NARAYAN CHETANRAM CHAUDHARY VERSUS THE STATE OF MAHARASHTRA

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS PETITION NO. 157334 OF 2018

REVIEW PETITION (CRIMINAL) NOS. 11391140 OF 2000

CRIMINAL APPEAL NOS. 2526 OF 2000

NARAYAN CHETANRAM CHAUDHARY …APPLICANT(S)

VERSUS

THE STATE OF MAHARASHTRA …RESPONDENT(S)

J U D G M E N T

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 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.

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 (2022 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

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)

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 A7

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 coaccused 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.

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 A13 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 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. This writ petition, registered as W.P. (Criminal) No. 126 of

2013, was dismissed by a twoJudge 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.2526/2000) seeking review of the final

judgment of this Court dated 05.09.2000 in Criminal Appeal

Nos.2526 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.11391140/2000 in

Crl.A.Nos.2526/2000) 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 take

instructions on the additional documents on the question of

juvenility of the applicant. However today, the learned counsel

for the respondentState 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.2526/2000) 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 defacto 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 (defacto 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:

“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 'I1' 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' I2' 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 'I3'

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, TahasilShridungargarh, DistrictBikaner. (Annexure 'I4' 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,

DistrictBikaner. (Annexure 'I5' 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 'I6' 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 'I7' 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 'L1' in his report).

9. A T.C. Form issued by Rajkiya Madhyamik Vidyalaya

Udrasar, TahasilShridungargarh, DistrictBikaner, dated

19/09/2003, in the name of Anadaram s/o Chetanram

Sanatan. (Annexure 'L2' 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 'L3' in his report).

11. A photocopy of Proforma for verification of age examination,

dated 24/08/2005 regarding Narayan Chetaram Chaudhary.

(Annexure'J1' 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. SubRule 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 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.

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 'I1'). 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 'I3') 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

'I2'), 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

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 'I4 & 'I5')

are the documents of Bona fide Residence and OBC Caste

Certificate issued by the Tahasildar, Shridungargarh. The

document at serial no.6 (Annexure 'I6') has not been disputed

and it shows that, with effect from 01/04/2001 TahasilShridungargarh, 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 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 'L2'), 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 'L3'), 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 'L1') 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. 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 'I7') 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

'J1').

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.

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

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 I7 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 L2 in the report and that of Mukhram, marked as L3

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.

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 vsState 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):

“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.

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 A7 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 1819 years reestablished 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 casei. ‘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.

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 rerepresenting 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 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 “I1”, “I2” and “I3” 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 “I5” 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 “LI” 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 L2 and L3 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 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

ageproof. 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 twoJudge 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 subsection (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 vsStae 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 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 subsection (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 twoJudge 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 twoJudge 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, crossexamination 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

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 twoJudge 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.

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—

(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 factfinding 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 crossexamination on oath. But as it

would be evident from subsection (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 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.

(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 principalincharge of the school, Namrata Prabhusingh had given a 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) twoJudge Bench of this

Court, dealing with the provisions of the 2000 Act observed and held:

“25. Section 7A, 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 7A 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 7A 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 7A 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 reemphasise the fact that what is

contemplated in Section 7A and Rule 12 is only an inquiry.

Further, the age determination 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 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 7A 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 7A 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 7A 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 7A

of the Act read with Rule 12 of the 2007 Rules enables 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 subrule (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 subrule (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 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, interalia, 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 threeJudge 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 said

provision deals with determination of age of a juvenileclaimant 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 claimantaccused.

31. In the case of Rishipal Singh Solanki vs State of Uttar

Pradesh and Others [(2022) 8 SCC 602], a twoJudge 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 subsections (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 subsection (2) of Section 94 of the JJ Act, 2015

would have to be applied or read along with

subsection (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

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

subsection (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 subsection (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 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 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

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 juvenilityclaim 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 GuardianMotherRajni

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.

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

th 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

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

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 readmission

or reentry 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. 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 197779, 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 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 A2, two documents are relied upon to show that

he had not attained the age of eighteen years on 2592003/26

92003. 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 16102006 after

A2 had already been convicted. Primary evidence like entry

from the birth register has not been produced. We find it difficult

to accept Annexure P3 (school leaving certificate) relied upon by

the counsel. For A1, 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 A1 and A2 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 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 preeminence. 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 subclauses of subsection (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 referred to in Section 94 (2)(i) is there, the

inquiring body need not go to the documents referred to in subclause

(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 agedetermining authority

must come for some cogent reason and ought not to be sourced from

such body’s own perception of age of the juvenileclaimant.

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:

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

51988 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.

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 twoJudge 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 twoJudge 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 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 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 twoJudge 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 “I2”, 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 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.

…..........................J.

(K. M. JOSEPH)

…...........................J.

(ANIRUDDHA BOSE)

…..........................J.

(HRISHIKESH ROY)

NEW DELHI;

27th March, 2023.

ITEM NO.1501 COURT NO.11 SECTION II-A

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CRLMP.NO.157334/2018 in R.P.(Crl.) No. 1139-1140/2000 In

Crl.A. No. 25-26/2000

NARAYAN CHETANRAM CHAUDHARY Applicant(s)

VERSUS

THE STATE OF MAHARASHTRA Respondent(s)

(with IA Nos.5242 & 5245 OF 2016)

Date : 27-03-2023 These matters were called on for pronouncement

of judgment today.

For Petitioner(s) Mr. R.Basant, Sr.Adv.

Mr. Vishnu P., Adv.

Ms. Trisha Chandran, Adv.

Ms. Shreya Rastogi, Adv.

Mr. Shadan Farasat, AOR

For Respondent(s) Mr. Sachin Patil, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Aaditya Aniruddha Pande, AOR

Mr. Bharat Bagla, Adv.

Mr. Sourav Singh, Adv.

Mr. Geo Joseph, Adv.

Mr. Risvi Muhammed, Adv.

Mr. Durgesh Gupta, Adv.

Mr. Hrishikesh Chitaley, Adv.

Mr. Vijay Kari Singh, Adv.

Mr. Rajat Joseph, AOR

Hon’ble Mr. Justice Aniruddha Bose pronounced the judgment of

the Bench comprising Hon’ble Mr.Justice K.M.Joseph, His Lordship

and Hon’ble Mr. Justice Hrishikesh Roy.

CRLMP.NO.157334/2018 is allowed and the applicant is directed

to be released forthwith in terms of the signed reportable

judgment, which is placed on the file.

Original admission register and the documents to be returned

to the learned advocate for the State of Rajasthan.

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

(NIRMALA NEGI) (VIDYA NEGI)

COURT MASTER (SH) ASSISTANT REGISTRAR

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