Patna High Court - Orders
Anil Singh vs State Of Bihar on 5 March, 2012
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1171 of 2006
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Anil Singh son of late Ayodhya Singh, resident of village-Kothiya, P.S.-
Didarganj, District- Patna .........Appellant
Versus
State of Bihar ........Respondent
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Appearance :
For the Appellant/s : Mr. P.C.Agrawal, Advocate
Mr.Arjun Prasad No.2, Advocate
For the State : Mr. G.P.Jaiswal, A.P.P.
For Bihar School Examination
Board : Mr.Girijesh Kumar
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD
SINGH
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR
SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
10 05-03-2012The sole appellant was convicted under Section 302 of the Indian Penal Code read with Section 27 of the Arms Act for the occurrence that took place on 19.9.1990. The appellant is said to have shot dead the deceased. Two other persons who are not party to this appeal, are also held guilty under Section 302/34 of the Indian Penal Code. The appellant has been sentenced to life imprisonment by judgment and order dated 1.11.2006 for the offence punishable under Section 302 and three years for the offence under Section 27 of the Arms Act. During the pendency of the appeal which was filed on 30.11.2006 and admitted on 1.12.2006, a prayer was made on behalf of the sole appellant that on the date of occurrence he was a juvenile of less than 16 years of age and, as such, he could not be tried in terms of Juvenile Justice 2 Patna High Court CR. APP (DB) No.1171 of 2006 (10) dt.05-03-2012 2 Act, 1986 and further in terms of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, he can neither be tried nor punished and a plea of juvenility can be taken at any stage even during the pendency of the appeal.
In support, the appellant brought on record admit card for Secondary School Examination which was conducted by the Bihar School Examination Board in 1990. The said admit card shows his date of birth to be 2.1.1977. It was further pointed out that as per the judgment delivered by the trial court on 1.11.2006, the court had assessed the appellant's age to be 32 years, which would make him about 16 years on the date of occurrence. We being prima facie satisfied directed the Bihar School Examination Board to verify its record and file an affidavit in that regard. On behalf of Bihar School Examination Board, an affidavit has been filed by the Law Officer thereof. It is not disputed that date of birth of the appellant, as per the original records of the Bihar School Examination Board, is 2.1.1977 and he appeared in annual secondary school examination 1990 from S.R.H. High School, Patna City and failed. It is apparent that admit card issued and the examination conducted were before the occurrence.
Learned A.P.P., who is appearing on behalf of the State, could not controvert the aforesaid facts. Learned counsel for the Bihar School Examination Board is also present. Neither the 3 Patna High Court CR. APP (DB) No.1171 of 2006 (10) dt.05-03-2012 3 A.P.P. nor the counsel appearing on behalf of the Bihar School Examination Board disputes the bona fide of the date of birth mentioned in the admit card and/or the original record of the Board.
Before considering the merits of the claim of the appellant and the stand of the State, let us consider Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 which reads as under:
"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 4 Patna High Court CR. APP (DB) No.1171 of 2006 (10) dt.05-03-2012 4 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."
We are satisfied that entry relating to date of birth in the admit card and the original record of the Bihar School Examination Board is one of the valid proof of evidence for determination of the age of the appellant. We are also satisfied that in terms of Bihar Juvenile Justice (Care and Protection of Children) Rules, 2003 and Rule 12 of the Central Rules, 2007 5 Patna High Court CR. APP (DB) No.1171 of 2006 (10) dt.05-03-2012 5 preference has to be given to the entry with respect to date of birth given in the school certificate. The correctness of date of birth of the appellant is not in question. In that view of the matter, we have no option but to accept the date of birth of the appellant to be 2.1.1977 which would make him about 13 ½ years of age when occurrence took place. Thus being the age, he was a juvenile in conflict with law both under the Juvenile Justice Act, 1986 as well as Juvenile Justice (Care and protection of Children) Act, 2000. In this regard we place our reliance upon the decision of this court in the case of Ranjeet Kumar Jha Vs. State of Bihar since reported in 2012 Cri.L.J. 759 wherein a detailed discussion with regard to determination of age of a person accused of an offence when it appears that a person charged with an offence is a juvenile or claims as such has been made. In view of section 24 of the Juvenile Justice Act, 1986 as also in view of section 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000, no juvenile would be charged or tried for any offence together with a person who is not a juvenile nor can he be sentenced. In the present case, the appellant has been charged and tried together with other accused persons who were not juvenile.
In that view of the matter, the conviction and sentence so far as the appellant is concerned stood vitiated. His conviction and sentence cannot be upheld. Accordingly, the 6 Patna High Court CR. APP (DB) No.1171 of 2006 (10) dt.05-03-2012 6 conviction and sentence of the appellant are set aside.
The appellant as on date is aged about 37 years. He has already remained in jail for about five years. Keeping his age in view as also the fact that the appellant has already remained in judicial custody for about five years, no useful purpose would be served by remanding the matter back to the Juvenile Justice Board for any enquiry or order. Let the appellant be released forthwith from the custody if not required in any other case.
(Navaniti Prasad Singh, J)
Md.S./- (Ashwani Kumar Singh, J)