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2012 DIGILAW 429 (PAT)

State of Bihar v. State of Bihar

2012-03-13

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2012
JUDGMENT (ORAL) Navaniti Prasad Singh, J.- 1. A reference under Section 366 of the Code of Criminal Procedure has been made by the Sessions Judge, Muzaffarpur for confirmation of death sentence as awarded by him to the condemned in respect of Sessions Trial No. 739/2008. In the said sessions trial by judgment dated 1st February. 2010, he found the accused guilty of offence under Section 302 of the Indian Penal Code for having brutally slaughtered his mother and two years old nephew. By order dated 16.2.2010, upon such conviction being made, he has been sentenced to death. 2. The condemned has preferred the connected appeal. While preferring the appeal, in the memo of appeal, it was stated that the occurrence had taken place on 22.6.2008 when he was a minor. The reliance was placed on the Bihar School Examination Board certificate of matriculation which showed his death of birth to be 3.7.1990 which makes him just slightly less than 18 years on the date of occurrence. In other words, 17 years 11 months and 19 days would be the age on the date of occurrence. It appears that the informant who is the uncle of the condemned (mausa) appeared in these proceedings to oppose the prayer. Twice this Court gave him liberty to take instruction on the question of minority and counter the same. He was unable to do so. He then requested the Court to decide the same on papers available. This Court, accordingly, by order dated 5.7.2011 referred the matter to the Juvenile Justice Board, Muzaffarpur to inquire in terms of Section 14 of the Juvenile Justice (Care and Protection of Children) Act. 2000, The records were sent down. They have since been received with the proceedings of the Juvenile Justice Board and its records. The order-cum-report of the Juvenile Justice Board, Muzaffarpur dated 25.1.2012 clearly gives a finding that the condemned was less than 18 years old on the date of occurrence and as such, would be a juvenile in conflict with law. The finding is based on various evidences produced before the Juvenile Justice Board, which includes the matriculation certificate issued on 28th of May 2007 by the Bihar School Examination Board, Patna in respect of the condemned clearly showing his date of birth to be 3rd July, 1990. Let it be noted that this certificate was issued long before the date of occurrence. Let it be noted that this certificate was issued long before the date of occurrence. It has been duly verified from the authorities of the Bihar School Examination Board and have been compared with entries in the original records of the Board. Father and others have also been examined by the Board. The Juvenile Justice Board having given this finding that the condemned is a juvenile in conflict with law, neither the State nor the informant being in a position to challenge the same, we have no option but to accept the same with whatever consequences. 3. Rule 22(5) of the Bihar Juvenile Justice (Care & Protection of Children) Rules. 2003 being rules made with reference to powers conferred on the State under Section 68 of the Juvenile Justice (Care & Protection of Children) Act. 2000 clearly provides the procedure which has to be followed by the Board for holding inquiries and determination of age. Rule 22(5) is quoted hereunder: "In every case concerning a juvenile or a child, the Board shall either obtain- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificate, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when 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." 4. A reading of Rule 22(5) would show that the Juvenile Justice Board came to a correct finding being based upon the matriculation certificate and, therefore, it chose not to take into account other evidences. The finding is that the condemned is a juvenile in conflict with law. In terms of Section 18 of the Act, there could not have been a trial. He could not have been charged. In terms of Section 16 of the Act, he could not have been sentenced to imprisonment much less life imprisonment or death. The finding is that the condemned is a juvenile in conflict with law. In terms of Section 18 of the Act, there could not have been a trial. He could not have been charged. In terms of Section 16 of the Act, he could not have been sentenced to imprisonment much less life imprisonment or death. We do not fault the trial Court for what it has done inasmuch as the plea of juvenility does not seem to have been raised before it. In view of Section 7-A(1) of the Juvenile Justice (Care & Protection of Children) Act. 2000 and the proviso thereto, the plea of juvenility was being raised for the first time before this Court and this Court entertained the plea and referred the, matter to the Juvenile Justice Board, Muzaffarpur. 5. In view of the aforesaid, we hold that the charge, the trial, the conviction and the sentence of the condemned cannot be sustained in law as he is a juvenile in conflict with law. However, we may observe that considering the serious nature of offence alleged to have been committed by him, we would ordinarily have taken steps under Section 16(1) proviso of the Act, But as the person has remained in judicial custody in jail right from 23.6.2008 upto date the period being much over three years which is maximum permissible under Section 15 of the Act, we intend not to pass any order as contemplated under Section 16(1) of the Act. 6. In view of the aforesaid, we have no option but to discharge the reference as made under Section 366 of the Cr. P.C. and allow the appeal, setting aside the conviction and sentence. 7. Let the appellant be released forthwith from judicial custody, if not required in any other case. Appeal allowed.