IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.427 of 2001 (Old No.2542/1998) Jamil Ahmad & others … Appellants Versus State of Uttarakhand … Opposite Party Mr. R.S. Sammal, Advocate with Mr. Prem Kaushal, Advocate for the appellants Mr. M.A. Khan, Brief Holder for the State/opposite party Dated: August 18, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred against the judgment and order of conviction dated 12.11.1998 rendered by the Special Judge/Additional Sessions Judge, Nainital in Sessions Trial No.285 of 1995. In the said trial, four accused persons, named, Jamil Ahmed, Nanhe Ansari, Kamruddin and Gulab Singh were tried. Accused Gulab Singh was held not guilty and thus, acquitted by the trial court while rest of the three accused were convicted for the offence of Section 307 r/w Section 34 IPC and sentenced to undergo four years’ R.I. During the pendency of appeal in High Court, accused Jamil Ahmed died, so the appeal stood abated against him. Now, the two appellants Nanhe Ansari and Kamruddin remains to be heard. Learned counsel on behalf of the appellants and learned brief holder have been heard. It has been submitted on behalf of the appellants that date of incident is 13.9.1994 wherefore the accused persons were tried, while one of the appellants Kamruddin’s date of birth, as per school leaving certificate, is 2 12.6.1978. This way, on the date of commission of the alleged crime, he was 16 years, 3 months and 1 day old. Under the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter called as the New Act), he is juvenile, as defined in Section 2(k) of the said Act. Learned counsel also admitted that this accused Kamruddin although was not juvenile within the definition of the word “juvenile”, as envisaged under section 2(h) of the Juvenile Justice Act, 1986 (hereinafter called as the Old Act) because in the Old Act only, a boy who had not attained the age of sixteen years, will be deemed to be Juvenile but now under the New Act, which came into force on 1.4.2001, a child who has not completed eighteen years of age will be called as Juvenile and of late, the Hon’ble Apex Court in a number of judgments, has opined that the question of juvenility can be raised at any stage before any Court including the Apex Court. Besides the benefit of the New Act should be extended notwithstanding the incident was committed prior to the coming in force of the New Act in view of the provisions of Sections 2(k), 2(l), 7-A and 20 of the New Act r/w Rules 12 and 98 of the Juvenile Justice Rules, 2007. The precedents of the Hon’ble Apex Court can be cited as under: - 1. Hari Ram Vs. State of Rajasthan and another (2010) 1 Supreme Court Cases (Cri) 987; (2009) 13 Supreme Court Cases 211 2. Dharambir Vs. State (NCT of Delhi) and another, (2010) 5 Supreme Court Cases 344 3. Jitendra Singh Alias Babboo Singh and another Vs. State of Uttar Pradesh, (2010) 13 Supreme Court Cases 523 As regards accused Nanhe, another accused, it has been alleged that his date of birth is 5.5.1978. So at the time of occurrence, he was 16 years 4 months and 8 days old. It has 3 also been alleged in the affidavit that Nanhe’s actual name was Raja Hussain, as has been adverted in the school leaving certificate filed by the applicant. His father’s name is the same, as has been shown in the chargesheet as well as in the school leaving certificate. Learned counsel has relied upon the above precedents wherein Section 7A(2) of the New Act has been quoted, which is reads as under: - 7-A(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 orders and the sentence, if any, passed by a court shall be deemed to have no effect. In view of the above, the conviction and sentence passed against the appellants Kamruddin and Nanhe Ansari, as of now, shall be deemed to have no effect and the matter is remitted back to the Juvenile Board, Udham Singh Nagar for passing appropriate orders in the matter after making due enquiry about the juvenility of the accused/appellants. The appeal is disposed of in terms as discussed above. (Servesh Kumar Gupta, J.) August 18, 2011 Rajeev Dang