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2022 DIGILAW 434 (JK)

Mohd. Rashid v. State of J&K

2022-08-31

RAJESH SEKHRI, RAJNESH OSWAL

body2022
JUDGMENT RAJESH SEKHRI, J. 1. This judgment shall put to quietus the present appeal handing fire for the last more than eight years as also the consequent ordeal of a juvenile in conflict with law incarcerated for about seventeen years. 2. The challenge in this appeal, in terms of Section 410 of the Code of Criminal Procedure Svt., 1989 (for short, Cr.P.C), has been thrown to the judgment of conviction dated 13.03.2014 and the order of sentence dated 27.03.2014, passed by learned 3rd Additional Sessions Judge (Fast Track Court), Jammu (hereinafter referred to as the trial Court), in File No. 16/Sessions titled State v. Mohd. Rashid alais Abdul Rashid, vide which appellant has been sentenced to death for offence under Section 302 of Ranbir Penal Code, 1989 (for short, RPC), rigorous life imprisonment and fine of Rs.10,000/- for offence under Section 376 RPC and seven years rigorous imprisonment and fine of Rs.2,000/- for offence under Section 363 RPC. On default in the payment of fine, he is also ordered to undergo six months rigorous imprisonment and simple imprisonment for four months respectively. The substantive sentences under Sections 376 & 363 RPC were ordered to run concurrently but would cease to have effect in case the sentence of death for conviction under Section 302 RPC is confirmed by this Court and the convict is executed. 3. Since the controversy, at hand, lies in a narrow compass, the facts in detail need not be traversed. However, as the factual matrix of the prosecution story would unfurl, on 28.08.2005, on the basis of source information, that an unidentified dead body of a young girl of about 12/13 years of age, lying near Kachhi Chawni crossing, outside Government Girls High School, Jammu had been taken by some passersby to the Government Medical College and Hospital Jammu, the Police agency swung into action and since the deceased had died under suspicious circumstances, inquest proceedings, under Section 174 Cr.P.C., were initiated to ascertain the cause of death. The deceased was identified by her brother, namely, Mujaffar Ahmad (PW-2). After autopsy, the dead body was handed over to the parents of the deceased and last rites of the deceased were performed in her native village at ‘Magam’in Kashmir. 4. The deceased was identified by her brother, namely, Mujaffar Ahmad (PW-2). After autopsy, the dead body was handed over to the parents of the deceased and last rites of the deceased were performed in her native village at ‘Magam’in Kashmir. 4. On 10.09.2005, Abdul Rehman (PW-1), father of the deceased lodged a written report (EXT-P1) to the Senior Superintendent of Police, Jammu which was forwarded to Police Station Pacca Danga Jammu alleging, inter alia, that he was a resident of Anantnag but for the last 15 years, he was putting up in a rented accommodation, in House No. 35 at Rani Talab Jammu along with his son, Mujaffar Ahmed (PW-2) and the daughter (the victim). In the month of August, he went to his ancestral village Magam for cutting of grass, leaving behind both of his kids at Jammu. According to the complainant, on 28.08.2005, at about 8:00 P.M. the accused, who happens to be his nephew, taking advantage of his absence, visited his house at Jammu and enticed away his daughter, whose dead body was later identified by his son on 29.08.2005 in the hospital at Jammu. His son (PW-2) telephonically informed him and he rushed to Jammu. It was also alleged by the complainant that accused had earlier misbehaved with the deceased on a couple of occasions and on the complaint of the deceased he scolded the accused, slapped him and asked him not to visit their room. It was further stated by the complainant that after the post-mortem on 30.08.2005 by a Medical Board, the dead body was handed over to him. He took the dead body to his native village and performed the last rites of his daughter and since he was in shock and disturbed over the death of his daughter, he could not approach the police in time. 5. On the basis of this complaint of PW-1, FIR No.144 of 2005 came to be registered against the appellant-accused for the alleged commission of offences under Sections 302 and 376 RPC and investigation was assigned to Mohd. Showkat-Sub Inspector (PW-23). On the basis of investigation, offence under Section 363 RPC was added against the accused. 6. It surfaced during investigation that occurrence took place near ‘Peer Kho’. Therefore, investigating agency visited the spot and completed the legal formalities. Showkat-Sub Inspector (PW-23). On the basis of investigation, offence under Section 363 RPC was added against the accused. 6. It surfaced during investigation that occurrence took place near ‘Peer Kho’. Therefore, investigating agency visited the spot and completed the legal formalities. During investigation, the appellant/accused made a disclosure and in pursuance thereof, underwear of the accused was recovered at his instance from bushes near the place of occurrence and his blood and semen stained clothes were recovered from his residential room situate at ‘Extension Shaheedi Chowk’ near ‘Christan Colony’ on his identification. After completing all the requisite legal formalities, seized articles were forwarded for the opinion of the forensic experts. 7. It came to the light that on 28.08.2005, the appellant-accused visited the house of PW-1 at Rani Park, Jammu and on the pretext of purchasing a candle from the market, he induced the deceased to accompany him and enticed the victim to the place of occurrence where she was subjected to forcible sexual intercourse and was later killed. Accordingly, final report under section 173(2) of Cr.P.C. was filed against the accused. The accused pleaded not guilty and claimed trial, therefore, prosecution was directed to lead the evidence. The prosecution examined as many as 23 witnesses to bring home guilt of the accused. 8. At the outset, it is crucial to underline that since there is no direct evidence to the occurrence, the entire prosecution case is based on the circumstantial evidence. Learned trial Court has traced four circumstances including the theory of ‘last seen together’, disclosure statement, Medical evidence and some land dispute between the father of the deceased and the father of the accused to conclude that prosecution has succeeded to establish a complete chain of circumstances which is incapable of any explanation of any other hypothesis than that of the guilt of the appellant and that the said evidence is inconsistent with his innocence. Being of the convinced opinion that all the four circumstances had been established by the prosecution to complete the chain beyond a reasonable doubt, the learned trial Judge has come to an irresistible conclusion that it was the appellant alone who is perpetrator of the crime and accordingly, the appellant has been convicted and sentenced as afore-stated. 9. Being of the convinced opinion that all the four circumstances had been established by the prosecution to complete the chain beyond a reasonable doubt, the learned trial Judge has come to an irresistible conclusion that it was the appellant alone who is perpetrator of the crime and accordingly, the appellant has been convicted and sentenced as afore-stated. 9. The appellant has questioned the impugned judgment of conviction as also the order of sentence on the predominant premise that he was a juvenile at the time of occurrence. According to the appellant, his date of birth is 15.01.1991 on the basis of school discharge certificate issued by the Government High School Magam, Kokernag, Anantnag, as such, he was just 14 years of age on the alleged date of occurrence and, therefore, he was entitled to all the benefits enshrined under the Juvenile Justice Act, 1997 (for short, the Act of 1997) and the rules framed thereunder. According to the appellant, the course adopted by learned trial Court by declaring him not to be a juvenile by referring to some radiological examination and on physical appearance is not only illegal but also in breach of the Act of 1997. 10. The appellant has also assailed the impugned judgment on the conventional grounds that learned trial court has failed to appreciate the evidence in right perspective and there was delay in lodging the FIR. Finally, it is the submission of the appellant that reference to the statement of the accused under Section 342 of Cr.P.C. by learned trial court is contrary to the position of law. 11. Having heard rival contentions of the parties, we have carefully gone through the record, impugned judgment, facts and circumstances attending the present case as also the law governing the field. 12. Though, the appellant, apart from the ground of juvenility has assailed the impugned judgment on various grounds including mis-appreciation of the evidence, delay in lodging the FIR and reference to the statement of accused under Section 342 of Cr.P.C. being contrary to the position of law, Mr. 12. Though, the appellant, apart from the ground of juvenility has assailed the impugned judgment on various grounds including mis-appreciation of the evidence, delay in lodging the FIR and reference to the statement of accused under Section 342 of Cr.P.C. being contrary to the position of law, Mr. Y. E. Tak, learned counsel appearing for the appellant, during the currency of arguments, has conceded the conviction of the appellant and confined his arguments on the solitary and predominant premise that the appellant, at the time of occurrence, was a juvenile in conflict with law, thus, was entitled to the benefit of juvenility envisaged under Section 21 of the J&K Juvenile Justice (Care and Protection of Children) Act, 2013 (for short, the Act of 2013) and could not be sentenced. 13. Be that as it may, we have carefully gone through the impugned judgment of conviction and found no illegality or impropriety in the judgment. The impugned judgment is well reasoned and needs no interference of this Court. 14. The legal position with respect to the circumstantial evidence remains no longer res integra now. It is settled position of law that circumstances from which an inference of guilt is sought to be drawn should form a complete chain so that there is no escape from the conclusion that in all human probability the offence was committed by the accused and none else and that the circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis other than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but also should be inconsistent with his innocence. The reliance placed by the learned trial Judge, on various pronouncements, in this regard is well founded. 15. The present case primarily rests on the theory of “last seen together” and hinges upon the testimonial potency of brother of the deceased (PW-2) and maternal uncle of the deceased (PW-3). 16. The law relating the last seen theory is by and large crystallized now. 15. The present case primarily rests on the theory of “last seen together” and hinges upon the testimonial potency of brother of the deceased (PW-2) and maternal uncle of the deceased (PW-3). 16. The law relating the last seen theory is by and large crystallized now. It is not res integra now that “last seen theory” is one of the vital links in the chain of circumstances from which conclusion of guilt is drawn and once the theory of last seen is proved by the prosecution, the burden shifts on the accused to explain as to the cause of death of the deceased. 17. Section 106 of the Evidence Act, 1872 (the Evidence Act, for short) envisage that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon the said person. The “last seen theory”, is based on this principle of law and if a person is last seen with the deceased, the said person is obliged to explain as to the death of the deceased. In a case which hinges on the circumstantial evidence, if an accused fails to offer plausible explanation in discharge of the burden placed on him under Section 106 of the Evidence Act, it provides an additional link in the chain of circumstances proved against him. 18. However, be it noted that conviction of the accused cannot be based solely on the theory of last seen together and as submitted earlier, it only provides an additional link in the chain of circumstances against the accused and it is also significant to underline that if the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead, is long, it would be highly unsafe to sustain conviction on the theory of last seen together. In other words such time gap must be small to rule out the possibility of any person other than the accused being the author of the crime. Section 106 of the Evidence Act does not absolve the prosecution to prove the guilt of the accused beyond reasonable shadow of doubt under Section 101 of the Evidence Act. 19. It is the prosecution case that parents of the deceased had gone to their native village at Magam, Kashmir. Section 106 of the Evidence Act does not absolve the prosecution to prove the guilt of the accused beyond reasonable shadow of doubt under Section 101 of the Evidence Act. 19. It is the prosecution case that parents of the deceased had gone to their native village at Magam, Kashmir. On the fateful day i.e. on 28.08.2005 at about 07:45 p.m., power went off due to which the accused, who happened to be cousin brother of the deceased and was putting up in their home for the last 2/3 days, asked PW-2, the brother of the deceased to lit the candle. Since candle was not available, therefore, on the asking of the accused, the brother of deceased (PW-2) allowed his sister, the deceased, to accompany the accused to purchase a candle from the market as accused had assured to send the deceased back home. 20. It is pertinent to underline that PW-2 enquired about the whereabouts of his sister in the presence of his maternal uncle (PW-3) and both PW-2 (Mujaffar Ahmad) and PW-3-Mushtaq Ahmed i.e. maternal uncle of the deceased have clearly deposed that when the accused was asked about the whereabouts of the deceased, who accompanied him a couple of hours ago, the accused was visibly perturbed and failed to give any satisfactory reply. The statements of PW-1-Abdul Rehman i.e. father of the deceased and the investigating officer-PW-21 also assume significance as both PWs 2 and 3 revealed the same story to them that the deceased, after she left in the company of the accused on the pretext to purchase a candle from the market did not return home and the accused returned all alone at about 10:00 p.m. on the same day and failed to tender any convincing reply about the whereabouts of the deceased. 21. Since the prosecution in the present case has succeeded to prove that deceased was last seen in the company of the accused, when the accused enticed the deceased from her room on the pretest of purchasing a candle from the market, the burden shifted upon the accused, in the light of Section 106 of the Evidence Act, to explain when and where the deceased parted his company. The defence has failed to impeach the credibility of testimonies of both PWs 2 and 3. The defence has failed to impeach the credibility of testimonies of both PWs 2 and 3. Moreso, neither the accused has given any satisfactory explanation in his statement under Section 342 Cr.P.C. nor led any evidence to establish when and under what circumstances the deceased left his company. It is also worthwhile to mention that the occurrence took place on 28.08.2005 and the autopsy on the dead body of the deceased was conducted on 30.08.2005 at 04.30 p.m. and the postmortem report (EXT-P21) indicates that the death had occurred about two days back, therefore, there is also close proximity of the time between the accused having been last seen in the company of the deceased and the factum of the death of the deceased. 22. The plea of alibi has been rightly rejected by the learned trial court as there were material contradictions in the statements of the father of the accused (DW-1) and DW-2, therefore, the prosecution has succeeded to establish that the accused was last seen in the company of the deceased on the fateful day of the occurrence and the accused has failed to explain the circumstances under which the deceased parted his company. 23. The prosecution has further succeeded to prove the next circumstance of voluntary disclosure statement made by the accused/appellant leading to the recovery of his blood stained underwear from the bushes near the place of occurrence as also the recovery of his T-shirt and a pant from a wooden box at his rented room at Shaheedi Chowk, Jammu. Both PWs 1 and 3, i.e. father and maternal uncle of the deceased have stated that accused opened the door of his rented room at Shaheedi Chowk with the help of a key concealed in a hidden place near the wall of the room and blood stained clothes of the accused were recovered from the said room at his instance only. Their statements have been corroborated by the Investigating Officer-PW-23 that the accused made a disclosure statement during investigation and led the investigating agency to the place of recovery. It is again pertinent to mention that as per the report of FSL (EXT-P17), human blood Group-B was detected on the pant and T-shirt of the accused and human blood was also detected on his underwear, though blood group of the human blood on the underwear of the accused could not be ascertained. 24. It is again pertinent to mention that as per the report of FSL (EXT-P17), human blood Group-B was detected on the pant and T-shirt of the accused and human blood was also detected on his underwear, though blood group of the human blood on the underwear of the accused could not be ascertained. 24. The reliance placed by learned trial court on Barku Bhavrao Bhaskar v. State of Maharastra, reported in (AIR) 2013 SC 3564, is again well founded as Hon’ble Supreme Court has held that failure to match blood group on the clothes of the accused recovered at his instance is not fatal to the prosecution case when the accused has no injury and no valid explanation is offered by him as to how the blood stains were found on his clothes. The accused, in the present case, has merely denied the recovery of articles at his instance and offered no valid explanation in his statement under Section 342 Cr.P.C. and when physically examined on 16.09.2005 by a doctor at Government Hospital, Sarwal, except for an old healed scar on the right elbow near wrist joint, no visible mark of injury was found on his body. Therefore, recovery of blood stained clothes of the accused on his identification only, leads to the inference that the said blood stains found on his clothes could be of the deceased only and none else, as the deceased is proved to have been last seen in the company of the accused/appellant. 25. The next circumstance of medical evidence also gives credence to the prosecution version that deceased before being throttled to death was subjected to forcible sexual intercourse. 26. The autopsy report EXT-P21 issued by Doctor Bhupesh Khajuria-PW-19, Head of Medical Board, reveals that blood was oozing from private part of the deceased at the time of autopsy and there were marks of violence all over the body of the deceased including neck, head and face. According to the doctor, Swaran Kanta (PW-16), member of the medical board, hymen of the deceased was ruptured and there was second degree tear of Perineum Posteriorly 1 x ½ along with Serosanguinous fluid and few blood clots. She also deposed in cross examination that great force was used for causing asphyxia. As per the opinion of the Medical Board, the cause of the death of the deceased, was asphyxia as a result of throttling. She also deposed in cross examination that great force was used for causing asphyxia. As per the opinion of the Medical Board, the cause of the death of the deceased, was asphyxia as a result of throttling. It is also pertinent to note that three exhibits were sent by investigating agency to FSL for examination and as per the FSL report (EXT-P17/1), there was presence of semen/human Spermatozoa and human blood on the underwear and Salvar of the prosecutrix besides human blood was also found on the small size towel (recovered from near the dead body of the deceased). The examination of the vaginal swab of the deceased also shows the presence of human Spermatozoa vide report (EXT-P17/2) of PW-20. Though blood group remained inconclusive over the aforesaid clothes and remissness on the part of the investigating agency has also been noticed on account of its failure to obtain blood sample of the accused, however, the accused has also failed to offer any satisfactory explanation regarding the presence of human blood on his pant, T-shirt and underwear. The prosecution case cannot be thrown overboard on account of negligence on the part of the investigating agency. 27. Learned trial Judge has rightly observed that false explanation given by the accused/appellant in his statement under Section 342 Cr.P.C. leads to an adverse inference against him and provides a missing link for completion of chain of circumstances as held by Hon’ble the Supreme Court in State of Maharastra v. Suresh reported in (2000) 1 SCC 471 , Munna Kumar Upadhyaya alias Munna Upadhyaya v. State of Andhra Pradesh reported in AIR 2012 SC 2470 and Rumi Bora Dutta v. State of Assam reported in AIR 2012 422. 28. We find no illegality in the inference drawn by the learned trial court that the accused had an evil eye on the deceased and taking advantage of the absence of her father, he induced the deceased from her house on the pretext of purchasing a candle from the market and enticed her to secluded place near ‘Peer Kho’with an intention to satisfy his sexual lust, as result whereof, the deceased was ravished and later throttled to death. 29. All the circumstances proved by the prosecution unerringly point towards the guilt of the accused. 29. All the circumstances proved by the prosecution unerringly point towards the guilt of the accused. The circumstances firmly established by the prosecution, read in conjunction, form a complete chain to persuade us to the conclusion that in all human probability, it was the accused/appellant alone who has committed the crime. 30. Thus considered, we do not find any illegality or impropriety in the impugned judgment of conviction recorded by learned trial court. The impugned judgment is well reasoned and does not call for any interference from this Court. Mr. Tak, learned counsel appearing for the appellant has rightly conceded the impugned judgment of conviction dated 13.03.20214, hence, the present appeal against the judgment of conviction dated 13.03.2014 is liable to be dismissed and the impugned judgment is liable to be upheld. 31. Now the question which arises for consideration is whether, the appellant on the date of occurrence was a juvenile in conflict with law, and if the answer is in affirmative, the benefits he is entitled to. 32. Before we advert to this pristine question of law, it shall be significant to note that defence made a motion in the trial court on 27.05.2006, that appellant at the time of alleged commission of offence was a juvenile and was required to be tried by a juvenile Court. A photocopy of date of birth certificate of the appellant, reflecting his date of birth as 15.01.1991, said to have been issued by Headmaster Government Middle School, Takia Magam, was also produced in support of the contention. Learned trial Judge did not seek objections from the prosecution. Later appellant also produced the original date of birth certificate which appeared to have been signed by Headmaster of the said school. This certificate was opposed by the prosecution to be fake on the ground that it was not countersigned by the higher officials. On the direction of learned trial court, a fresh date of birth certificate of the appellant, reflecting same date of birth i.e. 15.01.1991 duly counter signed by the Zonal Education Officer, was produced by the Headmaster. This certificate was opposed by the prosecution to be fake on the ground that it was not countersigned by the higher officials. On the direction of learned trial court, a fresh date of birth certificate of the appellant, reflecting same date of birth i.e. 15.01.1991 duly counter signed by the Zonal Education Officer, was produced by the Headmaster. However, learned trial Judge refused to believe the said certificate and instead of initiating an inquiry, as to the juvenility of the appellant, in accordance with law, made an observation that though the date of birth of the accused as per the school record was 15.01.1991 and as per the said details, he was around 15½ years of age, but from the physical appearance, he appeared to be more than eighteen years of age. Therefore, learned trial Judge sent for the date of birth record of the appellant from the concerned Police Station Kukernag. In compliance the record was produced by SHO Police Station, Kukernag and as per this record the name of the child, in the police record, was Rashid Kumar S/o Mohd. Kumar as against Mohd. Rashid alias Abdul Rashid S/o Ghulam Mohd., as shown in the charge sheet as also the memorandum of appeal and his date of birth was recorded as 12.01.1987. In view of these two conflicting date of birth certificates, learned trial Judge made the observation that the latest certificate received from Police Station, Kukernag, reflecting age of the appellant as 20 years, seemed more genuine as the appellant from his physical appearance also appeared to be not less than eighteen years. Accordingly, it was concluded by learned trial Judge that the appellant, at the time of commission of offence, was not a juvenile. Therefore, plea of juvenility of the appellant was turned down and he was charge-sheeted. On the conclusion of the trial, the appellant has been convicted and sentenced, as aforestated. 33. As already stated, that the appellant, in this appeal, has primarily questioned the course adopted by learned trial court to ascertain his plea of juvenility and has asserted that since he was a juvenile, at the time of alleged commission of offence, he could not be sentenced to death or imprisonment. 34. 33. As already stated, that the appellant, in this appeal, has primarily questioned the course adopted by learned trial court to ascertain his plea of juvenility and has asserted that since he was a juvenile, at the time of alleged commission of offence, he could not be sentenced to death or imprisonment. 34. Having noticed that the approach adopted by learned trial court, in this respect, was indeed illegal, this Court vide a detailed order dated 05.10.2015, directed the trial court to inquire afresh and determine the age of the appellant, as on the date of commission of offence, exactly or as nearly as may be, in accordance with law. 35. Learned trial Court, in the fresh enquiry, once again concluded that date of birth of the appellant as 12.01.1987 as on the date of offence, seemed more appropriate and he was not a juvenile. The said finding was challenged by the appellant, by way of a revision petition, and this Court vide order dated 31.03.2021 observed that certain findings of the trial court were perverse and contrary to the record and again remanded the case for fresh enquiry, to the trial court. Pursuant to this order, a fresh enquiry was conducted by the trial court and finally learned trial court has come to the conclusion that date of birth of the appellant, as 15.01.1991 seemed appropriate and he was a juvenile, at the time of commission of the alleged offence. 36. It is pertinent to note, that though the respondent-State has filed objections, to the second inquiry report, but the same has not been formally assailed. Be that as it may, this Court vide order dated 31.03.2021, ordered fresh inquiry, but for a limited purpose to ascertain the discrepancy in the name and particulars of the child mentioned in the certificate produced by the SHO, Police Station, Kukernag as against the name and particulars of the appellant in the challan, as also to record the statements of the members of the Medical Board regarding Age Assessment report dated 19.02.2016 and to record statements of the doctor who conducted radiological examination of the appellant. Learned Court, in compliance entered into fresh inquiry for the limited purpose afore-stated and after thorough inquiry concluded that the date of birth certificates issued by the School, first attended by the appellant as well as by the Police Station, Kukernag reflecting date of birth of the appellant as 15.01.1991, was proved to be correct. 37. Although this Court, vide detailed orders dated 05.10.2015 and 31.03.2021, has already traced the legislative history of the juvenile justice, yet in order to appreciate the contours of the controversy at hand, particularly in view of the procedure adopted by learned trial Judge, it shall be expedient, though at the cost of brevity, to briefly reiterate the same. 38. Most crimes consist of two broad elements: Mens rea and Actus reus. While mens rea refers to a guilty mind, the actus reus literally means guilty act and refers to an overt act in furtherance of a crime. In order to constitute criminal behavior, Actus reus must be preceded by the mens rea and both must occur simultaneously. With this conceptual framework of criminal liability in mind, the legislature in its wisdom made a distinction amongst the offenders on the basis of their mental capacity. 39. Section 82 of the Indian Penal Code, 1860 recognizing this principle provides that ‘nothing is an offence which is done by a child under seven years of age.’ It implies that an offender of the tender age being unaware of the consequences of his act cannot be visited with any penal liability. Later, it came to be realized that even a child below sixteen years of age by dint of his relative immaturity, is less ready to control his desire, less ready to comprehend the reality of the offences and less ready to foresee the consequences of his acts of omission or commission and delinquency of an adolescent below sixteen years of age cannot be treated at par with that of an adult. Consequently, children Act 1970 came to be legislated to treat a child below sixteen years of age differently from adults in relation to commission of offence. 40. Consequently, children Act 1970 came to be legislated to treat a child below sixteen years of age differently from adults in relation to commission of offence. 40. Hon’ble Supreme Court in Hari Ram v. State of Rajasthan reported in (2009) 13 SCC 211 commenting upon the background philosophy of Juvenile Justice legislation has ruled that: – “The need to treat children differently from adults in relation to commission of offences had been under the consideration of the Central Government ever since India achieved independence. With such object in mind, Parliament enacted the Juvenile Justice Act, 1986, in order to achieve the Constitutional goals contemplated in Articles 15(3), 39(c) and (f), 45 and 47 of the Constitution imposing on the State a responsibility of ensuring that all the needs of children are met and that their basic human rights are fully protected.” 41. It is evident, therefore, that the laws relating to the child, having its seeds right from the enactment of the Constitution of India in the form of Fundamental Rights under Article 15(3) read with Directive Principles of State Policy under Article 39(e) & (f) along with Fundamental Duties under Article 51A, was the need of the society. The laws relating to the child were also expedient to be enacted due to accession by the Government of India in 1992 to the Convention on the Rights of the Child, 1989 (UNCRC), the United Nations Standard Minimum Rules for the Administration of Justice, 1985 (commonly known as Beijing Rules), UN Rules for the protection of juveniles deprived of their liberty, 1990 and Hague Convention on Adoption, 1993. And therefore, the law was enacted in the year 1986 in the form of Juvenile Justice Act, 1986 (for short ‘Act of 1986’). 42. The Government of J&K came up with similar legislation and with similar object, in the shape of J&K Juvenile Justice Act, 1997 (Act of 1997, for short). The Jammu and Kashmir Juvenile Justice Rules, 2007 (for short ‘J&K Rules of 2007’), pursuant to this Act, were also framed in 2007. 43. 42. The Government of J&K came up with similar legislation and with similar object, in the shape of J&K Juvenile Justice Act, 1997 (Act of 1997, for short). The Jammu and Kashmir Juvenile Justice Rules, 2007 (for short ‘J&K Rules of 2007’), pursuant to this Act, were also framed in 2007. 43. The Government of India in order to further fulfill the standards of the UNCRC repealed the Act of 1986 and enacted the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Central Act of 2000’), providing for a special approach towards the prevention and protection of juvenile delinquent and a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. This Act is the primary legal framework for juvenile justice in India. The Central Act of 2000 was further amended in 2006 and in 2010. 44. The frightful incident of “Nirbhaya Delhi Gang Rape Case”, forced the Indian Legislature to introduce a new law, thus Indian Parliament came up with new legislation known as “Juvenile Justice (Care and Protection) Act, 2015 so that juveniles in conflict with law, involved in heinous offences, can be tried as adults. 45. The Act of 1997 was repealed by the J&K Juvenile Justice (Care and Protection of Children) Act, 2013, (for short, the Act of 2013) in pari materia to the Central Act of 2000. In pursuance of the powers conferred upon the Government in terms of Section 68 of the Act of 2013, the J&K Juvenile Justice (Care and Protection of Children) Rules, 2014 (hereinafter to be referred as the Rules of 2014) came to be framed. 46. Under Section 2(h) of the Act of 1997 a ‘juvenile’ was defined as a boy who had not attained the age of sixteen years or a girl having not attained the age of eighteen years. Under Section 2(e) a ‘delinquent juvenile’ was defined as a juvenile who had been found to have committed an offence. A delinquent was entitled to the benefits of juvenility as provided under the Act of 1997 till the act was in force before its repeal by the Act of 2013. Under Section 2(e) a ‘delinquent juvenile’ was defined as a juvenile who had been found to have committed an offence. A delinquent was entitled to the benefits of juvenility as provided under the Act of 1997 till the act was in force before its repeal by the Act of 2013. The benefits to a delinquent juvenile included entitlement to bail under section 18, to be tried by a juvenile court under section 7 read with section 20, notwithstanding anything contained in any other law for the time being in force, and not to be sentenced to death or imprisonment or committed to prison in default of fine or in default of payment of security as provided under Section 22. 47. The major development of the Act of 2013 is that it is Gender Neutral, as there is increase in age of juvenility from 16 to 18 years. The term ‘delinquent juvenile’has been substituted by the term ‘juvenile in conflict with law’ defined under Section 2(n) as a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of offence. The benefits of juvenility those were available to a delinquent juvenile under the Act of 1997, were also made available under the Act of 2013. 48. It is evident from the history of juvenile justice legislation that a system has been designed to respond to the juvenile delinquency as also to the needs of young offenders. The predominant object has been to provide specialized and preventive services to children and young offenders as a means of preventions, rehabilitations and improved socialization. Juveniles in India require protection on two points, first, by preventing and arresting the increase in number of the juvenile delinquency and second, by giving the delinquent child or a juvenile in conflict with law proper opportunity to reform and join the mainstream of the society. 49. Having dealt with the rationale behind the juvenile Justice Legislation, its aims and objectives and the principles to be followed, the focus is now shifted to the case on hand. 50. The occurrence in the present case is alleged to have taken place on 28.08.2005. At the relevant time, the provisions of the J&K Act of 1997 were in operation and therefore, the said Act was applicable. 50. The occurrence in the present case is alleged to have taken place on 28.08.2005. At the relevant time, the provisions of the J&K Act of 1997 were in operation and therefore, the said Act was applicable. Section 32 of the Act of 1997 casts a duty on the competent authority or the Court, as the case may be, that when it appears that a person brought before it and said to have committed an offence is a juvenile, to make an enquiry as regards the age of the said person and for that purpose it shall take such evidence as may be necessary and record a finding whether the person is a juvenile or not, stating his age as nearly as may be. The procedure to be followed by the Board, including the Court in holding the enquiries and determination of age of the juvenile is contained in Rule 21 of the Rules of 2007. 51. As already stated, the motion of the defence regarding juvenility, was turned down by the learned trial Judge predominantly on physical appearance of the appellant and relying on the date of birth certificate of the concerned Police Station. 52. Learned counsel, appearing for the appellant, has questioned the procedure adopted by learned trial court for determining the age of the appellant on the predominant premise that it was contrary to the provisions of the J&K Act of 1997, Jammu and Kashmir Rules of 2007 as also the Central Act of 2013. 53. Respondents have opposed the plea on the ground that since the appellant after being declined the plea of juvenility not only participated in the trial, but also failed to question the finding of the trial court that he was not a juvenile, cannot be allowed to reopen the issue of juvenility, in the present appeal, at this length of time. 54. It needs a specific mention that Section 21 of the Act of 2013 lays down a specific provision in respect of pending cases. It reads as under: – “21. 54. It needs a specific mention that Section 21 of the Act of 2013 lays down a specific provision in respect of pending cases. It reads as under: – “21. 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 (n) 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.” 55. It is evident from the aforesaid provision that the Act of 2013 is retrospective in operation. It is clear from the explanation appended to the provision that in all pending cases including trial, revision, appeal or any other criminal proceeding pending in any Court, the determination of juvenility of a juvenile in conflict with law has to be made in terms of clause (n) of Section 2 of the Act even if the said juvenile ceases to be so on or before the date of commencement of the Act of 2013. The explanation further provides that the provisions of the Act shall apply as if the said provisions have been in force, for all purposes and at all material times when the alleged offence was committed. 56. We are fortified in our opinion by Hari Ram v. State of Rajasthan reported in (2009) 13 SCC 211 . 57. On bare perusal of this provision, there is no manner of doubt that the age of juvenile, in all cases pending at any stage of trial, revision or appeal or even any other criminal proceeding has to be determined in terms of clause (n) of Section (2) of the Act of 2013 and it is pertinent to mention that under Section 2(n) of the Act of 2013, the age of juvenility is eighteen years, therefore, since the trial of the case was pending on the date, the Act of 2013 came into force, the present case has to be approached in accordance with the provisions of the Act of 2013, consequently, the age of juvenility of the appellant has to be taken as eighteen and not sixteen years. 58. Now, it is significant to underline that neither the Act, 1997 read with Rules, 2007 nor the Act of 2013 read with Rules, 2014 provide for determination of the age of a juvenile straightway on the basis of birth record of a Police Station or physical appearance. Had learned trial Judge just had a cursory glance at the relevant provisions, regarding determination of the age of a juvenile, he should not have misdirected himself to proceed on the pre-disposed opinion that the appellant, was a juvenile by physical appearance and instantly send for the record of the Police Station to support his opinion. The approach adopted by learned trial Judge, to say the least, was totally illegal and far from the procedure provided under the relevant Acts and the Rules. 59. It is trite that if an Act directs a particular thing to be done in a particular manner, it should be done in that fashion or should not be done at all and it shall be deemed to have prohibited the doing of that thing in any other way. 60. Rule 21 of the Rules of 2007 provides the procedure to be followed in holding inquiries and the determination of age. 60. Rule 21 of the Rules of 2007 provides the procedure to be followed in holding inquiries and the determination of age. The relevant sub-rule (5) is reproduced for the facility of reference: – “(5) In every case concerning a juvenile, the Board shall either obtain: – (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificate, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when 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.” 61. Similarly, rule 74 of the Rules of 2014 lays down the procedure for determination of age and the relevant sub-rule (3) reads as under: – “74(3). The Board or the Committee, as the case may be shall, as far as possible, decide the juvenility or otherwise, on the basis of physical appearance or documents available, if any. Where an inquiry is instituted by the Board or the Committee for determination of age, such inquiry shall be conducted on the basis of following evidence: – (i) the birth certificate issued by a Corporation or a Municipal Committee or any other notified authority; or (ii) the matriculation or equivalent certificate. (iii) in absence of the certificates mentioned in sub-clauses (i) and (ii) or in case of any contradiction arising there from, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which shall record its finding and submit to the Juvenile Justice Board.” 62. Though under rule 74(3) of the Rules of 2014, the authority is empowered to decide the plea of juvenility or otherwise, on the basis of physical appearance. But this liberty is available only when there is no doubt about the minority or juvenility and there is no need for further inquiry. Though under rule 74(3) of the Rules of 2014, the authority is empowered to decide the plea of juvenility or otherwise, on the basis of physical appearance. But this liberty is available only when there is no doubt about the minority or juvenility and there is no need for further inquiry. Once an authority or a Court, as the case may be, entertains a doubt as to the age of the person brought before it, or a formal application is made for determination of juvenility, then the inquiry is to be conducted on the basis of evidence provided in the rules. 63. While commenting upon the import of inquiry contemplated under the Central Act of 2000 read with Rules of 2007, Hon’ble Supreme Court in Ashwani Kumar Sexena v. State of Madhya Pradesh, reported as (2012) 9 SCC 750 , has elaborated in the followings words: – “32. “Age determination inquiry” contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. 33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination. 34. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.” (Emphasis by us) 64. This legal position has been reiterated in Jodhbir Singh v. State of Punjab (AIR 2013 SC1). 65. It is clear from Ashwani Kumar Sexena (supra), reiterated in Jodhbir Singh (supra), that the inquiry into juvenility is to be conducted on the basis of evidence provided under the rules and there is no scope for any deviation therefrom. The most disturbing factor of the entire case is that learned trial Judge, in order to determine the age of the appellant, proceeded on the assumption that he did not appear to be juvenile, on physical appearance and then conducted a semblance of enquiry in furtherance of his predisposition. 66. The most disturbing factor of the entire case is that learned trial Judge, in order to determine the age of the appellant, proceeded on the assumption that he did not appear to be juvenile, on physical appearance and then conducted a semblance of enquiry in furtherance of his predisposition. 66. It is to be borne in mind that all the juvenile justice legislations right from the inception i.e., Children Act, 1970 to Juvenile Justice (Care and Protection of Children) Act, 2015 have one thing in common that whenever a plea of juvenility is raised, the presumption is always in favour of juvenility and consequently a Magistrate is supposed to embark upon an enquiry to ascertain the truth whether the accused is in fact juvenile and entitled to the benefits of juvenility or not. 67. It is also bounden duty of the competent authority including the Court before which a person, ‘appearing to be juvenile is brought’to make enquiry as regards the age of the person. It is evident from the expression ‘appearing to be juvenile’that there is presumption in favour of juvenility and it is duty of the authority or the Court, as the case may be, to inquire about the juvenility dehors any motion in this regard. 68. This Court in Mool Raj v. State reported in 2011 (1) SrlLJ 462 relying upon the Apex Court ruling of Bhola Bhagat v. State of Bihar reported in (1997) 8 SCC 720 has reiterated that Section 32 of the Act of 1997 is not limited to a case where a person, who is brought makes an application to be declared as juvenile and the court has to discharge its duty where no plea of juvenility is raised. 69. Mool Raj (supra) has also extracted the concern of Constitution Bench of Hon’ble the Supreme Court in Partap Singh v. State of Jharkhand reported in (2005) 3 SCC 551 which we may gainfully reproduce hereunder in the context of the whole gamut of the present case: – “We expect the High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated.” 70. For what has been discussed hereinabove, it is clear that learned trial Judge embarked upon, to inquire into the juvenility of the appellant, in the present case, in complete breach of the procedure established under law. Rising to the occasion this Court rightly directed for fresh inquiry. The procedure followed by the trial court during the first inquiry was also perverse and trial Court was again directed to conduct an inquiry afresh in accordance with law. Finally, it has been established, in the light of the enquiry conducted by the trial court that the appellant at the time of alleged commission of the offence was a juvenile, thus, entitled to the benefits of juvenility. 71. It is an admitted position of fact on record that the appellant is about 30 years of age now and is no more a juvenile. It may be noted that Juvenile Justice legislations do not prohibit determination of guilt of a juvenile, however, they prohibit the sentencing of juvenile to imprisonment as a punishment or in default of payment of fine or in default of security. The convicted juvenile also does not suffer disqualification, if any, attached to conviction of offence under such law. All these legislations in clear terms would bar the award of sentence and even imprisonment for non-payment of fine or default of security. However, if a juvenile, after conviction continues to be a juvenile, he is to be remanded to a juvenile home. But if the juvenile ceases to be a juvenile at the time of passing of the final order by the appellate court, then the sentence imposed upon him is also liable to be set aside. 72. Hon’ble the Supreme Court in Bhoop Ram v. State of U.P. reported in AIR 1989 SC 1329 in a similar fact situation where the appellant was erroneously tried as an adult and was robbed of the benefits of juvenility under U.P. Children’s Act, 1951 and was sentenced to life imprisonment, but was found to be juvenile at the appellate stage, quashed the sentence and directed his immediate release as the appellant was no longer a juvenile. 73. 73. A similar view has been expressed by the Apex Court in Gurpreet Singh v. State of Punjab reported in AIR 2006 SC 191 where plea of juvenility was raised and sustained for the first time before the Supreme Court and recently in Sanjay Patel and Anr. v. State of U.P. reported in (2022) LiveLaw (SC) 369. 74. Thus, considered, it is manifest that the appellant, at the time of commission of the offence was a juvenile in conflict with law and since he is about thirty years of age now and ceases to be a juvenile, he is entitled to be released forthwith. 75. Having regard to what has been discussed, the present appeal is allowed in part. The appeal, as against conviction, is dismissed and consequently, the impugned conviction of appellant is upheld. However, the appeal, as against the sentence is allowed and since the appellant at the time of commission of offence was a juvenile in conflict with law, and has attained majority now, he is directed to be released immediately. 76. The reference is answered accordingly. 77. Record of the trial court be sent back forthwith along with copy of this judgment.