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2014 DIGILAW 6 (CHH)

SUSHEN KUMAR RAY v. STATE OF C. G.

2014-01-10

PRITINKER DIWAKER, YATINDRA SINGH

body2014
ORDER 1. In Sessions Trial No. 96/92 accused/applicant Sushen Kumar Ray was tried along with three other accused persons for committing the murder of Haripad Devnath and assaulting certain other persons. Vide judgment and order dated 14.10.1996 passed by the Additional Sessions Judge, Jagdalpur, applicant Sushen was acquitted by the trial Court whereas the other accused persons were convicted under sections 302 and 307/34 IPC. 2. Against conviction of other accused persons, Criminal Appeal No. 1981/96 was filed by the convicted persons whereas against the acquittal of applicant Sushen, State preferred Criminal Appeal No. 2461/97. Vide judgment and order dated 11.2.2013 this Court altered the conviction of the accused persons in Cr.A. No. 1981/96 whereas the State appeal preferred in the case of the applicant was allowed and he was convicted under Sections 304-II/34 and 307/34 of IPC and sentenced to undergo rigorous imprisonment for seven years and five years respectively. 3. After passing of judgment by this Court according to the applicant he noticed the fact that on the date of commission of offence he was minor. He filed Writ Petition (Cr.) No. 33/2013 which was disposed of by this Court on 12.4.2013 directing the Juvenile Board to conduct an enquiry in relation to age of the petitioner and to pass appropriate order. In the enquiry conducted by the Juvenile Board on 12.6.2013 after recording evidence, a finding has been recorded by the Board that on the date of commission of offence the applicant was minor. 4. After passing of the above order by the Juvenile Board, the petitioner again filed Writ Petition (Cr.) 53/2013. However, vide order dated 31.7.2013 the writ Court refused to pass any order on the said writ petition holding that against the order of Division Bench no such order can be passed by a writ Court. 5. Against the judgment of this Court, the applicant preferred Special Leave to Appeal (Cr.) No. (s) 7795/2013 pleading that on the date of commission of offence he was minor. Said SLP was withdrawn by the applicant with liberty to again approach this Court for appropriate relief and accordingly, the SLP was dismissed. 6. 5. Against the judgment of this Court, the applicant preferred Special Leave to Appeal (Cr.) No. (s) 7795/2013 pleading that on the date of commission of offence he was minor. Said SLP was withdrawn by the applicant with liberty to again approach this Court for appropriate relief and accordingly, the SLP was dismissed. 6. After withdrawal of SLP from the Apex Court the present petition has been filed by the applicant under Section 482 Cr.P.C. read with Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short "the Act of 2000") praying that sentence imposed on him in Cr.A.No. 2461/97 be set aside, he be given the benefit of being juvenile and then to pass any such order as may be required. 7. We have heard counsel for the applicant and perused the documents on record. 8. Before harping on the merits of the claim of the applicant and the contention of the State, we think it appropriate to first deal with the legal provisions contained in Section 7A of the Act of 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, (for short "the Rules of 2007") which read as under: "Section 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 inquiry, 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 order, and the sentence if any, passed by a court shall be deemed to have no effect." "Rule 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 enquiry 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; (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. 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 and 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 of 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." 9. During enquiry the Juvenile Board had examined Nityanand Das who at the relevant time was posted as Principal at Government Higher Secondary School, Kodenar, No. 2. During enquiry the Juvenile Board had examined Nityanand Das who at the relevant time was posted as Principal at Government Higher Secondary School, Kodenar, No. 2. Said witness had produced the admission register (Ex.P/7C) before the Juvenile Board according to which the date of birth of the applicant is 7.3.1975 and he was admitted in the school on 16.8.1989 in Class-IX. The documents on record also go to show that the applicant was admitted in Class-I in the year 1979 and at that time also his date of birth was recorded as 7.3.1975 in the admission register at Sl.No.236 (Ex.P/5). Likewise, the document (Ex.P/6) regarding issuance of Transfer Certificate also mentions the date of birth of the applicant as 7.3.1975. From the documents of Ex.P/7C & P/8 it is clear that on 16.8.1989 the applicant was admitted in Government Naveen High School, Kodenar and in which also his date of birth is recorded as 7.3.1975. Even in the Transfer Certificate date of birth of the applicant is recorded as 7.3.1975 and thus on the date of incident i.e. 1.9.1991 his age comes to 16 years, 05 months and 24 days. 10. Proviso to Section 7A of the Act, 2000 makes it clear that a claim for juvenility can be raised before any Court and it shall be recognized at any stage even after final disposal of the case and such claim is to be determined in terms of provisions contained in the Act. Sub-section (2) of Section 7A of the Act of 2000 provides that if a person is found to be juvenile on the date of commission of offence under sub-section (1), the Court would forward the juvenile to the Board for passing appropriate order and the sentence, if any, passed by the Court shall be deemed to have no effect. 11. Though objection has been raised by the State Government in relation to the finding recorded by the Juvenile Board holding the applicant to be juvenile while passing the order dated 22.6.2013 but from the evidence and the documents as filed by the applicant before the Juvenile Board, it is clear that findings given by it holding the applicant as juvenile on the date of incident are based on un-rebutted evidence of the witnesses. The Juvenile Board has arrived at such a conclusion after following the due procedure as laid down under Rule 12 of the Rules of 2007. Thus in view of the submissions made by counsel for the respective pm1ies and the documents placed before us, we are of the considered view that there is no infirmity and illegality in the finding of the Juvenile Board and it can be held that on the date of incident i.e. 19.1991 the applicant was minor. 12. It is a settled position of law that entry with respect to the date of birth made in the mark-sheet or transfer certificate is one of the valid proof in evidence for determination of age of the accused and no hyper-technical approach should be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he is juvenile. The findings of the Juvenile Board based on such evidence are to be accepted for the purposes of holding the accused as juvenile. All the documents furnished by the accused conclusively go to show that the date of birth of the applicant is 07.03.1975 and thus on the date of incident i.e. 01.09.1991 he was minor. 13. Though the applicant who was minor on the date of commission of offence can be convicted for the offences under Sections 304-II/34 and 307/34 of IPC, he cannot be sentenced as was done by this Court while passing the judgment dated 11.2.2013. 14. Considering the fact that on the date of incident the applicant was minor, we maintain his conviction under Sections 304-II/34 and 307/34 of IPC but set aside the sentence as imposed by us while rendering the judgment dated 11.2.2013 in Cr.A.No. 2461/97. 15. As per the provisions of sub-section (2) of Section 7A, the matter is remitted to the Juvenile Board for appropriate orders. After receiving copy of this order and the record, the Juvenile Board shall issue notice to the applicant and then pass appropriate order on sentence in accordance with law. 16. Petition is thus allowed. Petition Allowed.