Criminal Appeal (DB) No.237 of 2009 ------------ Against the judgment of conviction and order of sentence dated 03.02.3009 and 12.02.2009 respectively passed by Shri Umesh Chanddra Mishra, Additional District & Sessions Judge, F.T.C.- V, Rohtas at Sasaram in S. Tr. No.538/93/21/07. ----------- Nagendra Kumar Ojha @ Mukhiya, son of Lakshmi Ojha, resident of village-Silonga, P.S.-Barun, District-Aurangabad. .... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ------------ For the Appellant : Mr. Kanhaiya Prasad Singh, Sr. Adv. Mr. Rana Vikram Singh, Adv. For the Respondent : Mr. A.K. Sinha, A.P.P. ------------ P R E S E N T HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH -------------- This appeal has been filed by the sole appellant against the order of conviction dated 03.02.2009 under Section-302 of the Indian Penal Code and sentence of imprisonment for life with fine of Rs.5000/- by order dated 12.02.2009, passed by the Additional District & Sessions Judge, F.T.C.-V, Rohtas at Sasaram in respect of Sessions Trial No.538/93 upon Sessions Trial No.21 of 2007. It is alleged that on 15.02.1993 the appellant is said to have shot dead one Ashok Kumar Singh by his country made pistol. He also fired on the informant who escaped without injury. The reason was that the informant and the deceased had protested against the appellant’s actions of trying to outrage the Navaniti Prasad Singh, J. - 2 - modesty of a girl student in the school. Upon the fardbeyan of the informant Dehri (Town) P.S. Case No.65 of 1993 dated 15.02.1993 was registered. Upon investigation being completed chargesheet was submitted and cognizance was taken on 14.06.1993 and the case was committed to the Court of Sessions on 16.10.1993. Charges were framed against the appellant on 07.03.1994. In course of trial one another accused person, namely, Satyendra Choudhary was summoned under Section-319 Cr.P.C. against whom charges were framed on 19.04.1994 and trial against both persons proceeded. After evidence was closed, both persons, that is, the appellant and the said Satyendra Choudhary were questioned in terms of Section 313 Cr.P.C. on 25.06.1998, but because of death of Satyendra Choudhary proceedings were dropped as against him and the case was proceeded only against the appellant, who upon conclusion of trial, was found to be guilty and sentenced accordingly, as noted above. It is against the said conviction and sentence that the present appeal had been filed. While admitting the appeal for final hearing prayer for bail was rejected. It appears that on behalf of appellant I.A. No.1986 of 2010 was then filed in the appeal praying that on the date when offence was said to have committed i.e. 15.02.1993 the appellant was juvenile on the basis of matriculation certificate of the appellant as issued by the Bihar School Examination Board in which his date of birth was shown to be 2nd February, 1976. It was, thus, claimed that on the date of occurrence, that is, on 15.02.1993 he was less than 18 years of age and, thus, he was entitled to the protection as contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2000 and, especially in view of Section-7 A and Section-20 thereof. In view of the said plea as raised before this Court in the appeal filed, this Court by order dated 12.10.2010 being prima facie satisfied, referred the - 3 - matter for enquiry to the Juvenile Justice Board as provided under Section-14 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and sending a report to this Court. The Juvenile Justice Board, Rohtas at Sasaram then enquired into the matter. It sent the matriculation certificate of the appellant as granted by the Bihar School Examination Board, Patna for verification. The authenticity whereof was duly confirmed. Upon the said consideration, the Juvenile Justice Board held that on the date when the offence is said to have been committed by the appellant, that is, on 15.02.1993, the date of birth of the appellant, being 02.02.1976, he was 17 years and 13 days, that is, admittedly, less than 18 years of age. He was, thus, declared to be juvenile in conflict with law. The report was then sent by the Board to this Court which is a part of the records. On behalf of the appellant, Mr. Kanhaiya Prasad Singh, learned Senior Counsel appearing for the appellant submits that in view of the matriculation certificate, as issued by the Bihar School Examination Board on 30th July, 1991, much prior to the incident, the petitioner being the minor less than 18 years of age, he could not have been denied the benefit of Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 in view of Section-7A thereof. He submitted that once the matriculation certificate was found authentic, no further proof of age was required and the Juvenile Justice Board rightly declared him a juvenile in conflict with law. In view of the aforesaid, by application of Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, the appellant though could be found guilty, the case being pending when the Juvenile Justice (Care and Protection of Children) Act, 2000 came into force, he could not be sentenced and his case had to be referred to the Juvenile Justice Board to pass orders in accordance with the said Act which - 4 - necessarily postulates that the appellant could not be sentenced to imprisonment much less life imprisonment. At best, he could be remanded to Juvenile Care Home and, that too, for a maximum period of three years. He further submitted that petitioner has already been in custody for about four years in all and, as such, cannot be further required to serve out his sentence and, being 35 years of age, now cannot be sent to Juvenile After Care Home. In order to appreciate the contention it would be worthwhile first to quote Section-7A and Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as on the day the trial Court rendered the judgment of conviction and sentence which was in the year 2009. Section-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. (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 - 5 - sentence, if any, passed by a Court shall be deemed to have no effect. 20. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile, in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence: [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.-In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.] Heard the learned counsels including counsel for the State and considered the matter. In our view, the plea of juvenility must succeed. This Court in the case of Sachin Kumar Gupta @ Sachin Kumar versus the State of - 6 - Bihar and another since reported in 2008(2) PLJR 800, after examining the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Central and State Rules framed thereunder, clearly held that once any of the three documents, as mentioned therein in support of proof of age, is furnished then that is conclusive proof of the date of birth and no further evidence is required to be led nor any medical examination is called for. Once a person is held to be juvenile on the date when the offence is committed then the provisions of the Juvenile Act, 2000 applies and no sentence can be passed in respect of a pending proceeding. If the offence has been committed after the said Act came into force then there are further prohibitions as to joint trial or remand in judicial custody and sentencing. There are no exceptions. This is also the trend of judgments of the Apex Court on the issue. In that regard we may refer to the judgment of the Apex Court in the case of Pratap Singh versus State of Jharkhand and another since reported in AIR 2005 SC 2731 where their Lordships have interpreted Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its application to pending case. We may then refer to the case of Upendra Kumar versus State of Bihar since reported in (2005) 3 Supreme Court Cases 592, a case going from this State wherein facts are some what similar and the Apex Court noticing that in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000, the appellant being below 18 years, though the offence was committed in the year 1995, while maintaining conviction, quashed the sentence. We may also refer to a recent decision in the case of Daya Nand versus State of Haryana since reported in (2011) 2 Supreme Court Cases 224 wherein apart from other the Apex Court noticed the provisions of Section-7A, as introduced with effect from 22.08.2006 to the Juvenile Justice (Care and Protection of Children) Act, 2000, with regard - 7 - to claim of juvenility before any Court, at any stage and even after final disposal of the case. The offence in that case was committed on 02.02.1998 but the appellant was given benefit of juvenility even after his conviction and sentence was confirmed by the High Court. In fact when the plea of juvenility was raised before the trial Court, if applied the provisions of the Juvenile Justice (Care and Protection of Children) Act, 1986 and held that the appellant was not juvenile as he was above 16 years of age though below 18 years. The Apex Court noticed Section-20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and held that once this Act came into force the appellant would get the benefit so far as sentence is concerned. Here, it may be noticed that earlier there was Juvenile Justice (Care and Protection of Children) Act, 1986 which later replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000. Under the Juvenile Justice (Care and Protection of Children) Act, 1986 the age of juvenile was 16 years. Thus, when the offence was committed in 1993, the benefit of 1986 Juvenile Act could not be claimed by the appellant, but when the Juvenile Act of 2000 came which applied to pending proceedings as well, by virtue of Section-20 thereof, the trial of the appellant was pending and hence, by virtue of Section-20 petitioner having been found to be juvenile by the Juvenile Justice Board, as noticed above, he could not be sentenced to life imprisonment. He could raise this plea in pending appeal before this Court by virtue of Section-7 A thereof. Thus, clearly the sentence as passed against the appellant is not sustainable though we uphold his conviction in view of the available direct evidence against him. Now, the appellant is about 35 years old and he already having served about four years in judicial custody in all, there is no sense in sending the appellant to Juvenile Care Home much less for three years. - 8 - In view of the aforesaid, we are left with no option but to allow the appeal. While upholding the conviction, we set aside the sentence and, as appellant has already served about four years of the said sentence of life imprisonment, he is directed to be set at liberty forthwith, if not required in any other case. The fine also stands quashed. This appeal is, accordingly, disposed of. (Navaniti Prasad Singh, J.) Ashwani Kumar Singh, J.- I agree. (Ashwani Kumar Singh, J.) Patna High Court, Patna The 4th August, 2011 Trivedi/A.F.R.