REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITION

CRIMINAL APPEAL NO.763 OF 2003

Jitendra Singh @ Babboo Singh & Anr. …Appellants

Versus

State of U.P. …Respondent

O R D E R

T.S. THAKUR, J.

1. The appellants in this appeal by special leave have  

assailed their conviction for offences punishable under  

Section 304-B and 498-A IPC and sentence of imprisonment  

of seven years under the former and two years under the  

latter  provision  besides  a  fine  of  Rs.100/-  each.  

Criminal  Misc.  Petition  No.16974  of  2010  filed  by  

appellant Jitendra Singh prays for permission to raise an  

additional ground in support of the appeal to the effect  

that he was a minor within the meaning of Section 2(k) of  

the Juvenile (Care and Protection of Children) Act, 2000  

on the date of the commission of offence and that he  

ought to have been dealt with under the said Act.

2. The  case  of  the  appellant  as  set  out  in  the  

application  is  that  he  was  born  on  3rd August,  1974  

meaning thereby that he was just about 13 years 8 months  

and  23  days  old  on  24th May,  1988  the  date  when  the  

alleged incident is said to have taken place. In support  

of his assertion that he was a minor on the date of the  

incident, the appellant has placed on record along with  

his  application  a  copy  of  School  Leaving  Certificate  

No.46 and Marks-sheet No.6031 both dated 17th November,  

2009 issued by the Poorav Madhyamik Vidyalaya, Sohayee  

Bagh, Raibareilly. The application points out that the  

question whether he was minor on the date of the incident  

had  been  raised  by  the  appellant  at  the  earliest  

available opportunity when an application for bail was  

moved on his behalf. It is alleged that the appellant had  

been got medically examined to determine his age which  

was certified to be around 17th years only.  The medical  

report was then made a basis by the High Court for grant  

of bail to him in terms of order dated 25th November,  

1988.  Relying upon the provisions of Section 7A of the  

Juvenile (Care and Protection of Children) Act, 2000 the  

appellant seeks permission to raise the question of his  

juvenility in the present proceedings and contends that  

the provisions of Section 7A and the pronouncements of  

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this Court entitle him to raise a plea regarding his age  

at any stage of the proceedings including the proceedings  

before this Court.  The averments made in the application  

are  supported  by  an  affidavit  filed  alongwith  the  

application.  

3. When the application came up for hearing before this  

Court  Mr.  Sushil  Kumar  Jain,  learned  counsel  for  the  

appellant argued that the question whether or not the  

appellant was a juvenile within the meaning of the Act  

aforementioned  could  be  raised  and  shall  have  to  be  

determined by this Court, no matter no such plea was  

taken at the trial or even in appeal before the High  

Court on behalf of the appellant. Reliance in support of  

that submission was placed by Mr. Jain on the decisions  

of this Court in  Jayendra and Anr.  v.  State of Uttar  

Pradesh (1981) 4 SCC 149, Gopinath Ghosh v. State of West  

Bengal  1984 (Supp) SCC 228,  Bhoop Ram  v.  State of U.P.  

(1989) 3 SCC 1, Brij Lal v. Prem Chand and Anr. 1989 Supp  

(2) SCC 680, Bhola Bhagat v. State of Bihar (1997) 8 SCC  

720 and Hari Ram v. State of Rajasthan 2009 (13) SCC 211.  

It was further argued that the material placed on record  

by  the  appellant  in  the  form  of  a  School  Leaving  

Certificate and the Marks-sheet as also the order passed  

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by the High Court granting bail to the applicant in which  

the  medical  examination  of  the  appellant  and  the  

determination  of  his  age  have  been  referred  to,  

sufficiently establish on a prima facie basis the case of  

the appellant that he was a minor on the date of the  

incident.  It  was  submitted  even  when  the  offence  was  

committed before the commencement of Juvenile (Care and  

Protection of Children) Act, 2000 the question whether  

benefit under the said Act could be extended to cases  

where the offences were committed prior to 1.4.2001 the  

date when the said Act came into force, stands concluded  

in favour of the appellant by the decision of this Court  

in Hari Ram’s case (supra).

4. On  behalf  of  the  respondent  it  was  argued  that  

although delay in making a claim of juvenility was not by  

itself enough to justify refusal of an enquiry into the  

matter, the appellant had to establish a strong prima  

facie case in support of his claim to persuade this Court  

to direct an enquiry into the determination of his age on  

the date of the incident.  Reliance in support was placed  

upon  a  decision  of  this  Court  in  Pawan  v.  State  of  

Uttaranchal (2009) 15 SCC 259.   

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5. Having  given  our  careful  consideration  to  the  

submissions made at the bar we are of the opinion that in  

the facts and circumstances of this case an enquiry for  

determining  the age  of the  appellant-Jitendra Singh  @  

Babboo Singh on the date of the commission of the offence  

shall  have  to  be  directed.   It  is  true  that  in  the  

ordinary course any one claiming to be a minor on the  

date of the incident ought to make such a claim at the  

earliest available opportunity before the Trial Court or  

at least before the High Court, but the very fact that no  

such claim is for any reason made, may not by itself  

disentitle  him  to  do  so  before  the  Apex  Court.  The  

decision of this Court in Gopinath Ghosh, Bhoop Ram and  

Bhola Bhagat’s cases (supra) and in Hari Ram’s case have  

recognized  the  beneficial  nature  of  the  provisions  

enacted by the Parliament and held that a technical plea  

based on delay in the making of the claim of juvenility  

would not itself disable the person concerned from making  

such a claim.                          

6. In  Pawan’s  case  (supra)  reliance  whereupon  was  

placed on behalf of the respondent, the delay in the  

making of claim to juvenility was not held to be fatal  

provided the claim was supported by evidence that would  

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prima facie establish that the claimant was a juvenile on  

the date of the commission of the offence.  The burden of  

making out a prima facie case for directing an enquiry  

has been in our opinion discharged in the instant case in  

as  much  as  the  appellant  has  filed  along  with  the  

application a copy of School Leaving Certificate and the  

Marks-sheet  which  mentions  the  date  of  birth  of  the  

appellant to be 24th May, 1988.  The medical examination  

to  which  the  High  Court  has  referred  in  its  order  

granting bail to the appellant also suggests the age of  

the  appellant  being  17  years  on  the  date  of  the  

examination.   These  documents  are  sufficient  at  this  

stage for directing an enquiry and verification of the  

facts.   We  may  all  the  same  hasten  to  add  that  the  

material referred to above is yet to be verified and its  

genuineness  and  credibility  determined.  There  are  no  

doubt certain tell tale circumstances that may raise a  

suspicion about the genuineness of the documents relied  

upon by the appellant. For instance the deceased Asha  

Devi who was married to the appellant was according to  

Dr. Ashok Kumar Shukla, Pathologist, District Hospital  

Rai Bareli aged 19 years at the time of her death. This  

would  mean  as  though  the  appellant  husband  was  much  

younger to his wife which is not the usual practice in  

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the Indian context and may happen but infrequently. So  

also  the  fact  that  the  appellant  obtained  the  School  

Leaving Certificate as late as on 17th November, 2009 i.e.  

after the conclusion of the trial and disposal of the  

first appeal by the High Court, may call for a close  

scrutiny and examination of the relevant school record to  

determine whether the same is free from any suspicion,  

fabrication or manipulation. It is also alleged that the  

electoral  rolls  showed  the  age  of  the  accused  to  be  

around  20  years  while  the  extract  from  the  Panchayat  

Register  showed  him  to  be  19  years  old.   All  these  

aspects would call for close and careful scrutiny by the  

Court below while determining the age of the appellant.  

The date of birth of appellant Jitendra Singh’s siblings  

and his parents may also throw considerable light upon  

these aspects and may have to be looked into for a proper  

determination of the question. Suffice it to say while  

for the present we consider it to be a case fit for  

directing an enquiry, that direction should not be taken  

as an expression of any final opinion as regards the true  

and correct age of the appellant which matter shall have  

to be independently examined on the basis of the relevant  

material.   

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7. In the result we allow the appellant to urge the  

additional ground regarding juvenility of the appellant  

on the date of the commission of the offence and direct  

the Trial Court to hold an enquiry into the said question  

and submit a report as expeditiously as possible, but not  

later than four months from today.  We make it clear that  

the Trial Court shall be free to summon the concerned  

School, Panchayat or the Electoral office record or any  

other record from any other source which it considers  

necessary for a proper determination of the age of the  

appellant.  We also make it clear that in addition to the  

above, the Trial Court shall be free to constitute a  

Medical Board comprising at least three experts on the  

subject for determination of the age of the appellant,  

based on medical tests and examination.   

8. The  hearing  of  the  appeal  shall  in  the  meantime  

stand  adjourned  and  the  case  listed  in  the  month  of  

April, 2011. A copy of this order shall be despatched to  

the Trial Court for compliance forthwith. The appellant  

shall appear before the Trial Court on 6th December, 2010  

and associate with the enquiry. A copy of the application  

and the accompanying documents shall also be forwarded to  

the Trial Court along with a copy of this order.          

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……………………………J. (MARKANDEY KATJU)

……………………………J. (T.S. THAKUR)

New Delhi November 19, 2010

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