Crl.A. 133/2003 BEFORE HON’BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON’BLE MR. JUSTICE AK GOSWAMI This appeal against a conviction and sentence of life imprisonment revea ls a rather sorry state of affairs. 2. The appellant was accused of having committed the murder of his elder br other Ludu Ali on 3.9.1996 at about 6.30 p.m. by using a mechi-dao. 3. When the confessional statement of the appellant was recorded under Sect ion 164 of the Code of Criminal Procedure on 6.9.1996, the age of the appellant was not recorded. 4. However, when the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure on 26.8.2002, his age was shown to be abou t 24 years. In other words, he was about 18 years of age when the offence was co mmitted. The appellant was probably a juvenile when he allegedly committed the o ffence of murder. This is a fact that should have been determined by the Trial C ourt before proceeding with the trial of the case. 5. Determining the age of the appellant on the date of commission of the of fence was completely overlooked by learned counsel appearing in the Trial Court as well as by the learned Trial Judge. If the appellant was a juvenile on the da te of commission of the offence, he could not have been tried by the Sessions Co urt. 6. That the case of the appellant would be governed by the provisions of th e Juvenile Justice (Care and Protection of Children) Act, 2000 and the Juvenile Justice (Care and Protection of Children) Rules, 2007 is no longer res integra. In Hari Ram v. State of Rajasthan, (2009) 13 SCC 211 the accused was 16 years of age on the date of the commission of the offence (on 30.11.1998) and above 18 y ears of age when the Juvenile Justice (Care and Protection of Children) Act, 200 0 came into force (on 30.12.2000). The Supreme Court held in paragraphs 64 to 69 of the Report in the following words: 64. In the instant case, the appellant was arrested on 30-11-1998 when the 1986 Act was in force and under clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had no t attained the age of eighteen years. It is with the enactment of the Juvenile J ustice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of age which was given prospective p rospect (sic effect). 65. However, as indicated hereinbefore after the decision in Pratap Singh case [ Pratap Singh v. State of Jharkhand, (2005) 5 SCC 551], Section 2(l) was amended to define a juvenile in conflict with law to mean a juvenile who is alleged to have committed an offence and has not completed eighteen years of age as on the date of commission of such offence. 66. Section 7-A was introduced in the 2000 Act and Section 20 thereof was amende d whereas Rule 12 was included in the Juvenile Justice Rules, 2007, which gave r etrospective effect to the provisions of the Juvenile Justice Act, 2000. 67. Section 7-A of the Juvenile Justice Act, 2000, made provision for the claim of juvenility to be raised before any court at any stage, as has been done in th is case, and such claim was required to be determined in terms of the provisions contained in the 2000 Act and the Rules framed thereunder, even if the juvenile had ceased to be so on or before the date of commencement of the Act. 68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Just ice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act. 69. The said position was re-emphasised by virtue of the amendments introduced i n Section 20 of the 2000 Act, whereby the proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, includin g trial, revision, appeal and any other criminal proceedings in respect of a juv enile in conflict with law, the determination of juvenility of such a juvenile w ould be in terms of clause (l) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been in force when the alle ged offence was committed. 7. This position in law was reaffirmed by the Supreme Court in Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344. In paragraphs 14 to 16 of the Report, i t was held as follows: 14. Proviso to sub-section (1) of Section 7-A contemplates that a claim of juve nility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the Rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencem ent of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Secti on 2(k) of the said Act, which defines juvenile or child to mean a person w o has not completed eighteenth year of age, had always been in existence even du ring the operation of the 1986 Act. 15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l), 7-A, 2 0 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice ( Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1- 4-2001 would be treated as juveniles even if the claim of juvenility is raised a fter they have attained the age of eighteen years on or before the date of the c ommencement of the Act of 2000 and were undergoing sentences upon being convicte d. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram v. State of Rajasthan, (2009) 13 SCC 211. 16. In the present case, as per the report of the Registrar submitted in terms o f Section 7-A of the Act of 2000, the age of the appellant as on the date of com mission of offences i.e. 25-8-1991 was 16 years 9 months and 8 days. The correct ness of the estimate of age by the Registrar is not questioned by the State. The parties have, therefore, accepted the correctness of the age determined by the learned Registrar. In our considered opinion, in the light of the aforestated le gal position, the appellant has to be held to be a juvenile as on the date of co mmission of the offences for which he has been convicted and is to be governed b y the provisions of the Act of 2000. 8. Following the law laid down, the position today is that if the appellant is given the benefit of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 his age would be in the region of about 17 years clear ly making him a juvenile at the time of commission of the offence. Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 is as follow s:- 12.Procedure to be followed in determination of age:- (1) xxxxx (2) xxxxx (3) In every case concerning a child or juvenile in conflict with law, the a ge determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a)(i) the matriculation or equivalent certificates, if available; and in the ab sence whereof; (ii) the date of birth certificate from the school (other than a play school) fi rst attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, th e medical opinion will be sought from a duly constituted Medical Board, which wi ll declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, f or the reasons to be recorded by them, may, if considered necessary, give benefi t to the child or juvenile by considering his/her age on lower side within the m argin of one year, and, while passing orders in such case shall, after taking in to consideration such evidence as may be available, or the medical opinion, as t he case may be, record a finding in respect of his age and either of the evidenc e specified in any of the clauses (a)(i),(ii),(iii) or in the absence whereof, c lause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (Emphasis given) 9. Ordinarily then, we would now have been required to determine the appell ant’s age in accordance with Rule 12(3) of the Juvenile Justice (Care and Protec tion of Children) Rules, 2007. However, after a lapse of more than 14 years from the date of the incident, we do not see the necessity of remanding the case bac k for a decision in accordance with the procedure prescribed by the Juvenile Jus tice (Care and Protection of Children) Act, 2000. This is all the more so becaus e, on merits, we are of the opinion that the appeal must be allowed. 10. We find from a reading of the judgement delivered by learned Trial Judge that neither the prosecution nor he accepted the evidence on record. In fact, i n paragraph 22 of the judgment it is stated as follows:- It appears from the evidence at hand that the prosecution case is solely relyin g upon the confessional statement of the accused Bulu Ali which is corroborated by the medical evidence of PW 1 regarding the fatal injury sustained by the dece ased Ludu Ali. 11. To what extent, can the conviction of the appellant be based entirely up on his confessional statement? This is a question we are required to answer. 12. Before we discuss the case law on the subject, it is important to note t hat the appellant had stated in his statement under Section 313 of the Code of C riminal Procedure that he is innocent and that he had made the confession becaus e he was tortured in the police station. This by itself should have led the lear ned Trial Judge to examine the confessional statement with due care and caution if not to reject it altogether. 13. Be that as it may, there is catena of decisions of the Supreme Court to the effect that a conviction cannot be based only on the uncorroborated and retr acted confessional statement of an accused. A fairly recent decision of the Supr eme Court is worth noticing in detail in this regard. It was held in Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230 in paragraphs 87 to 90 as follo ws: 87. Confession ordinarily is admissible in evidence. It is a relevant fact. It c an be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for convict ion. It is, however, trite that for the said purpose the court has to satisfy it self in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. 88. This Court in Shankaria v. State of Rajasthan (1978) 3 SCC 435 stated the la w thus: (SCC p. 443, para 23) 23. This confession was retracted by the appellant when he was examined at the trial under Section 311 CrPC on 14-6-1975. It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore , when in a capital case the prosecution demands a conviction of the accused, pr imarily on the basis of his confession recorded under Section 164 CrPC, the Cour t must apply a double test: (1) Whether the confession was perfectly voluntary? (2) If so, whether it is true and trustworthy? Satisfaction of the first test is a sine qua non for its admissibility in eviden ce. If the confession appears to the Court to have been caused by any inducement , threat or promise such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding fu rther to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a conf ession, or for that matter of any substantive piece of evidence, there is no rig id canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The Court should ca refully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalog ue of events and naturally fits in with the rest of the evidence and the surroun ding circumstances, it may be taken to have satisfied the second test. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confessi on is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof. (Also see Anil v. Admn. of Daman and Diu, Daman, (2006) 13 SCC 36) 90. In Muthuswami v. State of Madras AIR 1954 SC 4 this Court opined: (AIR p. 5, para 8) 8. The only reason the High Court gave for accepting the confession is because the learned Judges considered there was intrinsic material to indicate its genui neness. But the only feature the learned Judges specify is that it contains a we alth of detail which could not have been invented. But the point overlooked is t hat none of this detail has been tested. The confession is a long and rambling o ne which could have been invented by an agile mind or pieced together after tuto ring. What would have been difficult is to have set out a true set of facts in t hat manner. But unless the main features of the story are shown to be true, it i s, in our opinion, unsafe to regard mere wealth of uncorroborated detail as a sa feguard of truth. Later in paragraphs 108 and 109 it was held as under: 108. The courts while applying the law must give due regard to its past experie nce. The past experience of the courts as also the decisions rendered by the sup erior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 CrPC may b e satisfied, the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court m ust, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must play a proactive role in unearthing objective evidence forming the backdrop of retracti on and later the examination of such evidence of retraction. However in cases wh ere none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which t he confession was retracted, the spirit of Section 24 of the Evidence Act (irrel evance of confession caused by inducement) may be extended to retracted confessi on. An inverse presumption must be drawn from absence of materials. 109. In a case of retracted confession, the courts while arriving at a finding o f guilt would not ordinarily rely solely thereupon and would look forward for co rroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature. 14. On the facts of the present case, we have already noticed that the appel lant had stated that he had confessed because he was tortured in the police stat ion. Additionally, the only corroborative evidence found by the Trial Judge is t he medical evidence showing injuries suffered by the deceased. We are unable to appreciate how the injuries on the deceased can corroborate the confessional sta tement of the appellant. 15. A look at the confessional statement of the appellant shows that it is a s vague as can be. He says: My elder brother Md. Ludu Ali wasted all our business in Nagaland. He did not l isten to our advice even as we continued to help him. Around 6.30 pm on 3.9.96, I cut elder brother Md. Ludu Ali in the head with a dao. I ran away and later su rrendered at the P.S. Later, I cam to know at the P.S. that elder brother Md. Lu du Ali had died. 16. Apart from the fact that the above statement can hardly be treated as a confession to a murder, the appellant admits (if at all) to having made a cut on the head of his elder brother with a dao. The medical evidence shows two injuri es both of which were homicidal in nature while the statement of the appellant h as suggested only one injury and that too without any homicidal intent. 17. In a case involving a capital sentence or a life imprisonment, we have t o be extra cautious in accepting a confessional statement that is made by a juve nile, which statement is retracted and is vague and uncorroborated. Taking all t hese factors into consideration, we are most reluctant to base the conviction of the appellant only on his so-called confessional statement. We, therefore, allo w the appeal and set aside the conviction and sentence of the appellant passed b y the 1st Additional Sessions Judge (ad hoc), Shibsagar in Sessions Case No. 136 (S-S) 2001 decided on 14.2.2003. 18. Trial Court records be sent back immediately.