imposed on  

him and direct that he be released forthwith, if not required in  

any other case. The appeal is partly allowed to the extent  

indicated above.

…..……….…………………………...J.                       [T.S. Thakur]

  …………….………………………………J.             [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; August 29, 2012