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CASE NO.: Appeal (crl.)  489 of 2006

PETITIONER: Jitendra Ram @ Jitu

RESPONDENT: State of Jharkhand

DATE OF JUDGMENT: 25/04/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl). No. 3494 of 2005]

S.B. Sinha, J :

       Leave granted.

       The appellant herein was convicted for commission of an offence  punishable under Sections 302 and 201 of the Indian Penal Code (for short,  IPC’) and sentenced to undergo rigorous imprisonment for life.   

       The  case of the prosecution is as under :

       A First Information Report was lodged by the informant Lal Hare  Murari Nath Sahdeo at about 14.00 hrs. on 19.11.1985 alleging that at about  07.30 A.M. on the previous day i.e. 18.11.1985 Fagua Mahto, deceased,  took his five bullocks for grazing  along with the cattle of other villagers, as  he was a herdsman.  He brought the bullocks earlier after grazing.  The  informant is said to have not found two of his bullocks in the said evening.   He enquired thereabout; whereupon Fagua Mahto informed him that two  oxen were taken by Jitendra Ram @ Jitu Harizan, the appellant herein for  thrashing paddy.  He went to the house of the accused, who denied to have  taken the said two oxen.  Lakhan Lohar  (PW-13), however, at about 07.30  P.M. on the same evening informed Lal Ranvijay Nath Sahdeo  (PW-8), the  cousin of the first informant that the appellant herein sold the said oxen in  the market to Sahban Ansari  and Hanif Ansari, who examined themselves  as PW-18 and PW-19 respectively.  The appellant, however, denied the sale  of two oxen to the said persons and threatened the first informant.  Fagua  Mahto went missing.  When the first informant visited the house of Hanif  Ansari and Sahban Ansari, he was informed that the appellant had taken  away the said two oxen and kept his cycle as a security.  On suspicion that  something might have happened to Fagua Mahto, a search was made and the  appellant was brought to the school of the village.  He was interrogated,  whereupon he is said to have confessed to have murdered Fagua Mahto and  concealed his dead body in a pit of ’Chamautha River Tetardaht’.  Acting on  the basis of the said statement of the appellant about 100 villagers are said to  have reached the place of occurrence where the dead body of the said Fagua  Mahto was allegedly concealed by the appellant.  The appellant was  thereafter handed over to Mukhia Lal Gopal Nath Sahdeo, who examined  himself as PW-5.  Before the said witness also the appellant is said to have  confessed his guilt.  A First Information Report was, thereafter, lodged.  He  in the trial eventually was found guilty.   

       The appeal preferred by him was also dismissed. He is, thus, before  us.

The sole contention raised by Mr. Shekhar Prit Jha, the learned  counsel for the appellant, is that the appellant on the date of  commission of  the said offence was a minor within the meaning of the provisions of the

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Bihar Children Act, 1982 (for short, ’the Act’).  The learned counsel would  contend that the appellant had disclosed his age at the first opportunity,  namely, when the bail petition was moved before the Patna High Court and,  inter alia, relying on or on the basis of the said statement he was released on  bail by an order dated 09.05.1986.  It was further submitted that even while  the appellant was examined by the learned trial judge under Section 313 of  the Code of Criminal Procedure (Cr.P.C.) his age was estimated as 28 years.   The High Court also in its impugned judgment noticed the submissions  made to the effect that having regard to the said estimate of age being 28  years by the trial court on 17.12.1998 while the appellant was being  examined under Section 313 Cr.P.C. he was a juvenile as on the date of  commission of the offence i.e. 18.11.1985.  The said question has, however,    not been  gone into by the High Court.

According to the learned counsel if once it is found that the appellant  was a juvenile within the meaning of Section 2(h) of the Juvenile Justice  Act, 1986 or a child under the provisions of  the Act, he was entitled to the  protection thereunder and in that view of the matter, he could have also been  sent to the Juvenile Home in terms of Section 9, or Special Home in terms of  Section 10, or Observation Home in terms of Section 11 of the Act and in  any event could not have been sentenced to imprisonment for life.   

Furthermore, it was the Juvenile Court alone, which was competent to  pass an order against him and in that view of the matter the entire judgment  of conviction and sentence passed against the appellant would be vitiated in  law.

It was furthermore submitted that the estimate of age by the court is  final and binding and in that view of the matter, the appellant could not have  been sentenced to undergo imprisonment for life.   

When the offence was committed, since the Juvenile Justice Act, 1986  had not come into force, the provisions thereof would have no application;  the Bihar Children Act, 1982 was, however, applicable in this case.  In terms  of the provisions of the said Act, a child means a boy who has not attained  the age of 16 years.

The Children’s Court was to be constituted under Section 5 of the Act,  but it is not in dispute that such court had not been constituted at the relevant  time.  The provisions of Juvenile Justice (Care and Protection of Children)  Act, 2000, it appears, have been given effect to in the State of Jharkhand  only in or about July 2005.  Before the trial court, the appellant did not raise  any plea that he was a juvenile.  It is true that such a plea was raised while  moving an application for bail for the first time; but from a perusal of the  order passed by the Patna High Court dated 06.05.1986, it would appear that  the ground that the appellant was a child itself was not the only one on  which the order granting bail to the appellant was passed.  The said order  dated 06.05.1986 reads as under :

"Heard learned counsel for the petitioner  and the State.

It has been submitted that there is no  evidence except the extra judicial confession made  by the petitioner and that the petitioner had pointed  out the place from where the dead body was  recovered.   

It is further submitted that the petitioner is  below 16 years of age.

In the circumstances, the petitioner is  directed to be enlarged on bail on furnishing bail  bond of Rs.8,000/- with two sureties of the like  amount each to the satisfaction of Sri D.D. Guru,

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Judicial Magistrate, Lohardaga, in Bhandra P.S.  Case No.33/85 (G.R.294/85)".   

The appellant was examined under Section 313 Cr. P.C. where his age  was estimated to be 28 years.  The said estimated age was recorded by the  trial court again on 09.04.1999 being 28 years.  In the judgment of the trial  court again the aforementioned age was mentioned.  

In absence of any plea having been taken by the appellant, it is not  disputed, that the court at no stage had gone into the question as regard the  age of the  appellant.   

Sub-section (1) of Section 32 of the Act provides for presumption and  determination of age in the following terms :

"32. Presumption and determination of age.- (1)  Where it appears to a competent authority that a  person brought before it under any of the  provisions of this Act (otherwise than for the  purpose of giving evidence) is a child, the  competent authority shall make due inquiry as to  the age of that person and for that purpose shall  take such evidence as may be necessary and shall  record a finding whether the person is a child or  not stating his age as nearly as may be."

The statute, therefore, has imposed a duty upon the competent  authority to make an enquiry as to the age of that person who appears to be a  child to him.  No such enquiry was, however, made presumably because no  such plea was raised.  At that time, it also might not have occurred to the  court that the Appellant was a child.  Section 33 of the Act lays down the  circumstances which are required to be taken into consideration in making  an order under Section 32 of the said Act.  In the year 1999, evidently the  trial court did not consider the question of estimating his age in terms of the  provisions of the Act.   

The learned counsel for the appellant has not made any submission on  merit of the matter.  We have, however, gone through the judgments of the  learned trial judge as also the High Court and we do not find any infirmity  therein.

The provisions of a beneficial legislation should ordinarily be given  effect to.  However, we may notice that the appellant is  literate.  Presumably  he attended some school.  However, no certificate of his date of birth or any  other proof as regard his date of birth is available on records.  No other  material apart from the estimate of the court has been brought to our notice.   In the absence of any material on record, we cannot arrive at a definite  conclusion that the appellant as on the date of commission of the offence  was a child within the meaning of the said Act.

In Krishna Bhagwan v. The State of Bihar [(1989) PLJR  507], N.P.  Singh, J., (as His Lordship then was), speaking for a Full Bench of the Patna  High Court, opined :

"\005Section 32 vests power in the Juvenile Court to  make due enquiry in respect of the age of the  accused on the date of the commission of the  offence and for that purpose such Court has to take  evidence as may be necessary and to record a  finding whether the accused in question was a  juvenile.  It need not be pointed out that it is not  possible for this Court to determine the age of an  accused on the date of the commission of the

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offence because that has to be determined on the  basis of the evidence to be adduced and other  materials in support thereof being produced.  This  determination should not be based merely on  written opinion of the doctors produced before this  Court.  Prosecution has right to cross-examine  such medical or forensic experts who have given  their opinion about the age of the accused in order  to demonstrate that the accused was not a juvenile  on the date of the commission of the offence.  This  is necessary because by the time the plea is taken  before the appellate court in almost all the cases  the accused concerned must have ceased to be a  juvenile due to lapse of time making it more  difficult for the appellate court as well as the  Juvenile Court to determine as to what was his age  at the time of the commission of the offence.  In  my view, in such a situation, the Courts including  Juvenile Court should get the accused held guilty  of serious offences, examined by a Medical Board  and should determine the age of such accused on  basis of the materials on the record including the  opinion of the Medical Board.  Once the  legislature has enacted a law to extend special  treatment in respect of trial and conviction to  juveniles, the Court should be jealous while  administering such law so that the delinquent  juveniles derive full benefit of the provisions of   such Act but, at the same time, it is the duty of the  Courts that the benefit of the provisions meant for  juveniles are not derived by unscrupulous persons,  who have been convicted and sentenced to  imprisonment for having committed heinous and  serious offences, by getting themselves declared as  children or juveniles on the basis of procured  certificates.  According to me, if the plea that the  accused was a child or juvenile on the date of the  commission of the offence is taken for the first  time in this Court, then this Court should proceed  with the hearing of the appeal,  as required by  section 26 of the Juvenile Act and should record a  finding in respect of the charge which has been  levelled against such an accused.  If such an  accused is acquitted, there is no question of  holding any enquiry in respect of the accused  being a child on the relevant date but, if the finding  of the guilt recorded by the Court below is  affirmed and this Court on the basis of materials  on record is prima facie satisfied that the accused  may be a child/juvenile within the meaning of the  relevant Act on the date of the commission of the  offence, it should call for a finding from the  Children’s Court/Juvenile’s Court in accordance  with section 32 of the Act.  If the finding so  received is accepted by this Court, then this Court  in terms of section 26 of the Juvenile Act should  pass an order directing the Juvenile Court to pass  orders in accordance with sections 21 and 22 of the  Act."          

       We with respect agree to the said approach.

The said decision has been noticed by this Court in  Gopinath Ghosh  v. State of West Bengal [(1984) Supp. SCC 228].

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We may, however, notice that in Ramdeo Chauhan alias Raj Nath v.  State of Assam [(2001) 5 SCC 714], as regards applicability of the provision  of Section 35 of the Indian Evidence Act, 1872 vis-‘-vis a school register, it  was stated :

"It is not disputed that the register of admission  of students relied upon by the defence is not  maintained under any statutory requirement. The  author of the register has also not been examined.  The register is not paged (sic) at all. Column 12 of  the register deals with "age at the time of  admission". Entries 1 to 45 mention the age of the  students in terms of years, months and days. Entry  1 is dated 25-1-1988 whereas Entry 45 is dated 31- 3-1989. Thereafter except for Entry 45, the page is  totally blank and fresh entries are made w.e.f. 5-1- 1990, apparently by one person up to Entry 32. All  entries are dated 5-1-1990. The other entries made  on various dates appear to have been made by one  person though in different inks. Entries for the  years 1990 are up to Entry 64 whereafter entries of  1991 are made again apparently by the same  person. Entry 36 relates to Rajnath Chauhan, son  of Firato Chauhan. In all the entries except Entry  32, after 5-1-1990 in column 12 instead of age  some date is mentioned which, according to the  defence is the date of birth of the student  concerned. In Entry 32 the age of the student  concerned has been recorded. In column 12 again  in the entries with effect from 9-1-1992, the age of  the students are mentioned and not their dates of  birth. The manner in which the register has been  maintained does not inspire confidence of the  Court to put any reliance on it. Learned defence  counsel has also not referred to any provision of  law for accepting its authenticity in terms of  Section 35 of the Evidence Act. The entries made  in such a register cannot be taken as a proof of age  of the accused for any purpose."

We are, however, not oblivious of the decision of this Court in Bhola  Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has been  cast on the court that where such a plea is raised having regard to the  beneficial nature of the socially-oriented legislation, the same should be  examined with great care.  We are, however, of the opinion that the same  would not mean that a person who is not entitled to the benefit of the said  Act would be dealt with leniently only because such a plea is raised.  Each  plea must be judged  on its own merit.  Each case has to be considered on  the basis of the materials brought on records.   

The aforementioned decisions have been noticed by this Court in  Zakarius Lakra and Others v. Union of India and Another [(2005) 3 SCC  161], wherein a Bench of this Court while entertaining an application under  Article 32 of the Constitution of India opined that although the same was not  maintainable, having regard to the decision of this Court in Rupa Ashok  Hurra v. Ashok Hurra [(2002) 4 SCC 388], the review petition should be  allowed to be converted into a curative petition.  [See also Raj Singh v. State  of Haryana \026 (2000) 6 SCC 759].          

We, therefore, are of the opinion that the determination of the age of  the appellant as on the date of the commission of the offence should be done  afresh by the learned Sessions Judge.   

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       For the reasons aforementioned, this appeal is allowed and the matter  is remitted to the learned Sessions Judge with a direction to consider the  matter as regard the age of the appellant as on the date of commission of the  offence and in the event, he is found to be a child and/or juvenile within the  meaning of the Act and the Juvenile Justice Act to deal with the accused  accordingly.  If he is found not to have been a child as on the date of the  commission of the offence, the present conviction will stand.