JITENDRA SINGH @ BABBOO SINGH & ANR.versusSTATE OF U.P.

               [2010] 13 (ADDL.) S.C.R. 879


     JITENDRA SINGH @ BABBOO SINGH & ANR.                      A
                             v.
                      STATE OF U.P
            (Criminal Appeal No. 763 of 2003)
                  NOVEMBER 19, 2010
                                                               B
     [MARKANDEY KATJU AND T.S. THAKUR, JJ.]

    JUVENILE JUSTICE (CARE AND PROTECTION OF
CHILDREN) ACT. 2000:

     ss. 2(K) and 7A - Juveni/ity - Plea of - Raised before
                                                               c
Supreme Court in appeal against conviction u/s 304 B an
498-A !PC - Petition by one of the appellants, namely, the
husband of deceased for permission to raise additional
ground that he was minor within the meaning of s.2(K) on the
                                                                 0
date of commission of the offence - Held: In the facts and
circumstance of the case, an enquiry for determining the age
of the appellant on the date of the commission of the offence
shall have to be directed - The Court has recognized the
beneficial nature of the provisions enacted by Parliament and
held that a technical plea based on delay in making the claim E
of juveni/ity would not itself disable the person concerned from
making such a claim - The burden of making out a prima
facie case for directing an enquiry has been 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 F
Marks-sheet which mentions the date of birth of the appellant
- 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 G
stage for directing an enquiry and verification of the facts,
although the said material is yet to be verified and its
genuineness and credibility determined - Suffice it to say,
while for the present it is considered to be a case fit for
                                879                              H
    880    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A 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
  - The appellant is allowed to urge the additional ground
B regarding his juvenility on the date of the commission of the
  offence - Trial court is directed to hold an enquiry into the
  safd question and submit a report as expeditiously as possible
  - It is made clear that the trial court shall be free to constitute
  a Medical Board comprising at least three experts on the
C subject for determination of the age of the appellant, based
  on Medical tests and examination - The hearing of the appeal
  shall in the meantime stand adjourned - Penal Code, 1860
  - s. 304-B and 498-A.

       Jayendra and Anr. v. State of Uttar Pradesh (1981) 4
D SCC 149, Gopinath Ghosh v. State of West Bengal (1984)
  SCR 803=1984 (Supp) SCC 228, Bhoop Ram v. State of
  U.P. (1989) 3 SCC 1, Brij Lal v. Prem Chand and Anr. 1989
  (2) SCR 612 =1989 Supp (2) SCC 680, Bhola Bhagat v.
  State of Bihar 1997 (4) Suppl. SCR 711 = (1997) 8 SCC 720
E and Hari Ram v. State of Rajasthan 2009 (7) SCR 623 =2009
  (13) sec 211 - relied on.

        Pawan v. State of Uttaranchal 2009 (3) SCR 4S8 = (2009)
    15 sec 259 - referred to.
F                          Case Law Reference:
          (1981) 4 sec 149            relied on           para 3
          (1984) SCR 803              relied on           para 3

G         (1989) 3 sec 1              relied on           para 3
          1989 ( 2) SCR 612           relied on           para-...3
                                                                 ''
          1997 (4) Suppl. SCR711 relied on                para 3
          2009 (7) SCR 623            relied on           para 3
  JITENDRA SINGH@ BABBOO SINGH & ANR. v.                    881
               STATE OF U.P
    2009 (3) SCR 468              referred to         para 4        A

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 763 of 2003.

    From the Judgment & Order dated 23.05.2003 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in         B
Criminal Appeal No. 464 of 1990.

    Sushi! Kumar Jain, Puneet Jain, Trishna for the Appellants.

    Ratnakar Dash, Sandeep Singh, Anuvrat Sharma for the            C
Respondent.

    The Order of the Court was delivered by

     T.S. THAKUR, J. 1. The appellants in this appeal by
special leave have assailed their conviction for offences           D
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          E
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.
                                                                    F
     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     G
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     H
    882    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.

A   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
B   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
c   in the present proceedings and contends that the provisions
    of Section 7A and the pronouncements of 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.
0
          3. When the application came up for hearing before this
    Court Mr. Sushi! 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
E   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
F   (1981) 4 SCC 149, Gopinath Ghosh v. State of West Bengal
    1984 (Supp) SCC 228, Bhoop Ram v. State of UP. (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
G   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 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
H   referred to, sufficiently establish on a prima facie basis the case
   JITENDRA SINGH @ BABBOO SINGH & ANR. v.                    883
         STATE OF U.P [T.S. THAKUR, J.]
of the appellant that he was a minor on the date of the incident.     A
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           B
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     C
justify refusal of an enquiry Jnto 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.                                       D

      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             E
 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    F
 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     G
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         H
    884    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A   to juvenility was not held to be fatal provided the claim was
    supported by evidence that would 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
B 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
c 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
0
    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
E 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 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
F · 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
G 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
H these. aspects and may have to be looked into for a proper
  JITENDRA SINGH @ BABBOO SINGH & ANR. v.                      885
        STATE OF U.P [TS. THAKUR, J.]
determination of the question. Suffice it to say while for the        A
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.                                       B

     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        C
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       D
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.
                                                                      E
     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.           F
A copy of the application and the accompanying· documents
shall also be forwarded to the Trial Court along with a copy·of
this order.

R.P.                                          Appeal adjourned.