Shah Nawaz Vs. State
of U.P. & ANR.
J U D G M E N T
P. Sathasivam, J.
appeal is directed against the final judgment and order dated 10.12.2010 passed
by the High Court of Judicature at Allahabad in Criminal Revision No. 716 of
2009 whereby the High Court dismissed the criminal revision filed by the
a. The appellant claims to
have born on 18.06.1989 in Village and Post Dadheru Kala, Police Station Charthawal,
District Muzaffarnagar, U.P. He was admitted in Class I in Nehru Preparatory School,
Khurd, Muzaffarnagar on 05.07.1994 and studied there till 20.05.1998. Thereafter,
on 04.07.1998, he got admission in Class VI in the National High School Dadheru,
Khurd-O-Kalan, Muzaffarnagar and studied there till Class X. The date of birth in
the mark sheet is mentioned as 18.06.1989.
b. On 04.06.2007, a
First Information Report (in short "the FIR") was lodged by Khatizan,
wife of Nawab-the deceased, against the appellant herein and three others for the
alleged occurrence which culminated into Crime Case No. 215 of 2007 at Police Station
Charthawal, District Muzaffarnagar, U.P. under Sections 302 and 307 of the Indian
Penal Code, 1860 (in short "the IPC").
c. On 12.06.2007, the
mother of the appellant submitted an application before the Juvenile Justice Board
(in short "the Board"), Muzaffarnagar, U.P. stating that the
appellant was a minor at the time of the alleged occurrence. After examining the
witnesses, the Board, vide judgment and order dated 24.01.2008, declared the appellant
juvenile under the provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred to as "the Act").
d. Against the judgment
of the Board, Khatizan - the wife of the deceased filed Criminal Appeal No. 11 of
2008 before the Additional Sessions Judge, Muzaffarnagar, U.P. under Section 52
of the Act. The State - respondent No.1 did not file any appeal. Vide judgment dated
13.01.2009, the Additional Sessions Judge allowed the appeal and set aside the order
dated 24.01.2008 passed by the Board.
e. Challenging the judgment
dated 13.01.2009 passed by the Additional Sessions Judge, the appellant filed Criminal
Revision No. 716 of 2009 before the High Court of Allahabad. The High Court, by
the impugned judgment dated 10.12.2010, dismissed the criminal revision. Hence
this appeal by way of special leave.
Mr. Dinesh Kumar Garg, learned counsel for the appellant and Mr. R.K. Gupta, learned
counsel for the State. Despite notice, no one has entered appearance on behalf of
considering the merits of the claim of the appellant and the stand of the
State, let us consider Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as `the Rules') which reads as under:- "12.
Procedure to be followed in determination of Age.
(1) In every case
concerning a child or a juvenile in conflict with law, the court or the Board
or as the case may be the Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in conflict with law
within a period of thirty days from the date of making of the application for
(2) The court or the Board
or as the case may be the Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance or documents, if available, and
send him to the observation home or in jail.
(3) In every case concerning
a child or juvenile in conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may be, the Committee by
seeking evidence by obtaining - (a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof; (ii) the date of birth certificate from
the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or
a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of the juvenile or child.
In case exact
assessment of the age cannot be done, the Court or the Board or, as the case
may be, the Committee, for the reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by considering his/her age on lower
side within the margin of one year. and, while passing orders in such case shall,
after taking into consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age and either
of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the
absence whereof, clause (b) shall be the conclusive proof of the age as regards
such child or the juvenile in conflict with law.
(4) If the age of a
juvenile or child or the juvenile in conflict with law is found to be below 18
years on the date of offence, on the basis of any of the conclusive proof specified
in sub- rule (3), the court or the Board or as the case may be the Committee
shall in writing pass an order stating the age and declaring the status of juvenility
or otherwise, for the purpose of the Act and these rules and a copy of the order
shall be given to such juvenile or the person concerned. (5) Save and except where,
further inquiry or otherwise is required, inter alia, in terms of section 7A,
section 64 of the Act and these rules, no further inquiry shall be conducted by
the court or the Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained
in this rule shall also apply to those disposed off cases, where the status of juvenility
has not been determined in accordance with the provisions contained in sub-rule
(3) and the Act, requiring dispensation of the sentence under the Act for
passing appropriate order in the interest of the juvenile in conflict with
the light of the above procedure to be followed in determining the age of the child
or juvenile, let us consider various decisions of this Court.
Raju and Anr. vs. State of Haryana (2010) 3 SCC 235, this Court had admitted
"mark sheet" as one of the proof in determining the age of the accused
person. In that case, the appellants therein Raju and Mangli along with Anil alias
Balli and Sucha Singh were sent up for trial for allegedly having committed an offence
punishable under Section 302 read with Section 34 of the IPC. Accused Sucha Singh
was found to be a juvenile and his case was separated for separate trial under
the Act. Others were convicted under Section 302 read with Section 34 of the IPC
and were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/-.
Apart from contending
on the merits of the prosecution case, insofar as appellant No. 1, Raju, is
concerned, the counsel appearing for him submitted that on the date of the incident
that is on (31.03.1994), he was a juvenile and as per his mark sheet, wherein his
date of birth was recorded as 1977, he was less than 17 years of age on the date
of the incident. Learned counsel submitted that having regard to the recent
decision of this Court in Hari Ram vs. State of Rajasthan & Anr., (2009) 13
SCC 211, appellant No. 1 must be held to have been a minor on the date of the
incident and the provisions of the Act would apply in his case. Learned counsel
further contended that the appellant No. 1 would have to be dealt with under the
provisions of the said Act in keeping with the decision in the aforesaid case.
On merits, while
accepting the claim of the learned counsel for accused-appellant, this Court altered
the conviction and sentence and convicted under Section 304 Part I read with
Section 34 IPC instead of Section 302 read with Section 34 IPC. As far as appellant
No. 1, namely, Raju was concerned, while accepting the entry relating to date
of birth in the mark sheet referred his case to the Board in terms of Section
20 of the Act to be dealt under the provisions of the said Act in keeping with
the provision of Section 15 thereof. It is clear from the said decision that
this Court has accepted mark sheet as one of the proof for determining the age
of an accused person.
this Court has treated the date of birth in School Leaving Certificate as valid
proof in determining the age of an accused person. In Bhoop Ram vs. State of
U.P. (1989) 3 SCC 1, this Court considered whether the appellant therein is
entitled lesser imprisonment than imprisonment for life and should have been treated
as a "child" within the meaning of Section 2(4) of the U.P. Children Act,
1951 (1 of 1952). The following conclusion in para 7 is relevant which reads as
under:- "7.....The first is that the appellant has produced a school certificate
which carries the date 24-6-1960 against the column "date of birth".
There is no material before us to hold that the school certificate does not
relate to the appellant or that the entries therein are not correct in their
particulars.... " It is clear from the above decision that this Court
relied on the entry made in the column "date of birth" in the School
Rajinder Chandra vs. State of Chhattisgarh and Anr. (2002) 2 SCC 287, this
Court once again considered the entry relating to date of birth in the mark
sheet and concluded as under: "5. It is true that the age of the accused
is just on the border of sixteen years and on the date of the offence and his
arrest he was less than 16 years by a few months only. In Arnit Das v. State of
Bihar this Court has, on a review of judicial opinion, held that while dealing with
the question of determination of the age of the accused for the purpose of finding
out whether he is a juvenile or not, a hypertechnical approach should not be adopted
while appreciating the evidence adduced on behalf of the accused in support of
the plea that he was a juvenile and if two views may be possible on the said evidence,
the court should lean in favour of holding the accused to be a juvenile in borderline
cases. The law, so laid down by this Court, squarely applies to the facts of
the present case.
Arnit Das vs. State of Bihar, (2000) 5 SCC 488, this Court held that while
dealing with a question of determination of the age of an accused, for the purpose
of finding out whether he is a juvenile or not, a hyper-technical approach should
not be adopted while appreciating the evidence adduced on behalf of the accused
in support of the plea that he is a juvenile and if two views may be possible
on the same evidence, the court should lean in favour of holding the accused to
be juvenile in borderline cases.
Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584 with regard to the entries
made in School Leaving Certificate, this Court has observed as under:- "17.
The school-leaving certificate was said to have been issued in the year 1998. A
bare perusal of the said certificate would show that the appellant was said to have
been admitted on 1-8-1967 and his name was struck off from the roll of the institution
on 6-5-1972. The said school-leaving certificate was not issued in the ordinary
course of business of the school. There is nothing on record to show that the said
date of birth was recorded in a register maintained by the school in terms of
the requirements of law as contained in Section 35 of the Evidence Act. No
statement has further been made by the said Headmaster that either of the
parents of the appellant who accompanied him to the school at the time of his admission
therein made any statement or submitted any proof in regard thereto. The entries
made in the school-leaving certificate, evidently had been prepared for the
purpose of the case. All the necessary columns were filled up including the
character of the appellant. It was not the case of the said Headmaster that before
he had made entries in the register, age was verified. If any register in regular
course of business was maintained in the school, there was no reason as to why the
same had not been produced."
Pradeep Kumar vs. State of U.P. 1995 Supp (4) SCC 419, this Court considered the
commission of offence by persons below 16 years of age. The question before a three-
Judge Bench was whether each of the appellants in those appeals was a child
within the meaning of Section 2(4) of the U.P. Children Act, 1951 and as such on
conviction under Section 302 read with Section 34 IPC should have been sent to an
approved school for detention till the age of 18 years. At the time of granting
special leave, appellant, by name, Jagdish produced High School Certificate, according
to which he was about 15 years of age at the time of occurrence. Appellant - Krishan
Kant produced horoscope which showed that he was 13 years of age at the time of
occurrence. So far as appellant - Pradeep was concerned, a medical report was
called for by this Court which disclosed that his date of birth as 07.01.1959
was acceptable on the basis of various tests conducted by the medical
authorities. In the above factual scenario/details, this Court concluded as
under:- "3. It is thus proved to the satisfaction of this Court that on the
date of occurrence, the appellants had not completed 16 years of age and as such
they should have been dealt with under the U.P. Children Act instead of being sentenced
to imprisonment on conviction under Section 302/34 of the Act" After
saying so and after finding that the appellants were aged more than 30 years, this
Court directed not to send them to an approved school under the U.P. Children
Act for detention, while sustaining the conviction of the appellants under all
the charges framed against them, quashed the sentences awarded to them and
ordered their release forthwith.
applicability of the Act and the Rules in respect of "Juvenile" and "Juvenile
in conflict with law" have been elaborately considered by this Court in Hari
Ram (supra). 11 After analyzing the Scheme of the Act and various Rules including
Rule 12 and earlier decisions of this Court laid down various principles to be followed.
After applying those principles and finding that the appellant therein was 16
years of age on the date of the commission of the alleged offence and had not
been completed 18 years of age, remitted the matter to the Board for disposal
in accordance with law. Discussion on merits:
the light of the above principles, now let us consider the claim of the
appellant. According to him, on 18.06.1989, he was born in Village and Post
Dadheru Kala, Police Station Charthawal, District Muzaffarnagar, U.P. On 05.07.1994,
he was admitted in Class I in Nehru Preparatory School, Khurd, Muzaffarnagar. The
appellant left the said school on 20.05.1998. On 04.07.1998, he was admitted in
Class VI in the National High School Dadheru, Khurd-O-Kalan, Muzaffarnagar, U.P.
On 21.05.2004, he left the said school, namely, National High School as he failed
in High School. From Class VI till Class X the appellant remained and studied continuously
in the aforesaid school. The date of birth in the mark sheet is mentioned as 18.06.1989.
The alleged occurrence took place on 04.06.2007. The FIR was lodged on 04.06.2007
which culminated into Crime Case No. 215 of 2007 at Police Station Charthawal, District
Muzaffarnagar, U.P. under Sections 302 and 307 of the IPC. On 12.06.2007, the mother
of the appellant submitted an application before the Board at Muzaffarnagar stating
that the appellant was a minor at the time of alleged occurrence. The appellant
was provided a School Leaving Certificate dated 11.07.2007 from Nehru Preparatory
School, Khurd, Muzaffarnagar. The mother of the appellant made a statement
dated 26.07.2007 regarding the age of her son. She was cross-examined at length.
On 16.10.2007, the statement of clerk of Nehru Preparatory School was recorded
by the Board. The said clerk brought the entire records maintained by the School.
The said clerk was also cross-examined at length.
Board, vide judgment and order dated 24.01.2008, declared the appellant juvenile
under the Act. Against the judgment of the Board, the complainant Smt.
Khatizan, wife of deceased Nawab filed Criminal Appeal No. 11 of 2008 under Section
52 of the Act before the learned Additional Sessions Judge, Muzaffarnagar. It is
relevant to point out that the State, who is the prosecuting agency did not file
any appeal. The Additional Sessions Judge, Muzaffarnagar recorded the statement
of Guljar Hussain, Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan,
Muzaffarnagar on 07.08.2008. By order dated 13.01.2009, the Additional Sessions
Judge allowed the said appeal filed by the complainant and set aside the order
dated 24.01.2008 passed by the Board.
by the order of the Additional Sessions Judge, the appellant filed Criminal Revision
No. 716 of 2009 before the High Court. The High Court dismissed the said Revision
mainly on the ground that in the absence of any matriculation or equivalent
certificate and considering the language used in Rule 12 with reference to only
"Certificate" and not "mark sheet", dismissed the Revision
have already referred to the decision of this Court about the entry relating to
the date of birth made in the mark sheet of High School examination. The appellant
has 14 produced mark sheet of High School examination issued by the school
authority, namely, National High School, Dadheru, Khurd-O-Kalan, Muzaffarnagar.
A perusal of the above said certificate makes reference to appellant's Roll No.,
his name, Date of Birth, name of the school, details regarding various subjects,
maximum marks, marks obtained and ultimate result in the examination. The
certificate contained signature of the Clerk Salim Ahmed, who prepared the same,
the signature of the examiner and signature and seal of the Head Master. It is
document relied on by the appellant is School Leaving Certificate dated 11.07.2007
issued by Nehru Preparatory School, Khurd, Muzaffarnagar wherein it noted the
registration no., name of the school, student's name, date of birth (18.06.1989)
written in words also, Father's name, occupation, caste, residential address, date
of admission in school, date of leaving of school. The certificate contained
the signature and seal of the Head Master and the same is dated 11.07.2007.
documents furnished above clearly show that the date of birth of the appellant had
been noted as 18.06.1989. Rule 12 of the Rules categorically envisages that the
medical opinion from the medical board should be sought only when the matriculation
certificate or school certificate or any birth certificate issued by a corporation
or by any Panchayat or municipality is not available. We are of the view that
though the Board has correctly accepted the entry relating to the date of birth
in the mark sheet and school certificate, the Additional Sessions Judge and the
High Court committed a grave error in determining the age of the appellant
ignoring the date of birth mentioned in those documents which is illegal,
erroneous and contrary to the Rules.
are satisfied that the entry relating to date of birth entered in the mark
sheet is one of the valid proof of evidence for determination of age of an accused
person. The School Leaving Certificate is also a valid proof in determining the
age of the accused person. Further, the date of birth mentioned in the High School
mark sheet produced by the appellant has duly been corroborated by the School
Leaving Certificate of the 16 appellant of Class X and has also been proved by the
statement of the clerk of Nehru High School, Dadheru, Khurd- O-Kalan and
recorded by the Board. The date of birth of the appellant has also been recorded
as 18.06.1989 in School Leaving Certificate issued by the Principal of Nehru Preparatory
School, Dadheru, Khurd-O-Kalan, Muzaffarnagar as well as the said date of birth
mentioned in the school register of the said school at S. No. 1382 which have been
proved by the statement of the Principal of that school recorded before the Board.
Apart from the clerk and the Principal of the school, the mother of the appellant
has categorically stated on oath that the appellant was born on 18.06.1989 and
his date of birth in his academic records from preparatory to Class X is the
same, namely, 18.06.1989, hence her statement corroborated his academic records
which clearly depose his date of birth as 18.06.1989. Accordingly, the appellant
was a juvenile on the date of occurrence that is 04.06.2007 as alleged in the
FIR dated 04.06.2007.
are also satisfied that Rule 12 of the Rules which was brought in pursuance of the
Act describes four categories of evidence which have been provided in which preference
has been given to school certificate over the medical report.
the light of the above discussion, we hold that from the acceptable records, the
date of birth of the appellant is 18.06.1989, the Additional Sessions Judge and
the High Court committed an error in taking contrary view. While upholding the decision
of the Board, we set aside the orders of the Additional Sessions Judge dated 13.01.2009
and the High Court dated 10.12.2010. Accordingly, the appellant is declared to
be a juvenile on the date of commission of offence and may be proceeded in
accordance with law. The appeal is allowed.
(DR. B.S. CHAUHAN)