Juvenile Justice (Care and Protection) Act, 2015 – Claim of Juvenility – Appellant convicted for various offences under IPC and POCSO Act was awarded death sentence – Death sentence affirmed by High Court – During the pendency of the present appeals, appellant claimed juvenility – Trial Court was directed to submit report after due inquiry – Report submitted, appellant’s date of birth was found to be conclusively proved as 25.07.2002 – Date of incident being 15.12.2017, the appellant was aged 15 years 04 months and 20 days on the date of the incident – Held: No reason to doubt the correctness of the conclusion arrived at by the Trial Court regarding the date of birth of the appellant – Appellant held to be aged 15 years, 4 months and 20 days on the date of the incident – Conviction of the appellant upheld, sentence set aside – Appellant being less than 16 years on the date of commission of the offence, the maximum punishment that could be awarded is upto 3 years – However, appellant has already undergone incarceration of more than 5 years – Incarceration beyond 3 years would be illegal – Appellant to be released from judicial custody – Impugned judgement passed by High Court modified – Penal Code, 1860 – ss. 363, 376(2)(i), 302, 201 – POCSO Act – s.5(m)/6.
Juvenile Justice (Care and Protection) Act, 2015 – s.94 – Ossification test – Plea of the State that the appellant be subjected to an ossification test for determining his correct age as the documents filed during the inquiry before the Trial Court were not covered u/s.94 – Held: Rejected – First preference for determination of age is the birth certificate issued by the school or a matriculation certificate – It is in the absence of the first category of documents that the birth certificate from the municipal corporation is to be considered – An ossification test comes into play when the documents are not available under the first and second columns – In the instant case, appellant’s birth certificate from the school (a government primary school) was available – It has been duly proved in the inquiry before the Trial Court, no reason to doubt its correctness – Further, an ossification test only gives a broad assessment of the age – It does not give an exact age – There is an element of margin of plus or minus 1 to 2 years – Thus, in the present case, even if ossification test is permitted, it will have no bearing on the assessment made by the Trial Court after the inquiry. Juvenile Justice (Care and Protection) Act, 2015 – s.9 – Plea of Juvenility – Held: Can be raised before any Court and at any stage even after the case has been finally decided – The claim so made would be determined even if such person has seized to be a child whether on or before the commencement of 2015 Act. Juvenile Justice (Care and Protection) Act, 2015 – s.18 – Held: Juvenile Justice Board having found a child to be in conflict with law who may have committed a petty or serious offence and where heinous offence is committed, the child should be below 16 years, can pass various orders u/clauses (a) to (g) of sub-section
(1) and also sub-section (2) – Whatever punishment is to be provided, the same cannot exceed a period of three years. Juvenile Justice (Care and Protection) Act, 2015 – s.9(3) – Accused held to be a juvenile after conviction at the stage of appeal, status of the trial, conviction and sentence recorded – Held: A trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child – Intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part – It is only the question of sentence for which the provisions of the 2015 Act would be attracted – Any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act – Juvenile Justice (Care and Protection of Children) Act, 2000 – s.7A.
Partly allowing the appeals, the Court
HELD: 1.1 During the inquiry before the Trial Court, the State did not take any objection whatsoever with regard to the documents filed on behalf of the appellant and the evidence led on behalf of the appellant so much so that the State did not even cross- examine the witnesses who were examined in the inquiry. Permitting the State to raise such an objection now once the conclusive finding has been recorded by the Trial Court after an elaborate inquiry would be unjust and not warranted. The State had full opportunity to raise such a plea before the Trial Court in the inquiry and then it was for the Trial Court to take a call as to whether any ossification test was necessary or not. Ossification test will only give a broad assessment of the age. It cannot give an exact age. There is also an element of margin of plus or minus
1 to 2 years. Even if the said test is permitted, it will have no bearing on the assessment made by the Trial Court after the inquiry. The first preference for determination of age is the birth certificate issued by the school or a matriculation certificate. Although it has been submitted that no birth certificate of the school was submitted, learned counsel for the appellant has pointed out from the documents attached to the report that in addition to the mark sheets and the school leaving certificate, the birth certificate was also filed which is Annexure I-3 to the report. It is in the absence of the first category of documents being not available that the birth certificate from the municipal corporation is to be considered. If under the first and second columns, documents are not available, then reference to medical board and holding of an ossification test comes into play. In the present case, there being birth certificate from the school available and that too a government primary school, there is no reason to doubt its correctness and all the more when it has been duly proved in the inquiry before the Trial Court. Thus, the objections raised by the learned counsel for the State are liable to be rejected. [Paras 11 and 12][596-H; 597-A-G]
1.2 Section 9 firstly gives a right to a person alleged to have committed an offence to claim that he is a child on the date of commission of offence and if such a claim is raised, the Court concerned shall make an inquiry, take such evidence as may be necessary other than the affidavit to determine the age of such person. The proviso to sub-section (2) further makes it clear that such a claim can be raised before any Court and the same could be recognised at any stage even after the case has been finally decided. The claim so made would be determined in accordance with the provisions of the 2015 Act and the rules made thereunder even if such person has seized to be a child whether on or before the commencement of 2015 Act. The law provides full coverage to a person who is established to be a child on the date of the offence to avail the benefits admissible to a child under the 2015 Act even if the case has been finally decided and also such person has attained majority. Further, sub-section
(3) provides that if it is found in the inquiry that such person was a child on the date of commission of such offence then the Court is required to forward the child to the Juvenile Justice Board for passing appropriate orders and further if any sentence has been imposed by the Court, the same shall be deemed to have no effect. In view of the above statutory provisions and in view of the findings recorded, the appellant having been held to be a child on the date of commission of the offence, the sentence imposed has to be made ineffective. [Para 14][598-H; 599-A-D]
1.3 On a perusal of the aforesaid Section 18 of the 2015 Act, it is to be noticed that the JJB having found a child to be in conflict with law who may have committed a petty or serious offence and where heinous offence is committed, the child should be below 16 years, can pass various orders under clauses (a) to
(g) of sub-section (1) and also sub-section (2). However, the net result is that whatever punishment is to be provided, the same cannot exceed a period of three years and the JJB has to take full care of ensuring the best facilities that could be provided to the child for providing reformative services including education, skill development, counselling and psychiatric support. In the present case, the appellant is held to be less than 16 years, and therefore, the maximum punishment that could be awarded is upto 3 years. The appellant has already undergone more than 5 years. His incarceration beyond 3 years would be illegal, and therefore, he would be liable to be released forthwith on this count also. [Paras 16 and 17][601-C-E]
1.4 According to sub-section (3) of section 9 of the 2015 Act, the Court which finds that the person who committed the offence was a child on the date of commission of such offence would forward the child to the JJB for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect. This does not specifically or even impliedly provide that the conviction recorded by any Court with respect to a person who has subsequently after the disposal of the case found to be juvenile or a child, would also lose its effect rather it is only the sentence if any passed by the Court would be deemed to have no effect. There is another reason why a trial conducted and conviction recorded by the Sessions Court would not be held to be vitiated in law even though subsequently the person tried has been held to be a child. The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offence only with respect to its sentence part. If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under section 9 of the 2015 Act but also under section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void. Instead, under section
25 of the 2015 Act, it is clearly provided that any proceeding pending before any Board or Court on the date of commencement of the 2015 Act shall be continued in that Board or Court as if this Act had not been enacted. Merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and any sentence in excess of what is permissible under the 2015 Act will have to be accordingly amended as per the provisions of the 2015 Act. Otherwise, the accused who has committed a heinous offence and who did not claim juvenility before the Trial Court would be allowed to go scot-free. This is also not the object and intention provided in the 2015 Act. The object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the main stream by awarding lesser sentence and also directing for other facilities for welfare of the juvenile in conflict with law during his stay in any of the institutions defined under the 2015 Act. [Paras 30-33][608-F-G; 609-A-D, FH; 610-A]
1.5 The conviction of the appellant is upheld; however, the sentence is set aside. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith. The impugned judgement stands modified to the aforesaid extent. [Para 35][610-C]
Jitendra Singh alias Babboo Singh and another vs. State of Uttar Pradesh (2013) 11 SCC 193 : [2013] 13 SCR 764; Mahesh vs. State of Rajasthan and others (2018) SCC Online SC 3655; Satya Deo alias Bhoorey vs. State of Uttar Pradesh (2020) 10 SCC 555 – affirmed. Raju vs. State of Haryana (2019) 14 SCC 401 : [2019]
4 SCR 18; Ashok Kumar Mehra and Another vs. State of Punjab and Others (2019) 6 SCC 132 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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