BABLA @ DINESHversusSTATE OF UTTARAKHAND

                     (2012] 7 S.C.R. 477


                     BABLA @ DINESH                                 A
                               v.
                STATE OF UTTARAKHAND
            (Criminal Appeal No. 1349 of 2012)
                   SEPTEMBER 04, 2012
                                                                    B
[H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]

   JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT 2000:
                                                                    c
    ss. 2(k) and 15 - Plea of juvenility - Held: Can be raised
even before Supreme Court for the first time - The report of
Addi. Sessions Judge concluding that the appellant was aged
about 10-15 years on the date of commission of the offence
(i.e. 1.12.1991) is accepted -Appellant is, thus, juvenile within   0
the expression uls 2(h) of 1986 Act and s. 2(k) of 2000 Act -
Appellant has undergone the actual period of more than 3
years out of the maximum period prescribed u/s 15 - While
sustaining the conviction, the sentence awarded to him by
courts below is set aside - Juvenile Justice Act, 1986 - s.2(h)     E
- Juvenile Justice (Care and Protection of Children) Rules,
2007 - r. 2 - Penal Code, 1860 - s. 3021149.

     The appellant, who was one of the accused before
the trial court, was convicted and sentenced to
imprisonment for life u/s 302/149 IPC. The High Court               F
confirmed the judgment rejecting the plea of juvenility of
the appellant on the ground that it was not raised before
the trial court and no evidence was adduced in defence.

    Partly allowing the appeal, the Court                           G
    HELD: 1.1 The High Court has erred in dismissing the
appeal on the ground that no evidence was adduced and
no suggestion was made to the witnesses regarding
juvenility of the appellant during the trial. The issue of
                           477                                      H
    478      SUPREME COURT REPORTS              [2012] 7 S.C.R.

A raising the plea for determination of juvenility for the first
  time at the appellate stage is no more res integra. This
  Court in Lakhan Lal's* case, taking note of its previous
  decisions on this point has allowed such plea raised
  before this Court for the first time. [para 9) (481-F-G]
B      Lakhan Lal v. State of Bihar 2011 (1) SCR 770 = (2011)
  2 SCC 251; Umesh Singh and Anr. v. State of Bihar, (2000)
  6 SCC 89; Bhola Bhagat v. State of Bihar, 1997 (4) Suppl.
  SCR 711 = (1997) 8 SCC 720; Gopinath Ghosh v. State of
  WP. 1984 SCR 803 =1984 Supp SCC 228; and Bhoop Ram
C v. State of UP. (1989) 3 SCC 1; and Pradeep Kumar v. State
  of UP., 1995 Supp(4) sec 419 - relied on.
         1.2 Pursuant to the directions issued by this Court,
    the Additional Sessions Judge has conducted inquiry by
    following the procedure prescribed under the Juvenile
0
    Justice (Care and Protection of Children) Rules, 2007 and
    submitted his report dated 03.12.2011, wherein, it is
    concluded that the appellant was aged about 10-15 years
    on the date of the commission of the offence i.e.
    1.12.1991. The report is accepted. Accordingly, this Court
E   holds that the appellant was juvenile within the meaning
    of the expression uls 2(h) of the Juvenile Justice Act,
    1986 and s. 2(k) of the Juvenile Justice (Care and
    Protection of Children) Act, 2000 and the Rules framed
    thereunder on the date of commission of the offence. The
F   Jail Custody Certificate, produced by the appellant
    suggests that he has undergone the actual period of
    sentence of more than three years out of the maximum
    period prescribed u/s 15 of the Act. In the circumstance,
    while sustaining the conviction of the appellant, the
G   sentence awarded to him by the trial court and confirmed
    by the High Court is set aside. [para7 and 12) [481-C-D;
    483-F-G]
                        Case Law Reference:
H         2011 (1) SCR 770         relied on          para 9
     BABLA @ DINESH v. STATE OF UTTARAKHAND               479


      2000 (6) sec 89            relied on          para 9        A

      1997 (4) Suppl. SCR 711 relied on             para 9
      1984 SCR 803                relied on         para 9
      1989 (3) sec 1              relied on         para 9        B
      1995 (4) Suppl. SCC 419 relied on             para 9
•·  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1349 of 2012.
     From the Judgment & Order dated 21.07.2009 of the High       C
Court of Uttarakhand at Nainital in Criminal Appeal No. 1481
of 2001 (Old No. 1852 of 1995).
    T.N. Singh, Vikas K. Singh, H.L. Srivastava for the
Appellant.
                                                                  D
     Mukesh Verma, (For Jatinder Kumar Bhatia) for the
 Respondent.
      The Judgment of the Court was delivered by
      H.L. DATTU, J. 1. Leave granted.                            E
     2. This appeal is directed against the judgment and order
passed by the High Court of Uttarakhand at Nainital in Criminal
Appeal No.1481 of 2001 dated 21.07.2009. By the impugned
judgment, the High Court has confirmed the Order of conviction
and sentence of the appellant passed by the Trial Court under     F
Section 302 read with Section 149 of the Indian Penal Code,
 1860 (for short 'the IPC').
       3. The appellant was one of the accused before the Trial
 Court for the alleged offences punishable under Section 302      G
 read with Sections 149 and 147 of the IPC. The Trial Court by
 its judgment and order dated 18.10.1995 in Sessions Trial No.
 39 of 1992, convicted and sentenced the appellant for rigorous
 imprisonment of two years under Section 147 and
 imprisonment for life under Section 302 read with Section 149
                                                                  H
    480      SUPREME COURT REPORTS                  [2012) 7 S.C.R.


A IPC, both sentences to run concurrently. Aggrieved by the order
  so made, the appellant and others approached the High Court
  of Uttarakhand at Nainital by way of criminal appeal under
  Section 374(2) of the Code of Criminal Procedure, 1973 (for
  short 'the Cr.P.C.') on various grounds.
B      4. Before the High Court, apart from others, the learned
  counsel for appellant raised the contention that the appellant
  was juvenile on the date of the commission or occurrence of
  the offence, i.e. on 01.12.1991. The said contention was
  rejected by the High Court on the ground that it was not raised
C before the Trial Court and no evidence has been adduced in
  defence and no suggestion had been made to the witnesses
  during the trial and that the appellant admitted his age as 20
  years at the time of recording his statement under Section 313
  of the Cr. P.C .. In conclusion, the Court has observed:
D
       "11. Learned counsel for the appellants contended that
       appellants Gadha and Sabia, were minors on the day of
       the incident. But no such suggestion was made to any of
       the witnesses nor is any evidence adduced in defence.
       Rather the accused I appellants Gadha and Sabia have
E      disclosed their age 20 years on the day when their
       statement under Section 313 Cr.P.C. were recorded also
       makes out the case that their age was more than 16 years
       on the day of the incident. It is pertinent to mention here
       that on the day of the incident, and during the trial, Juvenile
F      Justice Act, 1986, was applicable to the cases of Juveniles
       and not Juvenile Justice (Care and Protection of Children)
       Act 2000."
       5. After issuing notice to the opposite parties in the special
G leave petition, by our Order dated 18.04.2011, we had directed
  the learned Sessions Judge or his nominee to conduct an
  inquiry into the question of the age of the appellant on the date
  of commission of offence and to submit a report as envisaged
  under Rule 12 of the Juvenile Justice (Care and Protection of
H Children) Rules, 2007 (for short 'Rules, 2007).
  BABLA@ DINESH v. STATE OF UTTARAKHAND                        481
              [H.L. DATTU, J.]
      6. Pursuant to the aforesaid direction, the inquiry report was   A
submitted before this Court, but the same was not accepted,
as it was merely based on the opinion of an individual doctor
which was not in accordance with the procedure prescribed
under Rule 12 of the Rules, 2007. Therefore, by our Order dated
01.11.2011, we had, once again, directed the learned Sessions          B
Judge to conduct an inquiry as prescribed under Rule 12 of the
Rules, 2007 and submit his report.
     7. Pursuant to the directions issued by us, the learned
Additional Sessions Judge has conducted inquiry by following
the prescribed procedure under the Rules, 2007 and submitted           C
his inquiry report dated 03.12.2011, wherein, it is concluded
that the appellant was aged about 10-15 years on the date of
the commission of the offence i.e. 01.12.1991. Therefore, the
appellant is juvenile within the meaning of the expression under
Section 2(h) of the Juvenile Justice Act, 1986 and Section 2(k)        D
of the Juvenile Justice (Care and Protection of Children) Act,
2000.
     8. This report is not disputed by the learned counsel for
the respondent-State.
                                                                       E
      9. We have heard the learned counsel for the parties to
the lis. We have also carefully perused the judgment and order
passed by the High Court. We are of the opinion that the High
Court has erred in dismissing the appeal on the ground that
no evidence was adduced and no suggestion was made to the              F
witnesses regarding juvenility of the appellant during the trial.
In our opinion, the issue of raising the plea for determination
of juvenility for the first time at the appellate stage is no more
res integra. This Court in Lakhan Lal v. State of Bihar, (2011)
2 SCC 251, has allowed such plea raised before this Court for          G
the first time and, taking note of its previous decisions on this
point, has observed thus :
     "The fact remains that the issue as to whether the
     appellants were juvenile did not come up for consideration
     for whatever reason, before the Courts below. The question        H
    482       SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A         is whether the same could be considered by this Court at
          this stage of the proceedings. A somewhat similar
          situation had arisen in Umesh Singh and Anr. v. State of
          Bihar, (2000) 6 SCC 89 wherein this Court relying upon
          the earlier decisions in Bhola Bhagat v. State of Bihar,
8         (1997) 8 SCC 720, Gopinath Ghosh v. State of WP. 1984
          Supp SCC 228 and Bhoop Ram v. State of UP., (1989)
          3 sec 1, while sustaining the conviction of the Appellant
          therein under all the charges, held that the sentences
          awarded to them need to be set aside. It was also a case
c         where the appellant therein was aged below 18 years and
          was a child for the purposes of the Bihar Children Act,
          1970 on the date of the occurrence. The relevant
          paragraph reads as under (Umesh Singh case, SCC,
          pp.93-94, para 6) :
D                "6. So far as Arvind Singh, appellant in Criminal
          Appeal No. 659 of 1999 is concerned, his case stands on
          a different footing. On the evidence on record, the learned
          Counsel for the appellant, was not in a position to point
          out any infirmity in the conviction recorded by the trial court
E         as affirmed by the appellate court. The only contention put
          forward before the court is that the appellant is born on 1-
          1-67 while the date of the incident is 14-15-1980 and on
          that date he was hardly 13 years old. We called for report
          of experts being placed before the court as to the age of
F         the appellant, Arvind Singh. The report made to the court
          clearly indicates that on the date of the incident he may
          be 13 years old. This fact is also supported by the school
          certificate as well as matriculation certificate produced
          before this Court which indicate that his date of birth is 1-
          1-1967. On this basis, the contention put forward before
G
          the court is that although the appellant is aged below 18
          years and is a child for the purpose of the Bihar Children
          Act, 1970 on the date of the occurrence, his trial having
          been conducted along with other accused who are not
          children is not in accordance with law. However, this
H
  BABLA @ DINESH v. STATE OF UTTARAKHAND                      483
               [H.L. DATTU, J.]

       contention had not been raised either before the trail court   A
       or before the High Court. In such circumstances, this Court
       in Bhola Bhagat v. State of Bihar, 1997 (8) SCC 720,
       following the earlier decision in Gopinath Ghosh v. State
       of West Bengal, 1984 Supp. SCC 228 and Bhoop Ram
       v. State of UP., 1989 (3) SCC 1 and Pradeep Kumar v.           B
       State of U.P., 1995 Supp(4) sec 419, while sustaining
       that the sentences awarded to them need to be set aside.
       In view of the exhaustive discussion of the law on the
       matter in Bhola Bhagat case, we are obviated of the duty
       to examine the same but following the same, with respect,      c
       we pass similar orders in the present case. Conviction of
       the appellant Arvind Singh is confirmed but the sentence
       imposed upon him stands set aside. He is, therefore, set
       at liberty, if not required in any other case."
    10. We are in respectful agreement with the view                  D
expressed by this Court in the aforesaid decision.
     11. We have carefully perused the report dated 03.12.2011
of the learned Additional Sessions Judge. Since the report is
made after holding due inquiry as required under the Act and
                                                                      E
the Rules, we accept the same. Accordingly, we hold that the
appellant was juvenile, as envisaged under the Act and the
Rules framed thereunder, on the date of commission of the
offence.
     12. The Jail Custody Certificate, produced by the appellant      F
suggests that he has undergone the actual period of sentence
of more than three years out of the maximum period prescribed
under Section 15 of the Act. In the circumstance, while
sustaining the conviction of the appellant for the aforesaid
offences, the sentence awarded to him by the Trial Court and          G
confirmed by the High Court is set aside. Accordingly, we direct
that the appellant be released forthwith, if not required in any
other case. The appeal is partly allowed.

R.P.                                      Appeal Partly allowed.
                                                                      H