NARAYAN CHETANRAM CHAUDHARY versus THE STATE OF MAHARASHTRA
[2023] 6 S.C.R. 1055, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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NARAYAN CHETANRAM CHAUDHARY
v.
THE STATE OF MAHARASHTRA
Criminal Miscellaneous Petition No. 157334 of 2018
In
Review Petition (Criminal) Nos. 1139-1140 of 2000
In
(Criminal Appeal Nos. 25-26 of 2000)
MARCH 27, 2023
[K. M. JOSEPH, ANIRUDDHA BOSE AND
HRISHIKESH ROY, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss. 9, 94 – Juvenility – Determination of – The applicant, along
with two other accomplices had committed murder of five women,
and two children – They were tried for commission of offences u/ss.
302, 342, 397, 449 r/w 120B and 34 of IPC – Trial Court sentenced
the appellant to death – Both the judgment of conviction and order
of sentence were confirmed by the High Court – The Supreme Court
dismissed the appeal preferred by appellant against the said judgment
– The review petition filed by appellant was also dismissed – The
appellant (in detention for more than 28 years) filed present
application under s. 9(2) of the Act of 2015, requesting Supreme
Court to hold that the applicant was a juvenile on the date of
commission of the offence – In 2019 by order, the Supreme Court
referred the matter to the Principle District and Sessions
Judge(Inquiring Judge) to decide the issue of juvenility of the
applicant – The Inquiring Judge gave his report sustaining the
applicant’s claim for juvenility – Held: On examination of various
documents, it was found that the applicant’s original name was
‘Niranaram’ and the applicant discharged his
part of onus to
establish that it is he who has been tried and convicted as ‘Narayan’
– Now, considering the course adopted by the Inquiring Judge, s.
9(2) of the 2015 Act does not prescribe following the trial procedure,
as stipulated in the 1973 Code and Evidence Act, 1872 – The
legislature has not mandated any specific procedure to be followed
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by the Court for conducting inquiry to determine juvenility of the
claimant under the 2015 Act – Therefore, Court can formulate its
own procedure for conducting inquiry on this count – No flaw in
the procedure which has been adopted by the Inquiring Judge in
the instant case – As far as certificate of date of birth is concerned,
the applicant has relied on the certificate issued by the School for
determination of his age – Said certificate was issued by the office
of the headmaster of the School – The principal of the school has
in writing disclosed that the content of the admission register is
maintained in ordinary course of business – In normal course the
said register would satisfy the test specified in S.35 of the 1872 Act,
of being a relevant fact – Hence, the date of birth of the applicant
as reflected in the certificate issued by the School is to be accepted
for determining his age at the time of commission of the offence of
which he has been convicted – Going by that certificate, his age at
the time of commission of offence was 12 years and 6 months –
Thus, he was a child/juvenile on the date of commission of offence
– Order sentencing him to death passed by the Trial Court and
subsequently confirmed by the High Court and by the Supreme Court
invalidated by operation of law.
Juvenile Justice (Care and Protection of Children) Act, 2015
– s. 9 (2) – Stage of raising juvenility plea – A petition u/s. 9 (2) of
the 2015 Act contemplates statutory remedy, plea for which can be
raised at any stage – On juvenility plea, if a writ petition is dismissed
in limine, such order would not foreclose the option of an accused
(or a convict) to make plea for juvenility under sub-section (2) of
s.9 of the 2015 Act.
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss. 9(2), 103 – ‘Inquiry’ – As far as the procedure for making an
inquiry by the Court, s. 9(2) does not prescribe scrupulously
following trial procedure, as stipulated in the Code of Criminal
Procedure 1973 and the Indian Evidence Act, 1872 – The Court
can formulate its own procedure for conducting inquiry.
Allowing the application, the Court
HELD:1. The State has taken a plea that at the time of
inquiry, sufficient time was not available to them to verify this
fact. There are several documents where Niranaram has been
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shown to be the son of ‘C’. After the Inquiry Report was made in
2019, substantial time has lapsed since this Court heard the
matter. No material was produced by the State to demonstrate
that there was any other Niranaram in Jalabsar or another ‘C’. It
is a fact that the claimant for juvenility has to establish his case.
But it has also to be appreciated that a death row convict in prison
for over 28 years would be under severe limitations in retracing
his school records and other forms of age-proof. In such
circumstances, in absence of any contrary evidence this Court
accept the finding in the Inquiry Report given by the Principal
District and Sessions Judge, Pune that Niranaram has to be said
to be another name of “Narayan”. This Court’s opinion on this
point would not vary even if this Court reject the certificate of
the Sarpanch. That certificate plays a supportive role in
determination of the name of the applicant. Moreover, in all these
documents, Jalabsar has been shown as the village of which ‘C’
and his family were residents, and this was the place from where
he was arrested. In this Court’s opinion, the applicant’s original
name was Niranaram and the applicant has discharged his part of
onus to establish that it is he who has been tried and convicted
as Narayan. This Court accepted the finding of the Inquiring Judge
on this point. [Para 19][1088-G-H; 1089-A-C]
2. As regards maintainability of the present application
under Section 9(2) of the
2015 Act. In the applicant’s case,
juvenility plea has been raised for the first time before this Court,
albeit after dismissal of his review petition against his conviction
and sentence having been upheld by this Court. It is a fact that
the juvenility plea was raised in Writ Petition (Criminal) No. 126
of 2013 and this writ petition was dismissed in limine. But this
dismissal would not operate as res judicata so far as the present
application is concerned. Relief under Article 32 of the
Constitution is discretionary in nature and the order of this Court
dismissing that petition is not supported by reason. A petition
under Section 9 (2) of the 2015 Act contemplates statutory remedy,
plea for which can be raised at any stage. In this Courts’ opinion,
on juvenility plea, if a writ petition is dismissed in limine, such
order would not foreclose the option of an accused (or a convict)
to make plea for juvenility under sub-section (2) of Section 9 of
the 2015 Act. [Paras 20, 21][1089-D-F; 1090-D]
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3. Next comes the question as to whether the course
adopted by the Inquiring Judge was in terms of the provisions of
the 2015 Act or not. It is apparent that the Inquiring Judge has
conducted the inquiry typically as a fact-finding inquiry is
conducted and has not followed the procedure of summons trial.
The documents on which he relied on were not formally proved
as is the normal procedure in a trial and there was no examination
or cross-examination on oath. But as it would be evident from
sub-section (1) of Section 103 of the 2015 Act, the prescription
for following the procedure in summons cases is for the Juvenile
Justice Board (“Board”) or the Child Welfare Committee
(“Committee”) while holding any inquiry under the 2015 Act.
Under Section 9(2) of the 2015 Act the Court also has been
empowered to make an inquiry if the Court itself is of opinion
that the person was the child on the date of the commission of
offence. The mandate of following summons procedure has not
been prescribed so far as inquiry which ought to be conducted by
the Court. The manner in which evidence could be taken has not
been mandated. The manner in which the Court shall conduct
such inquiry has also not been specifically prescribed. The
procedure which has been followed by this Court in the present
case has been to direct a Principal District and Sessions Judge, a
Senior Judicial Officer at the State Level, to conduct inquiry within
a given
timeframe. As this Court find from the Inquiry Report,
the Inquiring Judge had directed a police officer to make
authentication of the documents relied upon by the applicant and
after the police officer gave his views on the authenticity of the
documents, finding discrepancy in some of them. Thereafter,
hearing was conducted before the Inquiring Judge, in which
prosecution was represented by an officer holding the rank of
Director General of Police (“DGP”). Both the prosecution and
police had filed report and statement before the Inquiring Judge.
The Inquiring Judge himself applied his mind considering the
submissions of the prosecution as also the learned advocate of
the applicant and the applicant himself was produced before the
Inquiring Judge. The Inquiring Judge had marked the documents
filed before him as exhibits. The Inquiring Judge examined each
of the documents upon ascertaining the stand of the DGP and
also the advocate representing the applicant. In application filed
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before us, extract from the school register was annexed which
showed applicant’s date of birth as 1st February 1982. Before the
Inquiring Judge, this Court found that in addition to the documents
annexed to the application, a certificate of date of birth issued by
the school authority was also furnished by the applicant. The latter
was issued on the basis of school register but this certificate was
dated 30th January 2019. [Paras 25, 27][1092-A; 1093-F-H; 1094-
A-E]
4. This Court found no flaw in the procedure which has been
adopted by the Inquiring Judge. So far as the procedure for
making an inquiry by the Court, in this Court’s opinion Section
9(2) of the 2015 Act does not prescribe scrupulously following
trial procedure, as stipulated in the 1973 Code and the Indian
Evidence Act, 1872. The requirement to follow the Code is “as
far as practicable,” as per Section 103 (2) of the 2015 Act. The
legislature, thus, while prescribing the summons trial procedure
for inquiry by Board or Committee on age determination of a
juvenile claimant has not mandated any specific procedure for
inquiry by the Court. It follows, by implication, that the Court can
formulate its own procedure for conducting inquiry on this count.
So far as the present case is concerned, this Court had directed
inquiry to be conducted by the Inquiring Judge at the first level,
before whom the applicant and the prosecution had sufficient
opportunity to present their version. The report of the
Inquiring
Judge was subsequently examined by us, again giving adequate
opportunity to both sides. This Court has ourselves called for
the original admission register from the school. The
principal-incharge of the school, had given a statement in writing
at the inquiry stage, and the translated version of which appears
at page 311 of the Inquiry Report. [Para 28][1094-F; 1095-F-H;
1096-A]
5. The school in question is a government school. The “date
of birth certificate” of Niranaram has been issued by the office of
the headmaster of the said school. This certificate has been issued
on the letterhead of the State Government carrying the national
emblem. The principal of the school has in writing disclosed that
the content of the admission register is maintained in ordinary
course of business. Hence, in normal course the said register
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would satisfy the test specified in Section 35 of the 1872 Act, of
being a relevant fact. [Para 33][1105-A-B]
6. As regards authenticity or genuineness of the admission
register, which forms the basis of certificate of the applicant’s
date of birth, an argument is made that the whole register was
fabricated. His submission is that at the time the extract therefrom
was produced before the Inquiring Judge, the same was not
paginated. He also argues that the register was not stitched.
Further, he has submitted that serial entry no. 566 of the register
shows the date of entry of the student to be 2nd February 1980,
which is not in order in relation to the other entries. He has also
referred certain other entries in the register prior in order to
serial no. 568, in which dates of admission of the respective
students are earlier than that of the applicant. But these entries,
at best, would show some defect in maintaining the records and
cannot lead to the conclusion that the entire admission register
is fabricated. Reference has also been made to an entry of one
Lekhram, that stood against serial no. 423, which reappeared in
entry 562. The endorsement of the school in serial no. 423 is
that “his name was deleted” whereas against entry no. 562,
recordal is “as per previous records”. This clearly appears to be
the case of re-admission or re-entry in the school. His further
stand is that there was interpolation of pages. He
has again pointed
out that one of the pages (page no. 33) of the register has been
stitched in reverse. But these are nitpicking submissions and
cannot lead to the conclusion that admission register itself is fake.
So far as Niranaram’s name is concerned, in the admission
register there is no discrepancy. His serial number is 568 which
falls in order in which the register is maintained and is in sequence
with the admission entries of other students barring few minor
discrepancies as regards names in other entries. Even if the
register has been freshly stitched and paginated to be sent to
this Court, that would not lead to a conclusion that the whole
thing has been fabricated. Moreover, there is no clear evidence
to demonstrate that at the time of initial inquiry, the register was
unstitched or without pagination. This Court have itself seen the
register and it is of sufficient vintage. Thus, this Court agree
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with the Inquiring Judge that the date of birth recorded therein
was not a fabricated entry. [Para 34][1105-D-H; 1106-A-C]
7. So far as the applicant is concerned, his claim of juvenility
basedon his date of birth in the school certificate would not vary
based on definitions of juvenile, “juvenile in conflict with law” or
“child in conflict with law” under the 1986 Act, 2000 Act or the
2015 Act. For applying the procedure for determining his claim,
of juvenility or of being a child, in this Court’s opinion, the law
applicable at the time of undertaking that exercise by the
concerned statutory body would prevail. Hence, in his case, this
Court has tested his claim on the basis of the provisions of Section
9 read with Section 94 of the 2015 Act. [Para 40][1111-E-F]
8. Under the 2015 Act the date of birth certificate ought to
be the main factor for determination of juvenility. In the case of
Rishipal Singh Solanki, the two-Judge Bench of this Court has
laid down the principle that an inquiry initiated under Section 9
(2) of 2015 Act would be similar to that contained in Section 94 of
thereof. This Court accepted this view. This Court has called for
the source of the date of birth certificate, which recorded the
applicant’s birth date at the time of his entry into the school which
was in the year 1986. So far as the inconsistent dates of birth
mentioned in the other documents, none of them is specified to
be taken into consideration for undertaking the
process of age
determination as laid down in Section 94 (2) of the said statute.
Once the applicant has discharged his onus, in support of his
claim of juvenility by producing the date of birth certificate from
the school, the State had to come up with any compelling
contradictory evidence to show that the recordal of his date of
birth in the admission register was false. The State, in this case,
has not come up with any such compelling evidence which would
render such certificate to be unreliable or false. The State and
the complainant have sought to disprove the applicant’s case on
the basis of materials disclosed by him only, apart from the
electoral roll. Here, this Court cannot indulge in any guesswork
to doubt the entry in the school register. No evidence has been
led to contradict the basis of the age of the applicant reflected in
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the aforesaid document. The certificate of date of birth as evidence
of age having been provided in the statute itself, this Court shall
go by that. The other factor which has crossed this Courts’s mind
is as to whether a boy of 12 years could commit such a gruesome
crime. But though this factor shocks this Court, this Court cannot
apply speculation of this nature to cloud this Court’s adjudication
process. This Court possess no knowledge of child psychology
or criminology to take into account this factor while examining
the report of the Inquiring Judge. Moreover, the age of the
applicant revealed in the ossification test keeps the age of the
applicant as claimed by him, within the range specified in the
report. The said test was conducted in the year 2005, and his age
was determined in the range of 22 to 40 years. If this Court take
22 years as his age in 2005, then his year of birth would haven
been 1983. That would broadly correspond to the date of birth
contained in the admission register. [Para 41][1111-G-H; 1112-
A-E]
9. In the light of this Court’s findings and the reasons this
Court have disclosed above for arriving at such finding, this Court
accept the report of the Inquiring Judge. This Court declare that
the date of birth of the applicant as reflected in the certificate
issued by the Rajkiya Adarsh Uccha Madhaymik Vidyalaya,
Jalabsar, tehsil Shri Dungargarh, district – Bikaner, dated 30th
January 2019, a
copy of which has been annexed in the Inquiry
Report as “I-2”, is to be accepted for determining his age at the
time of commission of the offence of which he has been convicted.
Going by that certificate, his age at the time of commission of
offence was 12 years and 6 months. Thus, he was a child/juvenile
on the date of commission of offence for which he has been
convicted, in terms of the provisions of the 2015 Act. This shall
be deemed to be the true age of Niranaram, who was tried and
convicted as Narayan. He has already served more than 3 years
of incarceration and under the law as it prevailed at the time of
commission of offence as also under the 2015 Act, he cannot be
subjected to capital punishment. In view of this finding, the order
sentencing him to death passed by the Additional Sessions Judge,
Pune in Sessions Case No. 462 of 1994 and subsequently
confirmed by the High Court and by this Court would stand
invalidated by operation of law. He shall be set free forthwith
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from the correctional home in which he remains imprisoned, as
he has suffered imprisonment for more than 28 years, having
regard to the provisions of Section 18 of the 2015 Act. Section 21
of the 1986 Act also carried substantially the same provision on
the question of maximum punishment that can be awarded to a
delinquent juvenile by the Juvenile Court. The restriction on
term of detention that can be awarded by the Board under the
2015 Act to a child below 16 years would also apply to the Court
before which the juvenility question is being determined. [Para
43][1113-E-H; 1114-A-C]
Ashwani Kumar Saxena v. State of Madhya Pradesh
(2012) 9 SCC 750 : [2012] 10 SCR 540 – relied on.
Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC
604 : [1988] Suppl. SCR 1; Surajdeo Mahto & Another
v. State of Bihar (2022) 11 SCC 800; Mohd. Anwar v.
State (NCT of Delhi) (2020) 7 SCC 391; Ramdeo
Chauhan alias Raj Nath v. State of Assam (2001) 5 SCC
714 : [2001] 3 SCR 669; Sanjeev Kumar Gupta v. State
of Uttar Pradesh and Another (2019) 12 SCC 370 :
[2019] 9 SCR 735; Parag Bhati (Juvenile) through
Legal Guardian- Mother-Rajni Bhati v. State of Uttar
Pradesh and Another (2016) 12 SCC 744 : [2016] 2
SCR 1089; Manoj alias Monu alias Vishal Chaudhary
v. State of Haryana and Another (2022) 6 SCC 187;
Babloo Pasi v. State of Jharkhand and Another (2008)
13 SCC 133 : [2008] 14 SCR 161 – distinguished.
Murari Thakur & Another v. State of Bihar (2009) 16
SCC 256 : [2006] 10 Suppl.
SCR 988 – held not good
law.
Ram Vijay Singh v. State of Uttar Pradesh 2021 SCC
OnLine SC 142; Abuzar Hossain alias Golam Hossain
v. State of West Bengal (2012) 10 SCC 489 : [2012] 9
SCR 244; Pawan Kumar Gupta v. State (NCT of Delhi)
(2020) 2 SCC 803 : [2020] 1 SCR 69; Pawan v. State
of Uttaranchal (2009) 15 SCC 259 : [2009] 3 SCR
468; Ravinder Singh Gorkhi v. State of U.P. (2006) 5
SCC 584 : [2006] 2 Suppl. SCR 615; Hari Ram v. State
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of Rajasthan and Another (2009) 13 SCC 211 : [2009]
7 SCR 623; Abdul Razzaq v. State of Uttar Pradesh
(2015) 15 SCC 637; Vinod Katara v. State of Uttar
Pradesh 2022 SCC OnLine SC 1204; Ram Narain v.
State of Uttar Pradesh (2015) 17 SCC 699 : [2015] 9
SCR 200; Upendra Pradhan v. Stae of Orissa (2015)
11 SCC 124 : [2015] 5 SCR 214; Ajay Kumar v. State
of Madhya Pradesh (2010) 15 SCC 83; Sheo Mangal
Singh and Others v. State of U.P. (1989) SCC OnLine
All 605; Rishipal Singh Solanki v. State of Uttar Pradesh
and Others (2022) 8 SCC 602; Pratap Singh v. State of
Jharkhand and Another (2005) 3 SCC 551 : [2005] 1
SCR 1019; Jitendra Singh Alias Babboo Singh and
Another v. State of Uttar Pradesh (2013) 11 SCC 193 :
[2013] 13 SCR 764; Dharambir v. State (NCT of Delhi)
and Another (2010) 5 SCC 344 : [2010] 5 SCR 137;
Mahesh Jogi v. State of Rajashthan (2014) 15 SCC
184 : [2014] 11 SCR 293; Satya Deo alias Bhoorey v.
State of Uttar Pradesh (2020) 10 SCC 555; State of
Jammu & Kashmir (Now U.T. of Jammu and Kashmir)
and Others v. Shubham Sangra 2022 SCC OnLine SC
1592; Rajinder Chandra v. State of Chhattisgarh and
Another (2002) 2 SCC 287 – referred to.
Case Law Reference
[2012] 10 SCR 540
relied on
Para 12
[2012] 9 SCR 244
referred to
Para 12
[2020] 1 SCR 69
referred to
Para 12
[2006] 10 Suppl. SCR 988
held not good law
Para 13
[2009] 3 SCR 468
referred to
Para 13
[2006] 2 Suppl. SCR 615
referred to
Para 14
[2001] 3 SCR 669
distinguished
Para 14
[1988] Suppl. SCR 1
distinguished
Para 14
[2009] 7 SCR 623
referred to
Para 20
[2015] 9 SCR 200
referred to
Para 20
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[2015] 5 SCR 214
referred to
Para 20
[2016] 2 SCR 1089
distinguished
Para 32
[2019] 9 SCR 735
distinguished
Para 37
[2008] 14 SCR 161
distinguished
Para 37
[2005] 1 SCR 1019
referred to
Para 38
[2013] 13 SCR 764
referred to
Para 39
[2010] 5 SCR 137
referred to
Para 39
[2014] 11 SCR 293
referred to
Para 39
CRIMINAL APPELLATE JURISDICTION: Criminal
Miscellaneous Petition No. 157334 of 2018 in Review Petition (Criminal)
Nos. 1139-1140 of 2000 in Criminal Appeal Nos. 25-26 of 2000.
From the Judgment and Order dated 05.09.2000 in Crl.A.Nos. 26
and 25 of 2000 of the Supreme Court of India.
R. Basant, Sr.Adv., Vishnu P., Ms. Trisha Chandran, Ms. Shreya
Rastogi, Shadan Farasat, Advs. for the Applicant.
Sachin Patil, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,
Bharat Bagla, Sourav Singh, Geo Joseph, Risvi Muhammed, Durgesh
Gupta, Hrishikesh Chitaley, Vijay Kari Singh, Rajat Joseph, Advs. for
the Respondent.
The Judgment of the Court was delivered by
ANIRUDDHA BOSE, J.
This is an application under Section 9(2) of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (“2015 Act”) requesting
this Court to hold that the applicant, who is a convict for committing
offences under Sections 302, 342, 397, 449 read with 120B and 34 of the
Indian Penal Code, 1860 (“1860 Code”) was a juvenile on the date of
commission of the offence. Simultaneous prayer of the applicant is for
his release from custody on the ground of having served more than the
maximum
punishment permissible under the Act. The applicant has been
sentenced to death by the Additional Sessions Judge, Pune by a judgment
and order dated 19th February 1998 and 23rd February 1998 respectively.
This application has been taken out in connection with a petition for
review of the order by which his conviction and sentence was sustained
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by this Court after confirmation by the High Court. The review petition
of the applicant was also dismissed on 24th November 2000. The applicant,
along with two other offenders (Jitu and Raju) were tried for commission
of offences under the aforesaid provisions of the 1860 Code. The
applicant had not raised the plea of juvenility at the trial or the appellate
stage. In the Trial Court, said Raju had turned approver and was tendered
pardon. Both the judgment of conviction and order of sentence were
confirmed by the High Court on 22nd July 1999 in the appeal of the
applicant as also in the confirmation proceeding. The appeal against the
judgment of conviction and order of death sentence made by the applicant
was dismissed by this Court on 5th September 2000. The offence of the
applicant is no doubt, gruesome in nature. On 26th August 1994, as per
the prosecution case sustained by all the judicial fora including this Court,
the applicant alongwith the two other accomplices had committed murder
of five women, (one of whom was pregnant) and two children. The
offence took place at Pune in the State of Maharashtra. The applicant
was arrested on 5th September 1994 from his home village and is in
detention for more than 28 years.
2. Though the offence was committed at Pune, the applicant claims
to hail from Jalabsar, in Shri Dungargarh tehsil, at present in Bikaner
district, Rajasthan. It is from there he was arrested. He was
tried as
Narayan Chetanram Chaudhary. His plea before us is that his actual
name is Niranaram. In the Inquiry Report, which we shall deal with later
in this judgment, there is observation to the effect that people in Pune,
Maharashtra might find it difficult to pronounce Niranaram and there is
possibility of pronunciation mistake to call “Niranaram” as “Narayan” in
Pune. The said tehsil was earlier in the district of Churu but in the year
2001, it came within the Bikaner district. Date of occurrence of the
offence is 26th August 1994 and the chargesheet submitted against the
applicant showed his age to be about 20 years at the time of commission
of the offence. The applicant’s claim of juvenility is primarily based on a
“certificate” of date of birth issued on 30th January 2019, in the name of
Niranaram, son of Chetanram. The said certificate has been issued by
the Pradhanacharya (Headmaster), Rajakiya Adarsh Uccha Madhyamik
Vidyalaya, Jalabsar, Shri Dungargarh. In the said document, it is recorded
that Niranaram was born on 1st February 1982. In a “transfer certificate”
by the same authority issued on 15th August 2001, it is reflected that he
had joined the school in Class First on 1st April 1986 vide admission
number 568 and left from Class Third (Passed) on 15th May 1989.
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By the date of birth reflected in these certificates, the age of the
applicant on the date of commission of offence would have been 12
years and 6 months. The applicant, as we have already indicated, was
tried as Narayan, not Niranaram. Moreover, in certain other documents
Niranaram’s age is shown to be different from that reflected in the said
certificates. The variations or discrepancies as regards the name of
applicant and his age are the factors we shall be dealing with in this
judgment and we shall dwell into these aspects in subsequent paragraphs
of this judgment.
3. In the chargesheet, the accused Narayan’s age was shown to
be 20 years. We find from the judgment of the High Court that the said
age (20-22 years) was given on behalf of the applicant only at the time
of hearing. The High Court had tangentially referred to the question of
age of the applicant in its judgment in the appeal and death reference. At
that time, however, the plea of juvenility was not there. It was observed
in the High Court’s judgment that the age of the accused at the time of
occurrence ought to be borne in mind while considering the question of
awarding the sentence.
4. The applicant for the first time wanted a medical examination
for determination of his age on 14th August 2005, when the Prison
Inspector General, Western Division, Pune went to meet the applicant
at Yerawada Central Prison. A request was made thereafter by the prison
authorities to the Chief Medical
Officer and the applicant was taken to
Department of Forensic Science, BJ Medical College and Sassoon
General Hospital, Pune. The age determination report by the Department
of Forensic Medicine, of the said institution states that on 24th August
2005, age of the patient was more than 22 years but less than 40 years
including margin of error. The said report reads: -
“MD/ AGE/ 198/ 2005
Department of Forensic Science
B J Medical College and Sassoon
General Hospital, Pune
Proforma for age examination
24/8/2005
Mr. Narayan Chetram Chaudhary
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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Brought by Yerawada Central Prison, Pune
Date: 24/8/2005, time: 3:45 pm, MLC No 25802, date:23/8/
2005
Consent: The doctors have given me an idea of the tests
involved in determination of age. I am ready for the
examination of my own free will.
(unclear 3 line)
Physical Development: Medium
Teeth: Upper 15
Lower 15
Ht 5’9"
Wt 68 kg
Secondary Sex Characters
Male:
Moustache: Present
Beard: Shaved
Pubic Hair: Present
Voice: normal
Genitals: normal
Medicolegal exam: X Ray plate no R180( 4) date: 23/8/05
(unclear medical description)
Conclusion: From clinical & radiological examination the age
of the patient on date 24/8/05 ‘more than twenty two years
but less than forty years (40 years)’ including margin of error.
Signed in the presence of:
Sd/-
B G More
Sd/-
Dr. M.S. Vable
Prof. & Head / Assec. Prof. / Asstt. Lect.
Department of Forensic Medicine,
B. J. Medical College, Pune – 411001"
(quoted verbatim from the paperbook)
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5. It was in the early part of 2006, we are apprised by Mr. Basant,
learned senior counsel representing the applicant, that his cause was
taken up by certain human rights groups. Some public spirited individuals
espousing the applicant’s cause on the point of juvenility had written to
the President of India on 24th January 2006 requesting cancellation of
award of death penalty on the ground that he was a juvenile at the time
of commission of the offence. A copy of the said communication, captioned
“Mercy Petition”, has been annexed as A-7 to the application. The text
of this petition is reproduced below: -
“President’s Secretariat
CA II Section
Date- 24/1/2006
Dy. No. 03-/06 M.P.
Mercy Petition on behalf of a juvenile to the President
Hon. Excellency
The Hon. President of India,
Rashtrapati Bhavan, New Delhi
To his Excellency, the President of the Republic of India
We are an organization Human Rights and Law Defenders
(HRLD) working on different issues on Human Rights
violations. We also work in the Yerawada Central Prison, Pune
and provide free legal aid to the prisoners in peril.
It is due to the extremity of the matter before us that we·take
the liberty of corresponding with your Hon. Self to make you
aware that one person names Niranaram Chetanram
Chaudhary, born on 1/2/1982, who has been awarded the
death penalty in a murder case in languishing in the Yerawada
Central Prison, Pune. Therefore, this applicant was around
13 years of age at the time of
committing this offence. Your
Excellency, your office has received a mercy petition from his
co-accused Jitendra Nainsingh Gehlot DY no 7/27 on 8/11/
2004. You are indeed suitably in receipt of all the relevant
case material which has been earlier sent to you office.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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The prison authorities have also requested us that we should
attract your attention to the fact that Niranaram Chetanram
Chaudhary was a juvenile at the time of offence so that death
penalty awarded is a mistake of the law. It should also be
well noted that there are various judgement given by the High
Court and the Apex Court and numerous and substantive laws
to confirm that if any person had been a juvenile at the time
of committing the offence, it can be a strong ground for
consideration at any stage of the case. He has already spent
more than 11 years languishing inside the four walls of the
prison. We would like to bring to light the miscarriage of
justice in this case where in a 13 year old juvenile who
committed an offence has become a grown up man inside the
prison meant for major and hardened criminals. So we want
to request you to consider this sensitive matter of a juvenile
in conflict with law and ask your august office and
Honourable self to cancel the punishment of death penalty
awarded to the juvenile in this case.
Yours truly
Adv. Asim Sarode   Adv. Smita Lokhande    Jagriti    Sanjay
        Jadhav
Mohat
Human Rights Activist Legal Aid Lawyer Student Intern Social
Worker
Enclosures: Transfer certificate of Niranaram Chetanram
Chaudhari and other papers with respect to his proof of age.
(All attested copies)”
(quoted verbatim from the paperbook)
6. That letter, as pleaded in this application, was
forwarded to the
Government of Maharashtra eliciting the State Government’s comments
on such claim of juvenility. There were subsequent exchange of
communications among the officials on the question of his age
determination. In a letter originating from the Superintendent, Yerawada
Central Jail, Pune addressed to Additional Secretary, Home Department,
Maharashtra (which is Annexure A-13 to the present application), the
Jail authorities recorded that the Medical Superintendent, Sassoon hospital,
Pune was intimated by the applicant that he had studied in a Government
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School at Jalabsar and his name in the school was Niranaram. It was in
this communication dated 19th January 2007 a reference was made to
his name being Niranaram. It does not appear, however, that any further
age determination test was carried out. The said communication reads:-
“With reference to the above subject, orders were given to
present a medical report regarding the current age of the
condemned prisoner C1871 Narayan Chetanram Chaudhari.
Accordingly, the said prisoner was sent to the Hon Medical
Superintendent, Sassoon Hospital, Pune and the he was
requested through letter NV1/ AVT/ 64/ 2007 date 8/1/2000
to give a medical report about the age of the prisoner.
In his letter no SSR/ Prisoner/ 26/ 06 date 8/1/2007 about the
age of the prisoner, the Hon. Medical Superintendent noted
that, “after speaking to the prisoner, it appears that his actual
age can be found out through his school records. His name
in school was Niranaram Chetanram Chaudhari and he has
studied in the Government School in Julabsar until grade 3.
The village is in Dungargadh Taluka, earlier Churu District,
now Bikaner District. If you obtain a certificate from that
school it could be useful.” We have attached a photocopy of
the said letter. Similarly, photocopies of the prisoner’s earlier
mercy petition submitted by his lawyer Mr. Aseem Sarode along
with his school certificate are also attached. Photocopy of
the school certificate submitted by the prisoner is being
attached.
Presented for information and further action.”
(quoted verbatim from paperbook)
7. Thereafter, a writ petition was filed in this Court under Article
32 of the Constitution of India by the applicant representing himself as
‘Narayan @ Niranaram’ seeking quashing of the order of punishment
imposed upon him on the ground of him being a juvenile on the date of
commission of offence. In this petition, apart from the aforesaid
certificates, the applicant had relied on a “Family Card” of the Rajasthan
Government issued in 1989, recording the age of Nirana to be of 12
years as also the aforesaid Transfer Certificate issued on 15th August
2001 recording Niranaram’s date of birth as 1st February 1982. In both
these documents, Chetanram’s name appears as father of Niranaram.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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This writ petition, registered as W.P. (Criminal) No. 126 of 2013, was
dismissed by a two-Judge Bench of this Court on 12th August 2013 with
the following order:-
“UPON hearing counsel the Court made the following
O R D E R
“We are not inclined to entertain this Writ Petition under Article
32 of the Constitution of India and the same is dismissed.”
 8. This application was instituted on 30th October 2018. When it
was taken up for hearing, a Coordinate Bench by an order passed on
29th January 2019 had referred the matter to the Principal District and
Sessions Judge, Pune to decide the juvenility of the applicant keeping in
view the provisions of Section 9(2) of the 2015 Act. This order reads:-
“UPON hearing the counsel the Court made the following
O R D E R
Heard learned counsel for the parties.
The applicant - Narayan Chetanram Chaudhary has filed an
application (Crl.M.P.No.5242 of 2016 in R.P.(Crl.)Nos.1139-
1140/2000 in Crl.A.Nos.25-26/2000) seeking review of the
final judgment of this Court dated 05.09.2000 in Criminal
Appeal Nos.25-26 of 2000, upholding his conviction under
Sections 342, 397, 449 and 302 of the Indian Penal Code
(hereinafter referred to as the ‘IPC’) and the sentence of death
awarded to him under Section 302 IPC by reopening the
Review Petition(Crl.)Nos.1139-1140 of 2000, which were
dismissed by this Court on 24.11.2000. The applicant has also
filed an application (Crl.M.P.No.157334 of 2018 in
R.P.
(Crl.)Nos.1139-1140/2000 in Crl.A.Nos.25-26/2000) under
Section 9(2) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as ‘the Act’)
seeking a declaration that he was a juvenile at the time of
commission of offence. The applicant has placed certain
additional documents to prove his juvenility at the time of
commission of offence.
On 31.10.2018, when the matter came up before this
Court for hearing, the counsel for the State was directed to
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take instructions on the additional documents on the question
of juvenility of the applicant. However today, the learned
counsel for the respondent-State submits that he has not got
any instructions in that regard so far. The instant case reflects
gross lethargic and negligent attitude of the State. In view of
the pendency of the matter, we are restrained from observing
anything further.
Keeping in view Section 9(2) of the Act, we have no
other option but to refer the matter to the Principal District
and Sessions Judge, Pune, to decide the juvenility of the
applicant. Accordingly, we direct the Registry of this Court to
send the application (Crl.M.P.No.157334/2018 in R.P.(Crl.)
Nos.1139-1140/2000 in Crl.A.Nos.25-26/2000) along with
xerox copy of the documents, relied upon by the applicant, to
the Principal District and Sessions Judge, Pune to decide the
juvenility of the applicant. If notice is given to the applicant,
he is directed to produce all the original documents before
the concerned Court in support of his claim of juvenility at
the time of commission of offence. The Principal District and
Sessions Judge, Pune is directed to send a report to this Court,
preferably within a period of six weeks. We hope and trust
that the Principal District and Sessions Judge, Pune shall
decide the juvenility of the applicant within the time stipulated
hereinabove.
List the matter immediately after receipt of report from
the Principal District and Sessions Judge,
Pune.”
9. In pursuance of direction of this Court, the Principal District
and Sessions Judge (we shall henceforth refer to him as the “Inquiring
Judge”) gave his report sustaining the applicant’s claim for juvenility.
The de-facto complainant, a family member of the victims has filed an
application for intervention. That application is registered as I.A. No.
58515 of 2019. We allow this application. Mr. Basant, has argued in
support of this finding, whereas Mr. Patil and Mr. Chitaley, learned
counsel for the State and the intervenor (de-facto complainant)
respectively have asked for rejection of the report and dismissal of the
application. In his report, the Inquiring Judge had examined the following
documents:-
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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“1. A Transfer Certificate dated 15/08/2001, issued by Rajkiya
Adarsh Uccha Madhyamik Vidylaya, Jalabsar Shiksha
Vibhag, Rajasthan in the name of Niranaram s/o Chetanram,
resident of Jalabsar, District Churu, showing the date of birth
to be 01/02/1982. (Annexure- ‘I-1’ in his report).
2. The Certificate of Date of Birth of Niranaram s/o
Chetanram, dated 30/01/2019, issued by the Headmaster,
Rajkiya Adarsh Uccha Madhyamik Vidyalaya, Jalabsar,
Shridungargarh (Bikaner). (Annexure’ I-2' in his report).
3. A copy of School Register issued by Headmaster, Rajkiya
Adarsh 
Uccha 
Madhaymik 
Vidyalaya, 
Jalabsar,
Shridungargarh, (Bikaner), dated 07/02/2019. (Annexure-
‘I-3’ in his report).
4. A Certificate of Bonafide resident dated 10/08/2009, issued
by the Tahasildar, Shridungargarh, Bikaner in the name of
Niranaram s/o Chetanram, resident of Jalabsar, Tahasil-
Shridungargarh, District-Bikaner. (Annexure- ‘I-4’ in his
report).
5. A Certificate of Other Backward Class, issued by the
Tahasildar Shri dungargarh, Bikaner, dated 10/08/2009, in
the name of Niranaram s/o Chetanram, resident of Jalabsar,
District-Bikaner. (Annexure- ‘I-5’ in his report).
6. A copy of Notification dated 23/03/2001 issued by the State
of Rajasthan, regarding inclusion of Tahasil has Dungargarh
in District Bikaner with effect from 01/04/2001, by removing
the same from District Churu. (Annexure- ‘I-6’ in his report).
7. A certificate issued by the
Sarpanch, Grampanchayat
Udrasar, Shridungargarh, certifying that, Narayan
Chaudhary is the same person whose another name is
Niranaram s/o Chetanram Chaudhary. (Annexure- ‘I-7’ in
his report).
8. The Rajasthan Government Pariwar Card No.21711 issued
in the name of Chetanram s/o Ratnaram in the year 1989
showing age of ‘Nirana’ as son of Chetanram to be of 12
years. Further, showing Anada, Mukhram, Birbal to be the
brothers of ‘Nirana’. (Annexure- ‘L-1’ in his report).
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9. A T.C. Form issued by Rajkiya Madhyamik Vidyalaya
Udrasar, Tahasil-Shridungargarh, District-Bikaner, dated 19/
09/2003, in the name of Anadaram s/o Chetanram Sanatan.
(Annexure- ‘L-2’ in his report).
10. A Transfer Certificate, dated 15/07 /1994 in the name of
Mukhram s/o Chetanram issued by Rajkiya G. R. Mohata
Uccha Madhyamik Vidyalaya, Shridungargarh, Bikaner.
(Annexure- ‘L-3’ in his report).
11. A photocopy of Proforma for verification of age
examination, dated 24/08/2005 regarding Narayan Chetaram
Chaudhary. (Annexure-’J-1' in his report)”
(quoted verbatim from the paperbook)
10. The reasoning and the finding of the Inquiring Judge in his
report of 12th March 2019 were in the following terms:-
“38) So far as the inquiry directed to be conducted by this
Court is concerned, at the outset, the relevant provisions of
law with regard to the inquiry as to juvenility has to be
mentioned for reference. The provisions under the Act have
been mentioned above.
39) As per section 2(35) of the Act, Juvenile means a child
below the age of 18 years. The authorities referred above,
specifically referring to retrospectivity as to consideration of
the application of present law to the fact of juvenility is
concerned, there cannot be any dispute about it. Hence,
Section 9(2) of the Act is a relevant provision on the basis of
which the petitioner has filed a petition before the Hon’ble
Supreme Court of India for declaration that he was a child
under the Act. The
said provision is reproduced above. In the
case of “Raju -vs- State of Haryana [(2019) 14 SCC 401] “
there is a reference to Rule 7 A of the Juvenile Justice (Care
and Protection of Children) Rules 2007. The said rule deals
with making of inquiry by the Court in the claim of juvenility.
Sub-Rule 3 of Rule 12 of the said Rules has stated about the
procedure to be followed for age determination. After the
Juvenile Justice (Care and Protection of Children) Act, 2015
came into force, the relevant provision relating to the procedure
to be followed is U/sec.9 of the Act. Similarly, section 94 of
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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the Act deals with presumption and determination of age. For
ready reference, all these provisions have been reproduced
above.
40) The authorities of “Surendra Kumar -vs- State of
Rajasthan [(2008) SCC OnLine Raj 138]” and “Shah Nawaz
-vs- State of Uttar Pradesh and Another [(2011) 13 SCC 751]”
are relevant with reference to the school record. Similarly, the
authority of “Surendra Kumar (supra)” is useful regarding
entry in electoral roll. The authority of “Darga Ram alias
Gunga -vs- State of Rajsthan [(2015) 2 SCC 775]” is useful
regarding ossification test. All these cases have to be
considered with reference to the case of “Raju (supra)” and
the provisions of law noted above.
41) As per the provision in section 94 above, in case of doubt
regarding whether a person is child or not the process of age
determination shall be undertaken and evidence shall be
sought to obtain the date of birth certificate from the school
or matriculation or equivalent certificate from concerned
examination board, if available. The certificate given by
Corporation, Municipal Authority or Panchayat can also be
obtained and in the absence thereof, age can be determined
by ossification test.
42) Therefore, if Rule 7 A of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 is read with it’s Rule 12
and the present Section 9 and Section 94 of the Act, it is clear
that, the date of birth from the school certificate or
matriculation certificate or a certificate of Corporation etc.
is relevant consideration. Thus, preference has to be given to
the School Certificates. Even in the case of “Raju (supra)”
the Hon’ble Supreme Court of India made it abundantly clear
that the school certificate would be relevant for the name as
well as date of birth.
43) In view of the above provisions of law, and the authorities
placed on record, I proceed to examine the documents to see
whether the documents relied on by the petitioner are genuine
and authentic and whether those can be relied on to decide
juvenility. The submissions made by learned DGP and learned
advocate for the petitioner will be looked into simultaneously.
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44) The Police Officer had visited the Rajkiya Adarsh Uccha
Madhyamik Vidyalaya, Jalabsar. He has recorded statement
of the Incharge Head Master Namrata Prabhusing with
reference to the document at serial no.1 (Annexure- ‘I-1’).
The said document admittedly, is in the name of “Niranaram
s/o Chetanram”. She has stated that, the said document was
issued by her school on the basis of the register kept in the
school. She also certified that, the admission no. 568 is correct
as per the register maintained. The copy of register, which is
the document at serial no. 3 (Annexure- ‘I-3’) was also found
by the Police Officer to be the correct copy of the register
kept by the school. The name of “Niranaram s/o Chetanram”
can be seen in such register. As per such register, the date of
birth of “Niranaram” is 01/02/1982. Even as per document
no.1, the date of birth of “Niranaram” is 01/02/1982. With
regard to document at serial no.2 (Annexure- ‘I-2’), the Police
Officer found that the same was issued by the school whose
stamp it bears. Merely because it’s second copy was not found
in the school or that the relevant register had some overwriting
of names, though not of the name of “Niranaram”, these
documents cannot be discarded. The documents at serial Nos.
1 to 3 appear to have been issued on the basis of the school
record. “Niranaram” was admitted in the school on 01/04/
1986. Thus, the transfer certificate dated 15/08/2001 i.e. the
document at serial no.1 is the
first Certificate.
45) The Police Officer collected the copies of letter given by
“Mukhram” to the Rajkiya Adarsh Uccha Madhyamik
Vidyalaya, Jalabsar for obtaining birth certificate of his
brother. Such copies are produced with report Exh.16. Similarly,
a fresh certificate, addressed to the Police Officer was also
given by the Head Mistress dated 23/02/2019 and it is
collected and filed with his report by the Police Officer with
Exh.16. Hence, the documents at serial nos.1 to 3, has a
genuine source and those are authentic documents. It is a
fact that, these documents have not disclosed the name
“Narayan” thereon. This aspect will be considered later on,
since the purpose of sending the Police Officer was to verify
the authenticity of documents only. He was not expected to
express his own opinion. It is sufficient that, the documents at
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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serial nos.1 to 3 were issued by the school, the stamp of which
is appearing thereon. Therefore, the documents at serial nos.
1 to 3 are found to be trustworthy and authentic documents.
46) The documents at serial nos. 4 and 5 (Annexure- ‘I-4 &
‘I-5’) are the documents of Bona fide Residence and OBC
Caste Certificate issued by the Tahasildar, Shridungargarh.
The document at serial no.6 (Annexure- ‘I-6’) has not been
disputed and it shows that, with effect from 01/04/2001
Tahasil-Shridungargarh, which was earlier in District Churu
was removed therefrom and included in the District Bikaner.
Hence, though the certificate dated 15/08/2001 (document
no.1) mentions the District Churu, by virtue of the notification
dated 23/03/2001, village Jalabsar from Shridungargarh has
been included into Bikaner District. The certificates at
document serial nos. 4 and 5 has a mention of District Bikaner
for village Jalabsar and Tahasil Shridungargarh. These
certificates are dated 10/08/2009. Therefore, it is obvious that,
the name of District Bikaner has been mentioned thereon.
47) The documents at serial nos.4 and 5 i.e. the certificates
issued by Tahasildar can be said to be authentic and genuine.
The Police Officer had visited the office of Tahasildar and
verified the entries made of both the certificates in the register
maintained by the Tahasildar. A statement of Tahasildar named
Bhawanisingh s/o Prabhudan was also recorded by the
Police
Officer. His statement is sufficient to show that, both the
certificates at serial nos.4 and 5 were issued by the office of
Tahasildar, Shridungargarh, District Bikaner. Copies of
concerned registers have been collected by the Police Officer
and submitted with his report. The serial numbers of the entry
made in the registers are matching to the serial numbers on
the certificates in the documents at serial nos.4 and 5.
Therefore, there is no reason to consider that, the register
was not properly kept. The copies of register produced by the
Police Officer have been certified by the Tahasildar
Shridungargarh, District Bikaner. As such, the certificates of
documents at serial nos.4 and 5 can be said to have been
issued by the Tahasildar Shridungargarh, District Bikaner.
As such, the source is genuine making those documents
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genuine and authentic. Admittedly, the name thereon is
“Niranaram s/o Chetanram” and not “Narayan”.
48) With regard to document at serial no.9 (Annexure- ‘L-
2’), it is a certificate in the name of “Andaram s/o
Chetanram”. The Police Officer had visited the Rajkiya
Madhyamik Vidyalaya Udrasar to examine the T.C. Form of
“Andaram”. He also recorded statement of a Lecturer named
Poonam Jairam Singh from the said school. She was Incharge
Head Mistress of the school. According to her, the certificate
of T.C. Form i.e. document at serial no.9 was issued by her
school. As such, merely for the reason that it’s copy was not
there, the said T.C. Form cannot be discarded. The T.C. Form
was given on the basis of school register. Copy of such school
register was collected and the same has been produced by
the Police Officer with his report. At Serial No.1269 thereon,
there is the entry of the name of “Andaram s/o Chetanram”.
Thus, the certificate of document at serial no. 9 is also genuine
and authentic.
49) With regard to document at serial no.10 (Annexure- ‘L-
3’), no claim is made by the advocate for petitioner and he
expressed that he would not be in a position to comment as to
how the original record corresponding thereto was found to
be of some other student. As such, the document at serial
no.10 cannot be relied on. The document at serial no.8
(Annexure- ‘L-1’) is the Pariwar Card. With regard to such
document, the Police Officer recorded statement of
Gramsevak, who has stated that, the record of the year 1989
was not available in the Grampanchayat Office. The inquiry
made by the Police Officer was misdirected since he was
required to make inquiry with the Development Officer,
Panchayat Samiti Shridungargarh regarding Pariwar Card
i.e. the document at serial no.8. Since, no such inquiry was
made, it can be said that, the State did not seriously search
for the authenticity of the Pariwar Card. As discussed earlier,
the document at serial no.9 is genuine and it is in the name of
“Andaram”. The name of his father is “Chetanram”. The
documents at serial nos.1 to 5 show the name of father to be
“Chetanram”. The school records similarly indicate.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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Moreover, the name of the village and District besides the
name of father of “Niranaram” and “Andaram” is the same.
As such, there is ground to believe that “Chetanram” is the
father of “Niranaram” and “Andaram”. The Pariwar Card
i.e. document at serial no.8, is in the name of “Chetanram”.
The name of Village is Jalabsar and the names “Anada” and
“Nirana” can be seen therein to be the sons of “Chetanram”.
As such, the Pariwar Card i.e. the document at serial no.8
can very well be relied on.
50) The document at serial no.7 (Annexure- ‘I-7’) has been
reported by the Police Officer to be forged document. It has
been issued by Gauradevi as a Surpanch of village Udarasar.
She had certified in the document at serial no. 7 that,
“Narayan Chaudhary” and “Niranaram” is the name of same
person. Her statement, statement of her son Jetharam s/o
Todaram and one villager named Udaram was recorded by
the Police Officer. All of them disowned the document at serial
no.7. The Police Officer however, has collected one more
document having the signature of Surpanch Gauradevi and
recorded statement of one Kesraram who was Gramsevak, in
support thereof. However, the signature of Sarpanch on the
document collected by the Police Officer having reference to
the statement of Kesraram and her signature on document at
serial no. 7 appear to be identically same. As such, in the
circumstances when Gauridevi admitted that, she was a
Sarpanch, the
document at serial no. 7 cannot be doubted as
to the signature of the Sarpanch. Gauradevi was not able to
see and not able to read. As such, the statements of Jetharam
and Udaram would be not be much relevant, when a document
for comparison of signature has been collected by the Police
Officer. The signature of Sarpanch thereon and document at’
serial no. 7 appear to be identical. Hence, even the document
at serial no. 7 can be considered.
51) As per Section 94 of the Act, only when the school
certificate or the certificate of Panchayat and Corporation
etc. is not found, the ossification test can be resorted to. Since,
in this case authentic school certificates are on record, at this
moment, there is no need to consider the document at serial
no.11 (Annexure- ‘J-1’).
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52) In view of the documents mentioned above, it appears
that, “Niranram” and “Anadaram” are brothers. It also
appears that, “Chetanram” is their father. They are resident
of Jalabsar. The school record, which is discussed in foregoing
paragraphs, indicate the date of birth of “Anadram s/o
Chetanram” to be 04/04/1980, while the date of birth of
“Niranaram” appears to be 01/02/1982. Thus, from these
school documents it can be said that, “Anadaram” is elder to
“Niranaram”. In the Pariwar Card i.e. document at serial
no.8, same is the position since “Anadaram” is appearing to
be elder to “Niranaram”. Here, since the name of father of
both these persons is the same, and their village is also the
same, help can be taken from the observations made in the
case of “Raju (supra)” by the Hon’ble Supreme Court of India.
If the certificates are read with reference to the document at
serial no. 7, it can be said that “Niranaram” and “Narayan”
is one and the same person. There is nothing on record to
show that, “Chetanram” had another son by name
“Narayan”. Even the certificate (document at serial no. 7), is
not considered, there is sufficient material on record to
indicate that, the school documents and the documents issued
by the Tahasildar and the Pariwar Card are genuine and valid.
These documents make it clear that, “Niranaram” is brother
of “Anadaram”. Hence, both are siblings. There is nothing to
show that, any other person by name “Niranaram Chetanram”
was
found at village Jalabsar. Therefore, from the documents
on record, the document at serial no. 7 can also be believed.
Though, none of the documents mention the name “Narayan’’,
the name “Niranaram” has to be said to be another name of
“Narayan”.
53) Though, not for exclusively basing the decision, but for
the general observation in ordinary sense, it can be said that,
people in Rajasthan may be accustomed to pronounce
“Niranaram” easily, but the people in the state of
Maharashtra, especially in Pune, may find it difficult to
pronounce “Niranaram”. For such reason, there is possibility
of the pronunciation mistake to call “Niranaram” as
“Narayan” in Pune.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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54) If “Niranaram” is not “Narayan” and “Narayan” is some
other person, then the State should have brought clear
documentary evidence of school record of “Narayan”
showing him to be different person. There is no such record.
As such, the police record of the Sessions Case may have
shown the name “Narayan” without asking for any
identification documents as to his name, in the school record.
There is not a single document filed by state to show that the
name of “Narayan’s” father is not “Chetanram” but its
different.
55) In view of the documents of school and the documents
issued by the Tahasildar, the date of birth of the petitioner
appear to be 01/02/1982. As such, on 24/08/1994 his age
would be around 12 years and 6 months. If the Pariwar Card,
which was issued in the year 1989 is seen, the age mentioned
therein is 12 years. If it is the age mentioned for the year
1989, then in the year 1994, more particularly on 24/08/1994,
the age of the petitioner would be 16 years and 8 months.
Thus, it is still below 18 years.
56) When the school record is available, ossification test
cannot be considered. However, even if the document at serial
no.11 is taken into account, the range mentioned is 22 years
to 40 years in the year 2005. Thus, for the year 1994 the
range would come to 11 years to 29 years. This also supports
the certificates, more particularly the documents at serial
nos.1 to 5, 8 and 9. In view of the above
observations, it is
abundantly clear that, on the date of incident i.e. on 24/08/
1994 the age of the petitioner was around 12 years and 6
months. Thus, he was a child or a juvenile within the meaning
of Section 2(35) of the Act.
CONCLUSION:
57) On 24/08/1994, the age of Niranaram Chetanram was 12
years and 6 months or around the same. Narayan Chetanram
Chaudhary is the same person, whose another name is
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Niranram Chetanram Chaudhary. Hence, I hold that the
petitioner was a juvenile on the date of commission of offence.
Hence, the report.”
(quoted verbatim from the paperbook)
11. First submission of Mr. Patil is that the question of juvenility
cannot be reopened by this application as the applicant had filed writ
petition before this Court under Article 32 of the Constitution of India
(Writ Petition (Criminal) No.126 of 2013) and this writ petition was
dismissed by this Court. He has also submitted that the applicant is relying
on records pertaining to another individual as at no point of time earlier
he had disclosed that his real name was Niranaram. Even proceeding on
the basis that the applicant’s actual name is Niranaram, Mr. Patil wants
us to discard the entire set of documentary evidences alleging that these
documents, particularly the school records, are fabricated. He has
highlighted certain discrepancies in the documents themselves as regards
the family members of the applicant and their age. In particular, he has
submitted that family members of the applicant had created a forged
certificate of the Sarpanch, which was marked as annexure I-7 in the
report. He has drawn our attention to the statement of the Sarpanch,
Gauradevi, as recorded in the Inquiry Report. She had stated, as disclosed
in the report, that she had never issued that certificate. He has also
taken us through the transfer certificate of Andaram (in some documents
referred to as
Anadaram and Anandaram), which was marked as L-2 in
the report and that of Mukhram, marked as L-3 therein. As it appears
from the Inquiry Report, these two persons are brothers of the applicant.
He has referred to that part of the report, in which the Inquiring Judge
records that the principal of the school, Smt. Namrata had stated that
admission number 1317 (which was recorded in the transfer certificate
of Mukhram) did not bear the name of Mukhram in school records but
the admission number 1317 was in the name of one Babulal
Shreechandanmal Bhadani, whose date of birth was 6th June 1966. The
principal of the school further stated that said transfer certificate was
not signed by the then principal of the school and it was never issued by
the school. It has also been stated by Mr. Patil that the family members
of the applicant had obtained the residence certificate of Niranaram by
affixing the photo as also the caste certificate on 10th August 2009 issued
by the Tehsildar officer Shri Dungargarh when the applicant remained
imprisoned.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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12. Mr. Patil has also questioned the manner in which the inquiry
was made. His main submission is that the expression of inquiry as
employed in Section 9(2) of the 2015 Act ought to import the same
meaning given to it under the Section 2 (g) of the Code of Criminal
Procedure, 1973 (“1973 Code”). In this regard he has referred to the
cases of Ram Vijay Singh -vs- State of Uttar Pradesh [2021 SCC
OnLine SC 142] and Ashwani Kumar Saxena -vs- State of Madhya
Pradesh [(2012) 9 SCC 750]. In the case of Ram Vijay Singh (supra),
a Coordinate Bench of this Court found that the procedure prescribed in
Rule 12 of the Rules made under the Juvenile Justice (Care and Protection
of Children) Act, 2000 (“2000 Act”) is not materially different from
provisions of Section 94 of the 2015 Act. He wants us to distinguish the
finding made by a Bench of two Judges of this Court in the case of
Ashwani Kumar Saxena (supra), referring to the judgment in the case
of Abuzar Hossain alias Golam Hossain -vs- State of West Bengal
[(2012) 10 SCC 489]. He has submitted that the Inquiring Judge, to
comply with the mandate of Section 9(2) of the 2015 Act, ought to have
recorded evidence of the material witnesses on oath for determination
of age but he hastily completed the inquiry.
13. Mr. Chitaley’s submissions are in the same line. Relying on
decision of this Court in this case of Pawan Kumar Gupta -vs- State
(NCT of Delhi) [(2020) 2 SCC 803], he
has argued that once the
applicant’s plea for juvenility was dismissed, it was not open for him to
resurrect the same claim. As regards the name of the applicant, he has
emphasised the fact that the certificate of Sarpanch was forged and
there was no documentary evidence to substantiate the claim. With regard
to the entry in the voters’ list where Niranaram Chetanram Chaudhary’s
name appears, he has pointed out that the said list of 1993 showed the
applicant to be of 18 years. His other submission is that the plea of
juvenility ought to be raised in close proximity to institution of the
proceedings. On this point the decisions relied upon by him are the cases
of Murari Thakur & Another -vs- State of Bihar [(2009) 16 SCC
256], Pawan -vs- State of Uttaranchal [(2009) 15 SCC 259], Mohd.
Anwar -vs- State (NCT of Delhi) [(2020) 7 SCC 391] and Surajdeo
Mahto & Another -vs- State of Bihar [(2022) 11 SCC 800]. Having
regard to the gruesomeness of the offence, and involvement of the
applicant having been proved at all levels of judicial hierarchy, he has
drawn our attention to the following passage from the case of Abuzar
Hossain (supra):-
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“39.6 Claim of juvenility lacking in credibility or frivolous
claim of juvenility or patently absurd or inherently improbable
claim of juvenility must be rejected by the court at the threshold
whenever raised.”
14. As would be evident from the reasoning contained in the said
report, substantial stress was laid by the Inquiring Judge on the school
admission register, on the basis of which the “certificate” of date of birth
was issued. Referring to this document, the original of which we have
seen, it has been submitted that the entries therein were not in right
sequence. To give illustration, Mr. Patil has submitted that the entry
number 550 relates to the incumbent entering class 4 on 16th August
1984 whereas entry number 551 shows the incumbent’s entry into class
1 on 4th September 1985. Four other entries, 552, 553, 554 and 565
showed sequence of dates of entry of the incumbents thereof in
asymmetric order. In fact, his submission has been that this entry register
was manufactured and the pages were manipulated. His further
submission on this count is that the date of birth of Niranaram recorded
as 1st February 1982 ought not to be accepted, having regard to the
provisions of Section 35 of the Indian Evidence Act, 1872 (“1872 Act”).
On this count, he has relied on decisions of this Court in the cases of
Ravinder Singh Gorkhi -vs- State of U.P. [(2006) 5 SCC 584] and
Ramdeo Chauhan alias Raj Nath -vs- State of Assam [(2001) 5
SCC 714]. On probative
value of the entry in the admission register, he
has relied on the judgment of this Court in the case of Birad Mal Singhvi
-vs- Anand Purohit [(1988) Supp SCC 604]. On this point, his submission
is that the entry regarding age of a person does not carry much evidentiary
value to prove the age in absence of materials on which his age was
recorded in the school register. He has also taken us through the “pariwar
card” dated 1st January 1989, in which the years of birth of Andaram,
Niranaram, and Mukhram ought to be 1976, 1977 and 1979, on the basis
of age of the said individuals reflected therein. As per the school records,
these years ought to have been 1980, 1982 and 1983. Voter’s list dated
1st January 1993 carried the age of Niranaram as 18 years. The cases in
which the plea of juvenility was accepted by this Court, Mr. Patil’s
argument is that age determination was made in borderline cases, between
16 and 18 years. He has also highlighted the fact that the time at which
the petitioner was produced before the Magistrate after arrest, the Juvenile
Justice Act, 1986 (“1986 Act”) was operational.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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15. We shall first examine the issue of the actual identity of
Niranaram. Is he the same person who has been convicted and
subsequently sentenced to death as Narayan? Even in the review petition,
the applicant described himself as Narayan Chetanram Chaudhary. The
filing date of the review petition is 31st October 2000. From the materials
before us, we find that his identity as Niranaram Chetanram Chaudhary
surfaced in early part of January 2006, as it would appear from Annexure
A-7 to the application. This communication has been captioned as “Mercy
Petition on behalf a juvenile to the President.” In this Mercy Petition, the
applicant has been referred to as Niranaram. Certain public spirited
individuals including a lawyer is a signatory to this “Mercy Petition”.
Next comes a letter addressed to the Home Department of the
Maharashtra Government by the Superintendent, Yerawada, Central Jail
dated 19th January 2007. We have reproduced the text of this letter in
earlier part of this judgment. The said communication to which we have
referred earlier also describes the applicant as Narayan Chetanram
Chaudhary and his date of birth in this communication is shown to be 1st
February 1982. This communication was dated 24th January 2006.
16. In the writ petition filed before this Court, a copy of which has
been annexed at page 40 of the application, it has been stated in grounds
C, D and E: -
“C. For that the present Petitioner
was ostracized and
disowned by him family immediately after his arrest in
connection with the said incident. Hence the present Petitioner
had no support or effective means of defending his case. Also
the present Petitioner did not possess any material indicating
his true age.
D. For that recently the father of the present Petitioner after
a gap of around 18-19 years re-established contact with the
present Petitioner. Form his father the present Petitioner for
the first time received documents to indicate his real age at
the time of the incident. The present Petitioner seeks to rely
on the following documents in order to substantiate his case-
i. ‘Family Card’ – issued by the State of Rajasthan to the
father of the present Petitioner, dated 17.2.1992 which
records the name of the present Petitioner as ‘Nirana’ and
his age as 12 years.
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ii. Transfer Certificate – issued by the Education
Department, Rajasthan which records the name of the
present Petitioner as ‘Niranaram’ and his date of birth is
recorded as 1.2.1982.
iii. ‘Ration Card’ – issued by the State of Rajasthan to the
father of the present Petitioner which records the name of
the present Petitioner as ‘Niranaram’.
E. For that from the abovementioned documents it becomes
clear that the present petitioner’s name is ‘Niranaram’ and
his date of birth is 1.2.1982. Thus, on the date of the incident
the present Petitioner was 12 years old. Hence the present
Petitioner ought to be treated as a juvenile delinquent and
hence could not have been tried in a regular trial.”
(quoted verbatim from paperbook)
17. This writ petition was filed on 2nd July 2013, supported by an
affidavit of one Mukhram, on 8th April 2013. In that affidavit, the deponent
Mukhram described himself to be the younger brother of the petitioner.
Though this writ petition was not entertained by this Court, we are referring
to this part of the writ petition to demonstrate how the applicant started
representing or re-representing himself as Niranaram. The present
applicant in this writ petition has described himself as Narayan @
Niranaram, son of Chetanram Chaudhary and the same name has been
used to describe the applicant in the present application. In the judgment
of the Sessions Court (Sessions Case No.462 of 1994), the accused
no.1 has been described as Narayan
Chetanram Chaudhary. Thus, we
find that he had used the name of Chetanram as his middlename at the
time of his trial, which obviously refers to his father’s name. He has
been consistent in describing his father’s name. Now, the question we
will have to address is as to whether the very act of posing himself as
Niranaram at such a belated stage is to be accepted or not. In paragraphs
53 and 54 of the Inquiry Report we find that the Inquiring Judge had
accepted the stand of the applicant that Narayan and Niranaram is the
same person.
18. The applicant has sought to establish his identity as Niranaram
relying on a series of documents where his father’s name has been
shown as Chetanram. These include three documents originating from
the school, Rajkiya Adarsh Uccha Madhyamik Vidyala, Jalabsar. The
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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said institution is a government school. It uses the letterhead of the State
Government with the national emblem. Copies of these documents have
been marked “I-1”, “I-2” and “I-3” in the Inquiry Report. The Tehsildar
of Shri Dungargarh, Bikaner has also issued a certificate dated 10th
August 2009 to the effect that Niranaram is bonafide resident of the
Jalabsar and he has been referred to therein as son of Chetanram. The
father’s name of the applicant also appears in the OBC Certificate,
which is marked “I-5” to the application. This certificate is also dated
10th August 2009. A certificate by one Gauradevi, the Sarpanch of
Udrasar gram panchayat, Shri Dungargarh records that Narayan
Chaudhary is the same person as Niranaram. Subsequently, we find
from the report of the Inquiring Judge that both Gauradevi and her son
had disowned issuing any such certificate. But in the same report, it has
been recorded by the Inquiring Judge that he had matched the signature
of Gauradevi appearing in the said certificate with her signature in another
document and found them to be identical. This appears from paragraph
50 of the report which we have quoted above. In the Pariwar Card of
Chetanram, which is annexure “L-I” to the report, ‘Anada’, ‘Mukhram’
and ‘Nirana’ have been referred to as his sons. This also has different
dates. The year 1989 appears to be the date of issue whereas the
inspection dates show 22nd September 1991 and
17th February 1992. In
the said card, the applicant’s age is shown to be 12 years. Thus, there
are age variations of the applicant as appearing in the family card with
that of the school records and we shall deal with that aspect later in this
judgment. We are referring to these documents here mainly to examine
the applicant’s claim that he is the son of Chetanram. In the case of
Raju (supra), it has been observed that the name of the father on
certificate can be a factor for identifying a person with two names
floating. The two transfer certificates (Annexures L-2 and L-3 of the
report) of Anada and Mukhram also carry the name of Chetanram as
their father. Again, so far as the transfer certificate of Mukhram is
concerned, there is doubt about its originality. But we find that there is
constant and consistent reference to Chetanram as father of Andaram,
Mukhram and Niranaram appearing in all these documents.
19. The State has taken a plea that at the time of inquiry, sufficient
time was not available to them to verify this fact. There are several
documents where Niranaram has been shown to be the son of Chetanram.
After the Inquiry Report was made in 2019, substantial time has lapsed
since we heard the matter. No material was produced by the State to
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demonstrate that there was any other Niranaram in Jalabsar or another
Chetanram. It is a fact that the claimant for juvenility has to establish his
case. But it has also to be appreciated that a death row convict in prison
for over 28 years would be under severe limitations in retracing his school
records and other forms of age-proof. In such circumstances, in absence
of any contrary evidence we accept the finding in the Inquiry Report
given by the Principal District and Sessions Judge, Pune that Niranaram
has to be said to be another name of “Narayan”. Our opinion on this
point would not vary even if we reject the certificate of the Sarpanch.
That certificate plays a supportive role in determination of the name of
the applicant. Moreover, in all these documents, Jalabsar has been shown
as the village of which Chetanram and his family were residents, and
this was the place from where he was arrested. In our opinion, the
applicant’s original name was Niranaram and the applicant has discharged
his part of onus to establish that it is he who has been tried and convicted
as Narayan. We accept the finding of the Inquiring Judge on this point.
20. As regards maintainability of the present application under
Section 9(2) of the 2015 Act, in the case of Hari Ram -vs- State of
Rajasthan and Another [(2009) 13 SCC 211], which authority was
quoted with approval in Abdul Razzaq -vs- State of Uttar Pradesh
[(2015) 15 SCC 637], it has been held that claim of juvenility
may be
raised before any Court which shall be recognised at any stage even
after final disposal of the case. In Vinod Katara -vs- State of Uttar
Pradesh [2022 SCC OnLine SC 1204] the rationale for raising belated
claim of juvenility has been explained by a two-Judge Bench of this
Court. Hari Ram (supra) and Abdul Razzaq (supra) were decisions
rendered under the 2000 Act, but so far as 2015 Act is concerned, the
same principle ought to apply. Moreover, in proviso to sub-section (2) of
Section 9 of the 2015 Act, it has been specifically stipulated that the
juvenility claim may be raised before any Court and shall be recognised
at any stage even after final disposal of the case. Same line of reasoning
has been followed in the cases of Ram Narain -vs- State of Uttar
Pradesh [(2015) 17 SCC 699] and Upendra Pradhan -vs- Stae of
Orissa [(2015) 11 SCC 124]. The State has relied on the case of Pawan
Kumar Gupta (supra) on this point, resisting the Court’s intervention at
this stage. The accused in that case had accepted the age determination
report made by the Investigating Officer and this was recorded in the
order of the concerned Magistrate. As per the said report the accused
was not a juvenile. The same plea was raised again at the appellate
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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stage before the High Court which was rejected, referring to the order
passed by the Magistrate. In connection with review petition before this
Court, the plea of juvenility was raised again, and this was not entertained
by this Court. In the said judgment it has been held that once the plea of
juvenility is rejected from the stage of Magistrate, the High Court and
subsequently the Supreme Court, the convict cannot be permitted to
reagitate that plea. In the applicant’s case, juvenility plea has been raised
for the first time before this Court, albeit after dismissal of his review
petition against his conviction and sentence having been upheld by this
Court.
21. It is a fact that the juvenility plea was raised in Writ Petition
(Criminal) No. 126 of 2013 and this writ petition was dismissed in limine.
But this dismissal would not operate as res judicata so far as the present
application is concerned. Relief under Article 32 of the Constitution is
discretionary in nature and the order of this Court dismissing that petition
is not supported by reason. A petition under Section 9 (2) of the 2015
Act contemplates statutory remedy, plea for which can be raised at any
stage. In our opinion, on juvenility plea, if a writ petition is dismissed in
limine, such order would not foreclose the option of an accused (or a
convict) to make plea for juvenility under sub-section (2) of Section 9 of
the 2015 Act.
22. We shall,
accordingly, proceed to examine his claim of juvenility,
which has been sustained by the Inquiring Judge in the aforesaid report.
In the case of Murari Thakur (supra) a two-Judge Bench of this Court
declined to entertain juvenility plea in an appeal in which the appellants
had been convicted under Sections 302/34 of the 1860 Code. Such a
plea was raised before this Court at the appellate stage. A two-Judge
Bench of this Court opined that this point could not be raised at that
stage because it was neither taken before the Trial Court nor before the
High Court. It was further observed in this judgment that the question of
age of the appellant accused was a question of fact on which evidence,
cross-examination etc. was required and therefore it could not be allowed
to be taken up at a late stage. This was a case under the 2000 Act, but
under the said Act also, provisions of Section 7A thereof is similar to
Section 9(2) of the 2015 Act. In our opinion, this view cannot be held to
be good law having regard to the specific provisions contained in the
proviso to Section 9(2) of the 2015 Act. Moreover, there is a subsequent
decision from a Bench of same strength in the case of Ashwani Kumar
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Saxena (supra) in which this Court has examined the manner in which
the documents pertaining to establishment of juvenility ought to be
examined and we shall deal with this authority later in this judgment.
Another two-Judge Bench of this Court, in the case of Ajay Kumar -
vs- State of Madhya Pradesh [(2010) 15 SCC 83], referring to Section
7A of the 2000 Act has held that an inquiry is to be conducted by the
Court before whom such a plea is raised and the Court has to render a
finding as to whether or not the claimant was a juvenile. As per this
judgment, in case the claimant is found to be juvenile, Court has to refer
the matter to the Board for passing appropriate order and in such a
situation, sentence passed by the Court shall have no effect.
23. In Pawan (supra) a Bench of Coordinate strength opined that
in a case where plea of juvenility is found unscrupulous or the materials
in support of such plea lack credibility and do not inspire confidence and
even prima facie satisfaction of the Court is not made out, a further
exercise to examine such a claim would be unnecessary. In that judgment,
this Court reflected upon the documents based on which the juvenility
claim was being raised and came to such a finding. So far as this case is
concerned, in the order passed on 29th January 2019, the context in
which inquiry was directed has been expressed. The relevant part of
this order has been quoted earlier in this judgment. Thus, the observations
made in
the case of Pawan (supra) do not apply in the facts of this case,
where inquiry has already been directed.
24. In Mohd. Anwar (supra) and Surajdeo (supra), (in the latter
case, author of this judgment was a party), two Coordinate Benches of
this Court opined that mitigating circumstances like juvenility of age
ordinarily ought to be raised in trial itself and belated raising of such plea
may also underline the lack of genuinity of the defence case. In the case
of Surajdeo (supra), plea of juvenility was raised for the first time before
this Court on the basis of school leaving certificate alongwith admit card
issued by the Bihar School Examination Board. The Court found that
the name of the juvenile claimant did not appear on the documents. But
these were decisions rendered in the facts of the respective cases and
neither of these two cases lay down absolute proposition of law that the
juvenility plea cannot be raised at the stage the applicant has filed his
petition under Section 9(2) of the 2015 Act. Moreover, this Court has
already directed inquiry and we do not think the applicant’s plea can be
rejected on the ground of being belated claim in the present case.
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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25. Next comes the question as to whether the course adopted by
the Inquiring Judge was in terms of the provisions of the 2015 Act or
not. Mr. Patil, relying on Section 103 of the 2015 Act submitted that the
inquiry had to be in terms of the Code of Criminal Procedure, 1973.
Section 103 of the 2015 Act reads:-
“103. Procedure in inquiries, appeals and revision
proceedings.—(1) Save as otherwise expressly provided by
this Act, a Committee or a Board while holding any inquiry
under any of the provisions of this Act, shall follow such
procedure as may be prescribed and subject thereto, shall
follow, as far as may be, the procedure laid down in the Code
of Criminal Procedure, 1973 (2 of 1974) for trial of summons
cases.
(2) Save as otherwise expressly provided by or under this
Act, the procedure to be followed in hearing appeals or
revision proceedings under this Act shall be, as far as
practicable, in accordance with the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974)”.
So far as the question of determination of age through inquiry by
the Court, no specific statutory procedure has been brought to our notice.
The statutory provision contained in Section 94 of the Act is relevant in
this regard and the said Section stipulates:-
“94. Presumption and determination of age.—(1) Where, it is
obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the
provisions
of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or the
Board shall record such observation stating the age of the
child as nearly as may be and proceed with the inquiry under
section 14 or section 36, as the case may be, without waiting
for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as the
case may be, shall undertake the process of age determination,
by seeking evidence by obtaining—
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(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of
this Act, be deemed to be the true age of that person.”
26. One of the arguments on behalf of the State has been that the
Inquiry Report was prepared in a flawed manner, not conforming to the
provisions of the 1973 Code. In this regard, Mr. Patil drew our attention
to Section 2(61) of the 2015 Act, which stipulates that “all words and
expressions used but not defined in this Act and defined in other acts
shall have the same meaning respectively assigned to them in those
Acts”. On this count, his main argument has been that the Inquiring
Judge ought to have taken evidence in the manner provided in 1973
Code while returning his finding on juvenility of the applicant.
27. It is apparent that the Inquiring Judge has
conducted the inquiry
typically as a fact-finding inquiry is conducted and has not followed the
procedure of summons trial. The documents on which he relied on were
not formally proved as is the normal procedure in a trial and there was
no examination or cross-examination on oath. But as it would be evident
from sub-section (1) of Section 103 of the 2015 Act, the prescription for
following the procedure in summons cases is for the Juvenile Justice
Board (“Board”) or the Child Welfare Committee (“Committee”) while
holding any inquiry under the 2015 Act. Under Section 9(2) of the 2015
Act the Court also has been empowered to make an inquiry if the Court
itself is of opinion that the person was the child on the date of the
commission of offence. The mandate of following summons procedure
has not been prescribed so far as inquiry which ought to be conducted
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by the Court. The manner in which evidence could be taken has not
been mandated. The manner in which the Court shall conduct such inquiry
has also not been specifically prescribed. The procedure which has been
followed by this Court in the present case has been to direct a Principal
District and Sessions Judge, a Senior Judicial Officer at the State Level,
to conduct inquiry within a given timeframe. As we find from the Inquiry
Report, the Inquiring Judge had directed a police officer to make
authentication of the documents relied upon by the applicant and after
the police officer gave his views on the authenticity of the documents,
finding discrepancy in some of them. Thereafter, hearing was conducted
before the Inquiring Judge, in which prosecution was represented by an
officer holding the rank of Director General of Police (“DGP”). Both
the prosecution and police had filed report and statement before the
Inquiring Judge. The Inquiring Judge himself applied his mind considering
the submissions of the prosecution as also the learned advocate of the
applicant and the applicant himself was produced before the Inquiring
Judge. The Inquiring Judge had marked the documents filed before him
as exhibits. The Inquiring Judge examined each of the documents upon
ascertaining the stand of the DGP and also the advocate representing
the applicant. In application filed before us, extract from the school
register was annexed which
showed applicant’s date of birth as 1st
February 1982. Before the Inquiring Judge, we find that in addition to
the documents annexed to the application, a certificate of date of birth
issued by the school authority was also furnished by the applicant. The
latter was issued on the basis of school register but this certificate was
dated 30th January 2019.
28. We find no flaw in the procedure which has been adopted by
the Inquiring Judge. So far as the procedure for making an inquiry by the
Court, in our opinion Section 9(2) of the 2015 Act does not prescribe
scrupulously following trial procedure, as stipulated in the 1973 Code
and the Indian Evidence Act, 1872. Section 9 of the 2015 Act reads:-
“9. Procedure to be followed by a Magistrate who has not
been empowered under this Act.—(1) When a Magistrate, not
empowered to exercise the powers of the Board under this
Act is of the opinion that the person alleged to have committed
the offence and brought before him is a child, he shall, without
any delay, record such opinion and forward the child
immediately along with the record of such proceedings to the
Board having jurisdiction.
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(2) In case a person alleged to have committed an offence
claims before a court other than a Board, that the person is a
child or was a child on the date of commission of the offence,
or if the court itself is of the opinion that the person was a
child on the date of commission of the offence, the said court
shall make an inquiry, take such evidence as may be necessary
(but not an affidavit) to determine the age of such person,
and shall record a finding on the matter, stating the age of
the person as nearly as may be:
Provided that such a claim may be raised before any
court and it shall be recognised at any stage, even after final
disposal of the case, and such a claim shall be determined in
accordance with the provisions contained in this Act and the
rules made thereunder even if the person has ceased to be a
child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence
and was a child on the date of commission of such offence, it
shall forward the child to the Board for passing appropriate
orders and the sentence, if any, passed by the court shall be
deemed to have no effect.
(4) In case a person under this section is required to be kept
in protective custody, while the person’s claim of being a child
is being inquired into, such person may be placed, in the
intervening period in a place of safety.”
The requirement to follow the Code is “as far as practicable,” as
per Section 103 (2) of the
2015 Act. The legislature, thus, while prescribing
the summons trial procedure for inquiry by Board or Committee on age
determination of a juvenile claimant has not mandated any specific
procedure for inquiry by the Court. It follows, by implication, that the
Court can formulate its own procedure for conducting inquiry on this
count. So far as the present case is concerned, this Court had directed
inquiry to be conducted by the Inquiring Judge at the first level, before
whom the applicant and the prosecution had sufficient opportunity to
present their version. The report of the Inquiring Judge was subsequently
examined by us, again giving adequate opportunity to both sides. We
have ourselves called for the original admission register from the school.
The principal-in-charge of the school, Namrata Prabhusingh had given a
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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statement in writing at the inquiry stage, and the translated version of
which appears at page 311 of the Inquiry Report. She has stated:-
“With reference to aforesaid, the name of Niranaram s/o
Chetanram, Jalabsar has been recorded in the Student
Admission Register of our Rajkiya Adarsh Higher Secondary
School, Jalabsar, Shreedungargad at Student Admission No.
568. In accordance with the said record, his date of birth is
written as 01.02.1982. No student by name Narayan was in
our school.”
(quoted verbatim from paperbook)
29. In Ashwani Kumar Saxena (supra) two-Judge Bench of this
Court, dealing with the provisions of the 2000 Act observed and held:-
“25. Section 7-A, obliges the court only to make an inquiry,
not an investigation or a trial, an inquiry not under the Code
of Criminal Procedure, but under the JJ Act. The criminal
courts, Juvenile Justice Board, committees, etc. we have
noticed, proceed as if they are conducting a trial, inquiry,
enquiry or investigation as per the Code. The statute requires
the court or the Board only to make an “inquiry” and in what
manner that inquiry has to be conducted is provided in the JJ
Rules. Few of the expressions used in Section 7-A and Rule
12 are of considerable importance and a reference to them is
necessary to understand the true scope and content of those
provisions. Section 7-A has used the expressions “court shall
make an inquiry”, “take such evidence as may be
necessary”
and “but not an affidavit”. The Court or the Board can accept
as evidence something more than an affidavit i.e. the Court
or the Board can accept documents, certificates, etc. as
evidence, need not be oral evidence.
26. Rule 12 which has to be read along with Section 7-A has
also used certain expressions which are also to be borne in
mind. Rule 12(2) uses the expression “prima facie” and “on
the basis of physical appearance” or “documents, if
available”. Rule 12(3) uses the expression “by seeking
evidence by obtaining”. These expressions in our view re-
emphasise the fact that what is contemplated in Section 7-A
and Rule 12 is only an inquiry. Further, the age determination
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inquiry has to be completed and age be determined within
thirty days from the date of making the application; which is
also an indication of the manner in which the inquiry has to
be conducted and completed. The word “inquiry” has not
been defined under the JJ Act, but Section 2(y) of the JJ Act
says that all words and expressions used and not defined in
the JJ Act but defined in the Code of Criminal Procedure,
1973 (2 of 1974), shall have the meanings respectively
assigned to them in that Code.
27. Let us now examine the meaning of the words “inquiry”,
“enquiry”, “investigation” and “trial” as we see in the Code
of Criminal Procedure and their several meanings attributed
to those expressions. “Inquiry” as defined in Section 2(g)
CrPC reads as follows:
“2. (g) ‘inquiry’ means every inquiry, other than a trial,
conducted under this Code by a Magistrate or court;”
The word “enquiry” is not defined under the Code of Criminal
Procedure which is an act of asking for information and also
consideration of some evidence, may be documentary.
“Investigation” as defined in Section 2(h) CrPC reads as
follows:
“2. (h) ‘investigation’ includes all the proceedings under this
Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is
authorised by a Magistrate in this behalf;”
The expression “trial” has not been defined in the Code of
Criminal Procedure but must be understood in the light of the
expressions
“inquiry” or “investigation” as contained in
Sections 2(g) and 2(h) of the Code of Criminal Procedure.
28. The expression “trial” has been generally understood as
the examination by court of issues of fact and law in a case
for the purpose of rendering the judgment relating to some
offences committed. We find in very many cases that the court/
the Juvenile Justice Board while determining the claim of
juvenility forget that what they are expected to do is not to
conduct an inquiry under Section 2(g) of the Code of Criminal
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Procedure, but an inquiry under the JJ Act, following the
procedure laid down under Rule 12 and not following the
procedure laid down under the Code.
29. The Code lays down the procedure to be followed in every
investigation, inquiry or trial for every offence, whether under
the Penal Code or under other penal laws. The Code makes
provisions for not only investigation, inquiry into or trial for
offences but also inquiries into certain specific matters. The
procedure laid down for inquiring into the specific matters
under the Code naturally cannot be applied in inquiring into
other matters like the claim of juvenility under Section 7-A
read with Rule 12 of the 2007 Rules. In other words, the law
regarding the procedure to be followed in such inquiry must
be found in the enactment conferring jurisdiction to hold the
inquiry.
30. Consequently, the procedure to be followed under the JJ
Act in conducting an inquiry is the procedure laid down in
that statute itself i.e. Rule 12 of the 2007 Rules. We cannot
import other procedures laid down in the Code of Criminal
Procedure or any other enactment while making an inquiry
with regard to the juvenility of a person, when the claim of
juvenility is raised before the court exercising powers under
Section 7-A of the Act. In many of the cases, we have come
across, it is seen that the criminal courts are still having the
hangover of the procedure of trial or inquiry under the Code
as if they are trying an offence under the penal laws forgetting
the fact that the specific procedure has been laid down in
Section 7-A read with Rule 12.
31. We also remind all courts/Juvenile Justice Boards and the
Committees functioning under the Act that a duty is cast on
them to seek evidence by obtaining the certificate, etc.
mentioned in Rules 12(3)(a)(i) to (iii). The courts in such
situations act as a parens patriae because they have a kind
of guardianship over minors who from their legal disability
stand in need of protection.
32. ”Age determination inquiry” contemplated under Section
7-A of the Act read with Rule 12 of the 2007 Rules enables
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the court to seek evidence and in that process, the court can
obtain the matriculation or equivalent certificates, if available.
Only in the absence of any matriculation or equivalent
certificates, the court needs to obtain the date of birth
certificate from the school first attended other than a play
school. Only in the absence of matriculation or equivalent
certificate or the date of birth certificate from the school first
attended, the court needs to obtain the birth certificate given
by a corporation or a municipal authority or a panchayat
(not an affidavit but certificates or documents). The question
of obtaining medical opinion from a duly constituted Medical
Board arises only if the abovementioned documents are
unavailable. In case exact assessment of the age cannot be
done, then the court, for reasons to be recorded, may, if
considered necessary, give the benefit to the child or juvenile
by considering his or her age on lower side within the margin
of one year.
33. Once the court, following the abovementioned procedures,
passes an order, that order shall be the conclusive proof of
the age as regards such child or juvenile in conflict with law.
It has been made clear in sub-rule (5) of Rule 12 that no
further inquiry shall be conducted by the court or the Board
after examining and obtaining the certificate or any other
documentary proof after referring to sub-rule (3) of Rule 12.
Further, Section 49 of the JJ Act also draws a presumption of
the
age of the juvenility on its determination.
34. Age determination inquiry contemplated under the JJ Act
and the 2007 Rules has nothing to do with an enquiry under
other legislations, like entry in service, retirement, promotion,
etc. There may be situations where the entry made in the
matriculation or equivalent certificates, date of birth
certificate from the school first attended and even the birth
certificate given by a corporation or a municipal authority
or a panchayat may not be correct. But court, Juvenile Justice
Board or a committee functioning under the JJ Act is not
expected to conduct such a roving enquiry and to go behind
those certificates to examine the correctness of those
documents, kept during the normal course of business. Only
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in cases where those documents or certificates are found to
be fabricated or manipulated, the court, the Juvenile Justice
Board or the committee need to go for medical report for age
determination.”
30. The case of Ashwani Kumar Saxena (supra) has been
referred to in several judgments of this Court and the ratio thereof still
holds good. Though that was a judgment delivered under the 2000 Act,
the procedure for determining juvenility in the 2015 Act remains broadly
the same and hence this authority shall remain valid for an inquiry under
the 2015 Act. There is a decision of a Single Judge of the Allahabad
High Court (Lucknow Bench) in the case of Sheo Mangal Singh and
Others -vs- State of U.P. [(1989) SCC OnLine All 605] in which,
dealing with the 1986 Act, view has been taken that the word “inquiry”
in Section 3 therein means an inquiry under the said Act and not an
inquiry under the 1973 Code. In Section 2(t) of the 1986 Act, provisions
similar to Section 103 of the 2015 Act had been engrafted. The expression
“inquiry”, in the manner in which it has been used in the 1973 Code
cannot be transplanted in toto so far as the 2015 Act is concerned, to fit
the meaning of inquiry therein. It has an element of search or investigation
under the 2015 Act, not in the sense these words are used, inter-alia, in
Chapters XXIII and XXIV of the 1973 Code, which the Court may
require to undertake while determining a juvenility
claim. The 1973 Code
also contemplates preliminary inquiry under Sections 148 and 174 of the
Code and the said expression has not been employed in the 1973 Code
to convey a uniform meaning or procedure. We are of the view that the
meaning and scope attributed to the expression “inquiry” in the case of
Ashwani Kumar Saxena (supra) to be the proper construction of this
word and may be followed in dealing with the question of determination
of juvenility claim under the 2015 Act. Mr. Patil has argued that the ratio
in the case of Ashwani Kumar Saxena (supra) may have gotten diluted
in view of the judgment of this Court in the case of Abuzar Hossain
(supra), delivered by a three-Judge Bench. But Abuzar Hossain (supra)
deals with the context in which inquiry shall be directed under the 2000
Act and Rules made thereunder. This authority does not come into conflict
with ratio of the decision in the case of Ashwani Kumar Saxena (supra),
to the extent the latter judgment explains the meaning and implication of
the expression “inquiry” under the 2000 Act and Rules made thereunder.
The aim of such inquiry obviously is to determine the juvenility of the
claimant. So far as Section 94 of the 2015 Act is concerned, though the
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said provision deals with determination of age of a juvenile-claimant by
the Committee or the Board, in our opinion the documents or tests referred
to therein would guide the Court as well in making inquiry of such nature.
In absence of any specific legislative mandate as regards the course a
Court ought to undertake in an inquiry under Section 9(2) of the said
Act, the prescription of the provisions of Section 94(2) provides a safe
guidance which the Court ought to follow. The result of such inquiry
pronounced by the Court would be in the nature of a declaration on
juvenility of a claimant-accused.
31. In the case of Rishipal Singh Solanki -vs- State of Uttar
Pradesh and Others [(2022) 8 SCC 602], a two-Judge Bench of this
Court took this view, considering a large body of cases on this subject
and observed: -
“33. What emerges on a cumulative consideration of the
aforesaid catena of judgments is as follows:
33.1. A claim of juvenility may be raised at any stage of a
criminal proceeding, even after a final disposal of the case.
A delay in raising the claim of juvenility cannot be a ground
for rejection of such claim. It can also be raised for the
first time before this Court.
33.2. An application claiming juvenility could be made
either before the court or the JJ Board.
33.2.1. When the issue of juvenility arises before a court,
it would be under sub-sections (2) and (3) of Section 9 of
the JJ Act, 2015 but when a person is brought before a
committee or
JJ Board, Section 94 of the JJ Act, 2015
applies.
33.2.2. If an application is filed before the court claiming
juvenility, the provision of sub-section (2) of Section 94 of
the JJ Act, 2015 would have to be applied or read along
with sub-section (2) of Section 9 so as to seek evidence
for the purpose of recording a finding stating the age of
the person as nearly as may be.
33.2.3. When an application claiming juvenility is made
under Section 94 of the JJ Act, 2015 before the JJ Board
when the matter regarding the alleged commission of
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offence is pending before a court, then the procedure
contemplated under Section 94 of the JJ Act, 2015 would
apply. Under the said provision if the JJ Board has
reasonable grounds for doubt regarding whether the person
brought before it is a child or not, the Board shall
undertake the process of age determination by seeking
evidence and the age recorded by the JJ Board to be the
age of the person so brought before it shall, for the purpose
of the JJ Act, 2015, be deemed to be true age of that person.
Hence the degree of proof required in such a proceeding
before the JJ Board, when an application is filed seeking
a claim of juvenility when the trial is before the criminal
court concerned, is higher than when an inquiry is made
by a court before which the case regarding the commission
of the offence is pending (vide Section 9 of the JJ Act,
2015).
33.3. That when a claim for juvenility is raised, the burden
is on the person raising the claim to satisfy the court to
discharge the initial burden. However, the documents
mentioned in Rules 12(3)(a)(i), (ii) and (iii) of the JJ Rules,
2007 made under the JJ Act, 2000 or sub-section (2) of
Section 94 of the JJ Act, 2015, shall be sufficient for prima
facie satisfaction of the court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive proof
of the age of juvenility and the same may be
rebutted by
contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a court is not
the same thing as declaring the age of the person as a
juvenile sought before the JJ Board when the case is
pending for trial before the criminal court concerned. In
case of an inquiry, the court records a prima facie
conclusion but when there is a determination of age as
per sub-section (2) of Section 94 of the 2015 Act, a
declaration is made on the basis of evidence. Also the age
recorded by the JJ Board shall be deemed to be the true
age of the person brought before it. Thus, the standard of
proof in an inquiry is different from that required in a
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proceeding where the determination and declaration of the
age of a person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such
acceptance.
33.6. That it is neither feasible nor desirable to lay down
an abstract formula to determine the age of a person. It
has to be on the basis of the material on record and on
appreciation of evidence adduced by the parties in each
case.
33.7. This Court has observed that a hypertechnical
approach should not be adopted when evidence is adduced
on behalf of the accused in support of the plea that he
was a juvenile.
33.8. If two views are possible on the same evidence, the
court should lean in favour of holding the accused to be a
juvenile in borderline cases. This is in order to ensure that
the benefit of the JJ Act, 2015 is made applicable to the
juvenile in conflict with law. At the same time, the court
should ensure that the JJ Act, 2015 is not misused by
persons to escape punishment after having committed
serious offences.
33.9. That when the determination of age is on the basis
of evidence such as school records, it is necessary that the
same would have to be considered as per Section 35 of the
Evidence Act, inasmuch as any public or official document
maintained in the discharge of official duty would have
greater credibility than private documents.
33.10. Any document which is in consonance with public
documents, such as matriculation certificate, could be
accepted by the court or
the JJ Board provided such public
document is credible and authentic as per the provisions
of the Evidence Act viz. Section 35 and other provisions.
33.11. Ossification test cannot be the sole criterion for age
determination and a mechanical view regarding the age of
a person cannot be adopted solely on the basis of medical
opinion by radiological examination. Such evidence is not
conclusive evidence but only a very useful guiding factor
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to be considered in the absence of documents mentioned
in Section 94(2) of the JJ Act, 2015.”
32. Was the Inquiring Judge wrong in giving his findings? The
documents on which he has primarily relied upon are the school register,
certificate of date of birth of Niranaram issued by the school authorities
on 30th January 2019 and transfer certificate dated 15th August 2001.
The latter, however, is not a certificate of transfer showing Niranaram’s
shifting to another school but this certificate records that he had left
from Class III on 15th May 1989. Then there is transfer certificate of
Andaram dated 19th September 2003 which shows the date of birth of
Andaram as 4th April 1980. There was another transfer certificate before
the Inquiring Judge of Mukhram, but this was discarded by the Inquiring
Judge as the same did not correspond with the school records. All the
aforesaid documents appear to have their origin in the admission register
of the school, the original of which we have secured and seen. Apart
from the documents of the school, there is a family card, to which we
have referred to earlier. The date of issue of Family Card is 1989 and, in
this card, issued by the State Government, Nirana’s age is shown to be
12 years. But there are two other signatures of authorities on this card,
of 1991 and 1992. For this reason, we choose to ignore this document
for our inquiry. Apart from these materials, there is extract
from the
electoral roll which shows age of Niranaram to be 18 years on 1st January
1993. So far as per this recordal, his age at the time of commission of
offence would be 19 years. The school documents point to Niranaram’s
age to be below 16 years in the year of commission of offence. The
case of Abuzar Hossain (supra) was relied upon by the learned counsel
for the State to contend that production of documents of the threshold
stage of juvenility-claim is sufficient to call for an inquiry but further
inquiry is necessary to examine the authenticity or the genuineness of
documents involved. In Parag Bhati (Juvenile) through Legal
Guardian-Mother-Rajni Bhati -vs- State of Uttar Pradesh and
Another [(2016) 12 SCC 744], in relation to the similar provision under
the 2000 Act it has been highlighted that the credibility of documents
should be prima facie to direct inquiry. In the cases of Manoj alias
Monu alias Vishal Chaudhary -vs- State of Haryana and Another
[(2022) 6 SCC 187], Ravinder Singh Gorkhi (supra) and Birad Mal
Singhvi (supra) the necessity of the documents being reliable has been
stressed for determining the juvenility claim.
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33. As we have already stated, the school in question is a
government school. The “date of birth certificate” of Niranaram has
been issued by the office of the headmaster of the said school. This
certificate has been issued on the letterhead of the State Government
carrying the national emblem. The principal of the school has in writing
disclosed that the content of the admission register is maintained in ordinary
course of business. Hence, in normal course the said register would
satisfy the test specified in Section 35 of the 1872 Act, of being a relevant
fact. The case of Birad Mal Singhvi (supra) dealt with age disclosure
in relation to election and not under 2015 Act. The latter gives a guideline
under Section 94 thereof about the documents which shall be accepted
as evidence. The certificate of date of birth has not been accepted by us
straightway. In the present application, extract from the admission register
has been annexed, supported by an affidavit of the applicant himself.
Moreover, we had ourselves called for the original school admission
record by our order passed on 8th September 2022, requesting Dr. Manish
Singhvi learned Additional Advocate General, State of Rajasthan to ensure
production of the same and the said register was produced before us.
34. As regards authenticity or genuineness of the admission register,
which forms the basis of certificate of the applicant’s date of birth,
argument of Mr. Patil is that the whole register was
fabricated. His
submission is that at the time the extract therefrom was produced before
the Inquiring Judge, the same was not paginated. He also argues that
the register was not stitched. Further, he has submitted that serial entry
no. 566 of the register shows the date of entry of the student to be 2nd
February 1980, which is not in order in relation to the other entries. He
has also referred certain other entries in the register prior in order to
serial no. 568, in which dates of admission of the respective students are
earlier than that of the applicant. But these entries, at best, would show
some defect in maintaining the records and cannot lead to the conclusion
that the entire admission register is fabricated. Reference has also been
made to an entry of one Lekhram, that stood against serial no. 423,
which reappeared in entry 562. The endorsement of the school in serial
no. 423 is that “his name was deleted” whereas against entry no. 562,
recordal is “as per previous records”. This clearly appears to be the
case of re-admission or re-entry in the school. His further stand is that
there was interpolation of pages. He has again pointed out that one of
the pages (page no. 33) of the register has been stitched in reverse. But
these are nitpicking submissions and cannot lead to the conclusion that
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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admission register itself is fake. So far as Niranaram’s name is concerned,
in the admission register there is no discrepancy. His serial number is
568 which falls in order in which the register is maintained and is in
sequence with the admission entries of other students barring few minor
discrepancies as regards names in other entries. Even if the register has
been freshly stitched and paginated to be sent to this Court, that would
not lead to a conclusion that the whole thing has been fabricated. Moreover,
there is no clear evidence to demonstrate that at the time of initial inquiry,
the register was unstitched or without pagination. We have ourselves
seen the register and it is of sufficient vintage. Thus, we agree with the
Inquiring Judge that the date of birth recorded therein was not a fabricated
entry.
35. Now there are four other dates reflecting different ages of
the applicant. The first is the age in the chargesheet on the strength of
which he has been tried, convicted and sentenced, that is 20 years in the
year 1994. But the source of disclosure of this age has not been brought
to our notice by learned counsel for the parties, except that the applicant’s
age was given by his counsel before the High Court at the stage of
appeal hearing. Next is the age reflected in the electoral roll and if one
goes by that, then his age at the time of commission of offence would be
19 years. The electoral roll was
referred to in the police report dated 2nd
March 2019 but does not appear to have been considered by the Inquiring
Judge. The third source of his age is the family card, in which it is
mentioned that he was 12 years in 1989 or 1991/1992. That would have
taken his year of birth to 1977-79, and that would make him 15 to 17
years of age at the time of commission of offence. For the reasons we
have already explained, we have discarded the latter document. Now
which document or source is to be accepted by us? In the case of Pawan
(supra), a Coordinate Bench of this Court has rejected the juvenility plea
when documents to raise the plea of juvenility were collected after
conviction. In that judgment, this Court cited the case of Murari Thakur
(supra) and the Coordinate Bench observed:-
“41. The question is: should an enquiry be made or report be
called for from the trial court invariably where juvenility is
claimed for the first time before this Court. Where the materials
placed before this Court by the accused, prima facie, suggest
that the accused was “juvenile” as defined in the 2000 Act
on the date of incident, it may be necessary to call for the
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report or an enquiry be ordered to be made. However, in a
case where plea of juvenility is found unscrupulous or the
materials lack credibility or do not inspire confidence and
even, prima facie, satisfaction of the court is not made out,
we do not think any further exercise in this regard is necessary.
If the plea of juvenility was not raised before the trial court
or the High Court and is raised for the first time before this
Court, the judicial conscience of the Court must be satisfied
by placing adequate and satisfactory material that the accused
had not attained the age of eighteen years on the date of
commission of offence; sans such material any further enquiry
into juvenility would be unnecessary.
42. As regards A-2, two documents are relied upon to show
that he had not attained the age of eighteen years on 25-9-
2003/26-9-2003. His age (17 years) mentioned by the trial
court at the time of recording his statement under Section
313 CrPC is a tentative observation based on physical
appearance which is hardly determinative of age. The other
document is the school leaving certificate issued by the
Headmaster, Prem Shiksha Niketan, Bilaspur, Rampur which
does not inspire any confidence as it seems to have been issued
on 16-10-2006 after A-2 had already been convicted. Primary
evidence like entry from the birth register has not been
produced. We find it difficult to accept Annexure P-3 (school
leaving certificate) relied upon by the counsel. For A-1,
the
only document placed on record is a school leaving certificate
which has been procured after his conviction. In his case
also, entry from the birth register has not been produced. We
are not impressed or satisfied with such material. There being
no satisfactory and adequate material, prima facie, we are
not persuaded to call for report about the age of A-1 and A-
2 on the date of commission of offence.”
36. So far as the case of the applicant is concerned, on the basis
of materials disclosed in the present application, an inquiry was directed
in the order passed on 29th January 2019. In the case of Pawan (supra)
school leaving certificate issued by the headmaster of a school did not
inspire the confidence of the Court. Here however, we have called for
the original admission register itself, on the basis of which certificate of
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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birth was issued. The latter is a document specified under Section 94
(2)(a)(i) of the 2015 Act. In the order of sequence the age proof is
required to be proved as per the aforesaid provision, the date of birth
certificate is the first document to be examined for determination of
age. Thus, factually the ratio of the said judgment can be distinguished.
In the case of Pawan Kumar Gupta (supra), the juvenility claim was
raised for the second time and for this reason it was held that the same
plea was not maintainable. A Coordinate Bench in the case of Mohd.
Anwar (supra) has observed that belated claims not only prevent proper
production and application of the evidence but also undermine the
genuineness of the defence. But this authority does not lay down, as an
absolute proposition of law, that belated production of age proof cannot
be examined to determine juvenility of an accused. Furthermore, Section
9 (2) of the 2015 Act specifically stipulates that such plea can be raised
“at any stage”. The ratio of the case of Surajdeo Mahto (supra) would
also not apply in the facts of this case as in this proceeding the Inquiring
Judge has gone into the question as to whether the certificates relied
upon by the applicant belonged to him or not and has returned a finding
that Niranaram was indeed Narayan. We have also tested this finding
and sustain the view of the Inquiring Judge.
37. In the cases of Ramdeo Chauhan (supra),
Sanjeev Kumar
Gupta -vs- State of Uttar Pradesh and Another [(2019) 12 SCC
370], Parag Bhati (supra), Manoj (supra), Babloo Pasi -vs- State of
Jharkhand and Another [(2008) 13 SCC 133] and Birad Mal Singhvi
(supra), different Benches of this Court came to findings as regards
reliability of the documents upon applying mind and none of these
authorities lay down that the certificate of date of birth by the school
authorities based on admission register of the school will not be acceptable
for an inquiry under Section 9(2) of the 2015 Act. On the other hand, in
the order of priority in the aforesaid provision, the date of birth certificate
by the school authority has been given the pre-eminence. Though the
heading of the said section reads “presumption and determination of
age”, the section itself does not specify that the date of birth certificate
by the school would only lead to presumption. The way the provision
thereof has been framed, the documents referred to in the first two sub-
clauses of sub-section (2) of Section 94 of the 2015 Act, if established in
the order of priority, then the dates reflected therein has to be accepted
to determine the age of the accused or convict claiming to be a juvenile
on the date of commission of the offence. In the event the document
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referred to in Section 94 (2)(i) is there, the inquiring body need not go to
the documents referred to in sub-clause (ii) thereof. The only caveat,
implicit thereto, which has been sounded by several decisions of this
Court, is that the document must inspire confidence. But lack of inspiration
of the age-determining authority must come for some cogent reason and
ought not to be sourced from such body’s own perception of age of the
juvenile-claimant.
38. A Constitution Bench in the case of Pratap Singh -vs- State
of Jharkhand and Another [(2005) 3 SCC 551] dealing with the
meaning of juvenile under the 1986 Act and the 2000 Act, held:-
“12. Clause (l) of Section 2 of the 2000 Act defines “juvenile
in conflict with law” as meaning a juvenile who is alleged to
have committed an offence. The notable distinction between
the definitions of the 1986 Act and the 2000 Act is that in the
1986 Act “juvenile in conflict with law” is absent. The
definition of delinquent juvenile in the 1986 Act as noticed
above is referable to an offence said to have been committed
by him. It is the date of offence that he was in conflict with
law. When a juvenile is produced before the competent
authority and/or court he has not committed an offence on
that date, but he was brought before the authority for the
alleged offence which he has been found to have committed.
In our view, therefore, what was implicit in the 1986 Act has
been made explicit in the 2000 Act.”
39. In a later
decision, in the case of Jitendra Singh alias Babboo
Singh and Another -vs- State of Uttar Pradesh [(2013) 11 SCC 193],
this Court’s view was reflected in the following passage:-
“72. The upshot of the above discussion is that while the
appellant was above 16 years of age on the date of the
commission of the offence, he was certainly below 18 years
and hence entitled to the benefit of the 2000 Act, no matter
the later enactment was not on the statute book on the date of
the occurrence. The difficulty arises when we examine whether
the trial and the resultant order of conviction of the appellant
would also deserve to be set aside as illegal and without
jurisdiction. The conviction cannot however be set aside for
more than one reason:
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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72.1. Firstly, because there was and is no challenge to the
order of conviction recorded by the courts below in this
case either before the High Court or before us. As a matter
of fact the plea of juvenility before this Court by way of
an additional ground stopped short of challenging the
conviction of the appellant on the ground that the court
concerned had no jurisdiction to try the appellant.
72.2. Secondly, because the fact situation in the case at
hand is that on the date of the occurrence i.e. on 24-5-
1988 the appellant was above 16 years of age. He was,
therefore, not a juvenile under the 1986 Act that covered
the field at that point of time, nor did the 1986 Act deprive
the trial court of its jurisdiction to try the appellant for the
offence he was charged with. The repeal of the 1986 Act
by the 2000 Act raised the age of juvenility to 18 years.
Parliament provided for cases which were either pending
trial or were, after conclusion of the trial, pending before
an appellate or a revisional court by enacting Section 20
of the Juvenile Justice (Care and Protection of Children)
Act, 2000 which is to the following 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.
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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.”
In Dharambir -vs- State (NCT of Delhi) and Another [(2010)
5 SCC 344] and Mahesh Jogi -vs- State of Rajashthan [(2014) 15
SCC 184], similar view has been taken by this Court. In Satya Deo
alias Bhoorey -vs- State of Uttar Pradesh [(2020) 10 SCC 555], it
was observed by a two-Judge Bench of this Court that in light of Section
6 of the General Clauses Act, 1897 read with Section 25 of the 2015
Act, an accused cannot be denied his right to be treated as a juvenile
when he was less than 18 years of age at the time of commission of
offence. The reasoning of the Court was that such right stood acquired
and fructified under the 2000 Act, even if the offence was committed
prior to enforcement of the 2000 Act on 1st April 2001.
40. So far as the applicant is concerned, his claim of juvenility
based on his date of birth in the school certificate would not vary based
on definitions of juvenile, “juvenile in conflict with law” or “child in
conflict with
law” under the 1986 Act, 2000 Act or the 2015 Act. For
applying the procedure for determining his claim, of juvenility or of being
a child, in our opinion, the law applicable at the time of undertaking that
exercise by the concerned statutory body would prevail. Hence, in his
case, we have tested his claim on the basis of the provisions of Section
9 read with Section 94 of the 2015 Act.
41. Under the 2015 Act the date of birth certificate ought to be
the main factor for determination of juvenility. In the case of Rishipal
Singh Solanki (supra), the two-Judge Bench of this Court has laid down
the principle that an inquiry initiated under Section 9 (2) of 2015 Act
would be similar to that contained in Section 94 of thereof. We accept
this view. We have called for the source of the date of birth certificate,
which recorded the applicant’s birth date at the time of his entry into the
school which was in the year 1986. So far as the inconsistent dates of
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
MAHARASHTRA [ANIRUDDHA BOSE, J.]
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birth mentioned in the other documents, none of them is specified to be
taken into consideration for undertaking the process of age determination
as laid down in Section 94 (2) of the said statute. Once the applicant has
discharged his onus, in support of his claim of juvenility by producing the
date of birth certificate from the school, the State had to come up with
any compelling contradictory evidence to show that the recordal of his
date of birth in the admission register was false. The State, in this case,
has not come up with any such compelling evidence which would render
such certificate to be unreliable or false. The State and the complainant
have sought to disprove the applicant’s case on the basis of materials
disclosed by him only, apart from the electoral roll. Here, we cannot
indulge in any guesswork to doubt the entry in the school register. No
evidence has been led to contradict the basis of the age of the applicant
reflected in the aforesaid document. The certificate of date of birth as
evidence of age having been provided in the statute itself, we shall go by
that. The other factor which has crossed our mind is as to whether a boy
of 12 years could commit such a gruesome crime. But though this factor
shocks us, we cannot apply speculation of this nature to cloud our
adjudication process. We possess no knowledge of child psychology or
criminology to take into account this factor while examining the
report
of the Inquiring Judge. Moreover, the age of the applicant revealed in
the ossification test keeps the age of the applicant as claimed by him,
within the range specified in the report. The said test was conducted in
the year 2005, and his age was determined in the range of 22 to 40
years. If we take 22 years as his age in 2005, then his year of birth
would haven been 1983. That would broadly correspond to the date of
birth contained in the admission register.
42. In the case of Rishipal Singh Solanki (supra), it has been
laid down that if two views are possible on the same evidence the Court
should lean in favour of holding the accused to be a juvenile in borderline
cases. In the case of State of Jammu & Kashmir (Now U.T. of Jammu
and Kashmir) and Others -vs- Shubham Sangra [2022 SCC OnLine
SC 1592], the decision of Parag Bhati (supra) was followed, which laid
down that benefits of the 2000 Act ought to be extended to only such
cases wherein the accused is held to be a juvenile on the basis of clear
and unambiguous case that the accused was minor on the date of the
incident and the documentary evidence at least prima facie inspires
confidence regarding his minority. It was opined in this judgment that
when an accused commits a grave and heinous offence, his plea of
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juvenility cannot be allowed to come to his rescue and Court cannot take
a casual or cavalier approach in determining his minority. A somewhat
different view has been expressed in the case of Rishipal Singh Solanki
(supra), which we have referred to above. A view similar to that taken
in Rishipal Singh Solanki (supra) was reflected in the decision of a
two-Judge Bench of this Court in the case of Rajinder Chandra -vs-
State of Chhattisgarh and Another [(2002) 2 SCC 287]. In our opinion
however, in the event the Court, Board or the Committee is satisfied that
the claimant on the date of offence was a juvenile, the dimension of
gravity of the offence cannot be considered by the Court to reject the
benefit granted to an accused or convict under the 2015 Act. We agree
with the observations made in the cases of Shubham Sangra (supra)
and Parag Bhati (supra) that a casual or cavalier approach should not
be taken in determining the age of the accused or convict on his plea of
juvenility, but a decision against determination of juvenility ought not to
be taken solely for the reason that offence involved is heinous or grave.
The degree or dimension of the offence ought not to direct approach of
the Court in its inquiry into juvenility of an accused (in this case a convict).
The exception where a different view can be taken has been provided
by the legislature itself in Section 15 of the 2015 Act and if on the basis
of commission of heinous crime, a juvenile is
required to be denied the
benefit of the 2015 Act, the course specified therein would be required
to followed.
43. In the light of our findings and the reasons we have disclosed
above for arriving at such finding, we accept the report of the Inquiring
Judge. We declare that the date of birth of the applicant as reflected in
the certificate issued by the Rajkiya Adarsh Uccha Madhaymik
Vidyalaya, Jalabsar, tehsil - Shri Dungargarh, district – Bikaner, dated
30th January 2019, a copy of which has been annexed in the Inquiry
Report as “I-2”, is to be accepted for determining his age at the time of
commission of the offence of which he has been convicted. Going by
that certificate, his age at the time of commission of offence was 12
years and 6 months. Thus, he was a child/juvenile on the date of
commission of offence for which he has been convicted, in terms of the
provisions of the 2015 Act. This shall be deemed to be the true age of
Niranaram, who was tried and convicted as Narayan. He has already
served more than 3 years of incarceration and under the law as it prevailed
at the time of commission of offence as also under the 2015 Act, he
cannot be subjected to capital punishment. In view of this finding, the
NARAYAN CHETANRAM CHAUDHARY v. THE STATE OF
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order sentencing him to death passed by the Additional Sessions Judge,
Pune in Sessions Case No. 462 of 1994 and subsequently confirmed by
the High Court and by this Court would stand invalidated by operation of
law. He shall be set free forthwith from the correctional home in which
he remains imprisoned, as he has suffered imprisonment for more than
28 years, having regard to the provisions of Section 18 of the 2015 Act.
Section 21 of the 1986 Act also carried substantially the same provision
on the question of maximum punishment that can be awarded to a
delinquent juvenile by the Juvenile Court. The restriction on term of
detention that can be awarded by the Board under the 2015 Act to a
child below 16 years would also apply to the Court before which the
juvenility question is being determined.
44. I.A. No. 5242 of 2016 as also I.A. No. 5245 of 2016 are
applications taken out by the applicant for reopening the review petition.
We are of the view, however, that an application under Section 9(2) of
the 2015 Act is an independent proceeding and we have decided the
same without revisiting the review order. Crl. M.P. No. 155609 of 2019
has been filed by the intervenor raising objection to the inquiry report.
We dispose of the same as we have considered the content of this petition.
All other applications shall stand disposed of.
45. The present application stands allowed in the above terms.
Ankit Gyan
Application
allowed.
(Assisted by : Aarsh Choudhary and Prerna Deep, LCRAs)