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Raju vs The State Of Haryana on 22 February, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1175 OF 2014

RAJU …APPELLANT

VERSUS

THE STATE OF HARYANA …RESPONDENT

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

This appeal is directed against the final judgment and order

dated 24.08.2011 passed by the High Court of Punjab and

Haryana at Chandigarh in Criminal Appeal No. 1830­SB of 2003,

by which the High Court dismissed the appeal filed by the

Appellant herein challenging the judgment of conviction under

Section 376(2)(g) of the Indian Penal Code (IPC) dated 08.11.2002

and order of sentence dated 11.11.2002 rendered by the

Additional Sessions Judge, Gurgaon, in Sessions Case No.
Signature Not Verified

Digitally signed by
VISHAL ANAND
Date: 2019.02.23
12:23:53 IST

5/2001.

Reason:

1

2. The brief facts leading to the instant appeal are that an FIR

was lodged against the Appellant Raju s/o Rajendar Singh, and

two other persons, viz. Raju s/o Bhim and Raja @ Raj Kumar s/o

Makhsi, alleging that the three persons had intercepted the

prosecutrix when she was passing by some fields along with her

one­year­old brother and had taken her to a field nearby,

whereupon Raju s/o Bhim and Raja @ Raj Kumar s/o Makhsi

engaged in the gang­rape of the prosecutrix, while the Appellant

stood outside the field. The prosecutrix was aged fifteen years at

the time of the incident, which occurred on 14.09.2000. The

three accused were convicted for the offence punishable under

Section 376(2)(g) of the IPC, and sentenced to 10 years’ rigorous

imprisonment and a fine of Rs. 500/­, and further two months’

rigorous imprisonment in default of payment of fine. Aggrieved by

the same, the three accused appealed to the High Court.

3. The Appellant, inter alia, raised the defence before the High

Court that he was aged less than 18 years at the time of

commission of the offence, i.e. 14.09.2000, and hence was

entitled to the benefit of the provisions of the Juvenile Justice

(Care and Protection of Children) Act, 2000 (in short, “the 2000

Act”). The High Court, however, rejected such contention and

2
affirmed the conviction of the three accused, including the

Appellant.

4. Aggrieved by the above judgment, the Appellant filed the

instant appeal, inter alia raising the plea of juvenility again. The

Appellant relied upon a transfer certificate issued in his favour by

the Dayanand Middle School, Sohna, Gurgaon which showed his

date of birth to be 12.07.1984. He also relied upon a certificate

issued by the Government Senior Secondary School (Boys),

Sohna which showed his date of birth to be the same. It was

submitted by the Appellant before this Court that the certificates

in question prima facie entitled him to claim the conduct of an

inquiry in terms of Section 7A of the 2000 Act. The Appellant

referred to the decisions of this Court in Murari Thakur v.

State of Bihar, (2009) 16 SCC 256, Dharambir v. State (NCT

of Delhi), (2010) 5 SCC 344, and Jitendra Singh @ Babboo

Singh v. State of U.P., (2010) 13 SCC 523.

5. Keeping in mind such circumstances and the certificates

relied upon, this Court vide order dated 09.08.2012 directed the

Registrar (Judicial) of this Court to conduct an inquiry in respect

of the age of the Appellant in terms of Section 7A of the 2000 Act

3
read with the rules framed thereunder, and to submit a report to

this Court within four months from the order.

6. This Court received such report on 07.01.2013, which

determined that the age of the Appellant was 16 years, 2 months

and 2 days at the time of commission of the offence and that he

was thus a juvenile at that time. Thereafter, arguments were

heard and judgement reserved. However, subsequently, the State

raised the argument that the Court had not looked into the

question of whether the plea of juvenility as decided by the

Registry of this Court should be given precedence over the view of

the High Court. By an order dated 25.04.2014, this Court

directed that the appeal be heard further. Shri Siddhartha Dave

was subsequently appointed as amicus curiae to assist the

Court.

7. It was submitted by the learned amicus curiae that the

learned Registrar (Judicial) of this Court had, after duly calling

for records and appreciating the material adduced, reached the

conclusion that the Appellant was a juvenile at the time of

commission of the offence, and there was no reason to deny the

Appellant the benefit of such finding. Moreover, he submitted

that seeing that it was upon the direction of this Court that the

4
learned Registrar had conducted the inquiry under Section 7A of

the 2000 Act and the rules framed thereunder, and had

submitted his report to this Court after conducting such inquiry

in accordance with law, the report may be treated as having been

made by this Court itself.

8. Heard the learned amicus curiae and advocate for the

State, and perused the material on record.

9. It is by now well­settled, as was held in Hari Ram v. State

of Rajasthan, (2009) 13 SCC 211, that in light of Sections 2(k),

2(l), 7A read with Section 20 of the 2000 Act as amended in

2006, a juvenile who had not completed eighteen years on the

date of commission of the offence is entitled to the benefit of the

2000 Act (also see Mohan Mali v. State of Madhya Pradesh,

(2010) 6 SCC 669; Daya Nand v. State of Haryana, (2011) 2

SCC 224; Dharambir v. State (NCT) of Delhi (supra); Jitendra

Singh @ Babboo Singh v. State of Uttar Pradesh, (2013) 11

SCC 193). It is equally well­settled that the claim of juvenility can

be raised at any stage before any Court by an accused, including

this Court, even after the final disposal of a case, in terms of

Section 7A of the 2000 Act (see Dharambir v. State (NCT) of

5
Delhi, (supra), Abuzar Hossain v. State of West Bengal, (2012)

10 SCC 489; Jitendra Singh @ Babboo Singh v. State of UP,

(supra); Abdul Razzaq v. State of Uttar Pradesh, (2015) 15

SCC 637).

10. In light of the above legal position, it is evident that the

Appellant would be entitled to the benefit of the 2000 Act if his

age is determined to be below 18 years on the date of commission

of the offence. Moreover, it would be irrelevant that the plea of

juvenility was not raised before the Trial Court, in light of Section

7A. As per the report of the inquiry conducted by the Registrar

(Judicial) of this Court, in this case, the Appellant was below 18

years of age on the date of commission of the offence. The only

question before us that needs to be determined is whether such

report may be given precedence over the contrary view taken by

the High Court, so that the benefit of the 2000 Act may be given

to the Appellant.

11. Before proceeding further, it would be useful to refer to

Section 7A of the 2000 Act and Rule 12 of the Juvenile Justice

(Care and Protection of Children) Rules, 2007 (in short, “the 2007

Rules”), which deal with the making of an inquiry by the Court in

6
case of a claim of juvenility. Section 7A of the 2000 Act is as

follows:

“7A. Procedure to be followed when claim of
juvenility is raised before any court—
(1) Whenever a claim of juvenility is raised before any
court or a court is of the opinion that an accused
person was a juvenile on the date of commission of the
offence, the court shall make an inquiry, take such
evidence as may be necessary (but not an affidavit) so
as to determine the age of such person, and shall
record a finding whether the person is a juvenile or a
child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before
any court and it shall be recognised at any stage, even
after final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this
Act and the rules made thereunder, even if the juvenile
has ceased to be so on or before the date of
commencement of this Act.

(2) If the court finds a person to be a juvenile on the
date of commission of the offence under sub­section
(1), it shall forward the juvenile to the Board for
passing appropriate orders and the sentence, if any,
passed by a court shall be deemed to have no effect.”
(emphasis supplied)

12. Sub­rule (3) of Rule 12 of the 2007 Rules states the

following regarding the procedure to be followed for age

determination:

“In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case

7
may be, the Committee by seeking evidence by
obtaining –

(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or
the Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side
within the margin of one year,

and while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.”
(emphasis supplied)

13. It is evident from a perusal of the above that if any Court,

including this Court, is of the opinion that an accused person

was a juvenile on the date of commission of the offence, or if a

claim of juvenility is raised before it, the Court must conduct an

8
inquiry regarding the determination of the age of the accused.

The evidence collected by way of such inquiry, as is specified in

clauses (a)(i), (ii), and (iii) of Rule 12(3), or in the absence whereof,

clause (b) of the same, is treated as conclusive proof of the age of

the accused. In such a situation, it would be clear that such an

inquiry conducted by this Court would be given precedence over

a view of the age of the accused taken by the High Court. It is

relevant to note here itself that in this case, the High Court

decided the issue merely upon an assessment of the material on

record without resorting to the procedure governing inquiries for

the determination of age as laid out in Section 7A of the 2000 Act

and Rule 12 of the 2007 Rules.

14. At this point, it is necessary to briefly discuss the findings

of the High Court in the impugned judgment regarding the age of

the accused to underscore that it has not conducted the inquiry

stipulated as per Section 7A and Rule 12. Before the High Court,

the Appellant submitted a report of the Assistant Commissioner

of Police, Bhondsi, Gurgaon to the effect that his date of birth

was 12.07.1984, thereby claiming the benefit of the 2000 Act.

This plea was rejected on the grounds of failure to raise the plea

of juvenility before the Trial court; non­production of birth

9
certificate in spite of an opportunity being granted to do so;

absence of the Appellant’s name in the birth register dated

12.07.1984 and for the years 1983­84 and 1984­85; non­

corroboration of the date of birth certificates issued by schools

attended by the Appellant through other documentary evidence;

non­matching of the name on such certificates (Raj Kumar) with

the name of the Appellant as brought on record (Raju); and non­

corroboration of the address of the Appellant through such

certificates, which simply stated that the date of birth of the

student named Raj Kumar was 12.07.1984.

15. The High Court evidently did not even frame its discussion

in terms of whether the evidence brought on record was sufficient

to conduct an inquiry under the 2000 Act and the 2007 Rules, let

alone order and conduct such an inquiry. On the contrary, it

simply recorded that the evidence did not go to show that the

Appellant was a juvenile at the time of the commission of the

offence, and proceeded to affirm the conviction of the Appellant

on merits.

16. Therefore, it is evident that the only inquiry as stipulated

under the 2000 Act and the 2007 Rules was conducted by the

Registrar (Judicial) upon the directions of this Court, after the

10
Court was satisfied upon going through the school certificates

adduced by the Appellant that the certificates in question prima

facie entitled him to claim the conduct of such an inquiry. In

such a situation, the question regarding whether precedence may

be given to the inquiry of a Registrar (Judicial) of this Court over

the opinion of the High Court regarding the age of an accused

can be restated as whether such inquiry conducted by the

Registrar (Judicial) upon the direction of this Court, if thereafter

affirmed by this Court, would amount to an inquiry conducted by

this Court itself. If this be the case, the findings of such inquiry

would prevail over the view taken by the High Court, as is evident

from the preceding discussion.

17. We are of the opinion that the above question must be

answered in the affirmative. This Court, on previous occasions

as well, has adopted the practice of directing the Registrar

(Judicial) to conduct the inquiry in terms of Rule 12 of the 2007

Rules on behalf of this Court, and accepted the findings made

therein (see Dharambir v. State (NCT) of Delhi, (supra). Seeing

that the Registrar (Judicial) is a District Judge serving on

deputation at the Supreme Court, recourse to his or her

assistance in the form of collecting evidence and arriving at a
11
finding regarding the claim of juvenility of the person concerned

may be undertaken by this Court in order to save its judicial

time. However, it must be stressed that the findings in an inquiry

conducted by the Registrar (Judicial) would not per se prevail

upon a contrary view taken by the High Court. Only after this

Court applies its judicial mind to such report with due regard to

the confines of the procedure stipulated in Section 7A of the 2000

Act and Rule 12 of the 2007 Rules, and only if it thereafter

confirms the findings in such report would the same prevail upon

a contrary view taken by the High Court which is not based upon

any such inquiry.

18. We may now undertake to consider the findings in the

report submitted by the Registrar (Judicial). As already noted, as

per the report, the age of the Appellant was 16 years, 2 months

and 2 days at the time of commission of the offence and he was

thus a juvenile at that time. In the said report, the learned

Registrar referred to the original Transfer Certificate in Hindi

issued by the Headmaster, Dayanand Arya Middle School, Sohna

dated 24.03.2012 and the Transfer Certificate issued by the

Principal, Government Senior Secondary School (Boys), Sohna

dated 12.12.2000. These certificates contain the official seal of

12
the respective schools and the signatures of the respective

authorities, and state the name of the student as Raj Kumar, son

of Rajendar Singh, and record his date of birth as 12.07.1984. A

certificate dated 07.12.2010 was also issued by the Principal of

the Government Senior Secondary School (Boys), Sohna, verifying

that the student named Raj Kumar, son of Rajendar Singh, used

to study at the school, and that the school records reflected his

date of birth as 12.07.1984 and the name of his mother as Smt.

Sarla Devi.

19. The learned Registrar also duly corroborated the contents

of these certificates by referring to other school records and also

examined witnesses. With respect to the Dayanand Arya Middle

School, Sohna, the learned Registrar examined Mr. Suresh

Chand, Teacher, appearing under the directions of the School

Headmaster, who confirmed that the Transfer Certificate dated

24.03.2012 was bona fide and issued under the signature of the

then Principal. The Registrar also verified the certificate by

comparing it with the office copy of the same in the School

Leaving Certificate Register produced before him. The original

Admission and Withdrawal Register of the school was also

examined, which also recorded the Appellant’s date of birth as

13
12.07.1984, and stated that he was admitted in the school on

23.07.1992 and withdrew on 310.3.1996 after passing Class V.

20. With respect to the Government Senior Secondary School

(Boys), Sohna, the learned Registrar also called for the school

records, which were produced through Mrs. Nirmal Kalra,

Teacher, under the instructions of the Principal of the school.

She too affirmed that the Transfer Certificate dated 12.12.2000

was bona fide, and issued under the signature of the then

Principal. She affirmed having compared the entries in the

certificate with the corresponding entries in the relevant register

of the school, copies of which had been submitted to the learned

Registrar. The following details with respect to the Appellant’s

period of study in the school were also affirmed by Mrs. Kalra on

affidavit:

S. Admission Date of Date of Reasons for
No. No. Admission Striking Off Striking Off the
Name
1. 14163 7.5.1996 (in 19.4.1997 Non­payment of
Class VI) (in Class VII) School Funds
2. 14678 17.5.1997 March 1999 Failed in Class
(in Class (in Class VIII Board
VII) VIII) Examination
3. 15546 7.7.1999 (in 7.8.1999 (in Continued
Class VIII) Class VIII) absence

14

21. The learned Registrar concluded that the school transfer

certificates dated 24.03.2012 and 12.12.2000, read along with

the relevant entries of school registers of the respective schools,

were admissible as evidence under Rule 12(3)(a)(ii) of the 2007

Rules, i.e., they were found to be in the nature of the “date of

birth certificate from the school (other than a play school) first

attended” as specified in the said clause, and thus accepted the

Appellant’s claim of juvenility. It was also found that the

certificates contained the name of the Appellant as Raj Kumar,

son of Rajendar Singh, born on 12.07.1984. This name was

found to be the full name of the Appellant and the name Raju

appearing on the SLP record taken to be an alias, as affirmed by

both his parents by way of separate affidavits.

22. In our opinion, the learned Registrar has duly affirmed the

veracity and bona fide nature of the certificates adduced by the

schools attended by the Appellant. At the same time, since Rule

12(3)(a)(ii) specifically mentions that the certificate showing the

date of birth of the person shall be from the school first attended

(other than a play school), we find that the certificate issued and

school records maintained by the Dayanand Arya Middle School,

Sohna, where the Appellant studied for four years till class V, as
15
duly affirmed through the examination of a witness from such

school, is sufficient to satisfy the requirement of clause (a)(ii) of

Rule 12(3). Of course, it goes without saying that the certificate

issued by the Government Senior Secondary School (Boys),

Sohna and the accompanying school records serve to corroborate

the veracity of the records furnished by the former school. It

would not be out of place to highlight here that the findings in

the inquiry report have also not been controverted by the State.

23. We are also conscious of the limitation envisaged under

Section 7A of the 2000 Act that the evidence adduced with

respect to the age of the accused cannot be in the form of mere

affidavits. Due to this reason, the reliance of the learned

Registrar upon affidavits to conclude that the name used in the

certificates placed on record (i.e. Raj Kumar) is the full name of

the Appellant and the name Raju is merely an alias is not tenable

in our view. However, we find that there is sufficient evidence on

record in the form of the appearance of the name of the father of

the Appellant on the certificate dated 24.03.2012 issued by the

Dayanand Arya Middle School, Sohna, to indicate that the name

Raj Kumar appearing on such certificate was the full name of the

Appellant.

16

24. In light of the above discussion, we are of the opinion that

it has been conclusively established that the date of birth of the

Appellant was 12.07.1984 and as such he was aged 16 years, 2

months and 2 days at the time of commission of the offence

dated 14.09.2000. In such circumstances, we do not have any

doubt that the inquiry conducted by the Registrar (Judicial) upon

the direction of this Court in the instant matter amounts to an

inquiry conducted by this Court itself, and is conclusive proof of

the age of the Appellant as provided in Rule 12(3) of the 2007

Rules. As the Appellant satisfies the requirement of Sections 2(k)

and 2(l) of the 2000 Act, the said Act is applicable to him in full

force in light of Section 7A and Section 20.

25. Criminal Appeal hereby stands allowed and the order of the

High Court affirming the conviction and sentence of the Appellant

under Section 376(2)(g) of the IPC is set aside. Seeing that the

Appellant has already spent 6 years in imprisonment, whereas

the maximum period for which a juvenile may be sent to a special

home is only 3 years as per Section 15(1)(g) of the 2000 Act, we

direct that the Appellant be released from custody forthwith, if he

is not required to be detained in connection with any other case.

17

26. Before we part with this matter, we would like to place on

record our appreciation for the valuable assistance rendered to

this Court by Shri Siddhartha Dave, the learned amicus curiae in

this matter.

..…………………………..……..J.

[N.V. Ramana]

..…………………………..……..J.

[Mohan M. Shantanagoudar]

..…..……………………..……..J.

[Indira Banerjee]
New Delhi;

February 22, 2019.

18

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