REPORTABLE
In the Supreme Court of India
Criminal Appellate Jurisdiction
Criminal Appeal No. 1349 of 2012
(Arising out of SLP (Crl.) No.9023 of 2010)
Babla @ Dinesh .......Appellant
Versus
State of Uttarakhand ......Respondent
J u d g m e n t
H. L. Dattu, J.
1. leave granted.
2. This appeal is directed against the judgment and order passed by the
High Court of Uttarakhand at Nainital in Criminal Appeal No.1481 of 2001
dated 21.07.2009. By the impugned judgment, the High Court has confirmed
the Order of conviction and sentence of the appellant passed by the Trial
Court under Section 302 read with Section 149 of the Indian Penal Code,
1860 (for short ‘the IPC’).
3. The appellant was one of the accused before the Trial Court for the
alleged offences punishable under Section 302 read with Sections 149 and
147 of the IPC. The Trial Court by its judgment and order dated 18.10.1995
in Sessions Trial No. 39 of 1992, convicted and sentenced the appellant for
rigorous imprisonment of two years under Section 147 and imprisonment for
life under Section 302 read with Section 149 IPC, both sentences to run
concurrently. Aggrieved by the order so made, the appellant and others
approached the High Court of Uttarakhand at Nainital by way of criminal
appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for
short ‘the Cr.P.C.’) on various grounds.
4. Before the High Court, apart from others, the learned counsel for
appellant raised the contention that the appellant was juvenile on the date
of the commission or occurrence of the offence, i.e. on 01.12.1991. The
said contention was rejected by the High Court on the ground that it was
not raised before the Trial Court and no evidence has been adduced in
defence and no suggestion had been made to the witnesses during the trial
and that the appellant admitted his age as 20 years at the time of
recording his statement under Section 313 of the Cr. P.C.. In conclusion,
the Court has observed:
“11. Learned counsel for the appellants contended that appellants
Gadha and Babla, were minors on the day of the incident. But no such
suggestion was made to any of the witnesses nor is any evidence adduced
in defence. Rather the accused / appellants Gadha and Babla have
disclosed their age 20 years on the day when their statement under
Section 313 Cr.P.C. were recorded also makes out the case that their age
was more than 16 years on the day of the incident. It is pertinent to
mention here that on the day of the incident, and during the trial,
Juvenile Justice Act, 1986, was applicable to the cases of Juveniles and
not Juvenile Justice (Care and Protection of Children) Act 2000.”
5. After issuing notice to the opposite parties in the special leave
petition, by our Order dated 18.04.2011, we had directed the learned
Sessions Judge or his nominee to conduct an inquiry into the question of
the age of the appellant on the date of commission of offence and to submit
a report as envisaged under Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (for short ‘Rules, 2007).
6. Pursuant to the aforesaid direction, the inquiry report was submitted
before this Court, but the same was not accepted, as it was merely based on
the opinion of an individual doctor which was not in accordance with the
procedure prescribed under Rule 12 of the Rules, 2007. Therefore, by our
Order dated 01.11.2011, we had, once again, directed the learned Sessions
Judge to conduct an inquiry as prescribed under Rule 12 of the Rules, 2007
and submit his report.
7. Pursuant to the directions issued by us, the learned Additional
Sessions Judge has conducted inquiry by following the prescribed procedure
under the Rules, 2007 and submitted his inquiry report dated 03.12.2011,
wherein, it is concluded that the appellant was aged about 10-15 years on
the date of the commission of the offence i.e. 01.12.1991. Therefore, the
appellant is juvenile within the meaning of the expression under Section
2(h) of the Juvenile Justice Act, 1986 and Section 2(k) of the Juvenile
Justice (Care and Protection of Children) Act, 2000.
8. This report is not disputed by the learned counsel for the respondent-
State.
9. We have heard the learned counsel for the parties to the lis. We
have also carefully perused the judgment and order passed by the High
Court. We are of the opinion that the High Court has erred in dismissing
the appeal on the ground that no evidence was adduced and no suggestion was
made to the witnesses regarding juvenility of the appellant during the
trial. In our opinion, the issue of raising the plea for determination of
juvenility for the first time at the appellate stage is no more res
integra. This Court in Lakhan Lal v. State of Bihar, (2011) 2 SCC 251, has
allowed such plea raised before this Court for the first time and, taking
note of its previous decisions on this point, has observed thus :
“The fact remains that the issue as to whether the appellants were
juvenile did not come up for consideration for whatever reason, before
the Courts below. The question is whether the same could be considered
by this Court at this stage of the proceedings. A somewhat similar
situation had arisen in Umesh Singh and Anr. v. State of Bihar, (2000) 6
SCC 89 wherein this Court relying upon the earlier decisions in Bhola
Bhagat v. State of Bihar, (1997) 8 SCC 720, Gopinath Ghosh v. State of
W.P. 1984 Supp SCC 228 and Bhoop Ram v. State of U.P., (1989) 3 SCC 1,
while sustaining the conviction of the Appellant therein under all the
charges, held that the sentences awarded to them need to be set aside.
It was also a case where the appellant therein was aged below 18 years
and was a child for the purposes of the Bihar Children Act, 1970 on the
date of the occurrence. The relevant paragraph reads as under (Umesh
Singh case, SCC, pp.93-94, para 6) :
“6. So far as Arvind Singh, appellant in Criminal Appeal No. 659 of
1999 is concerned, his case stands on a different footing. On the
evidence on record, the learned Counsel for the appellant, was not in a
position to point out any infirmity in the conviction recorded by the
trial court as affirmed by the appellate court. The only contention put
forward before the court is that the appellant is born on 1-1-67 while
the date of the incident is 14-15-1980 and on that date he was hardly 13
years old. We called for report of experts being placed before the
court as to the age of the appellant, Arvind Singh. The report made to
the court clearly indicates that on the date of the incident he may be
13 years old. This fact is also supported by the school certificate as
well as matriculation certificate produced before this Court which
indicate that his date of birth is 1-1-1967. On this basis, the
contention put forward before the court is that although the appellant
is aged below 18 years and is a child for the purpose of the Bihar
Children Act, 1970 on the date of the occurrence, his trial having been
conducted along with other accused who are not children is not in
accordance with law. However, this contention had not been raised
either before the trail court or before the High Court. In such
circumstances, this Court in Bhola Bhagat v. State of Bihar, 1997 (8)
SCC 720, following the earlier decision in Gopinath Ghosh v. State of
West Bengal, 1984 Supp. SCC 228 and Bhoop Ram v. State of U.P., 1989 (3)
SCC 1 and Pradeep Kumar v. State of U.P., 1995 Supp(4) SCC 419, while
sustaining that the sentences awarded to them need to be set aside. In
view of the exhaustive discussion of the law on the matter in Bhola
Bhagat case, we are obviated of the duty to examine the same but
following the same, with respect, we pass similar orders in the present
case. Conviction of the appellant Arvind Singh is confirmed but the
sentence imposed upon him stands set aside. He is, therefore, set at
liberty, if not required in any other case.”
10. We are in respectful agreement with the view expressed by this Court
in the aforesaid decision.
11. We have carefully perused the report dated 03.12.2011 of the learned
Additional Sessions Judge. Since the report is made after holding due
inquiry as required under the Act and the Rules, we accept the same.
Accordingly, we hold that the appellant was juvenile, as envisaged under
the Act and the Rules framed thereunder, on the date of commission of the
offence.
12. The Jail Custody Certificate, produced by the appellant suggests that
he has undergone the actual period of sentence of more than three years out
of the maximum period prescribed under Section 15 of the Act. In the
circumstance, while sustaining the conviction of the appellant for the
aforesaid offences, the sentence awarded to him by the Trial Court and
confirmed by the High Court is set aside. Accordingly, we direct that the
appellant be released forthwith, if not required in any other case. The
appeal is partly allowed.
...................................................................J.
(H.L. Dattu)
...................................................................J.
(Chandramauli Kr. Prasad)
New Delhi;
sEPtEmber 04, 2012.
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