Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.459 of 2007 -------------- Against the judgment of conviction dated 16.3.2007 and order of sentence dated 17.3.2007 passed by the learned Special Judge (Scheduled Castes and Scheduled Tribes) Act, Sasmastipur in Sessions Trial No.338 of 1998. =========================================================== Shyam Suder Prasad son of Ram Nandan Lal, resident of Mohalla- 12 Palthar, Ward No.11, P.S. and District-Samastipur .... .... Appellant/s Versus 1.State of Bihar 2.The Bihar School Examination Board, Patna, through its chairman .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : M/s Mukesh Kumar Amrendra Narayan, Advocates For the State : Mr. S.N.Prasad, A.P.P. For the Bihar School Examination Board : Mr. Amarendra Kumar, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date: 10-12-2012 The appellant has filed interlocutory application no.1643 of 2012 under sections 7-A and 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act, 2000”). By order dated 5.12.2012, it was directed that the said interlocutory application shall be considered at the time of hearing. Hence, before deciding the case on merit, I think it appropriate to determine the issue raised in the interlocutory application first. The stand of the appellant in the interlocutory application is that on the date of first commission of the offence, the appellant was only fourteen years old, and on the date of institution of the case, he was seventeen years, eleven months and ten days old. Patna High Court CR. APP (SJ) No.459 of 2007 dt.10-12-2012 2 / 23 2 Learned counsel for the appellant states that the appellant was born on 5.7.1978. He passed the annual matriculation examination, conducted by the Bihar School Examination Board, Patna, in 1993 from K.E. Inter College, Samastipur. In the records of the Bihar School Examination Board, the date of birth of the appellant is recorded as 5th July, 1978. The date of birth of the appellant was verified by the investigating officer of the case, in course of investigation. The investigating officer of the case has been examined as P.W.6. In her examination-in-chief itself, she has stated that the date of birth of the appellant was verified from the school register and it was recorded as 5th July, 1978. A counter affidavit has been filed on behalf of respondent no.2, the Bihar School Examination Board, Patna, in the aforesaid interlocutory application. In the counter affidavit also, the date of birth of the appellant entered in the matriculation certificate has not been disputed. Learned A.P.P. appearing on behalf of the State also does not dispute the entry of date of birth of the appellant in the matriculation certificate granted by the Bihar School Examination Board. By now, it is well settled that claim of juvenility can be raised before any court at any stage and, as such, is required to be determined in terms of the provisions contained in the Act, 2000 and Patna High Court CR. APP (SJ) No.459 of 2007 dt.10-12-2012 3 / 23 3 the rules framed thereunder. The juvenile, who has not completed 18 years of age on the date of commission of offence, is entitled to the benefit of the Act, 2000. The determination of age of a juvenile has to be in the manner prescribed under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (For short “the Rules, 2007”). Section 7-A of the Act, 2000 prescribes the procedure to be followed when claim of juvenility is raised before any court, which is quoted hereunder: “7-A. Procedure to be followed when claim of juvenility is raised before any court.-(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. Patna High Court CR. APP (SJ) No.459 of 2007 dt.10-12-2012 4 / 23 4 (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub- section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” Rule 12 of the Rules, 2007 prescribes the procedure to be followed in determination of age, which is quoted hereunder: “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, 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 that purpose. (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 appearances 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 – Patna High

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.