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2025 DIGILAW 814 (ALL)

Challa @ Bhagwan Das v. State of U. P.

2025-05-21

JITENDRA KUMAR SINHA, VIVEK KUMAR BIRLA

body2025
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri Ajay Kumar Pandey, learned counsel for the appellant and Sri O.P. Dwivedi, learned A.G.A. appearing for the State respondents. 2 . The present appeal has been filed by the appellants challenging the judgment and order dated 18.9.1991 passed by learned Sessions Judge, Bareilly in Session Trial No. 434 of 1989 convicting the appellant under Section 302 IPC for life imprisonment. 3 . The prosecution story in brief is that the complainant Ram Kumar was residing in Mohalla Punjabpura Chet Ram Phatak, Bareilly; the complainant and one Kaka were sitting on a cot on 29.4.1989 at 8:15 P.M. in front of his house and there was a dibbi light; there was a lantern burning in the house of Radhey Shyam (deceased); the accused-appellant Chhalla and his maternal uncle Kanhai came through the lane; the deceased was standing on the Chabutara of his house; the accused Challa showered abuses on Radhey Shyam; the deceased made objections; the accused-appellant told to the deceased that he used to demand house rent and also want to get it vacated and he would teach a lesson to him; the co-accused Kanhai instigated the accused- appellant; the co-accused Kanhai caught the deceased and the accused-Chhalla caused knife injury to the deceased; the knife hit the stomach of the deceased; the deceased raised an alarm; wife, mother-in-law and sister of the deceased came to his rescue; the complainant Ram Kumar and Kaka also came to his rescue; when they tried to catch the accused they ran away from the spot along with knife; the informant took Radhy Shyam to hospital where he died; the informant came to the police station at about 9:30 P.M. and lodged the first information report no. 49 on 29.4.1989. 4 . At the very outset, learned counsel for the appellant submitted that an application was filed to decide the appeal of the appellant as a juvenile in conflict with law. The said application was supported by an affidavit in which School Leaving Certificate of the year 1982 has been attached in support of his claim showing his date of birth as 4.7.1975 and date of occurrence on 29.4.1989. The said application was supported by an affidavit in which School Leaving Certificate of the year 1982 has been attached in support of his claim showing his date of birth as 4.7.1975 and date of occurrence on 29.4.1989. It was contended that from the above material it is ascertained that on the date of the commission of crime, i.e. 29.4.1989, the appellant was below 18 years of age and therefore, was entitled for the benefit of the provisions of the Juvenile Justice Act. 5 . By an order dated 6.3.2024, the Juvenile Justice Board was directed to conduct inquiry to get the genuineness of the certificate verified. 6 . Pursuant to the order of this Court dated 8.2.2018 the Juvenile Justice Board, Bareilly after recording statements of the witnesses and considering the evidence on record including the Medical Board report dated 24.6.2024, according to which the appellant was aged about 55 years old on 24.6.2024 and in this condition the accused was found about 19 years 10 months and 6 days old on the date of incident but it was concluded that based on facts and circumstances of the case, it appears just in the eyes of law that benefit of two years is liable to be given to the appellant. Therefore, it was held that on the date of incident dated 29.4.1989 he was 17 years 10 months and 6 days old and, therefore, was a juvenile. Thus, the Juvenile Justice Board, Bareilly vide report dated 3.7.2024 held the appellant Chhalla @ Bhagwan Das to be a juvenile on the date of incident i.e. 29.4.1989. 7 . We have gone through the statement of the accused-appellant recorded under Section 313 Cr.P.C. on 19.7.1991, wherein his age is shown as 18 years, therefore, according to that on the date of incident dated 29.4.1989 he was aged about 16 years. 8 . In Rishipal Singh Solanki vs. State of U.P. (2022) 8 SCC 602 Hon’ble Apex Court after considering catena of judgments has laid down the guidelines of claim of juvenility and how it is to be proved and it was laid down that hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. It was further held that if two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases and that the age recorded by the Juvenile Justice Board is to be deemed to be true age of the person. However, the Hon’ble Apex Court has also issued a word of caution that ossification test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Relevant paragraph no. 33 of Rishipal (supra) is quoted as under:- "33. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: 33.1. A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. 33.2. An application claiming juvenility could be made either before the Court or the JJ Board. 33.2.1. When the issue of juvenility arises before a Court, it would be under sub- section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. 33.2.2. If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. 33.2.3. When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. 33.2.3. When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015). 33.3. That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. 33.4. The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. 33.5. That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. 33.6. That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. 33.7. This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. 33.9. That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. 33.10. Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. 33.11. Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." (emphasis supplied) 9 . Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." (emphasis supplied) 9 . The judgment of Rishipal (supra) was further relied on and referred to in judgment of Hon’ble Apex Court in the case of Pawan Kumar vs. State of U.P. and others (2023) 15 SCC 683 , wherein the law was discussed to the effect that the medical opinion based on bone ossification test is not entirely accurate as it is not an exact science, however, the Court also noticed the previous case law to the effect that the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted and the Court in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination and it is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt. However, it was reiterated that if two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. Relevant paragraphs no. 39, 40 and 41 of Pawan Kumar (supra) are quoted as under:- “39. Further, it must also be kept in mind that the medical opinion based on Bone Ossification Test, is not entirely accurate. This Court in the case of Vinod Katara v. State of U.P. (2023) 15 SCC 210 has held the following: 64. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt. 40. In a case of juvenility where two views are possible, this Court has held that a liberal approach should be undertaken. This position was laid down by this Court in the case of Arnit Das v. State of Bihar (2000) 5 SCC 488 where it was held that: "19………. (ii) a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases; and" 41. This proposition of taking a liberal view and about extending the benefit of juvenility where two views are available has been reiterated by this Court in numerous subsequent decisions such as Mukarrab and Others v. State of Uttar Pradesh (2017) 2 SCC 210 , Ashwani Kumar Saxena v. State of Madhya Pradesh (2012) 9 SCC 7503 as well as Rishipal Singh Solanki 3 Para 13 v. State of Uttar Pradesh (2022) 8 SCC 602 which concluded as follows in para 33.8: 33.8. If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.” (emphasis supplied) 10 . As already referred to above when the ossification test was conducted the appellant was aged about 55 years on 24.6.2024, therefore, the age could not have been ascertained with all exactitude at this age of the appellant and it would be necessary to refer to the age already referred to in the statement recorded under Section 313 Cr.P.C. on 19.7.1991, wherein his age was shown as 18 years and incident is dated 29.4.1989. Therefore, the appellant as per the facts existing on record was aged about 16 years on the date of incident. Further, in the School Leaving Certificate of Class-I issued on 20.9.1982 his date of birth is recorded as 04.7.1975. 11 . In this background, we find no hesitation in accepting the report of the Juvenile Justice Board, Bareilly wherein it has extended two years benefit to the accused-appellant and has recorded his age on the date of incident as 17 years 10 months and 6 days holding him juvenile on the date of incident and accordingly the same is accepted and the appellant herein Chhalla @ Bhagwan Das is declared juvenile on the date of incident i.e. 29.4.1989. 12 . Now, since the appellant was a Juvenile in conflict with law, on the date of incident, and presently he has crossed 50 years age, and further no other ground of appeal having been raised before us, therefore, at this stage the Court has to take into consideration provisions of Sections 18 and 21 of Juvenile Justice (Care and Protection of Children) Act, 2015 and to pass appropriate orders. 13 . For ready reference Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015 is extracted below:- "18. Orders regarding child found to be in conflict with law.- (1). 13 . For ready reference Section 18 of Juvenile Justice (Care and Protection of Children) Act, 2015 is extracted below:- "18. Orders regarding child found to be in conflict with law.- (1). Where a Board is satisfied on inquiry that a child irrespective of age has committed a petty offence, or a serious offence, or a child below the age of sixteen years has committed a heinous offence, then, notwithstanding anything contrary contained in any other law for the time being in force, and based on the nature of offence, specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child, the Board may, if it so thinks fit,- a. allow the child to go home after advice or admonition by following appropriate inquiry and counselling to such child and to his parents or the guardian; b. direct the child to participate in group counselling and similar activities; c. order the child to perform community service under the supervision of an organisation or institution, or a specified person, persons or group of persons identified by the Board; d. order the child or parents or the guardian of the child to pay fine: Provided that, in case the child is working, it may be ensured that the provisions of any labour law for the time being in force are not violated; e. direct the child to be released on probation of good conduct and placed under the care of any parent, guardian or fit person, on such parent, guardian or fit person executing a bond, with or without surety, as the Board may require, for the good behaviour and child's well-being for any period not exceeding three years; f. direct the child to be released on probation of good conduct and placed under the care and supervision of any fit facility for ensuring the good behaviour and child's well-being for any period not exceeding three years; g. direct the child to be sent to a special home, for such period, not exceeding three years, as it thinks fit, for providing reformative services including education, skill development, counselling, behaviour modification therapy, and psychiatric support during the period of stay in the special home: Provided that if the conduct and behaviour of the child has been such that, it would not be in the child's interest, or in the interest of other children housed in a special home, the Board may send such child to the place of safety. 2. If an order is passed under clauses (a) to (g) of sub-section (1), the Board may, in addition pass orders to- i. attend school; or ii. attend a vocational training centre; or iii. attend a therapeutic centre; or iv. prohibit the child from visiting, frequenting or appearing at a specified place; or v. undergo a de-addiction programme. 3. Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences." 13. It is also relevant to quote section 21 of the Act. "21. Order that may be passed against a child in conflict with law: No child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release, for any offence, either under the provisions of this Act or under the provisions of the INDIAN PENAL CODE (45 of 1860) or any other law for the time being in force." 14. From the perusal of the aforesaid provisions it is noticed that a juvenile in conflict with law cannot be sentenced to undergo life imprisonment, and further the maximum period for which a juvenile may be sent to a special home is only three years. 15. Further, the accused appellant no. 1 because of his age, as on today cannot be sent to special home. However, as is evident from record that the appellant has already undergone about 6 months of imprisonment. 16. At this juncture, it would be appropriate to look into the ratio laid down by Apex Court while dealing with the similar situation like in the case in hand. 17. The Hon'ble Supreme Court in Mahesh and others vs. State of Rajasthan and others, reported in 2019(3) Crimes 60 (SC) has held as follows: "5. The position in law in this regard is somewhat unsettled as has been noticed and dealt with by this Court in Jitendra Singh alias Babboo Singh and another versus State of Uttar Pradesh1 wherein in paragraphs 24 to 27 four categories of cases have been culled out where apparently different approaches had been adopted by this Court. The position in law in this regard is somewhat unsettled as has been noticed and dealt with by this Court in Jitendra Singh alias Babboo Singh and another versus State of Uttar Pradesh1 wherein in paragraphs 24 to 27 four categories of cases have been culled out where apparently different approaches had been adopted by this Court. The net result is summed up in paragraph 28 of the aforesaid report which explains the details of the categorization made in the earlier paragraphs of the said report. Paragraph 28 of the said report, therefore, would require a specific notice and is reproduced below: "28. The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence." 6. The validity of the conviction in respect of the incident which occurred almost two decades back, in our considered view, ought to be decided in these appeals and the entire of the proceedings including the punishment/sentence awarded should not be interfered with on the mere ground that the accused appellants were juveniles on the date of commission of the alleged crime. Judicial approaches must always be realistic and have some relation to the ground realities. We, therefore, adopt one of the possible approaches that has been earlier adopted by this Court in the four categories of cases mentioned above to examine the correctness of the conviction of the accused appellants under the provisions of the IPC, as noticed above. 7. Judicial approaches must always be realistic and have some relation to the ground realities. We, therefore, adopt one of the possible approaches that has been earlier adopted by this Court in the four categories of cases mentioned above to examine the correctness of the conviction of the accused appellants under the provisions of the IPC, as noticed above. 7. In this regard, having perused the materials on record we find no ground whatsoever to take a view different from what has been recorded by the learned trial Court and affirmed by the High Court. The conviction of the accused appellants under Sections 323, 324, 325, 427, 455 read with Section 149 IPC accordingly shall stand affirmed. 8. This will bring us to a consideration of the sentence to be awarded. Here again,in the four categories of cases that have been noticed in Jitendra Singh (supra) and in several subsequent decisions of this Court in Abdul Razzaq vs. State of Uttar Pradesh, Mohd. Feroz Khan alias Feroz vs. State of Andhra Pradesh, Mumtaz alias Muntyaz vs. State of Uttar Pradesh and Mahendra Singh vs. State of Rajasthan different approaches have been adopted. In some cases, the question of punishment has been left to be determined by the Juvenile Justice Board in view of the provisions of Section 20 of the Act of 2000. In other cases, the issue of punishment has been dealt with by the Court having regard to the fact that on the date when the Court had considered the issue the juvenile(s) have advanced in age. 9. The present is a case where the accused appellants though juveniles on the date of commission of the alleged crime are, as on today, middle aged persons. The accused appellant - Mahesh in Criminal Appeal arising out of Special Leave Petition (Criminal) No.2934 of 2015 had undergone the custody for a period of nearly one year whereas the accused appellant - Arjun in Criminal Appeal arising out of Special Leave Petition (Criminal) No.5370 of 2015 had suffered custody for about eight (08) months. The maximum sentence, as already noted, is three years. The maximum sentence, as already noted, is three years. Having regard to the long efflux of time we are of the view that it will not be necessary, in the facts of the present cases, to cause a remand of the matter to the Juvenile Justice Board for a decision on the quantum of sentence for the reason even if such a remand is made and the Juvenile Justice Board comes to a decision that in addition to the period of custody suffered by the accused appellants they need to suffer a further period of custody, such custody can only be in a remand home or a protection home to which places the accused appellants, because of their age as on today, cannot be sent. 10. On the contrary, having regard to the period of custody suffered; the age of the accused appellants as on date; the efflux of time since the date of occurrence and all other relevant facts and circumstances we are of the view that while maintaining the conviction of the accused appellants the sentence imposed should be modified to one of the period undergone. We order accordingly." 14 . In light of the above legal position and having regard to the facts and circumstances of the case, the age of the accused appellant as on date, the efflux of time since the date of occurrence, we are of the view that while maintaining the conviction of the accused appellant the sentence imposed is modified to the period already undergone. 15 . Accordingly, the appeal is allowed in part. The accused appellant is availing the benefit of bail by furnishing adequate sureties and bonds, the same stands discharged. 16 . Lower Court record along with a copy of this judgement be sent back immediately to District Court concerned for compliance and further necessary action.