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Synopsis

The Supreme Court has on November 21, 2023, ordered release of a 43-year-old man after finding that he was a juvenile at the time of an incident related to murder and attempt to murder in 1995.

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia modified the Allahabad High Court judgment on the question of juvenility only.

"We sustain the conviction of the appellant under Sections 302 and 307 IPC read with Section 34 IPC, but all the sentences which have been awarded to him are hereby quashed as such sentences cannot be given to a juvenile, in view of Section 16 of the Juvenile Justice Act, 2000," the bench said.

The court said that since the maximum period for which a juvenile can be detained is three years and the appellant has already undergone imprisonment for 4.5 years, as he mostly remained on bail, so appellant Pawan Kumar should be released forthwith, unless he is required in some other crime.

In the case, other convicts Gaya Prasad Mishra and Gulab Chandra, the father and brother of the appellant respectively were released prematurely after remaining in jail for more than 19 years, under the remission policy of the State.  

According to the FIR, the appellant along with his father and brother and another person, who died during the proceedings, attacked the complainant's side with 'Lathis', resulting into death of one Ganga Prasad over a dispute related to the irrigation of land.

"The accused have committed a heinous crime. Yet they are not hardened criminals. It is also not a premeditated cold-blooded murder," the bench said.

As the appellant raised the plea of juvenility, apart from questioning the order of conviction, the court noted at the relevant time, Juvenile Justice Act, 1986 was in force where a juvenile in case of a boy, was one who had not completed sixteen years of age. This age, however, was increased to eighteen years by the Juvenile Justice (Care and Protection of Children) Act, 2000, it said.

The appellant produced the Scholar Register of the National Inter College, Barabanki which recorded his date of birth as July 05, 1980 which meant that on the date when the offence was committed, the appellant would be 15 years, 6 months, and 26 days old.

A bone ossification test was conducted under the supervision of the Chief Medical Officer of District Hospital, Barabanki where the age of the appellant was recorded as approximately 19 years.

During the hearing of appeal, the top court court on October 08, 2021, directed the trial court to submit a fresh report on the plea of juvenility after appreciating the additional evidence.

The report of February 28, 2022 was examined and the court felt that the trial court did not consider the transfer certificate of the appellant, which was placed before it. Hence, the issue was again remitted back to the Additional Sessions Judge, Barabanki on July 15, 2022 by this court for fresh consideration on the aspect of juvenility and another report was directed to be filed. 

The Additional Sessions Judge, Barabanki filed a fresh report on September 28, 2022. In this report, his date of birth had been determined as July 05, 1980.

"If this report is accepted then the appellant was 15 years, 4 months, and 26 days old at the time of commission of the crime which occurred on 01.12.1995," the bench said.

During the pendency of the appeal before the Allahabad High Court (Lucknow Bench), the Juvenile Justice (Care and Protection of Children) Act, 2015 came into force repealing the 2000 Act.

The bench said that the 2015 Act contained an important Section, which is Section 25, which stated "Notwithstanding anything contained in this Act, all proceedings in respect of a child alleged or found to be in conflict with law pending before any Board or court on the date of commencement of this Act, shall be continued in that Board or court as if this Act had not been enacted.”

The court thus held the 2000 Act and the Rules framed therein i.e., 2007 rules would be applicable in the present case.

"Since the appellant had not done his matriculation, so there was no question of the appellant having such a certificate. The other document which then becomes relevant is the school leaving certificate of Primary School, which is also his certificate of age", it said.

The court referred to subrule (3)(b) of Rule 12 of 2007 Rules, which gave benefit to the juvenile in considering the age on lower side within margin of one year. This was missed by the high court as well as Additional Sessions Judge, the top court bench said.

"We are of the considered view that in the present case, even assuming for the sake of argument that there were some conflicting aspects as to the age of the appellant but since the margin of age was so thin, the benefit ought to have been given to the appellant," the bench said.

The court also pointed out that under the 2007 Rules (i.e., Rule 12), the school certificates are given more importance than a Panchayat Register. The school leaving certificate of the first school attended by the appellant will be a certificate that is liable to be considered and the certificate is a valid proof of evidence for determination of the age of the appellant, it said.

"A bone ossification test, primarily done to determine the age, does not give the precise age but is at best an approximation. Further, it must also be kept in mind that the medical opinion based on Bone Ossification Test, is not entirely accurate," it said.

The court also pointed out that a proposition of taking a liberal view and about extending the benefit of juvenility where two views are available has been reiterated in numerous decisions.

"Even if the medical report which shows the age of the appellant as 19 years is taken to be correct even then in a case where an exact assessment of age was not possible, considering the conflicting reports and documents in our considered opinion, the provision given in sub¬rule 3(b) of Rule 12 would come into play and the Court ought to have given the appellant a benefit of one year in the present case," the bench said.

The court, thus, accepted the report of the Additional Sessions Judge, Barabanki of September 28, 2022 and declared that the appellant was a juvenile on the date of the commission of the crime i.e., on December 01, 1995.  

However, the bench also noted that there was also an order of conviction against the appellant, based on the evidence placed by the prosecution against the other two accused and the present appellant, which was common.  

"It is not possible therefore to take a different view for the present appellant than what has been taken by the trial court and the appellate court against the other two accused regarding their conviction," the bench said.

Case Title: Pawan Kumar Vs State of Uttar Pradesh & Ors