Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Death Reference No.2 of 2010 The death reference and the appeal are against the judgment and order dated 1.2.2010 and 16.2.2010 passed by the learned Sessions Judge, Muzaffarpur in S.T. No. 739/2008. =========================================================== The State of Bihar .... .... Petitioner Versus Sudhanshu Kumar @ Madhu Mangal, S/o Birendra Mishra, resident of village- Dwarika Nagar, P.S.-Madhubani, District-Muzaffarpur. ………Condemned prisoner- Respondent with Criminal Appeal (DB) No. 310 of 2010 =========================================================== Sudhanshu Kumar @ Madhu Mangal, S/o Birendra Mishra, resident of village- Dwarika Nagar, P.S.-Madhubani, District-Muzaffarpur. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Vikram Deo Singh, Adv. Mr. Rudal Singh, Adv. For the State : Mr. Ashwini Kumar Sinha, A.P.P. Mr. Dilip Kumar Sinha, A.P.P. For the Informant: Mr. Sunil Kumar Verma, Adv. Mr. Suman Kumar Verma, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) *********** A reference under Section 366 of the Code of Criminal Procedure has been made by the Sessions Judge, Muzaffarpur for confirmation of death sentence as awarded by him to the condemned in respect of Sessions Trial No. 739/2008. In the said sessions trial by judgment dated 1st February, 2010, he found the accused guilty of offence under [STATUTE] for having brutally slaughtered his mother and two years old nephew. By order dated 16.2.2010, upon such conviction being made, he has been sentenced to death. The condemned has preferred the connected appeal. While preferring the appeal, in the memo of appeal, it was stated that the occurrence had taken place on 22.6.2008 when he was a minor. The reliance was placed on the Bihar School Examination Board certificate of matriculation which showed his death of birth to be 3.7.1990 which makes him just slightly less than 18 years on the date of occurrence. In other words, 17 years 11 months and 19 days would be the age on the date of occurrence. It appears that the informant who is the uncle of the condemned (Mausa) appeared in these proceedings to oppose the prayer. Twice this Court gave him liberty to take instruction on the question of minority and counter the same. He was unable to do so. He then requested the court to decide the same on papers available. This Court, accordingly, by order dated 5.7.2011 referred the matter to the Juvenile Justice Board, Muzaffarpur to inquire in terms of Section 14 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The records were sent down. They have since been received with the proceedings of the Juvenile Justice Board and its records. The order-cum-report of the Juvenile Justice Board, Muzaffarpur dated 25.1.2012 clearly gives a finding that the condemned was less than 18 years old on the date of occurrence and, as such, would be a juvenile in conflict with law. The finding is based on various evidences produced before the Juvenile Justice Board, which includes the matriculation certificate issued on 28th of May, 2007 by the Bihar School Examination Board, Patna in respect of the condemned clearly showing his date of birth to be 3rd July, 1990. Let it be noted that this certificate was issued long before the date of occurrence. It has been duly verified from the authorities of the Bihar School Examination Board and have Patna High Court D. REF. No.2 of 2010 dt.13-03-2012 3 / 4 3 been compared with entries in the original records of the Board. Father and others have also been examined by the Board. The Juvenile Justice Board having given this finding that the condemned is a juvenile in conflict with law, neither the State nor the informant being in a position to challenge the same, we have no option but to accept the same with whatever consequences. Rule 22(5) of the Bihar Juvenile Justice (Care & Protection of Children) Rules, 2003 being rules made with reference to powers conferred on the State under Section 68 of the Juvenile Justice (Care & Protection of Children) Act, 2000 clearly provides the procedure which has to be followed by the Board for holding inquiries and determination of age. Rule 22(5) is quoted hereunder:- “In every case concerning a juvenile or a child, the Board shall either obtain- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificate, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when 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.” A reading of Rule 22(5) would show that the Juvenile Justice Board came to a correct finding being based upon the matriculation certificate and, therefore, it chose not to take into account other evidences. The finding is that the condemned is a juvenile in conflict with law. In terms of Section 18 of Patna High Court D. REF. No.2 of 2010 dt.13-03-2012 4 / 4 4 the Act, there could not have been a trial. He could not have been charged. In terms of Section 16 of the Act, he could not have been sentenced to imprisonment much less life imprisonment or death. We do not fault the trial court for what it has done inasmuch as the plea of juvenility does not seem to have been raised before

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.