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2012 DIGILAW 673 (KER)

Ravi v. State of Kerala

2012-07-16

BABU MATHEW P.JOSEPH, K.HEMA

body2012
JUDGMENT K. Hema, J. 1. Can a Court reject the claim of juvenility raised by accused on the ground that it was raised only at the fag end of the trial and hence, not bona fide? Does burden of proving juvenility lie on the accused? What is the procedure to be adopted, if accused makes a claim during trial before a Court that he was a juvenile on the date of commission of offence? These are the main questions arising for consideration in this appeal. 2. The appellant was convicted and sentenced by Additional Sessions Court for offence under Section 302 of Indian Penal Code ('IPC', for short) to undergo imprisonment for life and to pay a fine of Rs.50,000/-and in default to undergo rigorous imprisonment for six months. The fine, if realised, was ordered to be given to the victim's widow under Section 357(3) of Code of Criminal Procedure ('the Code' for short). The said conviction and sentence are challenged in this appeal. 3. According to prosecution, on 10.04.2003 at about 7.15 p.m., accused committed murder of deceased Manja by beating him with a wooden log, with intention to cause his death. The incident happened in a Colony. The deceased was rushed to the hospital but, he died on the same night, as a result of the severity of the injuries sustained. 4. The accused took up a plea at the stage of defence evidence, that he was a juvenile at the time of occurrence. He examined DW1, his mother to prove the claim. She deposed that accused was aged only 14 years, at the time of occurrence. The trial court on consideration of the evidence held as follows: "Age was questioned by the accused and he has not let in evidence to establish the facts asserted by him. Since it is a fact which wants the court really on the burden of proof on him to establish that fact. Viewing the matters in such perspective, I find no merit in the contention of the accused that he was minor at the time of commission of offence". 5. The trial court, after finding that there is no merit in the contention raised by accused on juvenility, proceeded to consider evidence adduced in the case and held that accused is guilty and convicted him for offence under Section 302 IPC. 5. The trial court, after finding that there is no merit in the contention raised by accused on juvenility, proceeded to consider evidence adduced in the case and held that accused is guilty and convicted him for offence under Section 302 IPC. The main contention raised in this appeal is that conviction and sentence passed against appellant are illegal since those are in violation of the provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000 ('the Juvenile Justice Act', for short). 6. Heard Sri.Deepu Thankan, learned counsel for the appellant and Sri. Gikku Jacob, learned Public Prosecutor. Perused the records. The points for consideration in this appeal are: i) Whether the trial court committed any illegality in convicting and sentencing appellant for the alleged offence, without determining claim of juvenility, in accordance with the provisions of Juvenile Justice Act and the Rules thereunder? ii) Whether the conviction and sentence passed against appellant are unsustainable ? 7. Admittedly, appellant is an 'adivasi' (tribal) and he made a claim before Sessions Court that he was aged only 14 years, on the date of occurrence. To prove the claim, his mother was examined as DW1. She deposed that accused was aged only 14 years on the date of occurrence. She also deposed that the deceased sustained injury when he fell down, after getting drunk and accused is innocent. 8. Learned counsel for appellant argued that in the light of the plea of juvenility raised by accused, trial court ought to have determined the age of accused as on the date of occurrence and forwarded accused to the Juvenile Justice Board ('the Board', for short), under Section 7A of the Juvenile Justice Act. The trial court committed an illegality in not following the procedure laid down in the Juvenile Justice Act and convicting appellant, it is argued. 9. Learned Public Prosecutor vehemently argued that appellant raised the plea of juvenility only at a highly belated stage (defence evidence) and hence, it is not bona fide. Even at the stage of questioning under Section 313 of the Code, he did not have a case that he was a juvenile. According to police, accused was aged 29 years at the time of occurrence and his age was not even on the border line. Even at the stage of questioning under Section 313 of the Code, he did not have a case that he was a juvenile. According to police, accused was aged 29 years at the time of occurrence and his age was not even on the border line. Therefore, neither the Committal Court nor Sessions Court felt the need to make any enquiry into the age of accused by appearance of accused, it is submitted. It is also argued that if the contentions of accused are upheld, it is likely that in all cases, accused may take up such plea at the fag end of trial, irrespective of their age, only for protracting the trial, it is submitted. 10. Learned counsel for accused argued that the plea of juvenility can be raised at any stage and in Jitendra Singh Vs. State of U.P. [(2010) 13 SCC 523], Supreme Court entertained such plea even though it was raised much after the disposal of the case, before the Supreme Court. Relying upon the the said decision, it is argued that the plea cannot be rejected on the ground that it is belated. In Jitendra Singh's case it is held as follows: "12. In the result we allow the appellant to urge the additional ground regarding juvenility of the appellant on the date of the commission of the offence and direct the trial court to hold an enquiry into the said question and submit a report as expeditiously as possible, but not later than four months from today. We make it clear that the trial court shall be free to summon the school, panchayat or the electoral office record or any other record concerned from any other source which it considers necessary for a proper determination of the age of the appellant. We also make it clear that in addition to the above, the trial court shall be free to constitute a Medical Board comprising at least three experts on the subject for determination of the age of the appellant, based on medical tests and examination" 11. In the light of the rival arguments raised, Section 7A of the Juvenile Justice Act can be looked into first. Section 7A of the Juvenile Justice Act reads as follows: "7A. In the light of the rival arguments raised, Section 7A of the Juvenile Justice Act can be looked into first. Section 7A of the Juvenile Justice Act reads as follows: "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 enquiry, 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". 12. It is quite clear from a reading of Section 7A of Juvenile Justice Act that the claim of juvenility can be raised by an accused before any court at any stage. The said provision does not insist that such claim shall be raised at any particular stage of the proceedings or trial before court or that it must be raised at the initial stage itself. The proviso to Section 7A(1) specifically lays down that the claim of juvenility can be raised "at any stage", even after final disposal of the case, and it shall be recognised by the court. Therefore, in the light of the proviso to Section 7A(1) of Juvenile Justice Act, the mere fact that the claim was made only at the fag end of the trial is no reason at all for the court to reject a plea of juvenility. 13. Therefore, in the light of the proviso to Section 7A(1) of Juvenile Justice Act, the mere fact that the claim was made only at the fag end of the trial is no reason at all for the court to reject a plea of juvenility. 13. It is also to be noted that Section 7A of the Juvenile Justice Act was introduced into the Statute only on 22.08.2006, by Act 33 of 2006 and hence, appellant could not have raised the claim of juvenility under Section 7A, prior to 22.08.2006. The incident occurred on 10.04.2003 and the Act came into force only after about three years of the date of occurrence. Therefore, the argument that the claim of juvenility is not bona fide since it is highly belated, not being made at the initial stage of trial etc., cannot be accepted. 14. The provision contained in Section 7A is mandatory. The court is bound to follow the mandate of Section 7A, whenever a claim of juvenility is raised by an accused, irrespective of whether such claim is raised at the fag end of the trial or whether it is made after conclusion of the trial, at the appellate or revisional stage. The court shall recognise the claim and without fail, determine the same, in terms of the provisions contained in the Act and the Rules framed thereunder. 15. It is also stated in the proviso to Section 7A(1) that even if the juvenile has ceased to be a juvenile on or before the commencement of the Juvenile Justice Act, the claim shall be determined by the court, in terms of the provisions contained in the said Act and the Rules framed thereunder i.e., Juvenile Justice (Care and Protection of Children) Rules ('the Rules, for short). Thus, it is clear the claim of juvenility can be raised by an accused even if he was not a juvenile either on or before the commencement of the Juvenile Justice Act, provided he was a juvenile at the time of commission of the alleged offence. 16. In this context, learned Public Prosecutor took up a contention that even if the Juvenile Justice Act permits the accused to raise the plea even at the fag end of trial, burden is upon the accused to prove that he is a juvenile. 16. In this context, learned Public Prosecutor took up a contention that even if the Juvenile Justice Act permits the accused to raise the plea even at the fag end of trial, burden is upon the accused to prove that he is a juvenile. Since appellant is claiming benefit of an exemption, burden of proving such an exemption is on the accused himself, in the light of Section 105 of Evidence Act, it is argued. The age of accused is a fact which is within the special knowledge of accused and hence, the burden of proving such fact is on him, by virtue of Section 106 of the Act, it is further contended. It is also clear from Section 103 of the Act that the burden is upon the accused to prove the fact that he is a juvenile, it is pointed out. 17. But, accused failed to discharge burden of proof and hence, there is no reason to interfere in the conviction and sentence passed against appellant, it is strongly argued. In the light of the above contentions, we shall first consider the argument on Section 105 of Evidence Act which deals with burden of proof of the case of accused in respect of certain exceptions. Section 105 of Evidence Act reads as follows: "105. Burden of proving that case of accused comes within exceptions: When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." 18. A plain reading of Section 105 of Evidence Act itself reveals that Section 105 refers to certain 'Exceptions', and not to "exemption". The claim of juvenility raised by an accused cannot be treated any "exemption" as argued by learned Public Prosecutor. Section 105 of Evidence Act lays down on whom burden of proof lies in cases in which accused claims benefit of any "General Exceptions" or any "special exception" or proviso contained in IPC or in any law defining the offence. The claim of juvenility raised by an accused cannot be treated any "exemption" as argued by learned Public Prosecutor. Section 105 of Evidence Act lays down on whom burden of proof lies in cases in which accused claims benefit of any "General Exceptions" or any "special exception" or proviso contained in IPC or in any law defining the offence. It cannot be said that by raising the claim of juvenility under the provisions contained in the Juvenile Justice Act appellant is claiming benefit of any "exceptions" referred to in Section 105 of Evidence Act. Hence, Section 105 of Evidence Act has no application for proving juvenility and it cannot also be said that the burden of proof lies on the accused to establish the plea of juvenility, by virtue of Section 105. 19. Learned Public Prosecutor also argued that even if the court finds that a juvenile has committed offence, the trial court can continue with the trial, in the light of Section 20 of the Juvenile Justice Act and it can even record a finding of guilt of the accused. A reference to the Board is not necessary, it is argued. Learned defence counsel maintained the stand that by virtue of Section 7A of the Juvenile Justice Act, the Sessions Court has no power to convict a juvenile for any offence. Section 20 of the Act reads as follows: "20. Special provision in respect of pending cases: Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile , forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence." 20. Section 20 of Juvenile Justice Act lays down that notwithstanding anything contained in the Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court, as if this Act had not been passed. Therefore, on a first blush, the argument raised by learned Public Prosecutor may appear to be attractive. But, from a close reading of Section 20 of the Juvenile Justice Act, it is clear that the said provision will apply, only to cases (in respect of a juvenile) which were pending in the court as on the date on which the Act has come into force. 21. If cases involving a juvenile as an accused are instituted before court, after commencement of the Juvenile Justice Act, Section 20 will have no application and the proceedings in such cases cannot be continued by virtue of that provision. Section 20 of the Juvenile Justice Act is a special provision relating to cases which were pending before the court, as on the date of commencement of Juvenile Justice Act. And not to cases which are instituted after the commencement of the Juvenile Justice Act. 22. The Juvenile Justice Act received the assent of the President on 30th December, 2000. It has come into force with effect from 1st day of April, 2001 (vide S.O 177(E) dated 28.2.2001). Therefore, the court can continue the proceedings or trial of a case under Section 20 of the Juvenile Justice Act, only if the case falling under the said provision was pending in that court, as on 01.04.2001. Even in such cases, by virtue of Section 20 of the Juvenile Justice Act, the court shall not pass any sentence against an accused who is found to be a juvenile after the enquiry conducted as per law. If the court finds that a juvenile has committed an offence, it shall forward the juvenile to the Board and the Board alone shall pass orders in respect of that juvenile, in accordance with the provisions of the Juvenile Justice Act. 23. If the court finds that a juvenile has committed an offence, it shall forward the juvenile to the Board and the Board alone shall pass orders in respect of that juvenile, in accordance with the provisions of the Juvenile Justice Act. 23. It is laid down in Section 20 of the Juvenile Justice Act that if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile, in accordance with the provisions of the Juvenile Justice Act as if it had been satisfied on inquiry under the said Act that a juvenile has committed the offence. Therefore, even in cases falling under Section 20, the court can only enter a finding that the juvenile has committed an offence but, it has no power to pass any sentence against a juvenile. 24. Admittedly, this case was not pending before the Sessions Court as on 01.04.2001, the date of commencement of Juvenile Justice Act. The offence itself was allegedly committed on 10.04.2003, much after the commencement of the Act. Therefore, Section 20 of the Juvenile Justice Act has no application to the facts of this case and even by virtue of the said provision, Sessions Court will not get jurisdiction to continue the trial, convict and sentence the accused for any offence, without determination of the claim of juvenility raised by accused, in accordance with the provisions of the Juvenile Justice Act and the Rules framed thereunder. 25. Section 7A (1) of the Juvenile Justice Act and Rule 12 of the Rules lay down what procedure has to be followed when a claim of juvenility is raised by accused. As per Section 7A(1) of the Juvenile Justice Act, if an accused raises a claim of juvenility before any Court, it shall make an enquiry and take such evidence as may be necessary so as to determine the age of such person. It is also clear from the said provision that the determination of age cannot be made even by an affidavit, but evidence itself shall be taken by court to determine the age. 26. It is also clear from the said provision that the determination of age cannot be made even by an affidavit, but evidence itself shall be taken by court to determine the age. 26. Rule 12 of the Rules makes it abundantly clear that the court shall make every effort to obtain certain certificates specifically referred to therein which relate to the age, in the order of preference stated therein. Rule 12(3) lays down that the age determination inquiry shall be conducted by the court by seeking evidence by obtaining the matriculation or equivalent certificates, if available; and in the absence whereof; the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; the birth certificate given by a corporation or a municipal authority or a Panchayat. Therefore, the court shall "obtain" the certificate referred to in Rule 12, in the order of preference referred to therein. 27. If none of the above certificates are available, the court shall seek medical opinion from a duly constituted Medical Board, which will declare the age of the juvenile. Section 7A of Juvenile Justice Act also lays down that the court shall, after conducting the enquiry, as contemplated by the Act and the Rules, record a finding whether accused is a juvenile or not. By virtue of Rule 12 of the Rules, it is not sufficient for the court to merely record a finding that the accused is a juvenile or a child, but the court shall also state the age of such juvenile or child as nearly as may be. If the exact age cannot be assessed, the court may give benefit to the juvenile by considering the age on the lower side within the margin of one year, if the court considers it necessary and it shall also record its reasons for doing so. 28. As per Section 7A(2) of Juvenile Justice Act, if a criminal court, after the enquiry contemplated, finds that accused was a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate orders. 28. As per Section 7A(2) of Juvenile Justice Act, if a criminal court, after the enquiry contemplated, finds that accused was a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate orders. It is thus, clear from the provisions of the Act, particularly Section 7A that once the court finds after due enquiry that accused was a juvenile, on the date of commission of the offence, he shall be dealt with only in accordance with the provisions contained in the Juvenile Justice Act. A criminal court will have no jurisdiction to pass any sentence on a juvenile for any offence, after the commencement of the Juvenile Justice Act. 29. Only if a criminal court finds, after the enquiry contemplated by law that the accused is not a juvenile, it will have the jurisdiction to convict and sentence such accused. Even in cases which were pending in court as on date on which Juvenile Justice Act came into force, though a criminal court can continue trial and even enter a finding that the accused committed an offence, passing of sentence by the court is barred, as per the special provision under Section 20 of Juvenile Justice Act. 30. It is also to be noticed that Section 7A(2) of the Juvenile Justice Act lays down that the sentence, if any, passed by a court shall be deemed to have no effect, if such sentence is passed by a court against a juvenile in conflict with law. Section 16 of the Juvenile Justice Act also lays down that notwithstanding anything to the contrary contained in any other law for the time being in force, no juvenile in conflict with law shall be sentenced to death or imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. 31. Therefore, Sessions Court has no jurisdiction to pass any sentence on a juvenile in conflict with law for murder under Section 302 of IPC or send him to prison for any default of payment of fine or even for default in furnishing security. Even if it does, such sentence shall be deemed to have no effect, as per Section 7A(2). Therefore, Sessions Court has no jurisdiction to pass any sentence on a juvenile in conflict with law for murder under Section 302 of IPC or send him to prison for any default of payment of fine or even for default in furnishing security. Even if it does, such sentence shall be deemed to have no effect, as per Section 7A(2). Thus, it is clear that the result of enquiry under the Juvenile Justice Act as a direct bearing on the very jurisdiction of the court. There is an express bar for the court to pass sentence on a juvenile for murder under section 302 IPC or send him to jail, under Section 16(1) of the Juvenile Justice Act. 32. The claim of juvenility involves a jurisdictional question. Therefore, it shall not be viewed lightly or rejected casually, by casting burden of proof on the accused to prove his age. In cases in which an accused raises a claim of juvenility, the court shall make an enquiry under the provisions of the Act and the Rules thereunder and determine the claim as well as the age of the juvenile. For this purpose, the court need not wait for the juvenile to produce the certificates referred to in Rule 12 to prove his age. The court itself has to "obtain" such certificates and it is its duty to obtain them. The court may even seek medical opinion of a duly constituted Medical Board on the age of the accused who raises a claim of juvenility. 33. The provisions in the Juvenile Justice Act are brought into the Statute for protection of a juvenile and, in recognition of his valuable rights. Therefore, it is the onerous duty and responsibility of the court to protect rights of a juvenile. It shall not shirk off such responsibility by casting the burden on the accused to prove his age. The inability of juvenile to prove the age shall not be a ground to deny the benefit of the provisions of the Juvenile Justice Act to a juvenile. Such inability will not also confer jurisdiction on the court to deal with him. Therefore, claim of juvenility shall not be rejected on the ground that accused failed to discharge his burden to prove juvenility by adducing evidence. 34. Such inability will not also confer jurisdiction on the court to deal with him. Therefore, claim of juvenility shall not be rejected on the ground that accused failed to discharge his burden to prove juvenility by adducing evidence. 34. To sum up, we hold that whenever the claim of juvenility is raised by an accused before any court, it shall be determined by the court, in accordance with the provisions contained in the Juvenile Justice Act and the Rules framed thereunder, irrespective of the stage at which it is raised. It is the duty and responsibility of the court to determine such claim and the age of the accused who raises a claim of juvenility before court. Even if no evidence is adduced by a juvenile to establish his claim of juvenility or his age, the court is bound to "obtain" the relevant materials as per law and determine the claim and age, as stated in Section 7A read with Rule 12 of the Rules. The burden is always on the court to determine claim of juvenility and the age of an accused who raises a claim of juvenility and it shall not reject such claim on the ground that accused failed to discharge the burden to prove his claim or age. 35. The provisions relating to burden of proof, whether it be under Section 105, Section 103 or Section 106 of Evidence Act, have no application to a claim of juvenility. The claim of juvenility shall be determined by the court, in terms of the provisions contained in the Juvenile Justice Act and the Rules and not in any other manner. If Sessions Court fails to determine claim of juvenility, in terms of the provisions in the Juvenile Justice Act and the Rules and enters a finding that the accused who raised a claim of juvenility has committed the offence and passes any sentence against him for offence under Section 302 IPC, such conviction and sentence will not only be illegal, but without jurisdiction also. Such sentence will have no effect, as per law. 36. The court below has not made an enquiry and determined the claim of juvenility, in terms of the provisions contained in the Juvenile Justice Act and the Rules made thereunder. Without doing so, appellant was convicted and sentenced under Section 302 IPC. Such sentence will have no effect, as per law. 36. The court below has not made an enquiry and determined the claim of juvenility, in terms of the provisions contained in the Juvenile Justice Act and the Rules made thereunder. Without doing so, appellant was convicted and sentenced under Section 302 IPC. Therefore, the conviction and sentence passed against the appellant are unsustainable and are liable to be set aside. The case, however, has to be remanded for fresh consideration of the claim of juvenility and fresh disposal, in accordance with law. 37. In the result, the following order is passed: (i) The conviction and sentence passed against the appellant are set aside. (ii) The case is remanded to the trial court for fresh consideration and disposal, in accordance with law, in the light of the observations made in this judgment. (iii) The Registry shall forthwith issue release memo to the Superintendent of the prison concerned. (iv) The parties shall appear before the trial court on 17.09.2012. This appeal is allowed.