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2018 DIGILAW 1537 (RAJ)

Rudaram v. State of Rajasthan

2018-07-20

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. - This appeal was filed by accused-appellant Rudaram in 1991, then indicating his age to be 20 years, assailing judgment and order dated 20.11.1991 passed by the Court of District and Sessions Judge, Jaipur District, Jaipur (for short 'the trial court') whereby he was convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 500/-, in default of payment of fine he was to further undergo rigorous imprisonment of two months. 2. When the appeal came up for hearing before the Court on 28.07.2017, learned counsel appearing on behalf of the appellant submitted that as per school leaving certificate, the appellant was born on 30.06.1971 and on the date of occurrence, i.e. 21.10.1987, he was less than 18 years of age. During pendency of the appeal, Application No. 14931/2017 was filed by the appellant contending that as per Transfer Certificate issued by the Government Senior Secondary School, Ringus, District Sikar, date of birth of the appellant was 30.06.1971 and therefore, he was less than 18 years of age on the date of occurrence i.e. on 21.10.1987. It is further contended that as per Sections 2(k); 2(l) and 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (for short 'the Act of 2000') and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short 'the Rules of 2007') read with Section 20 of the Act of 2000 as amended in year 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 Act of 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the Juvenile Justice Act, 1986 (for short 'the Act of 1986'). 3. This Court vide order dated 28.07.2017 directed Juvenile Justice Board, Sikar to hold an enquiry within the ambit of Rule 12(3) of the Rules of 2007 to determine the age of the appellant Rudaram on the date of occurrence. Juvenile Justice Board was further directed to complete the enquiry within a period of three months by affording opportunity to prosecution and the accused to lead evidence for determining the age of the appellant. 4. Report of the Juvenile Justice Board, Sikar dated 17.11.2017 has been placed on record. Juvenile Justice Board was further directed to complete the enquiry within a period of three months by affording opportunity to prosecution and the accused to lead evidence for determining the age of the appellant. 4. Report of the Juvenile Justice Board, Sikar dated 17.11.2017 has been placed on record. The Board has concluded that date of birth of the appellant was indeed 30.06.1971. In view of the finding recorded by Juvenile Justice Board, it is evident that on the date of incident, age of the appellant was 16 years, 3 months and 22 days. Obviously, the appellant had by then not completed 18 years of age. 5. It is contended that said position has been reemphasised by virtue of amendments introduced in Section 20 of the Act of 2000 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, determination of juvenility of such a juvenile would be in terms of Section 2(l) of the Act of 2000 and the provisions of the Act would apply as if the said provisions had been in force when the alleged offence was committed. It is further contended that Section 7-A of the Act of 2000 provides for the claim of juvenility to be raised before any court at any stage, and such claim is required to be determined in terms of the provisions contained in the Act of 2000 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 has now crystalized 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 01.04.2001, 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 of 2000 and were undergoing sentence upon being convicted. Since the present applicant-appellant was below 18 years of age at the time of commission of the offence the provisions of the Act of 2000 would apply in his case in full force and on the date of incident it has to be held that he was a juvenile. 6. The Supreme Court in Hari Ram vs. State of Rajasthan & Another, (2009) 13 SCC 211 dealt with somewhat similar matter and held that as the accused-appellant therein had completed 16 years of age on the date of commission of occurrence would be entitled to benefit of the Act of 2000, which was as per proviso to Section 7-A introduced by Amending Act that claim of juvenility can 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 the Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. It includes the definition of "juvenile" under Section 2(k) and definition of "juvenile in conflict with law" under Section 2(l) of the Act of 2000. The said intention of the legislature was reinforced by the amendment effected by the 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 the 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. 7. As per Section 2 (h) of the Act of 1986, though the appellant would not be juvenile, but as per Section 2(k) of the Act of 2000, he would certainly be juvenile, since on the date of incident, he was less than 18 years of age but he crossed 18 years of age thereafter and before 2001, he was above 18 years of age, therefore, as per Section 2(l) of the Act of 2000, he was juvenile in conflict with law. 8. 8. Accordingly, it must be held that appellant, who had not completed 18 years of age on the date of commission of the offence, was also entitled to benefit of the Act of 2000 as if provisions of Section 2(k) had always been in existence even during the application of the Act of 1986. Present appeal therefore deserves to succeed on the ground that notwithstanding the definition of "juvenile" under the Act of 1986, the appellant is covered by definition of "juvenile" under Section 2(k) and definition of "juvenile in conflict with law" under Section 2(l) of the Act of 2000, as amended. 9. In view of above, the appeal is allowed. Impugned judgment dated 20.11.1991 qua the accused-appellant Rudaram is set aside and the matter is remitted back to the Juvenile Justice Board No. 2, Jaipur, for disposal in accordance with law. Since the sentence awarded to the appellant was suspended during pendency of the appeal by this Court vide order dated 13.01.1992, we require the accused-appellant to execute fresh bail bond of Rs. 50,000/- and two sureties of Rs. 25,000/- each to the satisfaction of the Juvenile Justice Board No. 2, Jaipur to face the proceedings. If eventually the Board holds the appellant guilty of the alleged offence and the appellant is found to have spent in detention a period less than the maximum period for which a juvenile may be confined to a special home, he may be required to spend the remaining sentence, not in special home, but in regular jail in accordance with law considering that he has now attained the age of 18 years.