Jitendra Ram @ Jitu Vs. State of Jharkhand  Insc 238 (25 April 2006)
Sinha & P.K. Balasubramanyan
out of S.L.P. (Crl). No. 3494 of 2005] S.B. Sinha, J :
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.
case of the prosecution is as under :
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
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.
appeal preferred by him was also dismissed. He is, thus, before us.
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 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.
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
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.
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.
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.
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
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 :
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.
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, Judicial Magistrate, Lohardaga, in Bhandra P.S.
Case No.33/85 (G.R.294/85)".
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.
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
(1) of Section 32 of the Act provides for presumption and determination of age
in the following terms :
Presumption and determination of age.-
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.
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.
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.
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
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 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.
said decision has been noticed by this Court in Gopinath Ghosh v. State of West Bengal [(1984) Supp. SCC 228].
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 :
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.
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.
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 (2000) 6 SCC 759].
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.
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.