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2017 DIGILAW 1500 (RAJ)

Madan Lal v. State of Rajasthan

2017-07-06

G.R.MOOLCHANDANI, KANWALJIT SINGH AHLUWALIA

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JUDGMENT : Kanwaljit Singh Ahluwalia, J. Madan Lal son of Panchu Lal, along with four others, namely Banshi Lal and Mangi Lal sons of Bheru Lal, Moti Lal son of Bhanwar Lal and Amar Lal son of Panchu Lal were tried by the Court of District & Sessions Judge, Jhalawar (Rajasthan), in Sessions Case No.80/1997. 2. The said Court, vide its impugned judgment dated 03.02.1988, acquitted accused, namely Banshi Lal, Mangi Lal and Amar Lal. However, the said Court convicted - Madan Lal, present appellant for commission of offence punishable under Section 302 I.P.C. and sentenced him to undergo life imprisonment, pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months simple imprisonment. The said Court also convicted accused - Moti Lal for commission of offence punishable under Section 323 I.P.C. and reduced his sentence to the period already undergone by him. 3. In the order of sentence dated 03.02.1988, the trial Judge observed that the present appellant is less than twenty-one years of the age. 4. The said Court also convicted accused - Moti Lal for commission of offence punishable under Section 323 I.P.C. and reduced his sentence to the period already undergone by him. 3. In the order of sentence dated 03.02.1988, the trial Judge observed that the present appellant is less than twenty-one years of the age. 4. The operative portion of the order of sentence passed by the Sessions Judge, Jhalawar dated 03.02.1988 reads as under :- ^^ltk ds eqns ij odhy eqyfteku dks lquk x;kA yk;d odhy eqyfte dk dFku gS fd eqyfte inu toka mez ckyd gS mldks ltk&,&ekSr ugha nh tk;sA eqyfte eksrh ds fy, mudk dFku gS fd ;g iSj ls vikfgt gS vkSj ,d yEcs le; rd ;g bl dsl esa vfHkj{kk esa jg pqdk gSA vr% mUgksaus nyhy nh gS fd mls HkqxrkbZ ltk ij NksM+k tkosA geus eqdnesa dh ifjfLFkfr;ksa dk voyksdu fd;kA blesa dksbZ 'kd ugha gS fd eqyfte enu yky dh vk;q 21 o"kZ ls de gS mldk ;g ÁFke vijk/k gSA ;g dsl fcjyksa esa ls fcjyk ugha gSA vr% ge eqyfte enu dks /kkjk 302 Hkk0na0la0 esa vkthou dkjkokl vkSj ,d gtkj :i, vFkZn.M] vne vnk;xh rhu ekg ds lk/kkj.k dkjkokl dh ltk Ánku djuk equkflc le>rk gwaA vfHk;qDr eksrh iSj ls yaxM+k gSA vfHk;kstu i{k dh lkjh lk{; Hkh ;gh dgrh gS fd ?kVuk ds le; og ydM+h ds Vsds ls pyrk Fkk nwljs :i esa ge ;g dg ldrs gS fd og vikfgt gS vkSj 21-02- 1987 ls 27 -03-1987 rd fgjklr esa jg pqdk gS mlus dsoy e`rd xsank ds LosPNk ls lk/kkj.k migfjr dkfjr dh gSA vr% bl eqyfte dks HkqxrkbZ gqbZ ltk ij NksM+uk equkflc le>rk gwaA** 5. Aggrieved against his conviction and sentence, present appellant - Madan Lal has preferred instant appeal before this court. 6. During the pendency of the appeal at the stage of suspension of sentence, a plea was raised that the appellant, on the date of alleged occurrence was less than sixteen-years of age. 7. A Division Bench of this Court on 02.01.1991 directed the Chief Judicial Magistrate, Jhalawar to hold an enquiry regarding the age of the appellant and submit a report to this court. 7. A Division Bench of this Court on 02.01.1991 directed the Chief Judicial Magistrate, Jhalawar to hold an enquiry regarding the age of the appellant and submit a report to this court. The order dated 02.01.1991 passed by a Division Bench of this Court reads as under :- "Though this is a criminal appeal of the year, 1988 and the accused appellant is on bail, yet this appeal is listed out of turn as the Division Bench while admitting the case had observed that the arguments about the age of the accused being below 16 years has been raised. In this view of the matter, the appeal be heard immediately. The appeal was ordered to be listed in July, 1988. However, it has come up for hearing in 1991. During the course of arguments, regarding the preliminary question as to whether the age of accused is about 16 years or not, we found that the evidence produced before the trial Court was wholly in sufficient to have reached at definite conclusion. Therefore, we deem it proper to get an inquiry conducted in this respect, before we proceed to hear appeal either or question of age or on merits. We, therefore, direct the learned Chief Judicial Magistrate, Jhalawar to hold an inquiry and report to this Court as to whether the accused-appellant Madan Lal s/o Panchu Lal had completed the age of 16 years or not on the date of the incident i.e. 20.2.87. Opportunity shall be provided to both the side to lead the evidence. Report should be completed within four months from the date of receipt of the record. The learned Addl. Registrar (Judl) shall forthwith remit the record to the Court of Chief Judicial Magistrate, Jhalawar. The learned counsel for the appellant should direct the accused to present in person or through counsel before the Chief Judicial Magistrate, Jhalawar on 11.02.91." 8. In pursuance of the said order, Chief Judicial Magistrate, Jhalawar conducted enquiry and held that the appellant on the date of occurrence was less than sixteen-years of age. 9. The learned counsel for the appellant should direct the accused to present in person or through counsel before the Chief Judicial Magistrate, Jhalawar on 11.02.91." 8. In pursuance of the said order, Chief Judicial Magistrate, Jhalawar conducted enquiry and held that the appellant on the date of occurrence was less than sixteen-years of age. 9. The enquiry report dated 02.05.1991 submitted by the Chief Judicial Magistrate, Jhalawar is reproduced herein below :- takp fjiksVZ ekuuh; mPp U;k;ky; ds vkns'k fnuakd 02-01-1991 dh vuqikyuk esa eSaus ekuuh; mPp U;k;ky; esa yafEcr vkijkf/kd vihy la0 90@88 ds ekeys esa vijk/kh enu yky dh ?kVuk dh frfFk fnuakd 20-02-1987 ds fnu dh vk;q ds ckjs esa tkap ÁkjEHk dh vkSj bl tkap esa eSaus vijk/kh enu yky ,oa jkT; ljdkj dh vkSj ls fo}ku yksd vfHk;kstu dks ;g iwjk ekSdk fn;k fd og vfHk;qDr enu yky dh vk;q d ckjs esa tks Hkh lk{; is'k djuk pkgs mls is'k dj nsA fnuakd 11-02-1991 dks vfHk;qDr enu yky mifLFkr gks x;k vkSj mlus bl tkap esa viuh eka Jhefr /kUuh] vius firk Jh ikapw yky rFkk MkWDVj xkSjh 'kadj pkSgku dks ijhf{kr djk;k gSA blds vykok enu yky us ewy lS'ku ds ekeys dh lS'ku U;k;ky; }kjk fopkj.k ds nkSjku fn;s x;s MkWDVj ,l0ds0 'kekZ ds dFku dh Áekf.kr Áfrfyfi Hkh QkbZy dh gSA yksd vfHk;kstd us jkT; dh vkSj ls fdlh lk{kh dks ijhf{kr ugha djk;k gSA bl tkap ds vo/kkj.k dk Á'u ;g gS fd D;k ?kVuk dh frfFk fnuakd 20-02-1987 dks vijk/kh enu yky us 16 o"kZ dh vk;q iwjh dj yh Fkh vFkok ugha\ loZÁFke vijk/kh enu yky dh vk;q ds ckjs esa MkWDVj xkSjh 'kadj pkSgku us tks lk{; nh gS mls eSa foospu esa ys jgk gwaA fnuakd 13-02-1991 dks MkWDVj pkSgku us vfHk;qDr enu yky dh vk;q ds ckjs esa tkap dh FkhA igys mUgksaus fQthdy pSdvi (physical check up) fd;k Fkk vkSj fQj ,Dl&js isyfol] fj"V (pelvis & wrist) ,oa ,ycks (elbow) dks fy;s tkus dh lykg nh Fkh vkSj fQthdy (physical) rFkk jsfM;ksyksthdy nksuksa tkap ds vk/kkj ij mUgksaus vijk/kh enu yky dh vk;q 18 o"kZ ds mij ,oa 20 o"kZ ds uhps ikbZ FkhA MkWDVj pkSgku us viuh fjiksVZ Án'kZ ih0 1 rFkk ,Dl&js IySV~l dks Hkh Ánf'kZr fd;k gSA vijk/kh enu yky dh HkkSfrd vkd`fr ds ckjs esa MkWDVj pkSgku us fjiksVZ Án'kZ ih9 1 esa ;g fy[kk gS fd mldh yEckbZ 172 lsUVhehVj otu 49 fdyksxzke] nkar 32 gS rFkk mlds 'kjhj ij I;wfcd (public) o vksdthyjh (uaxulliary) cky ekStwn gSa rFkk ySafxd pfj= iwjk fodflr gSA jsMh;ksyksth dh tkap ds vk/kkj ij MkWDVj pkSgku us ;g ik;k fd enu yky dh byh;kd ØLV (crest of the illiac) esa Q;wt ykbZu fn[k jgh Fkh vkSj og iwjh rjg Q;wt ugha gqbZ FkhA MkWDVj pkSgku dh jk; esa byh;kd ØsLV (crest of the illiac) 19 o"kZ dh vk;q esa Q;wt gks tkrh gS vkSj eksrh dh esfMdy T;wfjLV ÁgsUl esa Hkh blds Q;wt gksus dh vk;q 19 ls 20 o"kZ fy[kh gqbZ gSA bl Ádkj MkWDVj pkSgku us tks ;g rF; ik;k fd byh;kd fØLV crest of the illiac iwjh rjg Q;wt ugha gqbZ Fkh vkSj Q;wt ykbZu fn[k jgh Fkh mlls ;g nf'kZr gksrk gS fd eqvk;us ds le; vijk/kh dh vk;q 20 o"kZ ls vf/kd ugha gqbZ FkhA MkWDVj pkSgku us enu yky dh bZ'kphvy V~;wcksfjflVh (Isehial tuberosity) dks Q;wt gksuk ik;k Fkk ysfdu mlesa Q;wty ykbZu Hkh fn[k jgh FkhA iqu% Áfr ijh{kk esa MkWDVj pkSgku us bls Li"V djrs gq, ;g Hkh dgk gS fd tks Q;wty gksuk ik;k Fkk og lSd.Mªh lSUVZl (secondary centres) ds gh Q;wty Fks vkSj b'kph;y V~;wcjksflVh (Isehial tuberosity) iwjh rjg Q;wt ugha gqbZ FkhA eksnh ds vuqlkj bldk Q;wty 20 o"kZ dh vk;q esa gksrk gSA bl Ádkj bl tkap ls Hkh vijk/kh enu yky dh vk;q tkap okys fnu 20 o"kZ iwjh ugha gqbZ FkhA MkWDVj pkSgku us vijk/kh enu yky ds ,ycks elbow ds ehM+h;y ,ihdksUMky medical epicondyle dks Hkh Q;wt gksuk ik;k Fkk rFkk ;g ik;k Fkk fd ,ycks elbow ds lHkh ,ihQkbZfll Q;wt gks pqds FksA eksnh ds vuqlkj bl Ádkj dk Q;wtu 16 o"kZ dh voLFkk esa gksrk gS rFkk blesa vijk/kh dh vk;q Li"V :i ls 16 o"kZ ls vf/kd FkhA MkWDVj pkSgku us mijksDr tkap ls vijk/kh enu yky dh vk;q fnuakd 13-02-1991 dks 18 o"kZ ls mij ,oa 20 o"kZ ls uhps gksuk ik;k FkkA MkWDVj pkSgku us ;g ckr Lohdkj dh gS fd mudh jk; ds mij o uhps dh vk;q esa 2 o"kZ rd dk vUrj gks ldrk gSA blh fo"k; esa vijk/kh enu yky dh vkSj ls MkWDVj ,l0ds0 'kekZ ds dFku dh Áekf.kr Áfrfyfi tks QkbZy dh xbZ gS mlesa MkWDVj 'kekZ us fnuakd 29-10-1987 dks vijk/kh enu yky dh vk;q 14 ls 16 lky ds chp gksuk ik;k FkkA mudh bl jk; ls ?kVuk dh frfFk 20-02-1987 dks vijk/kh enu yky dh vk;q 16 o"kZ ls de gksuk ÁdV gksrk gSA MkWDVj pkSgku us tkap fnuakd 13-02-1991 dks dh Fkh tks vo/kh ?kVuk dh frfFk ls 4 o"kZ esa 7 fnu de gksuk gSA bl Ádkj x.kuk djus ls rFkk ?kVuk ds fnu vijk/kh enu yky dh vk;q dks fu/kkZfjr djsa rks MkWDVj pkSgku dh jk; ls og vk;q 16 o"kZ ls de gksuh pkfg,A blh fo"k; esa vijk/kh enu yky dh eka Jhefr /kUuh us vius dFku esa enu yky dh orZeku vk;q 18 lky gksuk crykbZ gSA mlus enu yky ds cM+s HkkbZ dh vk;q 20 o"kZ vkSj enu yky ds NksVs HkkbZ dh vk;q 16 o"kZ gksuk cryk;k gSA Jhefr /kUuh ckbZ us ;g dFku fd;k gS fd og tc 15 o"kZ dh Fkh rc mldh 'kknh gks xbZ Fkh vkSj mlds nks o"kZ ckn mldk cM+k yM+dk gks x;k FkkA ;fn bl ckr ij fo'okl djds x.kuk djsa rks orZeku esa Jherh /kUuk ckbZ us viuh vk;q 50 lky gksuk cryk;k gS vkSj blds fglkc ls cM+s yM+ds dh vk;q 32&33 o"kZ ds vkl ikl vkuh pkfg, ysfdu nf'kZr ;g gksrk gS fd Jhefr /kUuk ckbZ dks vk;q ,oa le; ds ckjs esa iwjk Kku ugha gS D;ksafd mlus viuh vk;q 50 o"kZ crykbZ gS tcfd mlds ifr ikapw yky us Hkh viuh vk;q 50 o"kZ gksuk cryk;k gSA enu yky ds firk ikapw yky us Hkh enu yky dh orZeku vk;q 18 o"kZ gksuk cryk;k gSA Árhr ;g gksrk gS fd ikapw yky dks Hkh vk;q vkSj xqtjs gq, le; dh eki djus ds ckjs esa iwjk Kku ugha gSA blus ;g dFku fd;k gS fd mudh ;fn NksVh yM+dh thfor gksrh rks bl le; og 14 o"kZ dh gksrh vkSj og yM+dh NksVs yM+ds ls Ms<+&nks o"kZ NksVh FkhA NksVs yM+ds dh vk;q Jhefr /kUuk ckbZ us 16 lky gksuk cryk;k gS vkSj ml fglkc ls Hkh enu yky dh vk;q orZeku esa 18 o"kZ ls mij gksuk nf'kZr gksrk gSA bl Ádkj bl tkap esa eSaus eq[; vk/kkj vijk/kh enu yky dh MkWDVjh tkap dks ekuk gS vkSj mlls ;g nf'kZr gqvk gS fd fnaukd 13-02-1991 dks vijk/kh enu yky dh vk;q 20 o"kZ iwjh ugha gqbZ FkhA bl Ádkj x.ku djus ls ?kVuk ds fnu Hkh mldh vk;q 16 o"kZ ls de vkrh gSA (Emphasis supplied) MkWDVj pkSgku dh jk; dh lEiq"Vh iw.kZ esa ijhf{kr fd;s x;s MkWDVj 'kekZ ds dFku ls Hkh gksrh gS vkSj enu ds ekrk ,oa firk us vk;q ds ckjs esa tks dFku fd;k og mUgsa le; dh lhek ds ckjs esa Kku ugha gksus ds dkj.k Áekf.kd rks ugha yxrk gS ysfdu muds dFku ls ,slk dksbZ lUnsg Hkh nf'kZr ugha gksrk gS ftlls ;g mi/kkj.kk dh tk lds fd vijk/kh enu yky dh vk;q ?kVuk dh frfFk dks 16 o"kZ ls vf/kd FkhA bl Ádkj bl tkap ls ;g ik;k tkrk gS fd vijk/kh enu yky us ?kVuk dh frfFk 20-02-1987 dks 16 o"kZ dh vk;q iwjh ugha dh FkhA fjiksVZ Jheku~ dh lsok esa ÁLrqr gSA Emphasis supplied Hkonh; Hkqous'k pUnz dqyJs"B eq[; U;kf;d eftLVªsV >kykokM+** 10. Mr. Arvind Kumar Gupta, ld. Senior Counsel duly assisted by Ms. Sakshi Swami, ld. counsel appearing for the accused-appellant, has submitted, at bar, that the appellant had not attended any School and, therefore, no educational record is available and furthermore, there is no entry available regarding the date-of-birth of the appellant in the record maintained by any Corporation or Municipal Authority or Panchayat. 11. Mr. B.N. Sandu, ld. Additional Advocate General cum Public Prosecutor appearing for the State of Rajasthan, has not assailed the report submitted by the Chief Judicial Magistrate, Jhalawar. 12. Even otherwise, we find that against the report dated 02.05.1991 no objections have been filed by the State of Rajasthan. Thus, the report submitted by the Chief Judicial Magistrate, Jhalawar has attained finality. 13. Mr. Gupta, ld. Senior Counsel appearing for the accused-appellant, has contended that the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 are retrospectively applicable to the appellant because of amendments made in the Juvenile Justice (Care & Protection of children) Act, 2000. 14. Due to the amendments carried in the said Act and the pronouncement by the Supreme Court in the various judgments, Mr. Gupta, ld. Senior Counsel appearing for the accused-appellant, has relied upon the case of Abdul Razzaq v. State of U.P., reported as A.I.R. 2015 Supreme Court 1770, wherein it has been held as under :- "9. The legal position on the subject is well settled. A person below 18 years at the time of the incident can claim benefit of the Act any time. The legal position on the subject is well settled. A person below 18 years at the time of the incident can claim benefit of the Act any time. Reference may be made to Section 7-A and 20 of the Act and Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007 which are as follows: Section 7-A. 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 order, and the sentence if any, passed by a court shall be deemed to have no effect." "Section 20. (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." "Section 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: Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." "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 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. (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 an 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 7-A, 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." 10. The above provisions clearly show that even if a person was not entitled to the benefit of juvenilities under the 1986 Act or the present Act prior to its amendment in 2006, such benefit is available to a person undergoing sentence if he was below 18 on the date of the occurrence. Such relief can be claimed even if a matter has been finally decided, as in the present case. 11. In Hari Ram v. State of Rajasthan and Anr., it was observed: "49. The effect of the proviso to Section 7-A introduced by the amending Act makes it clear that the claim of juvenility may be raised before any court which 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 the Act and the Rules made there under which includes the definition of "juvenile" in Sections 2(k) and 2(l) of the Act even if the juvenile had ceased to be so on or before the date of commencement of the Act. (emphasis supplied) 50. (emphasis supplied) 50. The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2(l) even if the juvenile ceases to be so "on or before the date of commencement of this Act" and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed. (emphasis supplied) 51. Apart from the aforesaid provisions of the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the maximum period provided in Section 15 of the Act i.e. 3 years. 52. In addition to the above, Section 49 of the Juvenile Justice Act, 2000 is also of relevance and is reproduced herein below: "49. Presumption and determination of age.-(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person." 53. Sub-section (1) of Section 49 vests the competent authority with the power to make due inquiry as to the age of a person brought before it and for the said purpose to take such evidence as may be necessary (but not an affidavit) and shall record a finding as to whether the person is a juvenile or a child or not, stating his age as nearly as may be. 54. Sub-section (2) of Section 49 is of equal importance as it provides that no order of a competent authority would be deemed to have become invalid merely on account of any subsequent proof that the person, in respect of whom an order is made, is not a juvenile or a child, and the age recorded by the competent authority to be the age of the person brought before it, would, for the purpose of the Act, be deemed to be the true age of a child or a juvenile in conflict with law. 55. Sub-rule (3) of Rule 12 indicates that the age determination inquiry by the court or Board, by seeking evidence, is to be derived from: (i) the matriculation or equivalent certificates, if available, and in the absence of the same; (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; 56. Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within a margin of one year. 57. As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, the scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realise their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals. 58. Of the two main questions decided in Pratap Singh case [ (2005) 3 SCC 551 : 2005 SCC (Cri) 742], [ AIR 2005 SC 2731 ]; one point is now well established that the juvenility of a person in conflict with law has to be reckoned from the date of the incident and not from the date on which cognizance was taken by the Magistrate. The effect of the other part of the decision was, however, neutralised by virtue of the amendments to the Juvenile Justice Act, 2000, by Act 33 of 2006, where under the provisions of the Act were also made applicable to juveniles who had not completed eighteen years of age on the date of commission of the offence. 59. The law as now crystallised on a conjoint reading of Sections 2(k), 2(l), 7-A, 20 and 49read 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." 12. The above view was reiterated by a bench of three Judges in Abuzar Hossain alias Gulam Hossain v. State of West Bengal, as follows:- "39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the 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 the appeal court. 39.2. 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. 39.3. 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 Rules 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 (2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431 (AIR 2009 SC (supp) 1638) and Pawan (2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522 (2009 AIOR SCW 2171) these documents were not found prima facie credible while in Jitendra Singh (2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857 (AIR 2011 SC (supp) 588) 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 7-A and order an enquiry for determination of the age of the delinquent. 39.4. 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 the age of the delinquent. 39.5. 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 the 2000 Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of the 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. 39.6. 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 the threshold whenever raised. 13. Again, in Union of India v. Ex-GNR Ajeet Singh it was held:- "19. The provisions of the JJ Act have been interpreted by this Court time and again, and it has been clearly explained that raising the age of "juvenile" to 18 years from 16 years would apply retrospectively. It is also clear that the plea of juvenility can be raised at any time, even after the relevant judgment/order has attained finality and even if no such plea had been raised earlier. It is also clear that the plea of juvenility can be raised at any time, even after the relevant judgment/order has attained finality and even if no such plea had been raised earlier. Furthermore, it is the date of the commission of the offence, and not the date of taking cognizance or of framing of charges or of the conviction, that is to be taken into consideration. Moreover, where the plea of juvenility has not been raised at the initial stage of trial and has been taken only on the appellate stage, this Court has consistently maintained the conviction, but has set aside the sentence. (See Jayendra v. State of U.P. [ (1981) 4 SCC 149 : 1981 SCC (Cri) 809 : AIR 1982 SC 685 ], Gopinath Ghosh v. State of W.B. [1984 Supp SCC 228 : 1984 SCC (Cri) 478 : AIR 1984 SC 237 ], Bhoop Ram v. State of U.P. [ (1989) 3 SCC 1 : 1989 SCC (Cri) 486 : AIR 1989 SC 1329 ] , Umesh Singh v. State of Bihar [ (2000) 6 SCC 89 : 2000 SCC (Cri) 1026 : AIR 2000 SC 2111 ], Akbar Sheikh v. State of W.B. [ (2009) 7 SCC 415 : (2009) 3 SCC (Cri) 431], Hari Ram v. State of Rajasthan [ (2009) 13 SCC 211 : (2010) 1 SCC (Cri) 987], (AIR 2011 SC (Cri) 2053 Babla v. State of Uttarakhand [ (2012) 8 SCC 800 : (2012) 3 SCC (Cri) 1067] and Abuzar Hossain v. State of W.B. [ (2012) 10 SCC 489 : (2013) 1 SCC (Cri) 83]) [ AIR 2013 SC 1020 ]. 14. Reference may also be made to Jintendra Singh alias Babboo Singh and Anr. v. State of Uttar Pradesh laying down as follows: "80. The settled legal position, therefore, is that in all such cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the court concerned will continue and be taken to their logical end except that the court upon finding the juvenile guilty would not pass an order of sentence against him. Instead he shall be referred to the Board for appropriate orders under the 2000 Act. Instead he shall be referred to the Board for appropriate orders under the 2000 Act. Applying that proposition to the case at hand the trial court and the High Court could and indeed were legally required to record a finding as to the guilt or otherwise of the appellant. All that the courts could not have done was to pass an order of sentence, for which purpose, they ought to have referred the case to the Juvenile Justice Board. 81. The matter can be examined from another angle. Section 7-A(2) of the Act prescribes the procedure to be followed when a claim of juvenility is made before any court. Section 7-A(2) is as under: "7-A. Procedure to be followed when claim of juvenility is raised before any court.- (1)*** (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." 82. A careful reading of the above would show that although a claim of juvenility can be raised by a person at any stage and before any court, upon such court finding the person to be a juvenile on the date of the commission of the offence, it has to forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed shall be deemed to have (sic no) effect. There is no provision suggesting, leave alone making it obligatory for the court before whom the claim for juvenility is made, to set aside the conviction of the juvenile on the ground that on the date of commission of the offence he was a juvenile, and hence not triable by an ordinary criminal court. Applying the maxim expressio unius est exclusio alterius, it would be reasonable to hold that the law insofar as it requires a reference to be made to the Board excludes by necessary implication any intention on the part of the legislature requiring the courts to set aside the conviction recorded by the lower court. Applying the maxim expressio unius est exclusio alterius, it would be reasonable to hold that the law insofar as it requires a reference to be made to the Board excludes by necessary implication any intention on the part of the legislature requiring the courts to set aside the conviction recorded by the lower court. Parliament, it appears, was content with setting aside the sentence of imprisonment awarded to the juvenile and making of a reference to the Board without specifically or by implication requiring the court concerned to alter or set aside the conviction. That perhaps is the reason why this Court has in several decisions simply set aside the sentence awarded to the juvenile without interfering with the conviction recorded by the court concerned and thereby complied with the mandate of Section 7-A(2) of the Act." 15. Since Mr. Gupta, ld. Senior Counsel appearing for the accused-appellant, has not pressed the argument that the appellant shall be governed by the provisions of the prevailing Children Act and has confined his submission regarding retrospective application of the Juvenile Justice (Care & Protection of Children) Act, 2000, relying upon the judgment rendered by the Supreme Court in the case of Abdul Razzaq (supra) cited by ld. senior counsel appearing for the accused-appellant, we set aside the sentence awarded upon the appellant while maintaining his conviction and remit the matter to the trial Court to pass an appropriate orders to deal with appellant a delinquent juvenile in conflict with law under the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000 and the Rules made there under, considering the age of the appellant to be less than sixteen-years on the day of occurrence. 16. In view of above, present appeal stands disposed of.