Jitendra Singh @ Babboo Singh & Anr vs State Of U.P

Jitendra Singh @ Babboo Singh & Anr. ...Appellants

Versus

State of U.P. ...Respondent

O R D E R

T.S. THAKUR, J.

1. The appellants in this appeal by special leave have

assailed their conviction for offences punishable under

Section 304-B and 498-A IPC and sentence of imprisonment

of seven years under the former and two years under the

latter provision besides a fine of Rs.100/- each.

Criminal Misc. Petition No.16974 of 2010 filed by

appellant Jitendra Singh prays for permission to raise an

additional ground in support of the appeal to the effect

that he was a minor within the meaning of Section 2(k) of

the Juvenile (Care and Protection of Children) Act, 2000

on the date of the commission of offence and that he

ought to have been dealt with under the said Act. 2

2. The case of the appellant as set out in the

application is that he was born on 3rd August, 1974

meaning thereby that he was just about 13 years 8 months

and 23 days old on 24th May, 1988 the date when the

alleged incident is said to have taken place. In support

of his assertion that he was a minor on the date of the

incident, the appellant has placed on record along with

his application a copy of School Leaving Certificate

No.46 and Marks-sheet No.6031 both dated 17th November,

2009 issued by the Poorav Madhyamik Vidyalaya, Sohayee

Bagh, Raibareilly. The application points out that the

question whether he was minor on the date of the incident

had been raised by the appellant at the earliest

available opportunity when an application for bail was

moved on his behalf. It is alleged that the appellant had

been got medically examined to determine his age which

was certified to be around 17th years only. The medical

report was then made a basis by the High Court for grant

of bail to him in terms of order dated 25th November,

1988. Relying upon the provisions of Section 7A of the

Juvenile (Care and Protection of Children) Act, 2000 the

appellant seeks permission to raise the question of his

juvenility in the present proceedings and contends that

the provisions of Section 7A and the pronouncements of 3

this Court entitle him to raise a plea regarding his age

at any stage of the proceedings including the proceedings

before this Court. The averments made in the application

are supported by an affidavit filed alongwith the

application.

3. When the application came up for hearing before this

Court Mr. Sushil Kumar Jain, learned counsel for the

appellant argued that the question whether or not the

appellant was a juvenile within the meaning of the Act

aforementioned could be raised and shall have to be

determined by this Court, no matter no such plea was

taken at the trial or even in appeal before the High

Court on behalf of the appellant. Reliance in support of

that submission was placed by Mr. Jain on the decisions

of this Court in Jayendra and Anr. v. State of Uttar

Pradesh (1981) 4 SCC 149, Gopinath Ghosh v. State of West

Bengal 1984 (Supp) SCC 228, Bhoop Ram v. State of U.P.

(1989) 3 SCC 1, Brij Lal v. Prem Chand and Anr. 1989 Supp

(2) SCC 680, Bhola Bhagat v. State of Bihar (1997) 8 SCC

720 and Hari Ram v. State of Rajasthan 2009 (13) SCC 211.

It was further argued that the material placed on record

by the appellant in the form of a School Leaving

Certificate and the Marks-sheet as also the order passed 4

by the High Court granting bail to the applicant in which

the medical examination of the appellant and the

determination of his age have been referred to,

sufficiently establish on a prima facie basis the case of

the appellant that he was a minor on the date of the

incident. It was submitted even when the offence was

committed before the commencement of Juvenile (Care and

Protection of Children) Act, 2000 the question whether

benefit under the said Act could be extended to cases

where the offences were committed prior to 1.4.2001 the

date when the said Act came into force, stands concluded

in favour of the appellant by the decision of this Court

in Hari Ram's case (supra).

4. On behalf of the respondent it was argued that

although delay in making a claim of juvenility was not by

itself enough to justify refusal of an enquiry into the

matter, the appellant had to establish a strong prima

facie case in support of his claim to persuade this Court

to direct an enquiry into the determination of his age on

the date of the incident. Reliance in support was placed

upon a decision of this Court in Pawan v. State of

Uttaranchal (2009) 15 SCC 259.

5

5. Having given our careful consideration to the

submissions made at the bar we are of the opinion that in

the facts and circumstances of this case an enquiry for

determining the age of the appellant-Jitendra Singh @

Babboo Singh on the date of the commission of the offence

shall have to be directed. It is true that in the

ordinary course any one claiming to be a minor on the

date of the incident ought to make such a claim at the

earliest available opportunity before the Trial Court or

at least before the High Court, but the very fact that no

such claim is for any reason made, may not by itself

disentitle him to do so before the Apex Court. The

decision of this Court in Gopinath Ghosh, Bhoop Ram and

Bhola Bhagat's cases (supra) and in Hari Ram's case have

recognized the beneficial nature of the provisions

enacted by the Parliament and held that a technical plea

based on delay in the making of the claim of juvenility

would not itself disable the person concerned from making

such a claim.

6. In Pawan's case (supra) reliance whereupon was

placed on behalf of the respondent, the delay in the

making of claim to juvenility was not held to be fatal

provided the claim was supported by evidence that would 6

prima facie establish that the claimant was a juvenile on

the date of the commission of the offence. The burden of

making out a prima facie case for directing an enquiry

has been in our opinion discharged in the instant case in

as much as the appellant has filed along with the

application a copy of School Leaving Certificate and the

Marks-sheet which mentions the date of birth of the

appellant to be 24th May, 1988. The medical examination

to which the High Court has referred in its order

granting bail to the appellant also suggests the age of

the appellant being 17 years on the date of the

examination. These documents are sufficient at this

stage for directing an enquiry and verification of the

facts. We may all the same hasten to add that the

material referred to above is yet to be verified and its

genuineness and credibility determined. There are no

doubt certain tell tale circumstances that may raise a

suspicion about the genuineness of the documents relied

upon by the appellant. For instance the deceased Asha

Devi who was married to the appellant was according to

Dr. Ashok Kumar Shukla, Pathologist, District Hospital

Rai Bareli aged 19 years at the time of her death. This

would mean as though the appellant husband was much

younger to his wife which is not the usual practice in 7

the Indian context and may happen but infrequently. So

also the fact that the appellant obtained the School

Leaving Certificate as late as on 17th November, 2009 i.e.

after the conclusion of the trial and disposal of the

first appeal by the High Court, may call for a close

scrutiny and examination of the relevant school record to

determine whether the same is free from any suspicion,

fabrication or manipulation. It is also alleged that the

electoral rolls showed the age of the accused to be

around 20 years while the extract from the Panchayat

Register showed him to be 19 years old. All these

aspects would call for close and careful scrutiny by the

Court below while determining the age of the appellant.

The date of birth of appellant Jitendra Singh's siblings

and his parents may also throw considerable light upon

these aspects and may have to be looked into for a proper

determination of the question. Suffice it to say while

for the present we consider it to be a case fit for

directing an enquiry, that direction should not be taken

as an expression of any final opinion as regards the true

and correct age of the appellant which matter shall have

to be independently examined on the basis of the relevant

material.

8

7. In the result we allow the appellant to urge the

additional ground regarding juvenility of the appellant

on the date of the commission of the offence and direct

the Trial Court to hold an enquiry into the said question

and submit a report as expeditiously as possible, but not

later than four months from today. We make it clear that

the Trial Court shall be free to summon the concerned

School, Panchayat or the Electoral office record or any

other record from any other source which it considers

necessary for a proper determination of the age of the

appellant. We also make it clear that in addition to the

above, the Trial Court shall be free to constitute a

Medical Board comprising at least three experts on the

subject for determination of the age of the appellant,

based on medical tests and examination.

8. The hearing of the appeal shall in the meantime

stand adjourned and the case listed in the month of

April, 2011. A copy of this order shall be despatched to

the Trial Court for compliance forthwith. The appellant

shall appear before the Trial Court on 6th December, 2010

and associate with the enquiry. A copy of the application

and the accompanying documents shall also be forwarded to

the Trial Court along with a copy of this order. 9

.................................J. (MARKANDEY KATJU)

.................................J. (T.S. THAKUR) New Delhi November 19, 2010