Vinod Katara vs The State Of Uttar Pradesh

2024 INSC 171 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION(CRL.) NO(S). 121 OF 2022

VINOD KATARA …PETITIONER(S)

VERSUS

STATE OF U.P. …RESPONDENT(S)

JUDGMENT

Mehta, J.

1. This writ petition arises from a very peculiar set of facts and

circumstances.

2. The petitioner herein was arraigned as an accused for the

offence of murder committed on 10th September, 1982. The

petitioner along with three co-accused was convicted by the trial Signature Not Verified

Court for the offence punishable under Section 302 read with Digitally signed by Nisha Khulbey Date: 2024.03.05 14:49:31 IST Reason: Section 34 of the Indian Penal Code, 1860(hereinafter being

1 referred to as ‘IPC’) vide judgment dated 6th January, 1986 and

were sentenced to undergo rigorous imprisonment for life.

3. The convicts including the petitioner herein preferred

Criminal Appeal No. 133 of 1986 before the Allahabad High Court.

During the pendency of appeal, the sentence awarded to the

petitioner by the trial Court was suspended and he was released

on bail. The said appeal came to be rejected vide judgment dated

4th March, 2016 and the conviction of the petitioner and the

sentence awarded to him by the trial Court were affirmed. The

petitioner was taken into custody after the dismissal of the appeal

by the High Court.

4. The petitioner preferred Special Leave Petition (Crl.) No.6048

of 2016 assailing the judgment rendered by the Allahabad High

Court. The said Special Leave Petition was dismissed by this Court

vide order dated 16th August, 2016.

5. The High Court of Judicature at Allahabad, while considering

a PIL bearing Crl.(PIL) Misc. W.P. No. 855 of 2012, vide order dated

24th May, 2012 directed the Juvenile Justice Board(s) (hereinafter

being referred to as the ‘Board’) in the State of Uttar Pradesh to

hold enquiries for determination of age of the convicts who were

languishing in jail wherein the possibility was felt that the convict

2 might have been a juvenile at the time of incident. Pursuant to the

said order of the High Court, the petitioner herein who was at the

relevant point of time lodged in District Jail, Mathura was

subjected to examination by a Medical Board on 10th December,

2021. The Medical Board conducted X-rays of the skull and

sternum of the petitioner and gave an opinion that on the date of

the report, the petitioner herein was around 56 years of age. Based

on the said report of the Medical Board, the petitioner has

preferred the instant writ petition claiming that he was around 15

years of age on the date of the incident i.e. 10th September, 1982

and has sought the following substantive relief :-

“In the light of the abovementioned facts and circumstances, the petitioner through this instant petition prays before this Hon’ble Court as under:-

A. issue a writ of mandamus or any other similar writ, order or direction thereby directing the respondent State to verify the claim of juvenility and thereafter pass necessary orders as it deems fit in the facts and circumstances of the case.”

6. The matter was heard at length on 12th September, 2022, and

this Court passed an order with the following pertinent directions:-

“(i) We direct the Sessions Court, Agra to examine the claim of the writ applicant to juvenility in regard with law within one month from the date of communication of this order;

(ii) The concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by the writ applicant convict considering that the document does not appear to be contemporaneous. This document assumes importance, more particularly in light of the 3 fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of the incident. If the Family Register on record is ultimately found to be authentic and genuine, then we may not have to fall upon the ossification test report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain the authenticity and genuineness of the same. If need be, the statements of the persons concerned i.e. from the concerned government department may also be recorded;

(iii) The Sessions Court shall ensure that the writ applicant convict is medically examined by taking an ossification test or any other modern recognized method of age determination;

(iv) The Sessions Court concerned shall submit its report as regards the aforesaid to this Court within one month from the date of communication of this order;

(v) The Registry is directed to forward one copy of this order to Sessions Court, Agra;

(vi) We request the learned counsel appearing for the State to take appropriate steps to facilitate the Sessions Court to complete the enquiry.”

7. The inquiry in pursuance to the said direction was conducted

by the learned Additional District and Sessions Judge, Court No.

5, Agra who has forwarded a report dated 21st October, 2022

opining that from the contemporaneous evidence placed during

the inquiry, the date of birth of the petitioner was 2nd July, 1960

and he was major on the date of the incident. The learned

Additional District and Sessions Judge took note of the fact that

medical examination of the convict Vinod Katara was conducted

by Medical Board in compliance of the directions given by this

Court and the Chairman of the Board had given an opinion that

4 the probable age of accused Vinod Katara was between 55 to 60

years with a remark that estimation of age based on X-ray

examination becomes uncertain after the age of 25 years.

8. After receiving the report, this Court permitted learned

counsel for the petitioner as well as learned counsel for the

respondent to submit their response thereto. Final arguments

were heard on 17th January, 2024.

9. Mr. Rishi Malhotra, learned counsel appearing for the

petitioner vehemently and fervently contended that the

conclusions drawn by the learned Additional District and Sessions

Judge in the report dated 21st October, 2022 that it would not be

possible to determine the age of the accused accurately based on

the X-ray examination is unsustainable in light of the earlier

medical report dated 10th December, 2021 wherein the Medical

Board has given a pertinent opinion that the age of the petitioner

as on the said date was around 56 years.

10. As per the learned counsel, if the entries made in the

contemporaneous documents relied upon by the Additional

District and Sessions Judge are perused, it would become evident

that the petitioner was born in the same year as his brother Ashok

Kumar, i.e., 1960 which would lead to a situation of serious

5 anomaly. He urged that the documentary evidence presented by

the convict petitioner in the inquiry held by the learned Additional

District and Sessions Judge conclusively establishes that after the

birth of Ashok Kumar and before the birth of the petitioner, two

other sons were born to the petitioner’s parents in the intervening

years. However, both these children expired because of medical

complications. He vehemently contended that the attendance

register/school record on which the learned Additional District

and Sessions Judge placed implicit reliance is not a reliable piece

of evidence because the concerned Principal of the school neither

verified the documents nor was he examined in evidence.

11. Learned counsel further urged that the assumption drawn by

the learned Additional District & Sessions Judge that there has

been an overwriting in the family register wherein numerical ‘0’

has been changed to numerical ‘8’ is without any foundation. He

contended that as per Section 94 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 (hereinafter being referred to as

the ‘JJ Act’), where contemporaneous reliable school record is not

available, the Court can place reliance either on other

documentary evidence or in absence thereof, the Medical Board’s

6 opinion based on X-ray examination can be taken into account to

determine the age of the person claiming juvenility.

12. Learned counsel urged that school record produced during

inquiry is not a reliable piece of evidence and the family register

wherein the year of birth of the petitioner is shown to be 1968 as

well as the medical report dated 10th December, 2021 deserve to

be given precedence and accepted for extending the prayer made

by the petitioner that he was a juvenile on the date of the incident.

He thus, submitted that the petitioner is entitled to consequential

relief of being released from prison.

13. Per contra, Mr. Ardhendumauli Kumar Prasad, learned AAG

vehemently opposed the submissions advanced by the learned

counsel for the petitioner and urged that the inquiry report has

been submitted by the learned Additional District and Sessions

Judge, as a consequence of direction given by this Court. Such

inquiry report is based on detailed process of collection of evidence

and analysis thereof.

14. He submitted that the inquiry officer, i.e., the learned

Additional District and Sessions Judge, after minute appreciation

and evaluation of the evidence has categorically found that the

date of birth of the petitioner as entered in the contemporaneous

7 school record was 2nd July, 1960, which is the actual date of birth

of the petitioner and as a consequence, the petitioner does not

deserve the relief claimed for.

15. We have given our thoughtful consideration to the

submissions advanced by learned counsel for the parties and have

carefully perused the order dated 16th August, 2016 passed by this

Court and so also the enquiry report dated 21st October, 2022

forwarded by the learned Additional District and Sessions Judge.

16. The learned Additional District and Sessions Judge recorded

evidence during the course of the inquiry and gave detailed

findings holding that the family register brought on record by the

petitioner was a forged document and was unreliable. It may be

stated that a copy of the family register issued on 2nd March, 2022

was placed on record by the petitioner during the course of inquiry.

The inquiry officer issued a notice to the Assistant Block

Development Officer, Panchayat, Fatehpur Sikri, Agra and in his

examination, the officer clearly stated that the original register on

the basis of which said family register has been prepared was not

available in the record of the Panchayat, Aulenda.

8

17. The learned Additional District and Sessions Judge gave the

following opinion doubting the veracity of the family register relied

upon by the petitioner:-

“…This is also getting confirmed from Page No.133 of the Family Register because probable date of birth of petitioner Shashi w/o Vinod Kumar, is mentioned as 1965 on the said page. Generally, age of wife is some years less than husband. In the instant matter, in the family register, year of birth of wife of petitioner in the family register is 1965 whereas year of birth of her husband is mentioned as 1968 which is forged by which age of wife Shashi is becoming 3 years more than her husband Vinod Kumar. In general circumstances, it is not possible. It is clear from aforesaid appreciation that family register produced by petitioner is not authentic but a document doubtful in nature which does not appear to be a credible document.”

18. The learned Additional District and Sessions Judge also

summoned the record from the Pre-Secondary School, Dabar,

Fatehpur Sikri and recorded the evidence of school officials. From

these documents which are admission register and the transfer

certificate, it transpired that the date of birth of the petitioner

recorded in the school is 2nd July, 1960.

19. Having minutely perused the inquiry report and the evidence

led during the inquiry, we are of the opinion that the conclusions

drawn by the learned Additional District and Sessions Judge that

the actual date of birth of the accused petitioner is 2nd July, 1960

and the opinion of the Medical Board that estimation of age based

on X-ray examination becomes uncertain after 25 years is apropos

and deserves to be accepted.

9

20. Section 94(2) of the JJ Act provides for the mode of

determination of age. In the order of priorities, the date of birth

certificate from the school stands at the highest pedestal whereas

ossification test has been kept at the last rung to be considered,

only in the absence of the criteria Nos. 1 and 2, i.e. in absence of

both certificate from school and birth certificate issued by a

Corporation/Municipal Authority/Panchayat.

21. In the wake of above discussion, we find no merit in the writ

petition which is dismissed as such.

22. Pending application(s), if any, shall stand disposed of.

.……………………….J. (B.R. GAVAI)

………………………..J. (SANDEEP MEHTA) NEW DELHI;

MARCH 05, 2024.

10