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2016 DIGILAW 161 (RAJ)

Ram Karan v. State of Rajasthan

2016-01-27

KANWALJIT SINGH AHLUWALIA, PRAKASH GUPTA

body2016
JUDGMENT : Mr. Anshuman Saxena, for the accused-appellant. Mr. N.S. Shekhawat, Public Prosecutor for State. Present appeal is directed by the appellant Ram Karan against the impugned judgment dated 19.5.2007 rendered by the Court of Additional Sessions Judge (Fast Track) Chomu, District Jaipur. The said court vide the impugned judgment held the appellant guilty of offences under Sections 302, 201 and 404 IPC for having caused murder of Kishanlal. The trial court having convicted the appellant for offences under Sections 302, 201 and 404 IPC, sentenced him as under:- U/s. 302 IPC: Life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo six months additional imprisonment. U/s. 201 IPC: Three years simple imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month additional imprisonment. U/s. 404 IPC: Three years simple imprisonment, to pay a fine of Rs. 1000/- and in default thereof to undergo one month additional imprisonment. 2. Shri Anshuman Saxena learned counsel for the appellant has read the charges framed against the appellant. The first charge stated that between 30.6.2005 to 2.7.2005 in the revenue State of Biharipura the present appellant after committing unnatural act had thrown Kishanlal in the ravines of Dadar. The only thing which we need to notice from the charges is that the occurrence had taken place between 30.6.2005 to 2.7.2005. 3. Shri Saxena has drawn our attention to document (Exhibit-P.17) a certificate issued by the Government Upper Primary School, Biharipura (Amer), District Jaipur. In the school certificate, date of birth of the appellant recorded is 8.7.1987. Thus, it is contended that on the basis of school certificate (Exhibit-P.17) issued by the Government school first attended by the appellant, the appellant was less than eighteen years of age on the date of occurrence, hence he is a delinquent juvenile in conflict with law. 4. Shri Saxena has relied upon Hari Ram v. State of Rajasthan & Anr. Thus, it is contended that on the basis of school certificate (Exhibit-P.17) issued by the Government school first attended by the appellant, the appellant was less than eighteen years of age on the date of occurrence, hence he is a delinquent juvenile in conflict with law. 4. Shri Saxena has relied upon Hari Ram v. State of Rajasthan & Anr. [ (2009) 13 SCC 211 ] to contend that as per Sections 2(k), 2(l), 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 read with Section 20 of the Act of 2000 as amended in 2006, a juvenile who had not completed eighteen years on the date of commission of the offence is also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. The said position has been re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20, which make it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of Section 2(l) of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed. 5. Shri Saxena has further urged before us that Section 7-A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any Court at any stage, as has been done in the present case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. The law as now crystallized on a conjoint reading of Sections 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. Since the appellant was below 18 years of age at the time of commission of the offence the provisions of the said Act would apply in his case in full force and on the date of the incident it has to be held that he was a juvenile. 6. Having relied upon the observations of Supreme Court in Hari Ram's case (supra), it is contended that the trial court vide order dated 4.1.2006 committed a grave error to ignore the school certificate and rely upon the report of ossification test. It is contended that the school certificate has to get precedence over ossification test conducted by the medical board. It will be apposite here to reproduce Rule-12(3) of the Rules of 2007 as under:- "12(3). - In every case concerning a child or juvenile in conflict with law, the age determination inquiry 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, 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. " 7. It is further contended that the trial court could not doubt the authenticity of the school certificate by relying upon the medical report. 8. We find merit in the submission made by the learned counsel for the appellant. 9. Hence, dehors of order dated 4.1.2006 passed by the Additional Sessions Judge (Fast Track), Chomu, District Jaipur, we remit the matter to the concerned Juvenile Justice Board who has jurisdiction over Chomu, District Jaipur. The said Juvenile Justice Board within three months shall hold an inquiry as per Rule-12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and shall determine the age of the appellant on the date of occurrence. The concerned Juvenile Justice Board while holding inquiry shall associate the appellant and all concerned including the victim for determination of the age. 10. To await report of the Juvenile Justice Board, list on 09.05.2016.