REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1531 OF 2011
(Arising out of S.L.P. (Crl.) No.3361 of 2011)
Shah Nawaz .... Appellant (s)
Versus
State of U.P. & Anr. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the final judgment and
order dated 10.12.2010 passed by the High Court of
Judicature at Allahabad in Criminal Revision No. 716 of 2009
whereby the High Court dismissed the criminal revision filed
by the appellant herein.
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3) Brief facts:
(a) The appellant claims to have born on 18.06.1989 in
Village and Post Dadheru Kala, Police Station Charthawal,
District Muzaffarnagar, U.P. He was admitted in Class I in
Nehru Preparatory School, Khurd, Muzaffarnagar on
05.07.1994 and studied there till 20.05.1998. Thereafter, on
04.07.1998, he got admission in Class VI in the National High
School Dadheru, Khurd-O-Kalan, Muzaffarnagar and studied
there till Class X. The date of birth in the mark sheet is
mentioned as 18.06.1989.
(b) On 04.06.2007, a First Information Report (in short "the
FIR") was lodged by Khatizan, wife of Nawab-the deceased,
against the appellant herein and three others for the alleged
occurrence which culminated into Crime Case No. 215 of 2007
at Police Station Charthawal, District Muzaffarnagar, U.P.
under Sections 302 and 307 of the Indian Penal Code, 1860
(in short "the IPC").
(c) On 12.06.2007, the mother of the appellant submitted an
application before the Juvenile Justice Board (in short "the
Board"), Muzaffarnagar, U.P. stating that the appellant was a
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minor at the time of the alleged occurrence. After examining
the witnesses, the Board, vide judgment and order dated
24.01.2008, declared the appellant juvenile under the
provisions of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as "the Act").
(d) Against the judgment of the Board, Khatizan - the wife of
the deceased filed Criminal Appeal No. 11 of 2008 before the
Additional Sessions Judge, Muzaffarnagar, U.P. under Section
52 of the Act. The State - respondent No.1 did not file any
appeal. Vide judgment dated 13.01.2009, the Additional
Sessions Judge allowed the appeal and set aside the order
dated 24.01.2008 passed by the Board.
(e) Challenging the judgment dated 13.01.2009 passed by
the Additional Sessions Judge, the appellant filed Criminal
Revision No. 716 of 2009 before the High Court of Allahabad.
The High Court, by the impugned judgment dated 10.12.2010,
dismissed the criminal revision. Hence this appeal by way of
special leave.
4) Heard Mr. Dinesh Kumar Garg, learned counsel for the
appellant and Mr. R.K. Gupta, learned counsel for the State.
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Despite notice, no one has entered appearance on behalf of
respondent No.2.
5) Before considering the merits of the claim of the
appellant and the stand of the State, let us consider Rule 12 of
the Juvenile Justice (Care and Protection of Children) Rules,
2007 (hereinafter referred to as `the Rules') which reads as
under:-
"12. Procedure to be followed in determination of Age.
(1) In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be the
Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other
than a play school) first attended; and in the absence
whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
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(b) and only in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a
duly constituted Medical Board, which will declare the
age of the juvenile or child. In case exact assessment
of the age cannot be done, the Court or the Board or,
as the case may be, the Committee, for the reasons to
be recorded by them, may, if considered necessary,
give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one
year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause
(b) shall be the conclusive proof of the age as regards such
child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of offence,
on the basis of any of the conclusive proof specified in sub-
rule (3), the court or the Board or as the case may be the
Committee shall in writing pass an order stating the age and
declaring the status of juvenility or otherwise, for the
purpose of the Act and these rules and a copy of the order
shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of section 7A, section 64 of the
Act and these rules, no further inquiry shall be conducted
by the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in
sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to
those disposed off cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation
of the sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law."
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6) In the light of the above procedure to be followed in
determining the age of the child or juvenile, let us consider
various decisions of this Court.
7) In Raju and Anr. vs. State of Haryana (2010) 3 SCC
235, this Court had admitted "mark sheet" as one of the proof
in determining the age of the accused person. In that case,
the appellants therein Raju and Mangli along with Anil alias
Balli and Sucha Singh were sent up for trial for allegedly
having committed an offence punishable under Section 302
read with Section 34 of the IPC. Accused Sucha Singh was
found to be a juvenile and his case was separated for separate
trial under the Act. Others were convicted under Section 302
read with Section 34 of the IPC and were sentenced to
imprisonment for life and to pay a fine of Rs. 5,000/-. Apart
from contending on the merits of the prosecution case, insofar
as appellant No. 1, Raju, is concerned, the counsel appearing
for him submitted that on the date of the incident that is on
(31.03.1994), he was a juvenile and as per his mark sheet,
wherein his date of birth was recorded as 1977, he was less
than 17 years of age on the date of the incident. Learned
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counsel submitted that having regard to the recent decision of
this Court in Hari Ram vs. State of Rajasthan & Anr.,
(2009) 13 SCC 211, appellant No. 1 must be held to have been
a minor on the date of the incident and the provisions of the
Act would apply in his case. Learned counsel further
contended that the appellant No. 1 would have to be dealt with
under the provisions of the said Act in keeping with the
decision in the aforesaid case. On merits, while accepting the
claim of the learned counsel for accused-appellant, this Court
altered the conviction and sentence and convicted under
Section 304 Part I read with Section 34 IPC instead of Section
302 read with Section 34 IPC. As far as appellant No. 1,
namely, Raju was concerned, while accepting the entry
relating to date of birth in the mark sheet referred his case to
the Board in terms of Section 20 of the Act to be dealt under
the provisions of the said Act in keeping with the provision of
Section 15 thereof. It is clear from the said decision that this
Court has accepted mark sheet as one of the proof for
determining the age of an accused person.
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8) Similarly, this Court has treated the date of birth in
School Leaving Certificate as valid proof in determining the age
of an accused person. In Bhoop Ram vs. State of U.P. (1989)
3 SCC 1, this Court considered whether the appellant therein
is entitled lesser imprisonment than imprisonment for life and
should have been treated as a "child" within the meaning of
Section 2(4) of the U.P. Children Act, 1951 (1 of 1952). The
following conclusion in para 7 is relevant which reads as
under:-
"7.....The first is that the appellant has produced a school
certificate which carries the date 24-6-1960 against the
column "date of birth". There is no material before us to hold
that the school certificate does not relate to the appellant or
that the entries therein are not correct in their particulars....
"
It is clear from the above decision that this Court relied on the
entry made in the column "date of birth" in the School Leaving
Certificate.
9) In Rajinder Chandra vs. State of Chhattisgarh and
Anr. (2002) 2 SCC 287, this Court once again considered the
entry relating to date of birth in the mark sheet and concluded
as under:
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"5. It is true that the age of the accused is just on the border
of sixteen years and on the date of the offence and his arrest
he was less than 16 years by a few months only. In Arnit Das
v. State of Bihar this Court has, on a review of judicial
opinion, held that while dealing with the question of
determination of the age of the accused for the purpose of
finding out whether he is a juvenile or not, 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 said evidence, the court should lean in favour of
holding the accused to be a juvenile in borderline cases. The
law, so laid down by this Court, squarely applies to the facts
of the present case.
10) In Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this
Court held that while dealing with a question of determination
of the age of an accused, for the purpose of finding out
whether he is a juvenile or not, a hyper-technical approach
should not be adopted while appreciating the evidence
adduced on behalf of the accused in support of the plea that
he is 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 juvenile in borderline cases.
11) In Ravinder Singh Gorkhi vs. State of U.P. (2006) 5
SCC 584 with regard to the entries made in School Leaving
Certificate, this Court has observed as under:-
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"17. The school-leaving certificate was said to have been
issued in the year 1998. A bare perusal of the said certificate
would show that the appellant was said to have been
admitted on 1-8-1967 and his name was struck off from the
roll of the institution on 6-5-1972. The said school-leaving
certificate was not issued in the ordinary course of business
of the school. There is nothing on record to show that the
said date of birth was recorded in a register maintained by
the school in terms of the requirements of law as contained
in Section 35 of the Evidence Act. No statement has further
been made by the said Headmaster that either of the parents
of the appellant who accompanied him to the school at the
time of his admission therein made any statement or
submitted any proof in regard thereto. The entries made in
the school-leaving certificate, evidently had been prepared
for the purpose of the case. All the necessary columns were
filled up including the character of the appellant. It was not
the case of the said Headmaster that before he had made
entries in the register, age was verified. If any register in
regular course of business was maintained in the school,
there was no reason as to why the same had not been
produced."
12) In Pradeep Kumar vs. State of U.P. 1995 Supp (4) SCC
419, this Court considered the commission of offence by
persons below 16 years of age. The question before a three-
Judge Bench was whether each of the appellants in those
appeals was a child within the meaning of Section 2(4) of the
U.P. Children Act, 1951 and as such on conviction under
Section 302 read with Section 34 IPC should have been sent to
an approved school for detention till the age of 18 years. At
the time of granting special leave, appellant, by name, Jagdish
produced High School Certificate, according to which he was
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about 15 years of age at the time of occurrence. Appellant -
Krishan Kant produced horoscope which showed that he was
13 years of age at the time of occurrence. So far as appellant -
Pradeep was concerned, a medical report was called for by this
Court which disclosed that his date of birth as 07.01.1959 was
acceptable on the basis of various tests conducted by the
medical authorities. In the above factual scenario/details, this
Court concluded as under:-
"3. It is thus proved to the satisfaction of this Court that on
the date of occurrence, the appellants had not completed 16
years of age and as such they should have been dealt with
under the U.P. Children Act instead of being sentenced to
imprisonment on conviction under Section 302/34 of the
Act"
After saying so and after finding that the appellants were aged
more than 30 years, this Court directed not to send them to
an approved school under the U.P. Children Act for detention,
while sustaining the conviction of the appellants under all the
charges framed against them, quashed the sentences awarded
to them and ordered their release forthwith.
13) The applicability of the Act and the Rules in respect of
"Juvenile" and "Juvenile in conflict with law" have been
elaborately considered by this Court in Hari Ram (supra).
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After analyzing the Scheme of the Act and various Rules
including Rule 12 and earlier decisions of this Court laid down
various principles to be followed. After applying those
principles and finding that the appellant therein was 16 years
of age on the date of the commission of the alleged offence and
had not been completed 18 years of age, remitted the matter to
the Board for disposal in accordance with law.
Discussion on merits:
14) In the light of the above principles, now let us consider
the claim of the appellant. According to him, on 18.06.1989,
he was born in Village and Post Dadheru Kala, Police Station
Charthawal, District Muzaffarnagar, U.P. On 05.07.1994, he
was admitted in Class I in Nehru Preparatory School, Khurd,
Muzaffarnagar. The appellant left the said school on
20.05.1998. On 04.07.1998, he was admitted in Class VI in
the National High School Dadheru, Khurd-O-Kalan,
Muzaffarnagar, U.P. On 21.05.2004, he left the said school,
namely, National High School as he failed in High School.
From Class VI till Class X the appellant remained and studied
continuously in the aforesaid school. The date of birth in the
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mark sheet is mentioned as 18.06.1989. The alleged
occurrence took place on 04.06.2007. The FIR was lodged on
04.06.2007 which culminated into Crime Case No. 215 of
2007 at Police Station Charthawal, District Muzaffarnagar,
U.P. under Sections 302 and 307 of the IPC. On 12.06.2007,
the mother of the appellant submitted an application before
the Board at Muzaffarnagar stating that the appellant was a
minor at the time of alleged occurrence. The appellant was
provided a School Leaving Certificate dated 11.07.2007 from
Nehru Preparatory School, Khurd, Muzaffarnagar. The mother
of the appellant made a statement dated 26.07.2007 regarding
the age of her son. She was cross-examined at length. On
16.10.2007, the statement of clerk of Nehru Preparatory
School was recorded by the Board. The said clerk brought the
entire records maintained by the School. The said clerk was
also cross-examined at length.
15) The Board, vide judgment and order dated 24.01.2008,
declared the appellant juvenile under the Act. Against the
judgment of the Board, the complainant Smt. Khatizan, wife of
deceased Nawab filed Criminal Appeal No. 11 of 2008 under
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Section 52 of the Act before the learned Additional Sessions
Judge, Muzaffarnagar. It is relevant to point out that the
State, who is the prosecuting agency did not file any appeal.
The Additional Sessions Judge, Muzaffarnagar recorded the
statement of Guljar Hussain, Principal of Nehru Preparatory
School, Dadheru, Khurd-O-Kalan, Muzaffarnagar on
07.08.2008. By order dated 13.01.2009, the Additional
Sessions Judge allowed the said appeal filed by the
complainant and set aside the order dated 24.01.2008 passed
by the Board.
16) Aggrieved by the order of the Additional Sessions Judge,
the appellant filed Criminal Revision No. 716 of 2009 before
the High Court. The High Court dismissed the said Revision
mainly on the ground that in the absence of any matriculation
or equivalent certificate and considering the language used in
Rule 12 with reference to only "Certificate" and not "mark
sheet", dismissed the Revision petition.
17) We have already referred to the decision of this Court
about the entry relating to the date of birth made in the mark
sheet of High School examination. The appellant has
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produced mark sheet of High School examination issued by
the school authority, namely, National High School, Dadheru,
Khurd-O-Kalan, Muzaffarnagar. A perusal of the above said
certificate makes reference to appellant's Roll No., his name,
Date of Birth, name of the school, details regarding various
subjects, maximum marks, marks obtained and ultimate
result in the examination. The certificate contained signature
of the Clerk Salim Ahmed, who prepared the same, the
signature of the examiner and signature and seal of the Head
Master. It is dated 21.05.2004.
18) Another document relied on by the appellant is School
Leaving Certificate dated 11.07.2007 issued by Nehru
Preparatory School, Khurd, Muzaffarnagar wherein it noted
the registration no., name of the school, student's name, date
of birth (18.06.1989) written in words also, Father's name,
occupation, caste, residential address, date of admission in
school, date of leaving of school. The certificate contained the
signature and seal of the Head Master and the same is dated
11.07.2007.
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19) The documents furnished above clearly show that the
date of birth of the appellant had been noted as 18.06.1989.
Rule 12 of the Rules categorically envisages that the medical
opinion from the medical board should be sought only when
the matriculation certificate or school certificate or any birth
certificate issued by a corporation or by any Panchayat or
municipality is not available. We are of the view that though
the Board has correctly accepted the entry relating to the date
of birth in the mark sheet and school certificate, the Additional
Sessions Judge and the High Court committed a grave error in
determining the age of the appellant ignoring the date of birth
mentioned in those documents which is illegal, erroneous and
contrary to the Rules.
20) We are satisfied that the entry relating to date of birth
entered in the mark sheet is one of the valid proof of evidence
for determination of age of an accused person. The School
Leaving Certificate is also a valid proof in determining the age
of the accused person. Further, the date of birth mentioned in
the High School mark sheet produced by the appellant has
duly been corroborated by the School Leaving Certificate of the
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appellant of Class X and has also been proved by the
statement of the clerk of Nehru High School, Dadheru, Khurd-
O-Kalan and recorded by the Board. The date of birth of the
appellant has also been recorded as 18.06.1989 in School
Leaving Certificate issued by the Principal of Nehru
Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar
as well as the said date of birth mentioned in the school
register of the said school at S. No. 1382 which have been
proved by the statement of the Principal of that school
recorded before the Board. Apart from the clerk and the
Principal of the school, the mother of the appellant has
categorically stated on oath that the appellant was born on
18.06.1989 and his date of birth in his academic records from
preparatory to Class X is the same, namely, 18.06.1989, hence
her statement corroborated his academic records which clearly
depose his date of birth as 18.06.1989. Accordingly, the
appellant was a juvenile on the date of occurrence that is
04.06.2007 as alleged in the FIR dated 04.06.2007.
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21) We are also satisfied that Rule 12 of the Rules which was
brought in pursuance of the Act describes four categories of
evidence which have been provided in which preference has
been given to school certificate over the medical report.
22) In the light of the above discussion, we hold that from the
acceptable records, the date of birth of the appellant is
18.06.1989, the Additional Sessions Judge and the High Court
committed an error in taking contrary view. While upholding
the decision of the Board, we set aside the orders of the
Additional Sessions Judge dated 13.01.2009 and the High
Court dated 10.12.2010. Accordingly, the appellant is
declared to be a juvenile on the date of commission of offence
and may be proceeded in accordance with law. The appeal is
allowed.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
AUGUST 05, 2011.
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