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2014 DIGILAW 1970 (ALL)

Phool Chand v. State of U. P.

2014-07-07

AKHTAR HUSAIN KHAN, ARUN TANDON

body2014
JUDGMENT Arun Tandon and Akhtar Husain Khan, JJ. 1. Application No. 193240 of 2014 has been filed by the appellant No. 4, Heera in Criminal Appeal No. 119 of 1986 with the prayer that an enquiry may be got conducted in respect of juvenility of the convict having regard to the fact that in his statement under Section 313 , Cr.P.C. he had disclosed his age as 20 years and he would be aged about 18 years 2 months and 1 day on the date of incident, i.e., 17.12.1983. In paragraph 10 of the affidavit filed in support of the application it is stated that there is a chance that the applicant may be less than 18 years on the date of incident and, therefore, an enquiry, to ascertain the age of appellant No. 4, is necessary. In view of the amendment introduced in Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in the year 2006 with the addition of Section 7A to the Act. 2. We may record that except for the reliance on the statement recorded under Section 313 , Cr.P.C. before the trial court, no other document or evidence has been brought on record by Heera to support his plea of his being juvenile within the meaning of Section 7A read with Section 20 of the Act, 2000 on the date of incident. 3. In support of his contention, counsel for the appellant has placed reliance upon the judgment of the Apex Court in the case of Abuzar Hossain alias Gulam Hossain v. State of West Bengal, 2012 (79) ACC 991 (SC), specifically paragraph 8. 4. We have heard Shri Apul Mishra on behalf of the appellant and the learned Government Advocate. 5. The Apex Court in the case of Abuzar Hossain alias Gulam Hossain (supra) in paragraph 16 has held that the claim of juvenility can be raised in appeal even if it was not pressed before the trial court or had not been so raised before the trial court. 5. The Apex Court in the case of Abuzar Hossain alias Gulam Hossain (supra) in paragraph 16 has held that the claim of juvenility can be raised in appeal even if it was not pressed before the trial court or had not been so raised before the trial court. However, the Apex Court has gone on to explain that if the plea of juvenility is raised for the first time in the appeal after conviction then the initial burden is to be discharged by the person who claims to be juvenile and only if this burden is discharged and a prima facie case is made out, the appellate court has the power to direct an enquiry or require the Magistrate to hold an enquiry into the claim of juvenility. However, the Apex Court has clarified that there must be some material worth consideration for issuing such a direction. For ready reference the legal position as summarized by the Apex Court in the said judgment, in paragraph 16, is being quoted herein below: "(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court. (ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. (iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz., school leaving certificate, mark-sheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an enquiry for determination of the age of the delinquent. (iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent. (v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. (vi) Claim of Juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised." 6. The matter should be considered prima facie on the touchstone of preponderance of probability. (vi) Claim of Juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised." 6. We have examined the application made by Heera and we find that except for referring to the statement under Section 313 , Cr.P.C. no other material has been brought on record which may have some bearing on the issue of age of the appellant Heera. So far as the statement made under Section 313 , Cr.P.C. is concerned, the Apex Court in the case of Abuzar Hossain alias Gulam Hossain (supra), itself in paragraph 14 has recorded that the statement recorded under Section 313 , Cr.P.C. is only a tentative observation based on physical appearance which is hardly determinative of age and such statement cannot be regarded as sufficient for even a prima facie impression being formed qua the accused being a juvenile on the date of incident. 7. In view of the said legal position and the facts discharged in the application made by the counsel for the appellant Heera, we do not find that there is any material on record even on prima facie basis for an enquiry being directed into the claim of juvenility of Heera. The application is, therefore, rejected.