NARAYAN CHETANRAM CHAUDHARY versus THE STATE OF MAHARASHTRA on 27 March 2023

NARAYAN CHETANRAM CHAUDHARY

v.

THE STATE OF MAHARASHTRA

Criminal Miscellaneous Petition No. 157334 of 2018

In

Review Petition (Criminal) Nos. 1139-1140 of 2000

In

(Criminal Appeal Nos. 25-26 of 2000)

MARCH 27, 2023

[K. M. JOSEPH, ANIRUDDHA BOSE ANDHRISHIKESH ROY, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015– ss. 9, 94 – Juvenility – Determination of – The applicant, alongwith two other accomplices had committed murder of five women,and two children – They were tried for commission of offences u/ss.302, 342, 397, 449 r/w 120B and 34 of IPC – Trial Court sentencedthe appellant to death – Both the judgment of conviction and orderof sentence were confirmed by the High Court – The Supreme Courtdismissed the appeal preferred by appellant against the said judgment– The review petition filed by appellant was also dismissed – Theappellant (in detention for more than 28 years) filed presentapplication under s. 9(2) of the Act of 2015, requesting SupremeCourt to hold that the applicant was a juvenile on the date ofcommission of the offence – In 2019 by order, the Supreme Courtreferred the matter to the Principle District and SessionsJudge(Inquiring Judge) to decide the issue of juvenility of theapplicant – The Inquiring Judge gave his report sustaining theapplicant’s claim for juvenility – Held: On examination of variousdocuments, it was found that the applicant’s original name was‘Niranaram’ and the applicant discharged his part of onus toestablish that it is he who has been tried and convicted as ‘Narayan’– Now, considering the course adopted by the Inquiring Judge, s.9(2) of the 2015 Act does not prescribe following the trial procedure,as stipulated in the 1973 Code and Evidence Act, 1872 – Thelegislature has not mandated any specific procedure to be followed

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Aby the Court for conducting inquiry to determine juvenility of theclaimant under the 2015 Act – Therefore, Court can formulate itsown procedure for conducting inquiry on this count – No flaw inthe procedure which has been adopted by the Inquiring Judge inthe instant case – As far as certificate of date of birth is concerned,the applicant has relied on the certificate issued by the School forBdetermination of his age – Said certificate was issued by the officeof the headmaster of the School – The principal of the school hasin writing disclosed that the content of the admission register ismaintained in ordinary course of business – In normal course thesaid register would satisfy the test specified in S.35 of the 1872 Act,Cof being a relevant fact – Hence, the date of birth of the applicantas reflected in the certificate issued by the School is to be acceptedfor determining his age at the time of commission of the offence ofwhich he has been convicted – Going by that certificate, his age atthe time of commission of offence was 12 years and 6 months –Thus, he was a child/juvenile on the date of commission of offenceD– Order sentencing him to death passed by the Trial Court andsubsequently confirmed by the High Court and by the Supreme Courtinvalidated by operation of law.

Juvenile Justice (Care and Protection of Children) Act, 2015– s. 9 (2) – Stage of raising juvenility plea – A petition u/s. 9 (2) ofEthe 2015 Act contemplates statutory remedy, plea for which can beraised at any stage – On juvenility plea, if a writ petition is dismissedin limine, such order would not foreclose the option of an accused(or a convict) to make plea for juvenility under sub-section (2) ofs.9 of the 2015 Act.F

Juvenile Justice (Care and Protection of Children) Act, 2015– ss. 9(2), 103 – ‘Inquiry’ – As far as the procedure for making aninquiry by the Court, s. 9(2) does not prescribe scrupulouslyfollowing trial procedure, as stipulated in the Code of CriminalProcedure 1973 and the Indian Evidence Act, 1872 – The CourtGcan formulate its own procedure for conducting inquiry.

Allowing the application, the Court

Conclusion

HELD:1. The State has taken a plea that at the time ofinquiry, sufficient time was not available to them to verify thisfact. There are several documents where Niranaram has been H

shown to be the son of ‘C’. After the Inquiry Report was made in2019, substantial time has lapsed since this Court heard thematter. No material was produced by the State to demonstratethat there was any other Niranaram in Jalabsar or another ‘C’. Itis 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 prisonfor over 28 years would be under severe limitations in retracinghis school records and other forms of age-proof. In suchcircumstances, in absence of any contrary evidence this Courtaccept the finding in the Inquiry Report given by the PrincipalDistrict and Sessions Judge, Pune that Niranaram has to be saidto be another name of “Narayan”. This Court’s opinion on thispoint would not vary even if this Court reject the certificate ofthe Sarpanch. That certificate plays a supportive role indetermination of the name of the applicant. Moreover, in all thesedocuments, Jalabsar has been shown as the village of which ‘C’and his family were residents, and this was the place from wherehe was arrested. In this Court’s opinion, the applicant’s originalname was Niranaram and the applicant has discharged his part ofonus to establish that it is he who has been tried and convictedas Narayan. This Court accepted the finding of the Inquiring Judgeon this point. [Para 19][1088-G-H; 1089-A-C]

2. As regards maintainability of the present applicationunder Section 9(2) of the 2015 Act. In the applicant’s case,juvenility plea has been raised for the first time before this Court,albeit after dismissal of his review petition against his convictionand sentence having been upheld by this Court. It is a fact thatthe juvenility plea was raised in Writ Petition (Criminal) No. 126of 2013 and this writ petition was dismissed in limine. But thisdismissal would not operate as res judicata so far as the presentapplication is concerned. Relief under Article 32 of theConstitution is discretionary in nature and the order of this Courtdismissing that petition is not supported by reason. A petitionunder Section 9 (2) of the 2015 Act contemplates statutory remedy,plea for which can be raised at any stage. In this Courts’ opinion,on juvenility plea, if a writ petition is dismissed in limine, suchorder would not foreclose the option of an accused (or a convict)to make plea for juvenility under sub-section (2) of Section 9 ofthe 2015 Act. [Paras 20, 21][1089-D-F; 1090-D]

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A3. Next comes the question as to whether the courseadopted by the Inquiring Judge was in terms of the provisions ofthe 2015 Act or not. It is apparent that the Inquiring Judge hasconducted the inquiry typically as a fact-finding inquiry isconducted and has not followed the procedure of summons trial.The documents on which he relied on were not formally provedBas is the normal procedure in a trial and there was no examinationor cross-examination on oath. But as it would be evident fromsub-section (1) of Section 103 of the 2015 Act, the prescriptionfor following the procedure in summons cases is for the JuvenileJustice Board (“Board”) or the Child Welfare CommitteeC(“Committee”) while holding any inquiry under the 2015 Act.Under Section 9(2) of the 2015 Act the Court also has beenempowered to make an inquiry if the Court itself is of opinionthat the person was the child on the date of the commission ofoffence. The mandate of following summons procedure has notbeen prescribed so far as inquiry which ought to be conducted byDthe Court. The manner in which evidence could be taken has notbeen mandated. The manner in which the Court shall conductsuch inquiry has also not been specifically prescribed. Theprocedure which has been followed by this Court in the presentcase has been to direct a Principal District and Sessions Judge, aESenior Judicial Officer at the State Level, to conduct inquiry withina given timeframe. As this Court find from the Inquiry Report,the Inquiring Judge had directed a police officer to makeauthentication of the documents relied upon by the applicant andafter the police officer gave his views on the authenticity of thedocuments, finding discrepancy in some of them. Thereafter,Fhearing was conducted before the Inquiring Judge, in whichprosecution was represented by an officer holding the rank ofDirector General of Police (“DGP”). Both the prosecution andpolice had filed report and statement before the Inquiring Judge.The Inquiring Judge himself applied his mind considering theGsubmissions of the prosecution as also the learned advocate ofthe applicant and the applicant himself was produced before theInquiring Judge. The Inquiring Judge had marked the documentsfiled before him as exhibits. The Inquiring Judge examined eachof the documents upon ascertaining the stand of the DGP andalso the advocate representing the applicant. In application filedH

before us, extract from the school register was annexed whichshowed applicant’s date of birth as 1[st] February 1982. Before theInquiring Judge, this Court found that in addition to the documentsannexed to the application, a certificate of date of birth issued bythe school authority was also furnished by the applicant. The latterwas issued on the basis of school register but this certificate wasdated 30[th] January 2019. [Paras 25, 27][1092-A; 1093-F-H; 1094-A-E]

4. This Court found no flaw in the procedure which has beenadopted by the Inquiring Judge. So far as the procedure formaking an inquiry by the Court, in this Court’s opinion Section9(2) of the 2015 Act does not prescribe scrupulously followingtrial procedure, as stipulated in the 1973 Code and the IndianEvidence Act, 1872. The requirement to follow the Code is “asfar as practicable,” as per Section 103 (2) of the 2015 Act. Thelegislature, thus, while prescribing the summons trial procedurefor inquiry by Board or Committee on age determination of ajuvenile claimant has not mandated any specific procedure forinquiry by the Court. It follows, by implication, that the Court canformulate its own procedure for conducting inquiry on this count.So far as the present case is concerned, this Court had directedinquiry to be conducted by the Inquiring Judge at the first level,before whom the applicant and the prosecution had sufficientopportunity to present their version. The report of the InquiringJudge was subsequently examined by us, again giving adequateopportunity to both sides. This Court has ourselves called forthe original admission register from the school. Theprincipal-incharge of the school, had given a statement in writingat the inquiry stage, and the translated version of which appearsat page 311 of the Inquiry Report. [Para 28][1094-F; 1095-F-H;1096-A]

5. The school in question is a government school. The “dateof birth certificate” of Niranaram has been issued by the office ofthe headmaster of the said school. This certificate has been issuedon the letterhead of the State Government carrying the nationalemblem. The principal of the school has in writing disclosed thatthe content of the admission register is maintained in ordinarycourse of business. Hence, in normal course the said register AB

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Awould satisfy the test specified in Section 35 of the 1872 Act, ofbeing a relevant fact. [Para 33][1105-A-B]

6. As regards authenticity or genuineness of the admissionregister, which forms the basis of certificate of the applicant’sdate of birth, an argument is made that the whole register wasBfabricated. His submission is that at the time the extract therefromwas produced before the Inquiring Judge, the same was notpaginated. He also argues that the register was not stitched.Further, he has submitted that serial entry no. 566 of the registershows the date of entry of the student to be 2[nd] February 1980,which is not in order in relation to the other entries. He has alsoCreferred certain other entries in the register prior in order toserial no. 568, in which dates of admission of the respectivestudents are earlier than that of the applicant. But these entries,at best, would show some defect in maintaining the records andcannot lead to the conclusion that the entire admission register Dis fabricated. Reference has also been made to an entry of oneLekhram, that stood against serial no. 423, which reappeared inentry 562. The endorsement of the school in serial no. 423 isthat “his name was deleted” whereas against entry no. 562,recordal is “as per previous records”. This clearly appears to bethe case of re-admission or re-entry in the school. His furtherEstand is that there was interpolation of pages. He has again pointedout that one of the pages (page no. 33) of the register has beenstitched in reverse. But these are nitpicking submissions andcannot lead to the conclusion that admission register itself is fake.So far as Niranaram’s name is concerned, in the admission

Fregister there is no discrepancy. His serial number is 568 whichfalls in order in which the register is maintained and is in sequencewith the admission entries of other students barring few minordiscrepancies as regards names in other entries. Even if theregister has been freshly stitched and paginated to be sent to this Court, that would not lead to a conclusion that the wholeGthing has been fabricated. Moreover, there is no clear evidenceto demonstrate that at the time of initial inquiry, the register wasunstitched or without pagination. This Court have itself seen theregister and it is of sufficient vintage. Thus, this Court agree H

with the Inquiring Judge that the date of birth recorded thereinwas not a fabricated entry. [Para 34][1105-D-H; 1106-A-C]

7. So far as the applicant is concerned, his claim of juvenilitybasedon his date of birth in the school certificate would not varybased on definitions of juvenile, “juvenile in conflict with law” or“child in conflict with law” under the 1986 Act, 2000 Act or the2015 Act. For applying the procedure for determining his claim,of juvenility or of being a child, in this Court’s opinion, the lawapplicable at the time of undertaking that exercise by theconcerned statutory body would prevail. Hence, in his case, thisCourt has tested his claim on the basis of the provisions of Section9 read with Section 94 of the 2015 Act. [Para 40][1111-E-F]

8. Under the 2015 Act the date of birth certificate ought tobe the main factor for determination of juvenility. In the case ofRishipal Singh Solanki, the two-Judge Bench of this Court haslaid down the principle that an inquiry initiated under Section 9(2) of 2015 Act would be similar to that contained in Section 94 ofthereof. This Court accepted this view. This Court has called forthe source of the date of birth certificate, which recorded theapplicant’s birth date at the time of his entry into the school whichwas in the year 1986. So far as the inconsistent dates of birthmentioned in the other documents, none of them is specified tobe taken into consideration for undertaking the process of agedetermination as laid down in Section 94 (2) of the said statute.Once the applicant has discharged his onus, in support of hisclaim of juvenility by producing the date of birth certificate fromthe school, the State had to come up with any compellingcontradictory evidence to show that the recordal of his date ofbirth in the admission register was false. The State, in this case,has not come up with any such compelling evidence which wouldrender such certificate to be unreliable or false. The State andthe complainant have sought to disprove the applicant’s case onthe basis of materials disclosed by him only, apart from theelectoral roll. Here, this Court cannot indulge in any guessworkto doubt the entry in the school register. No evidence has beenled to contradict the basis of the age of the applicant reflected in ABC

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Athe aforesaid document. The certificate of date of birth as evidenceof age having been provided in the statute itself, this Court shallgo by that. The other factor which has crossed this Courts’s mindis as to whether a boy of 12 years could commit such a gruesomecrime. But though this factor shocks this Court, this Court cannotapply speculation of this nature to cloud this Court’s adjudicationBprocess. This Court possess no knowledge of child psychologyor criminology to take into account this factor while examiningthe report of the Inquiring Judge. Moreover, the age of theapplicant revealed in the ossification test keeps the age of theapplicant as claimed by him, within the range specified in theCreport. The said test was conducted in the year 2005, and his agewas determined in the range of 22 to 40 years. If this Court take22 years as his age in 2005, then his year of birth would havenbeen 1983. That would broadly correspond to the date of birthcontained in the admission register. [Para 41][1111-G-H; 1112-A-E]D

9. In the light of this Court’s findings and the reasons thisCourt have disclosed above for arriving at such finding, this Courtaccept the report of the Inquiring Judge. This Court declare thatthe date of birth of the applicant as reflected in the certificateissued by the Rajkiya Adarsh Uccha Madhaymik Vidyalaya,EJalabsar, tehsil Shri Dungargarh, district – Bikaner, dated 30[th]January 2019, a copy of which has been annexed in the InquiryReport as “I-2”, is to be accepted for determining his age at thetime of commission of the offence of which he has been convicted.Going by that certificate, his age at the time of commission ofFoffence was 12 years and 6 months. Thus, he was a child/juvenileon the date of commission of offence for which he has beenconvicted, in terms of the provisions of the 2015 Act. This shallbe deemed to be the true age of Niranaram, who was tried andconvicted as Narayan. He has already served more than 3 years of incarceration and under the law as it prevailed at the time ofGcommission of offence as also under the 2015 Act, he cannot besubjected to capital punishment. In view of this finding, the ordersentencing him to death passed by the Additional Sessions Judge,Pune in Sessions Case No. 462 of 1994 and subsequentlyconfirmed by the High Court and by this Court would standHinvalidated by operation of law. He shall be set free forthwith NARAYAN CHETANRAM CHAUDHARY v. THE STATE OFMAHARASHTRA

from the correctional home in which he remains imprisoned, ashe has suffered imprisonment for more than 28 years, havingregard to the provisions of Section 18 of the 2015 Act. Section 21of the 1986 Act also carried substantially the same provision onthe question of maximum punishment that can be awarded to adelinquent juvenile by the Juvenile Court. The restriction onterm of detention that can be awarded by the Board under the2015 Act to a child below 16 years would also apply to the Courtbefore which the juvenility question is being determined. [Para43][1113-E-H; 1114-A-C]

Ashwani Kumar Saxena v. State of Madhya Pradesh(2012) 9 SCC 750 : [2012] 10 SCR 540 – relied on.

Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC604 : [1988] Suppl. SCR 1; Surajdeo Mahto & Anotherv. State of Bihar (2022) 11 SCC 800; Mohd. Anwar v.State (NCT of Delhi) (2020) 7 SCC 391; RamdeoChauhan alias Raj Nath v. State of Assam (2001) 5 SCC714 : [2001] 3 SCR 669; Sanjeev Kumar Gupta v. Stateof Uttar Pradesh and Another (2019) 12 SCC 370 :[2019] 9 SCR 735; Parag Bhati (Juvenile) throughLegal Guardian- Mother-Rajni Bhati v. State of UttarPradesh and Another (2016) 12 SCC 744 : [2016] 2SCR 1089; Manoj alias Monu alias Vishal Chaudharyv. State of Haryana and Another (2022) 6 SCC 187;Babloo Pasi v. State of Jharkhand and Another (2008)13 SCC 133 : [2008] 14 SCR 161 – distinguished.

Murari Thakur & Another v. State of Bihar (2009) 16SCC 256 : [2006] 10 Suppl. SCR 988 – held not goodlaw.

Ram Vijay Singh v. State of Uttar Pradesh 2021 SCCOnLine SC 142; Abuzar Hossain alias Golam Hossainv. State of West Bengal (2012) 10 SCC 489 : [2012] 9SCR 244; Pawan Kumar Gupta v. State (NCT of Delhi)(2020) 2 SCC 803 : [2020] 1 SCR 69; Pawan v. Stateof Uttaranchal (2009) 15 SCC 259 : [2009] 3 SCR468; Ravinder Singh Gorkhi v. State of U.P. (2006) 5SCC 584 : [2006] 2 Suppl. SCR 615; Hari Ram v. State A

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Aof Rajasthan and Another (2009) 13 SCC 211 : [2009]7 SCR 623; Abdul Razzaq v. State of Uttar Pradesh(2015) 15 SCC 637; Vinod Katara v. State of UttarPradesh 2022 SCC OnLine SC 1204; Ram Narain v.State of Uttar Pradesh (2015) 17 SCC 699 : [2015] 9SCR 200; Upendra Pradhan v. Stae of Orissa (2015)B11 SCC 124 : [2015] 5 SCR 214; Ajay Kumar v. Stateof Madhya Pradesh (2010) 15 SCC 83; Sheo MangalSingh and Others v. State of U.P. (1989) SCC OnLineAll 605; Rishipal Singh Solanki v. State of Uttar Pradeshand Others (2022) 8 SCC 602; Pratap Singh v. State ofCJharkhand and Another (2005) 3 SCC 551 : [2005] 1SCR 1019; Jitendra Singh Alias Babboo Singh andAnother v. State of Uttar Pradesh (2013) 11 SCC 193 :[2013] 13 SCR 764; Dharambir v. State (NCT of Delhi)and Another (2010) 5 SCC 344 : [2010] 5 SCR 137;Mahesh Jogi v. State of Rajashthan (2014) 15 SCCD184 : [2014] 11 SCR 293; Satya Deo alias Bhoorey v.State of Uttar Pradesh (2020) 10 SCC 555; State ofJammu & Kashmir (Now U.T. of Jammu and Kashmir)and Others v. Shubham Sangra 2022 SCC OnLine SC1592; Rajinder Chandra v. State of Chhattisgarh andEAnother (2002) 2 SCC 287 – referred to.

Case Law Reference

NARAYAN CHETANRAM CHAUDHARY v. THE STATE OFMAHARASHTRA

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CRIMINAL APPELLATE JURISDICTION: CriminalMiscellaneous Petition No. 157334 of 2018 in Review Petition (Criminal)Nos. 1139-1140 of 2000 in Criminal Appeal Nos. 25-26 of 2000.

From the Judgment and Order dated 05.09.2000 in Crl.A.Nos. 26and 25 of 2000 of the Supreme Court of India.

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R. Basant, Sr.Adv., Vishnu P., Ms. Trisha Chandran, Ms. ShreyaRastogi, Shadan Farasat, Advs. for the Applicant.

Sachin Patil, Siddharth Dharmadhikari, Aaditya Aniruddha Pande,Bharat Bagla, Sourav Singh, Geo Joseph, Risvi Muhammed, DurgeshGupta, Hrishikesh Chitaley, Vijay Kari Singh, Rajat Joseph, Advs. forthe Respondent.

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The Judgment of the Court was delivered by ANIRUDDHA BOSE, J.

This is an application under Section 9(2) of the Juvenile Justice(Care and Protection of Children) Act, 2015 (“2015 Act”) requestingthis Court to hold that the applicant, who is a convict for committingoffences under Sections 302, 342, 397, 449 read with 120B and 34 of theIndian Penal Code, 1860 (“1860 Code”) was a juvenile on the date ofcommission of the offence. Simultaneous prayer of the applicant is forhis release from custody on the ground of having served more than themaximum punishment permissible under the Act. The applicant has beensentenced to death by the Additional Sessions Judge, Pune by a judgmentand order dated 19[th] February 1998 and 23[rd] February 1998 respectively.This application has been taken out in connection with a petition forreview of the order by which his conviction and sentence was sustained F

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Aby this Court after confirmation by the High Court. The review petitionof the applicant was also dismissed on 24[th] November 2000. The applicant,along with two other offenders (Jitu and Raju) were tried for commissionof offences under the aforesaid provisions of the 1860 Code. Theapplicant had not raised the plea of juvenility at the trial or the appellatestage. In the Trial Court, said Raju had turned approver and was tenderedBpardon. Both the judgment of conviction and order of sentence wereconfirmed by the High Court on 22[nd] July 1999 in the appeal of theapplicant as also in the confirmation proceeding. The appeal against thejudgment of conviction and order of death sentence made by the applicantwas dismissed by this Court on 5[th] September 2000. The offence of theCapplicant is no doubt, gruesome in nature. On 26[th] August 1994, as perthe prosecution case sustained by all the judicial fora including this Court,the applicant alongwith the two other accomplices had committed murderof five women, (one of whom was pregnant) and two children. Theoffence took place at Pune in the State of Maharashtra. The applicant was arrested on 5[th] September 1994 from his home village and is inDdetention for more than 28 years.

2. Though the offence was committed at Pune, the applicant claimsto hail from Jalabsar, in Shri Dungargarh tehsil, at present in Bikanerdistrict, Rajasthan. It is from there he was arrested. He was tried asNarayan Chetanram Chaudhary. His plea before us is that his actualEname is Niranaram. In the Inquiry Report, which we shall deal with laterin this judgment, there is observation to the effect that people in Pune,Maharashtra might find it difficult to pronounce Niranaram and there ispossibility of pronunciation mistake to call “Niranaram” as “Narayan” inPune. The said tehsil was earlier in the district of Churu but in the year F2001, it came within the Bikaner district. Date of occurrence of theoffence is 26[th] August 1994 and the chargesheet submitted against theapplicant showed his age to be about 20 years at the time of commissionof the offence. The applicant’s claim of juvenility is primarily based on a“certificate” of date of birth issued on 30[th] January 2019, in the name of Niranaram, son of Chetanram. The said certificate has been issued byGthe Pradhanacharya (Headmaster), Rajakiya Adarsh Uccha MadhyamikVidyalaya, Jalabsar, Shri Dungargarh. In the said document, it is recordedthat Niranaram was born on 1[st] February 1982. In a “transfer certificate”by the same authority issued on 15[th] August 2001, it is reflected that hehad joined the school in Class First on 1[st] April 1986 vide admissionHnumber 568 and left from Class Third (Passed) on 15[th] May 1989.

By the date of birth reflected in these certificates, the age of theapplicant on the date of commission of offence would have been 12years and 6 months. The applicant, as we have already indicated, wastried as Narayan, not Niranaram. Moreover, in certain other documentsNiranaram’s age is shown to be different from that reflected in the saidcertificates. The variations or discrepancies as regards the name ofapplicant and his age are the factors we shall be dealing with in thisjudgment and we shall dwell into these aspects in subsequent paragraphsof this judgment.

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3. In the chargesheet, the accused Narayan’s age was shown tobe 20 years. We find from the judgment of the High Court that the saidage (20-22 years) was given on behalf of the applicant only at the timeof hearing. The High Court had tangentially referred to the question ofage of the applicant in its judgment in the appeal and death reference. Atthat time, however, the plea of juvenility was not there. It was observedin the High Court’s judgment that the age of the accused at the time ofoccurrence ought to be borne in mind while considering the question ofawarding the sentence.

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4. The applicant for the first time wanted a medical examinationfor determination of his age on 14[th] August 2005, when the PrisonInspector General, Western Division, Pune went to meet the applicantat Yerawada Central Prison. A request was made thereafter by the prisonauthorities to the Chief Medical Officer and the applicant was taken toDepartment of Forensic Science, BJ Medical College and SassoonGeneral Hospital, Pune. The age determination report by the Departmentof Forensic Medicine, of the said institution states that on 24[th] August2005, age of the patient was more than 22 years but less than 40 yearsincluding margin of error. The said report reads: - EF

“MD/ AGE/ 198/ 2005Department of Forensic ScienceB J Medical College and SassoonGGeneral Hospital, Pune Proforma for age examination 24/8/2005

Mr. Narayan Chetram Chaudhary

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[2023] 6 S.C.R.

Brought by Yerawada Central Prison, PuneDate: 24/8/2005, time: 3:45 pm, MLC No 25802, date:23/8/2005

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Consent: The doctors have given me an idea of the testsinvolved in determination of age. I am ready for theexamination of my own free will.

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(unclear 3 line)

Physical Development: MediumTeeth: Upper 15Lower 15Ht 5’9"Wt 68 kg C

Secondary Sex Characters

Male:

Moustache: Present

Beard: Shaved

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Pubic Hair: Present

Voice: normalGenitals: normal

Medicolegal exam: X Ray plate no R180( 4) date: 23/8/05

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(unclear medical description)

Conclusion: From clinical & radiological examination the ageof the patient on date 24/8/05 ‘more than twenty two yearsbut less than forty years (40 years)’ including margin of error.

FSigned in the presence of:

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B G More

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Dr. M.S. Vable

Prof. & Head / Assec. Prof. / Asstt. Lect.

Department of Forensic Medicine,B. J. Medical College, Pune – 411001"(quoted verbatim from the paperbook)

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5. It was in the early part of 2006, we are apprised by Mr. Basant,learned senior counsel representing the applicant, that his cause wastaken up by certain human rights groups. Some public spirited individualsespousing the applicant’s cause on the point of juvenility had written tothe President of India on 24[th] January 2006 requesting cancellation ofaward of death penalty on the ground that he was a juvenile at the timeof commission of the offence. A copy of the said communication, captioned“Mercy Petition”, has been annexed as A-7 to the application. The textof this petition is reproduced below: - “President’s Secretariat CA II SectionDate- 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 Rightsviolations. We also work in the Yerawada Central Prison, Puneand provide free legal aid to the prisoners in peril.

It is due to the extremity of the matter before us that we·takethe liberty of corresponding with your Hon. Self to make youaware that one person names Niranaram ChetanramChaudhary, born on 1/2/1982, who has been awarded thedeath penalty in a murder case in languishing in the YerawadaCentral Prison, Pune. Therefore, this applicant was around13 years of age at the time of committing this offence. YourExcellency, your office has received a mercy petition from hisco-accused Jitendra Nainsingh Gehlot DY no 7/27 on 8/11/2004. You are indeed suitably in receipt of all the relevantcase material which has been earlier sent to you office.

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The prison authorities have also requested us that we shouldattract your attention to the fact that Niranaram ChetanramChaudhary was a juvenile at the time of offence so that deathpenalty awarded is a mistake of the law. It should also bewell noted that there are various judgement given by the HighCourt and the Apex Court and numerous and substantive lawsto confirm that if any person had been a juvenile at the timeof committing the offence, it can be a strong ground forconsideration at any stage of the case. He has already spentmore than 11 years languishing inside the four walls of theprison. We would like to bring to light the miscarriage ofjustice in this case where in a 13 year old juvenile whocommitted an offence has become a grown up man inside theprison meant for major and hardened criminals. So we wantto request you to consider this sensitive matter of a juvenilein conflict with law and ask your august office andHonourable self to cancel the punishment of death penaltyawarded to the juvenile in this case.

Yours truly

Adv. Asim Sarode Adv. Smita Lokhande Jagriti Sanjay JadhavMohat Human Rights Activist Legal Aid Lawyer Student Intern SocialWorker Enclosures: Transfer certificate of Niranaram ChetanramChaudhari 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 theGovernment of Maharashtra eliciting the State Government’s commentson such claim of juvenility. There were subsequent exchange ofcommunications among the officials on the question of his agedetermination. In a letter originating from the Superintendent, YerawadaCentral Jail, Pune addressed to Additional Secretary, Home Department,Maharashtra (which is Annexure A-13 to the present application), theJail 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 inthis communication dated 19[th] January 2007 a reference was made tohis name being Niranaram. It does not appear, however, that any furtherage determination test was carried out. The said communication reads:- “With reference to the above subject, orders were given topresent a medical report regarding the current age of thecondemned prisoner C1871 Narayan Chetanram Chaudhari.Accordingly, the said prisoner was sent to the Hon MedicalSuperintendent, Sassoon Hospital, Pune and the he wasrequested through letter NV1/ AVT/ 64/ 2007 date 8/1/2000to give a medical report about the age of the prisoner.

In his letter no SSR/ Prisoner/ 26/ 06 date 8/1/2007 about theage of the prisoner, the Hon. Medical Superintendent notedthat, “after speaking to the prisoner, it appears that his actualage can be found out through his school records. His namein school was Niranaram Chetanram Chaudhari and he hasstudied 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 thatschool it could be useful.” We have attached a photocopy ofthe said letter. Similarly, photocopies of the prisoner’s earliermercy petition submitted by his lawyer Mr. Aseem Sarode alongwith his school certificate are also attached. Photocopy ofthe school certificate submitted by the prisoner is beingattached.

Presented for information and further action.”

(quoted verbatim from paperbook)

Presented for information and further action.”

(quoted verbatim from paperbook)

7. Thereafter, a writ petition was filed in this Court under Article32 of the Constitution of India by the applicant representing himself as‘Narayan @ Niranaram’ seeking quashing of the order of punishmentimposed upon him on the ground of him being a juvenile on the date ofcommission of offence. In this petition, apart from the aforesaidcertificates, the applicant had relied on a “Family Card” of the RajasthanGovernment issued in 1989, recording the age of Nirana to be of 12years as also the aforesaid Transfer Certificate issued on 15[th] August2001 recording Niranaram’s date of birth as 1[st] February 1982. In boththese documents, Chetanram’s name appears as father of Niranaram.

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AThis writ petition, registered as W.P. (Criminal) No. 126 of 2013, wasdismissed by a two-Judge Bench of this Court on 12[th] August 2013 withthe following order:- “UPON hearing counsel the Court made the following

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“We are not inclined to entertain this Writ Petition under Article32 of the Constitution of India and the same is dismissed.”

8. This application was instituted on 30[th] October 2018. When itwas taken up for hearing, a Coordinate Bench by an order passed on29[th] January 2019 had referred the matter to the Principal District andSessions Judge, Pune to decide the juvenility of the applicant keeping inview the provisions of Section 9(2) of the 2015 Act. This order reads:- C

“UPON hearing the counsel the Court made the following

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Heard learned counsel for the parties.

The applicant - Narayan Chetanram Chaudhary has filed anapplication (Crl.M.P.No.5242 of 2016 in R.P.(Crl.)Nos.1139-1140/2000 in Crl.A.Nos.25-26/2000) seeking review of thefinal judgment of this Court dated 05.09.2000 in CriminalAppeal Nos.25-26 of 2000, upholding his conviction underSections 342, 397, 449 and 302 of the Indian Penal Code(hereinafter referred to as the ‘IPC’) and the sentence of deathawarded to him under Section 302 IPC by reopening theReview Petition(Crl.)Nos.1139-1140 of 2000, which weredismissed by this Court on 24.11.2000. The applicant has alsofiled an application (Crl.M.P.No.157334 of 2018 in R.P.(Crl.)Nos.1139-1140/2000 in Crl.A.Nos.25-26/2000) underSection 9(2) of the Juvenile Justice (Care and Protection ofChildren) Act, 2015 (hereinafter referred to as ‘the Act’)seeking a declaration that he was a juvenile at the time ofcommission of offence. The applicant has placed certainadditional documents to prove his juvenility at the time ofcommission of offence.

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On 31.10.2018, when the matter came up before thisCourt for hearing, the counsel for the State was directed to H

take instructions on the additional documents on the questionof juvenility of the applicant. However today, the learnedcounsel for the respondent-State submits that he has not gotany instructions in that regard so far. The instant case reflectsgross lethargic and negligent attitude of the State. In view ofthe pendency of the matter, we are restrained from observinganything further.

Keeping in view Section 9(2) of the Act, we have noother option but to refer the matter to the Principal Districtand Sessions Judge, Pune, to decide the juvenility of theapplicant. Accordingly, we direct the Registry of this Court tosend the application (Crl.M.P.No.157334/2018 in R.P.(Crl.)Nos.1139-1140/2000 in Crl.A.Nos.25-26/2000) along withxerox copy of the documents, relied upon by the applicant, tothe Principal District and Sessions Judge, Pune to decide thejuvenility of the applicant. If notice is given to the applicant,he is directed to produce all the original documents beforethe concerned Court in support of his claim of juvenility atthe time of commission of offence. The Principal District andSessions Judge, Pune is directed to send a report to this Court,preferably within a period of six weeks. We hope and trustthat the Principal District and Sessions Judge, Pune shalldecide the juvenility of the applicant within the time stipulatedhereinabove.

List the matter immediately after receipt of report fromthe Principal District and Sessions Judge, Pune.”

9. In pursuance of direction of this Court, the Principal Districtand Sessions Judge (we shall henceforth refer to him as the “InquiringJudge”) gave his report sustaining the applicant’s claim for juvenility.The de-facto complainant, a family member of the victims has filed anapplication for intervention. That application is registered as I.A. No.58515 of 2019. We allow this application. Mr. Basant, has argued insupport of this finding, whereas Mr. Patil and Mr. Chitaley, learnedcounsel for the State and the intervenor (de-facto complainant)respectively have asked for rejection of the report and dismissal of theapplication. In his report, the Inquiring Judge had examined the followingdocuments:- AB

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“1. A Transfer Certificate dated 15/08/2001, issued by RajkiyaAdarsh Uccha Madhyamik Vidylaya, Jalabsar ShikshaVibhag, Rajasthan in the name of Niranaram s/o Chetanram,resident of Jalabsar, District Churu, showing the date of birthto be 01/02/1982. (Annexure- ‘I-1’ in his report).

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2. The Certificate of Date of Birth of Niranaram s/oChetanram, dated 30/01/2019, issued by the Headmaster,Rajkiya Adarsh Uccha Madhyamik Vidyalaya, Jalabsar,Shridungargarh (Bikaner). (Annexure’ I-2' in his report).

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3. A copy of School Register issued by Headmaster, RajkiyaAdarsh Uccha Madhaymik Vidyalaya, Jalabsar,Shridungargarh, (Bikaner), dated 07/02/2019. (Annexure-‘I-3’ in his report).

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4. A Certificate of Bonafide resident dated 10/08/2009, issuedby the Tahasildar, Shridungargarh, Bikaner in the name ofNiranaram s/o Chetanram, resident of Jalabsar, Tahasil-Shridungargarh, District-Bikaner. (Annexure- ‘I-4’ in hisreport).

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5. A Certificate of Other Backward Class, issued by theTahasildar Shri dungargarh, Bikaner, dated 10/08/2009, inEthe name of Niranaram s/o Chetanram, resident of Jalabsar,District-Bikaner. (Annexure- ‘I-5’ in his report).

6. A copy of Notification dated 23/03/2001 issued by the Stateof Rajasthan, regarding inclusion of Tahasil has Dungargarhin District Bikaner with effect from 01/04/2001, by removingthe same from District Churu. (Annexure- ‘I-6’ in his report).

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7. A certificate issued by the Sarpanch, GrampanchayatUdrasar, Shridungargarh, certifying that, NarayanChaudhary is the same person whose another name isNiranaram s/o Chetanram Chaudhary. (Annexure- ‘I-7’ inhis report).

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8. The Rajasthan Government Pariwar Card No.21711 issuedin the name of Chetanram s/o Ratnaram in the year 1989showing age of ‘Nirana’ as son of Chetanram to be of 12years. Further, showing Anada, Mukhram, Birbal to be thebrothers of ‘Nirana’. (Annexure- ‘L-1’ in his report).

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9. A T.C. Form issued by Rajkiya Madhyamik VidyalayaUdrasar, Tahasil-Shridungargarh, District-Bikaner, dated 19/09/2003, in the name of Anadaram s/o Chetanram Sanatan.(Annexure- ‘L-2’ in his report).

10. A Transfer Certificate, dated 15/07 /1994 in the name ofMukhram s/o Chetanram issued by Rajkiya G. R. MohataUccha Madhyamik Vidyalaya, Shridungargarh, Bikaner.(Annexure- ‘L-3’ in his report).

11. A photocopy of Proforma for verification of ageexamination, dated 24/08/2005 regarding Narayan ChetaramChaudhary. (Annexure-’J-1' in his report)”

(quoted verbatim from the paperbook)

10. The reasoning and the finding of the Inquiring Judge in hisreport of 12[th] March 2019 were in the following terms:- “38) So far as the inquiry directed to be conducted by thisCourt is concerned, at the outset, the relevant provisions oflaw with regard to the inquiry as to juvenility has to bementioned for reference. The provisions under the Act havebeen mentioned above.

39) As per section 2(35) of the Act, Juvenile means a childbelow the age of 18 years. The authorities referred above,specifically referring to retrospectivity as to consideration ofthe application of present law to the fact of juvenility isconcerned, there cannot be any dispute about it. Hence,Section 9(2) of the Act is a relevant provision on the basis ofwhich the petitioner has filed a petition before the Hon’bleSupreme Court of India for declaration that he was a childunder the Act. The said provision is reproduced above. In thecase of “Raju -vs- State of Haryana [(2019) 14 SCC 401] “there is a reference to Rule 7 A of the Juvenile Justice (Careand Protection of Children) Rules 2007. The said rule dealswith making of inquiry by the Court in the claim of juvenility.Sub-Rule 3 of Rule 12 of the said Rules has stated about theprocedure to be followed for age determination. After theJuvenile Justice (Care and Protection of Children) Act, 2015came into force, the relevant provision relating to the procedureto be followed is U/sec.9 of the Act. Similarly, section 94 of A

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the Act deals with presumption and determination of age. Forready reference, all these provisions have been reproducedabove.

40) The authorities of “Surendra Kumar -vs- State ofRajasthan [(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, theauthority of “Surendra Kumar (supra)” is useful regardingentry in electoral roll. The authority of “Darga Ram aliasGunga -vs- State of Rajsthan [(2015) 2 SCC 775]” is usefulregarding ossification test. All these cases have to beconsidered with reference to the case of “Raju (supra)” andthe provisions of law noted above.

41) As per the provision in section 94 above, in case of doubtregarding whether a person is child or not the process of agedetermination shall be undertaken and evidence shall besought to obtain the date of birth certificate from the schoolor matriculation or equivalent certificate from concernedexamination board, if available. The certificate given byCorporation, Municipal Authority or Panchayat can also beobtained and in the absence thereof, age can be determinedby ossification test.

42) Therefore, if Rule 7 A of the Juvenile Justice (Care andProtection of Children) Rules, 2007 is read with it’s Rule 12and the present Section 9 and Section 94 of the Act, it is clearthat, the date of birth from the school certificate ormatriculation certificate or a certificate of Corporation etc.is relevant consideration. Thus, preference has to be given tothe School Certificates. Even in the case of “Raju (supra)”the Hon’ble Supreme Court of India made it abundantly clearthat the school certificate would be relevant for the name aswell as date of birth.

43) In view of the above provisions of law, and the authoritiesplaced on record, I proceed to examine the documents to seewhether the documents relied on by the petitioner are genuineand authentic and whether those can be relied on to decidejuvenility. The submissions made by learned DGP and learnedadvocate for the petitioner will be looked into simultaneously.

44) The Police Officer had visited the Rajkiya Adarsh UcchaMadhyamik Vidyalaya, Jalabsar. He has recorded statementof the Incharge Head Master Namrata Prabhusing withreference to the document at serial no.1 (Annexure- ‘I-1’).The said document admittedly, is in the name of “Niranarams/o Chetanram”. She has stated that, the said document wasissued by her school on the basis of the register kept in theschool. She also certified that, the admission no. 568 is correctas per the register maintained. The copy of register, which isthe document at serial no. 3 (Annexure- ‘I-3’) was also foundby the Police Officer to be the correct copy of the registerkept by the school. The name of “Niranaram s/o Chetanram”can be seen in such register. As per such register, the date ofbirth of “Niranaram” is 01/02/1982. Even as per documentno.1, the date of birth of “Niranaram” is 01/02/1982. Withregard to document at serial no.2 (Annexure- ‘I-2’), the PoliceOfficer found that the same was issued by the school whosestamp it bears. Merely because it’s second copy was not foundin the school or that the relevant register had some overwritingof names, though not of the name of “Niranaram”, thesedocuments cannot be discarded. The documents at serial Nos.1 to 3 appear to have been issued on the basis of the schoolrecord. “Niranaram” was admitted in the school on 01/04/1986. Thus, the transfer certificate dated 15/08/2001 i.e. thedocument 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 MadhyamikVidyalaya, Jalabsar for obtaining birth certificate of hisbrother. Such copies are produced with report Exh.16. Similarly,a fresh certificate, addressed to the Police Officer was alsogiven by the Head Mistress dated 23/02/2019 and it iscollected and filed with his report by the Police Officer withExh.16. Hence, the documents at serial nos.1 to 3, has agenuine source and those are authentic documents. It is afact 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 verifythe authenticity of documents only. He was not expected toexpress his own opinion. It is sufficient that, the documents at AB

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serial nos.1 to 3 were issued by the school, the stamp of whichis appearing thereon. Therefore, the documents at serial nos.1 to 3 are found to be trustworthy and authentic documents.

46) The documents at serial nos. 4 and 5 (Annexure- ‘I-4 &‘I-5’) are the documents of Bona fide Residence and OBCCaste Certificate issued by the Tahasildar, Shridungargarh.The document at serial no.6 (Annexure- ‘I-6’) has not beendisputed and it shows that, with effect from 01/04/2001Tahasil-Shridungargarh, which was earlier in District Churuwas removed therefrom and included in the District Bikaner.Hence, though the certificate dated 15/08/2001 (documentno.1) mentions the District Churu, by virtue of the notificationdated 23/03/2001, village Jalabsar from Shridungargarh hasbeen included into Bikaner District. The certificates atdocument serial nos. 4 and 5 has a mention of District Bikanerfor village Jalabsar and Tahasil Shridungargarh. Thesecertificates 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 certificatesissued by Tahasildar can be said to be authentic and genuine.The Police Officer had visited the office of Tahasildar andverified the entries made of both the certificates in the registermaintained by the Tahasildar. A statement of Tahasildar namedBhawanisingh s/o Prabhudan was also recorded by the PoliceOfficer. His statement is sufficient to show that, both thecertificates at serial nos.4 and 5 were issued by the office ofTahasildar, Shridungargarh, District Bikaner. Copies ofconcerned registers have been collected by the Police Officerand submitted with his report. The serial numbers of the entrymade in the registers are matching to the serial numbers onthe certificates in the documents at serial nos.4 and 5.Therefore, there is no reason to consider that, the registerwas not properly kept. The copies of register produced by thePolice Officer have been certified by the TahasildarShridungargarh, District Bikaner. As such, the certificates ofdocuments at serial nos.4 and 5 can be said to have beenissued 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- ‘L-2’), it is a certificate in the name of “Andaram s/oChetanram”. The Police Officer had visited the RajkiyaMadhyamik Vidyalaya Udrasar to examine the T.C. Form of“Andaram”. He also recorded statement of a Lecturer namedPoonam Jairam Singh from the said school. She was InchargeHead Mistress of the school. According to her, the certificateof T.C. Form i.e. document at serial no.9 was issued by herschool. As such, merely for the reason that it’s copy was notthere, the said T.C. Form cannot be discarded. The T.C. Formwas given on the basis of school register. Copy of such schoolregister was collected and the same has been produced bythe 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 genuineand authentic.

49) With regard to document at serial no.10 (Annexure- ‘L-3’), no claim is made by the advocate for petitioner and heexpressed that he would not be in a position to comment as tohow the original record corresponding thereto was found tobe of some other student. As such, the document at serialno.10 cannot be relied on. The document at serial no.8(Annexure- ‘L-1’) is the Pariwar Card. With regard to suchdocument, the Police Officer recorded statement ofGramsevak, who has stated that, the record of the year 1989was not available in the Grampanchayat Office. The inquirymade by the Police Officer was misdirected since he wasrequired to make inquiry with the Development Officer,Panchayat Samiti Shridungargarh regarding Pariwar Cardi.e. the document at serial no.8. Since, no such inquiry wasmade, it can be said that, the State did not seriously searchfor 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”. Thedocuments at serial nos.1 to 5 show the name of father to be“Chetanram”. The school records similarly indicate.

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Moreover, the name of the village and District besides thename of father of “Niranaram” and “Andaram” is the same.As such, there is ground to believe that “Chetanram” is thefather of “Niranaram” and “Andaram”. The Pariwar Cardi.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.8can very well be relied on.

50) The document at serial no.7 (Annexure- ‘I-7’) has beenreported by the Police Officer to be forged document. It hasbeen 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 sameperson. Her statement, statement of her son Jetharam s/oTodaram and one villager named Udaram was recorded bythe Police Officer. All of them disowned the document at serial no.7. The Police Officer however, has collected one moredocument having the signature of Surpanch Gauradevi andrecorded statement of one Kesraram who was Gramsevak, insupport thereof. However, the signature of Sarpanch on thedocument collected by the Police Officer having reference tothe statement of Kesraram and her signature on document atserial no. 7 appear to be identically same. As such, in thecircumstances when Gauridevi admitted that, she was aSarpanch, the document at serial no. 7 cannot be doubted asto the signature of the Sarpanch. Gauradevi was not able tosee and not able to read. As such, the statements of Jetharamand Udaram would be not be much relevant, when a documentfor comparison of signature has been collected by the PoliceOfficer. The signature of Sarpanch thereon and document at’serial no. 7 appear to be identical. Hence, even the documentat serial no. 7 can be considered.

51) As per Section 94 of the Act, only when the schoolcertificate or the certificate of Panchayat and Corporationetc. is not found, the ossification test can be resorted to. Since,in this case authentic school certificates are on record, at thismoment, there is no need to consider the document at serialno.11 (Annexure- ‘J-1’).

52) In view of the documents mentioned above, it appearsthat, “Niranram” and “Anadaram” are brothers. It alsoappears that, “Chetanram” is their father. They are residentof Jalabsar. The school record, which is discussed in foregoingparagraphs, indicate the date of birth of “Anadram s/oChetanram” to be 04/04/1980, while the date of birth of“Niranaram” appears to be 01/02/1982. Thus, from theseschool documents it can be said that, “Anadaram” is elder to“Niranaram”. In the Pariwar Card i.e. document at serialno.8, same is the position since “Anadaram” is appearing tobe elder to “Niranaram”. Here, since the name of father ofboth these persons is the same, and their village is also thesame, help can be taken from the observations made in thecase of “Raju (supra)” by the Hon’ble Supreme Court of India.If the certificates are read with reference to the document atserial no. 7, it can be said that “Niranaram” and “Narayan”is one and the same person. There is nothing on record toshow that, “Chetanram” had another son by name“Narayan”. Even the certificate (document at serial no. 7), isnot considered, there is sufficient material on record toindicate that, the school documents and the documents issuedby the Tahasildar and the Pariwar Card are genuine and valid.These documents make it clear that, “Niranaram” is brotherof “Anadaram”. Hence, both are siblings. There is nothing toshow that, any other person by name “Niranaram Chetanram”was found at village Jalabsar. Therefore, from the documentson 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 forthe 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 ofMaharashtra, especially in Pune, may find it difficult topronounce “Niranaram”. For such reason, there is possibilityof the pronunciation mistake to call “Niranaram” as“Narayan” in Pune.

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54) If “Niranaram” is not “Narayan” and “Narayan” is someother person, then the State should have brought cleardocumentary 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 haveshown the name “Narayan” without asking for anyidentification documents as to his name, in the school record.There is not a single document filed by state to show that thename of “Narayan’s” father is not “Chetanram” but itsdifferent.

55) In view of the documents of school and the documentsissued by the Tahasildar, the date of birth of the petitionerappear to be 01/02/1982. As such, on 24/08/1994 his agewould be around 12 years and 6 months. If the Pariwar Card,which was issued in the year 1989 is seen, the age mentionedtherein is 12 years. If it is the age mentioned for the year1989, 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 testcannot be considered. However, even if the document at serialno.11 is taken into account, the range mentioned is 22 yearsto 40 years in the year 2005. Thus, for the year 1994 therange would come to 11 years to 29 years. This also supportsthe certificates, more particularly the documents at serialnos.1 to 5, 8 and 9. In view of the above observations, it isabundantly clear that, on the date of incident i.e. on 24/08/1994 the age of the petitioner was around 12 years and 6months. Thus, he was a child or a juvenile within the meaningof Section 2(35) of the Act.

CONCLUSION:

57) On 24/08/1994, the age of Niranaram Chetanram was 12years and 6 months or around the same. Narayan ChetanramChaudhary is the same person, whose another name is

Niranram Chetanram Chaudhary. Hence, I hold that thepetitioner 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 juvenilitycannot be reopened by this application as the applicant had filed writpetition before this Court under Article 32 of the Constitution of India(Writ Petition (Criminal) No.126 of 2013) and this writ petition wasdismissed by this Court. He has also submitted that the applicant is relyingon records pertaining to another individual as at no point of time earlierhe had disclosed that his real name was Niranaram. Even proceeding onthe basis that the applicant’s actual name is Niranaram, Mr. Patil wantsus to discard the entire set of documentary evidences alleging that thesedocuments, particularly the school records, are fabricated. He hashighlighted certain discrepancies in the documents themselves as regardsthe family members of the applicant and their age. In particular, he hassubmitted that family members of the applicant had created a forgedcertificate of the Sarpanch, which was marked as annexure I-7 in thereport. He has drawn our attention to the statement of the Sarpanch,Gauradevi, as recorded in the Inquiry Report. She had stated, as disclosedin the report, that she had never issued that certificate. He has alsotaken us through the transfer certificate of Andaram (in some documentsreferred to as Anadaram and Anandaram), which was marked as L-2 inthe report and that of Mukhram, marked as L-3 therein. As it appearsfrom the Inquiry Report, these two persons are brothers of the applicant.He has referred to that part of the report, in which the Inquiring Judgerecords that the principal of the school, Smt. Namrata had stated thatadmission number 1317 (which was recorded in the transfer certificateof Mukhram) did not bear the name of Mukhram in school records butthe admission number 1317 was in the name of one BabulalShreechandanmal Bhadani, whose date of birth was 6[th] June 1966. Theprincipal of the school further stated that said transfer certificate wasnot signed by the then principal of the school and it was never issued bythe school. It has also been stated by Mr. Patil that the family membersof the applicant had obtained the residence certificate of Niranaram byaffixing the photo as also the caste certificate on 10[th] August 2009 issuedby the Tehsildar officer Shri Dungargarh when the applicant remainedimprisoned.

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A12. Mr. Patil has also questioned the manner in which the inquirywas made. His main submission is that the expression of inquiry asemployed in Section 9(2) of the 2015 Act ought to import the samemeaning given to it under the Section 2 (g) of the Code of CriminalProcedure, 1973 (“1973 Code”). In this regard he has referred to thecases of Ram Vijay Singh -vs- State of Uttar Pradesh [2021 SCCBOnLine SC 142] and Ashwani Kumar Saxena -vs- State of MadhyaPradesh [(2012) 9 SCC 750]. In the case of Ram Vijay Singh (supra),a Coordinate Bench of this Court found that the procedure prescribed inRule 12 of the Rules made under the Juvenile Justice (Care and Protectionof Children) Act, 2000 (“2000 Act”) is not materially different fromCprovisions of Section 94 of the 2015 Act. He wants us to distinguish thefinding made by a Bench of two Judges of this Court in the case ofAshwani Kumar Saxena (supra), referring to the judgment in the caseof Abuzar Hossain alias Golam Hossain -vs- State of West Bengal[(2012) 10 SCC 489]. He has submitted that the Inquiring Judge, tocomply with the mandate of Section 9(2) of the 2015 Act, ought to haveDrecorded evidence of the material witnesses on oath for determinationof age but he hastily completed the inquiry.

13. Mr. Chitaley’s submissions are in the same line. Relying ondecision of this Court in this case of Pawan Kumar Gupta -vs- State(NCT of Delhi) [(2020) 2 SCC 803], he has argued that once theEapplicant’s plea for juvenility was dismissed, it was not open for him toresurrect the same claim. As regards the name of the applicant, he hasemphasised the fact that the certificate of Sarpanch was forged andthere was no documentary evidence to substantiate the claim. With regardto the entry in the voters’ list where Niranaram Chetanram Chaudhary’s Fname appears, he has pointed out that the said list of 1993 showed theapplicant to be of 18 years. His other submission is that the plea ofjuvenility ought to be raised in close proximity to institution of theproceedings. On this point the decisions relied upon by him are the casesof Murari Thakur & Another -vs- State of Bihar [(2009) 16 SCC256], Pawan -vs- State of Uttaranchal [(2009) 15 SCC 259], Mohd.GAnwar -vs- State (NCT of Delhi) [(2020) 7 SCC 391] and SurajdeoMahto & Another -vs- State of Bihar [(2022) 11 SCC 800]. Havingregard to the gruesomeness of the offence, and involvement of theapplicant having been proved at all levels of judicial hierarchy, he hasdrawn our attention to the following passage from the case of AbuzarHHossain (supra):-

“39.6 Claim of juvenility lacking in credibility or frivolousclaim of juvenility or patently absurd or inherently improbableclaim of juvenility must be rejected by the court at the thresholdwhenever raised.”

14. As would be evident from the reasoning contained in the saidreport, substantial stress was laid by the Inquiring Judge on the schooladmission register, on the basis of which the “certificate” of date of birthwas issued. Referring to this document, the original of which we haveseen, it has been submitted that the entries therein were not in rightsequence. To give illustration, Mr. Patil has submitted that the entrynumber 550 relates to the incumbent entering class 4 on 16[th] August1984 whereas entry number 551 shows the incumbent’s entry into class1 on 4[th] September 1985. Four other entries, 552, 553, 554 and 565showed sequence of dates of entry of the incumbents thereof inasymmetric order. In fact, his submission has been that this entry registerwas manufactured and the pages were manipulated. His furthersubmission on this count is that the date of birth of Niranaram recordedas 1[st] February 1982 ought not to be accepted, having regard to theprovisions 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 ofRavinder Singh Gorkhi -vs- State of U.P. [(2006) 5 SCC 584] andRamdeo Chauhan alias Raj Nath -vs- State of Assam [(2001) 5SCC 714]. On probative value of the entry in the admission register, hehas 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 submissionis that the entry regarding age of a person does not carry much evidentiaryvalue to prove the age in absence of materials on which his age wasrecorded in the school register. He has also taken us through the “pariwarcard” dated 1[st] January 1989, in which the years of birth of Andaram,Niranaram, and Mukhram ought to be 1976, 1977 and 1979, on the basisof 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 dated1[st] January 1993 carried the age of Niranaram as 18 years. The cases inwhich the plea of juvenility was accepted by this Court, Mr. Patil’sargument is that age determination was made in borderline cases, between16 and 18 years. He has also highlighted the fact that the time at whichthe petitioner was produced before the Magistrate after arrest, the JuvenileJustice Act, 1986 (“1986 Act”) was operational.

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A15. We shall first examine the issue of the actual identity ofNiranaram. Is he the same person who has been convicted andsubsequently sentenced to death as Narayan? Even in the review petition,the applicant described himself as Narayan Chetanram Chaudhary. Thefiling date of the review petition is 31[st] October 2000. From the materialsbefore us, we find that his identity as Niranaram Chetanram ChaudharyBsurfaced in early part of January 2006, as it would appear from AnnexureA-7 to the application. This communication has been captioned as “MercyPetition on behalf a juvenile to the President.” In this Mercy Petition, theapplicant has been referred to as Niranaram. Certain public spiritedindividuals including a lawyer is a signatory to this “Mercy Petition”.CNext comes a letter addressed to the Home Department of theMaharashtra Government by the Superintendent, Yerawada, Central Jaildated 19[th] January 2007. We have reproduced the text of this letter inearlier part of this judgment. The said communication to which we havereferred earlier also describes the applicant as Narayan ChetanramChaudhary and his date of birth in this communication is shown to be 1[st]DFebruary 1982. This communication was dated 24[th] January 2006.

16. In the writ petition filed before this Court, a copy of which hasbeen annexed at page 40 of the application, it has been stated in groundsC, D and E: -E“C. For that the present Petitioner was ostracized and E“C. For that the present Petitioner was ostracized anddisowned by him family immediately after his arrest inconnection with the said incident. Hence the present Petitionerhad no support or effective means of defending his case. Alsothe present Petitioner did not possess any material indicatinghis true age.F

D. For that recently the father of the present Petitioner aftera gap of around 18-19 years re-established contact with thepresent Petitioner. Form his father the present Petitioner forthe first time received documents to indicate his real age atthe time of the incident. The present Petitioner seeks to relyGon the following documents in order to substantiate his case-

i. ‘Family Card’ – issued by the State of Rajasthan to thefather of the present Petitioner, dated 17.2.1992 whichrecords the name of the present Petitioner as ‘Nirana’ andhis age as 12 years.

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ii. Transfer Certificate – issued by the EducationDepartment, Rajasthan which records the name of thepresent Petitioner as ‘Niranaram’ and his date of birth isrecorded as 1.2.1982.

iii. ‘Ration Card’ – issued by the State of Rajasthan to thefather of the present Petitioner which records the name ofthe present Petitioner as ‘Niranaram’.

E. For that from the abovementioned documents it becomesclear that the present petitioner’s name is ‘Niranaram’ andhis date of birth is 1.2.1982. Thus, on the date of the incidentthe present Petitioner was 12 years old. Hence the presentPetitioner ought to be treated as a juvenile delinquent andhence could not have been tried in a regular trial.”

(quoted verbatim from paperbook)

17. This writ petition was filed on 2[nd] July 2013, supported by anaffidavit of one Mukhram, on 8[th] April 2013. In that affidavit, the deponentMukhram described himself to be the younger brother of the petitioner.Though this writ petition was not entertained by this Court, we are referringto this part of the writ petition to demonstrate how the applicant startedrepresenting or re-representing himself as Niranaram. The presentapplicant in this writ petition has described himself as Narayan @Niranaram, son of Chetanram Chaudhary and the same name has beenused to describe the applicant in the present application. In the judgmentof the Sessions Court (Sessions Case No.462 of 1994), the accusedno.1 has been described as Narayan Chetanram Chaudhary. Thus, wefind that he had used the name of Chetanram as his middlename at thetime of his trial, which obviously refers to his father’s name. He hasbeen consistent in describing his father’s name. Now, the question wewill have to address is as to whether the very act of posing himself asNiranaram at such a belated stage is to be accepted or not. In paragraphs53 and 54 of the Inquiry Report we find that the Inquiring Judge hadaccepted the stand of the applicant that Narayan and Niranaram is thesame person.

18. The applicant has sought to establish his identity as Niranaramrelying on a series of documents where his father’s name has beenshown as Chetanram. These include three documents originating fromthe school, Rajkiya Adarsh Uccha Madhyamik Vidyala, Jalabsar. The A

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Asaid institution is a government school. It uses the letterhead of the StateGovernment with the national emblem. Copies of these documents havebeen marked “I-1”, “I-2” and “I-3” in the Inquiry Report. The Tehsildarof Shri Dungargarh, Bikaner has also issued a certificate dated 10[th]August 2009 to the effect that Niranaram is bonafide resident of theJalabsar and he has been referred to therein as son of Chetanram. TheBfather’s name of the applicant also appears in the OBC Certificate,which is marked “I-5” to the application. This certificate is also dated10[th] August 2009. A certificate by one Gauradevi, the Sarpanch ofUdrasar gram panchayat, Shri Dungargarh records that NarayanChaudhary is the same person as Niranaram. Subsequently, we findCfrom the report of the Inquiring Judge that both Gauradevi and her sonhad disowned issuing any such certificate. But in the same report, it hasbeen recorded by the Inquiring Judge that he had matched the signatureof Gauradevi appearing in the said certificate with her signature in anotherdocument and found them to be identical. This appears from paragraph50 of the report which we have quoted above. In the Pariwar Card ofDChetanram, which is annexure “L-I” to the report, ‘Anada’, ‘Mukhram’and ‘Nirana’ have been referred to as his sons. This also has differentdates. The year 1989 appears to be the date of issue whereas theinspection dates show 22[nd] September 1991 and 17[th] February 1992. Inthe said card, the applicant’s age is shown to be 12 years. Thus, there Eare age variations of the applicant as appearing in the family card withthat of the school records and we shall deal with that aspect later in thisjudgment. We are referring to these documents here mainly to examinethe applicant’s claim that he is the son of Chetanram. In the case ofRaju (supra), it has been observed that the name of the father oncertificate can be a factor for identifying a person with two namesFfloating. The two transfer certificates (Annexures L-2 and L-3 of thereport) of Anada and Mukhram also carry the name of Chetanram astheir father. Again, so far as the transfer certificate of Mukhram isconcerned, there is doubt about its originality. But we find that there isconstant and consistent reference to Chetanram as father of Andaram,GMukhram and Niranaram appearing in all these documents.

19. The State has taken a plea that at the time of inquiry, sufficienttime was not available to them to verify this fact. There are severaldocuments where Niranaram has been shown to be the son of Chetanram.After the Inquiry Report was made in 2019, substantial time has lapsedHsince we heard the matter. No material was produced by the State to

demonstrate that there was any other Niranaram in Jalabsar or anotherChetanram. It is a fact that the claimant for juvenility has to establish hiscase. But it has also to be appreciated that a death row convict in prisonfor over 28 years would be under severe limitations in retracing his schoolrecords and other forms of age-proof. In such circumstances, in absenceof any contrary evidence we accept the finding in the Inquiry Reportgiven by the Principal District and Sessions Judge, Pune that Niranaramhas to be said to be another name of “Narayan”. Our opinion on thispoint would not vary even if we reject the certificate of the Sarpanch.That certificate plays a supportive role in determination of the name ofthe applicant. Moreover, in all these documents, Jalabsar has been shownas the village of which Chetanram and his family were residents, andthis was the place from where he was arrested. In our opinion, theapplicant’s original name was Niranaram and the applicant has dischargedhis part of onus to establish that it is he who has been tried and convictedas Narayan. We accept the finding of the Inquiring Judge on this point.

20. As regards maintainability of the present application underSection 9(2) of the 2015 Act, in the case of Hari Ram -vs- State ofRajasthan and Another [(2009) 13 SCC 211], which authority wasquoted with approval in Abdul Razzaq -vs- State of Uttar Pradesh[(2015) 15 SCC 637], it has been held that claim of juvenility may beraised before any Court which shall be recognised at any stage evenafter final disposal of the case. In Vinod Katara -vs- State of UttarPradesh [2022 SCC OnLine SC 1204] the rationale for raising belatedclaim of juvenility has been explained by a two-Judge Bench of thisCourt. Hari Ram (supra) and Abdul Razzaq (supra) were decisionsrendered under the 2000 Act, but so far as 2015 Act is concerned, thesame principle ought to apply. Moreover, in proviso to sub-section (2) ofSection 9 of the 2015 Act, it has been specifically stipulated that thejuvenility claim may be raised before any Court and shall be recognisedat any stage even after final disposal of the case. Same line of reasoninghas been followed in the cases of Ram Narain -vs- State of UttarPradesh [(2015) 17 SCC 699] and Upendra Pradhan -vs- Stae ofOrissa [(2015) 11 SCC 124]. The State has relied on the case of PawanKumar Gupta (supra) on this point, resisting the Court’s intervention atthis stage. The accused in that case had accepted the age determinationreport made by the Investigating Officer and this was recorded in theorder of the concerned Magistrate. As per the said report the accusedwas not a juvenile. The same plea was raised again at the appellate ABC

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Astage before the High Court which was rejected, referring to the orderpassed by the Magistrate. In connection with review petition before thisCourt, the plea of juvenility was raised again, and this was not entertainedby this Court. In the said judgment it has been held that once the plea ofjuvenility is rejected from the stage of Magistrate, the High Court andsubsequently the Supreme Court, the convict cannot be permitted toBreagitate that plea. In the applicant’s case, juvenility plea has been raisedfor the first time before this Court, albeit after dismissal of his reviewpetition against his conviction and sentence having been upheld by thisCourt.

21. It is a fact that the juvenility plea was raised in Writ PetitionC(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 presentapplication is concerned. Relief under Article 32 of the Constitution isdiscretionary in nature and the order of this Court dismissing that petitionis not supported by reason. A petition under Section 9 (2) of the 2015DAct contemplates statutory remedy, plea for which can be raised at anystage. In our opinion, on juvenility plea, if a writ petition is dismissed inlimine, such order would not foreclose the option of an accused (or aconvict) to make plea for juvenility under sub-section (2) of Section 9 ofthe 2015 Act.

E22. We shall, accordingly, proceed to examine his claim of juvenility,which has been sustained by the Inquiring Judge in the aforesaid report.In the case of Murari Thakur (supra) a two-Judge Bench of this Courtdeclined to entertain juvenility plea in an appeal in which the appellantshad been convicted under Sections 302/34 of the 1860 Code. Such aplea was raised before this Court at the appellate stage. A two-JudgeFBench of this Court opined that this point could not be raised at thatstage because it was neither taken before the Trial Court nor before theHigh Court. It was further observed in this judgment that the question ofage of the appellant accused was a question of fact on which evidence,cross-examination etc. was required and therefore it could not be allowedGto be taken up at a late stage. This was a case under the 2000 Act, butunder the said Act also, provisions of Section 7A thereof is similar toSection 9(2) of the 2015 Act. In our opinion, this view cannot be held tobe good law having regard to the specific provisions contained in theproviso to Section 9(2) of the 2015 Act. Moreover, there is a subsequentdecision from a Bench of same strength in the case of Ashwani KumarH

Saxena (supra) in which this Court has examined the manner in whichthe documents pertaining to establishment of juvenility ought to beexamined and we shall deal with this authority later in this judgment.Another two-Judge Bench of this Court, in the case of Ajay Kumar -vs- State of Madhya Pradesh [(2010) 15 SCC 83], referring to Section7A of the 2000 Act has held that an inquiry is to be conducted by theCourt before whom such a plea is raised and the Court has to render afinding as to whether or not the claimant was a juvenile. As per thisjudgment, in case the claimant is found to be juvenile, Court has to referthe matter to the Board for passing appropriate order and in such asituation, sentence passed by the Court shall have no effect.

23. In Pawan (supra) a Bench of Coordinate strength opined thatin a case where plea of juvenility is found unscrupulous or the materialsin support of such plea lack credibility and do not inspire confidence andeven prima facie satisfaction of the Court is not made out, a furtherexercise to examine such a claim would be unnecessary. In that judgment,this Court reflected upon the documents based on which the juvenilityclaim was being raised and came to such a finding. So far as this case isconcerned, in the order passed on 29[th] January 2019, the context inwhich inquiry was directed has been expressed. The relevant part ofthis order has been quoted earlier in this judgment. Thus, the observationsmade 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 lattercase, author of this judgment was a party), two Coordinate Benches ofthis Court opined that mitigating circumstances like juvenility of ageordinarily ought to be raised in trial itself and belated raising of such pleamay also underline the lack of genuinity of the defence case. In the caseof Surajdeo (supra), plea of juvenility was raised for the first time beforethis Court on the basis of school leaving certificate alongwith admit cardissued by the Bihar School Examination Board. The Court found thatthe name of the juvenile claimant did not appear on the documents. Butthese were decisions rendered in the facts of the respective cases andneither of these two cases lay down absolute proposition of law that thejuvenility plea cannot be raised at the stage the applicant has filed hispetition under Section 9(2) of the 2015 Act. Moreover, this Court hasalready directed inquiry and we do not think the applicant’s plea can berejected on the ground of being belated claim in the present case.

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25. Next comes the question as to whether the course adopted bythe Inquiring Judge was in terms of the provisions of the 2015 Act ornot. Mr. Patil, relying on Section 103 of the 2015 Act submitted that theinquiry had to be in terms of the Code of Criminal Procedure, 1973.Section 103 of the 2015 Act reads:- A

B“103. Procedure in inquiries, appeals and revisionproceedings.—(1) Save as otherwise expressly provided bythis Act, a Committee or a Board while holding any inquiryunder any of the provisions of this Act, shall follow suchprocedure as may be prescribed and subject thereto, shallfollow, as far as may be, the procedure laid down in the CodeCof Criminal Procedure, 1973 (2 of 1974) for trial of summonscases.

(2) Save as otherwise expressly provided by or under thisAct, the procedure to be followed in hearing appeals orrevision proceedings under this Act shall be, as far asDpracticable, in accordance with the provisions of the Code ofCriminal Procedure, 1973 (2 of 1974)”.

So far as the question of determination of age through inquiry bythe Court, no specific statutory procedure has been brought to our notice.The statutory provision contained in Section 94 of the Act is relevant inEthis regard and the said Section stipulates:- “94. Presumption and determination of age.—(1) Where, it isobvious to the Committee or the Board, based on theappearance of the person brought before it under any of theprovisions of this Act (other than for the purpose of givingFevidence) that the said person is a child, the Committee or theBoard shall record such observation stating the age of thechild as nearly as may be and proceed with the inquiry undersection 14 or section 36, as the case may be, without waitingfor further confirmation of the age.

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(2) In case, the Committee or the Board has reasonablegrounds for doubt regarding whether the person broughtbefore it is a child or not, the Committee or the Board, as thecase may be, shall undertake the process of age determination,by seeking evidence by obtaining—

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(i) the date of birth certificate from the school, or thematriculation or equivalent certificate from the concernedexamination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or amunicipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shallbe determined by an ossification test or any other latestmedical age determination test conducted on the orders ofthe Committee or the Board:

Provided such age determination test conducted on theorder of the Committee or the Board shall be completedwithin fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be theage of person so brought before it shall, for the purpose ofthis Act, be deemed to be the true age of that person.”

26. One of the arguments on behalf of the State has been that theInquiry Report was prepared in a flawed manner, not conforming to theprovisions of the 1973 Code. In this regard, Mr. Patil drew our attentionto Section 2(61) of the 2015 Act, which stipulates that “all words andexpressions used but not defined in this Act and defined in other actsshall have the same meaning respectively assigned to them in thoseActs”. On this count, his main argument has been that the InquiringJudge ought to have taken evidence in the manner provided in 1973Code while returning his finding on juvenility of the applicant.

27. It is apparent that the Inquiring Judge has conducted the inquirytypically as a fact-finding inquiry is conducted and has not followed theprocedure of summons trial. The documents on which he relied on werenot formally proved as is the normal procedure in a trial and there wasno examination or cross-examination on oath. But as it would be evidentfrom sub-section (1) of Section 103 of the 2015 Act, the prescription forfollowing the procedure in summons cases is for the Juvenile JusticeBoard (“Board”) or the Child Welfare Committee (“Committee”) whileholding any inquiry under the 2015 Act. Under Section 9(2) of the 2015Act the Court also has been empowered to make an inquiry if the Courtitself is of opinion that the person was the child on the date of thecommission of offence. The mandate of following summons procedurehas not been prescribed so far as inquiry which ought to be conducted A

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Aby the Court. The manner in which evidence could be taken has notbeen mandated. The manner in which the Court shall conduct such inquiryhas also not been specifically prescribed. The procedure which has beenfollowed by this Court in the present case has been to direct a PrincipalDistrict and Sessions Judge, a Senior Judicial Officer at the State Level,to conduct inquiry within a given timeframe. As we find from the InquiryBReport, the Inquiring Judge had directed a police officer to makeauthentication of the documents relied upon by the applicant and afterthe police officer gave his views on the authenticity of the documents,finding discrepancy in some of them. Thereafter, hearing was conductedbefore the Inquiring Judge, in which prosecution was represented by anCofficer holding the rank of Director General of Police (“DGP”). Boththe prosecution and police had filed report and statement before theInquiring Judge. The Inquiring Judge himself applied his mind consideringthe submissions of the prosecution as also the learned advocate of theapplicant and the applicant himself was produced before the InquiringJudge. The Inquiring Judge had marked the documents filed before himDas exhibits. The Inquiring Judge examined each of the documents uponascertaining the stand of the DGP and also the advocate representingthe applicant. In application filed before us, extract from the schoolregister was annexed which showed applicant’s date of birth as 1[st]February 1982. Before the Inquiring Judge, we find that in addition toEthe documents annexed to the application, a certificate of date of birthissued by the school authority was also furnished by the applicant. Thelatter was issued on the basis of school register but this certificate wasdated 30[th] January 2019.

28. We find no flaw in the procedure which has been adopted byFthe Inquiring Judge. So far as the procedure for making an inquiry by theCourt, in our opinion Section 9(2) of the 2015 Act does not prescribescrupulously following trial procedure, as stipulated in the 1973 Codeand the Indian Evidence Act, 1872. Section 9 of the 2015 Act reads:-

“9. Procedure to be followed by a Magistrate who has notGbeen empowered under this Act.—(1) When a Magistrate, notempowered to exercise the powers of the Board under thisAct is of the opinion that the person alleged to have committedthe offence and brought before him is a child, he shall, withoutany delay, record such opinion and forward the childimmediately along with the record of such proceedings to theHBoard having jurisdiction.

(2) In case a person alleged to have committed an offenceclaims before a court other than a Board, that the person is achild 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 achild on the date of commission of the offence, the said courtshall 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 ofthe person as nearly as may be:

Provided that such a claim may be raised before anycourt and it shall be recognised at any stage, even after finaldisposal of the case, and such a claim shall be determined inaccordance with the provisions contained in this Act and therules made thereunder even if the person has ceased to be achild on or before the date of commencement of this Act.

(3) If the court finds that a person has committed an offenceand was a child on the date of commission of such offence, itshall forward the child to the Board for passing appropriateorders and the sentence, if any, passed by the court shall bedeemed to have no effect.

(4) In case a person under this section is required to be keptin protective custody, while the person’s claim of being a childis being inquired into, such person may be placed, in theintervening period in a place of safety.”

The requirement to follow the Code is “as far as practicable,” asper Section 103 (2) of the 2015 Act. The legislature, thus, while prescribingthe summons trial procedure for inquiry by Board or Committee on agedetermination of a juvenile claimant has not mandated any specificprocedure for inquiry by the Court. It follows, by implication, that theCourt can formulate its own procedure for conducting inquiry on thiscount. So far as the present case is concerned, this Court had directedinquiry to be conducted by the Inquiring Judge at the first level, beforewhom the applicant and the prosecution had sufficient opportunity topresent their version. The report of the Inquiring Judge was subsequentlyexamined by us, again giving adequate opportunity to both sides. Wehave ourselves called for the original admission register from the school.The principal-in-charge of the school, Namrata Prabhusingh had given a ABC

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Astatement in writing at the inquiry stage, and the translated version ofwhich appears at page 311 of the Inquiry Report. She has stated:- “With reference to aforesaid, the name of Niranaram s/oChetanram, Jalabsar has been recorded in the StudentAdmission Register of our Rajkiya Adarsh Higher SecondaryBSchool, Jalabsar, Shreedungargad at Student Admission No.568. In accordance with the said record, his date of birth iswritten as 01.02.1982. No student by name Narayan was inour school.”

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29. In Ashwani Kumar Saxena (supra) two-Judge Bench of thisCourt, dealing with the provisions of the 2000 Act observed and held:-

“25. Section 7-A, obliges the court only to make an inquiry,not an investigation or a trial, an inquiry not under the Codeof Criminal Procedure, but under the JJ Act. The criminalDcourts, Juvenile Justice Board, committees, etc. we havenoticed, proceed as if they are conducting a trial, inquiry,enquiry or investigation as per the Code. The statute requiresthe court or the Board only to make an “inquiry” and in whatmanner that inquiry has to be conducted is provided in the JJERules. Few of the expressions used in Section 7-A and Rule12 are of considerable importance and a reference to them isnecessary to understand the true scope and content of thoseprovisions. Section 7-A has used the expressions “court shallmake an inquiry”, “take such evidence as may be necessary”and “but not an affidavit”. The Court or the Board can acceptFas evidence something more than an affidavit i.e. the Courtor the Board can accept documents, certificates, etc. asevidence, need not be oral evidence.

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26. Rule 12 which has to be read along with Section 7-A hasalso used certain expressions which are also to be borne inmind. Rule 12(2) uses the expression “prima facie” and “onthe basis of physical appearance” or “documents, ifavailable”. Rule 12(3) uses the expression “by seekingevidence by obtaining”. These expressions in our view re-emphasise the fact that what is contemplated in Section 7-Aand Rule 12 is only an inquiry. Further, the age determination G

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inquiry has to be completed and age be determined withinthirty days from the date of making the application; which isalso an indication of the manner in which the inquiry has tobe conducted and completed. The word “inquiry” has notbeen defined under the JJ Act, but Section 2(y) of the JJ Actsays that all words and expressions used and not defined inthe JJ Act but defined in the Code of Criminal Procedure,1973 (2 of 1974), shall have the meanings respectivelyassigned 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 Codeof Criminal Procedure and their several meanings attributedto 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 CriminalProcedure which is an act of asking for information and alsoconsideration of some evidence, may be documentary.

“Investigation” as defined in Section 2(h) CrPC reads asfollows:

“2. (h) ‘investigation’ includes all the proceedings under thisCode for the collection of evidence conducted by a policeofficer or by any person (other than a Magistrate) who isauthorised by a Magistrate in this behalf;”

The expression “trial” has not been defined in the Code ofCriminal Procedure but must be understood in the light of theexpressions “inquiry” or “investigation” as contained inSections 2(g) and 2(h) of the Code of Criminal Procedure.

28. The expression “trial” has been generally understood asthe examination by court of issues of fact and law in a casefor the purpose of rendering the judgment relating to someoffences committed. We find in very many cases that the court/the Juvenile Justice Board while determining the claim ofjuvenility forget that what they are expected to do is not toconduct an inquiry under Section 2(g) of the Code of Criminal AB

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Procedure, but an inquiry under the JJ Act, following theprocedure laid down under Rule 12 and not following theprocedure laid down under the Code.

29. The Code lays down the procedure to be followed in everyinvestigation, inquiry or trial for every offence, whether underthe Penal Code or under other penal laws. The Code makesprovisions for not only investigation, inquiry into or trial foroffences but also inquiries into certain specific matters. Theprocedure laid down for inquiring into the specific mattersunder the Code naturally cannot be applied in inquiring intoother matters like the claim of juvenility under Section 7-Aread with Rule 12 of the 2007 Rules. In other words, the lawregarding the procedure to be followed in such inquiry mustbe found in the enactment conferring jurisdiction to hold theinquiry.

30. Consequently, the procedure to be followed under the JJAct in conducting an inquiry is the procedure laid down inthat statute itself i.e. Rule 12 of the 2007 Rules. We cannotimport other procedures laid down in the Code of CriminalProcedure or any other enactment while making an inquirywith regard to the juvenility of a person, when the claim ofjuvenility is raised before the court exercising powers underSection 7-A of the Act. In many of the cases, we have comeacross, it is seen that the criminal courts are still having thehangover of the procedure of trial or inquiry under the Codeas if they are trying an offence under the penal laws forgettingthe fact that the specific procedure has been laid down inSection 7-A read with Rule 12.

31. We also remind all courts/Juvenile Justice Boards and theCommittees functioning under the Act that a duty is cast onthem to seek evidence by obtaining the certificate, etc.mentioned in Rules 12(3)(a)(i) to (iii). The courts in suchsituations act as a parens patriae because they have a kindof guardianship over minors who from their legal disabilitystand in need of protection.

32. ”Age determination inquiry” contemplated under Section7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court canobtain the matriculation or equivalent certificates, if available.Only in the absence of any matriculation or equivalentcertificates, the court needs to obtain the date of birthcertificate from the school first attended other than a playschool. Only in the absence of matriculation or equivalentcertificate or the date of birth certificate from the school firstattended, the court needs to obtain the birth certificate givenby a corporation or a municipal authority or a panchayat(not an affidavit but certificates or documents). The questionof obtaining medical opinion from a duly constituted MedicalBoard arises only if the abovementioned documents areunavailable. In case exact assessment of the age cannot bedone, then the court, for reasons to be recorded, may, ifconsidered necessary, give the benefit to the child or juvenileby considering his or her age on lower side within the marginof one year.

33. Once the court, following the abovementioned procedures,passes an order, that order shall be the conclusive proof ofthe age as regards such child or juvenile in conflict with law.It has been made clear in sub-rule (5) of Rule 12 that nofurther inquiry shall be conducted by the court or the Boardafter examining and obtaining the certificate or any otherdocumentary proof after referring to sub-rule (3) of Rule 12.Further, Section 49 of the JJ Act also draws a presumption ofthe age of the juvenility on its determination.

34. Age determination inquiry contemplated under the JJ Actand the 2007 Rules has nothing to do with an enquiry underother legislations, like entry in service, retirement, promotion,etc. There may be situations where the entry made in thematriculation or equivalent certificates, date of birthcertificate from the school first attended and even the birthcertificate given by a corporation or a municipal authorityor a panchayat may not be correct. But court, Juvenile JusticeBoard or a committee functioning under the JJ Act is notexpected to conduct such a roving enquiry and to go behindthose certificates to examine the correctness of thosedocuments, kept during the normal course of business. Only ABC

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Ain cases where those documents or certificates are found tobe fabricated or manipulated, the court, the Juvenile JusticeBoard or the committee need to go for medical report for agedetermination.”

30. The case of Ashwani Kumar Saxena (supra) has beenBreferred to in several judgments of this Court and the ratio thereof stillholds good. Though that was a judgment delivered under the 2000 Act,the procedure for determining juvenility in the 2015 Act remains broadlythe same and hence this authority shall remain valid for an inquiry underthe 2015 Act. There is a decision of a Single Judge of the AllahabadHigh Court (Lucknow Bench) in the case of Sheo Mangal Singh andCOthers -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 aninquiry under the 1973 Code. In Section 2(t) of the 1986 Act, provisionssimilar to Section 103 of the 2015 Act had been engrafted. The expressionD“inquiry”, in the manner in which it has been used in the 1973 Codecannot be transplanted in toto so far as the 2015 Act is concerned, to fitthe meaning of inquiry therein. It has an element of search or investigationunder the 2015 Act, not in the sense these words are used, inter-alia, inChapters XXIII and XXIV of the 1973 Code, which the Court mayrequire to undertake while determining a juvenility claim. The 1973 CodeEalso contemplates preliminary inquiry under Sections 148 and 174 of theCode and the said expression has not been employed in the 1973 Codeto convey a uniform meaning or procedure. We are of the view that themeaning and scope attributed to the expression “inquiry” in the case ofAshwani Kumar Saxena (supra) to be the proper construction of this Fword and may be followed in dealing with the question of determinationof juvenility claim under the 2015 Act. Mr. Patil has argued that the ratioin the case of Ashwani Kumar Saxena (supra) may have gotten dilutedin view of the judgment of this Court in the case of Abuzar Hossain(supra), delivered by a three-Judge Bench. But Abuzar Hossain (supra)

deals with the context in which inquiry shall be directed under the 2000GAct and Rules made thereunder. This authority does not come into conflictwith ratio of the decision in the case of Ashwani Kumar Saxena (supra),to the extent the latter judgment explains the meaning and implication ofthe expression “inquiry” under the 2000 Act and Rules made thereunder.The aim of such inquiry obviously is to determine the juvenility of theHclaimant. So far as Section 94 of the 2015 Act is concerned, though the said provision deals with determination of age of a juvenile-claimant bythe Committee or the Board, in our opinion the documents or tests referredto therein would guide the Court as well in making inquiry of such nature.In absence of any specific legislative mandate as regards the course aCourt ought to undertake in an inquiry under Section 9(2) of the saidAct, the prescription of the provisions of Section 94(2) provides a safeguidance which the Court ought to follow. The result of such inquirypronounced by the Court would be in the nature of a declaration onjuvenility of a claimant-accused.

31. In the case of Rishipal Singh Solanki -vs- State of UttarPradesh and Others [(2022) 8 SCC 602], a two-Judge Bench of thisCourt took this view, considering a large body of cases on this subjectand observed: - “33. What emerges on a cumulative consideration of theaforesaid catena of judgments is as follows:

33.1. A claim of juvenility may be raised at any stage of acriminal proceeding, even after a final disposal of the case.A delay in raising the claim of juvenility cannot be a groundfor rejection of such claim. It can also be raised for thefirst time before this Court.

33.2. An application claiming juvenility could be madeeither before the court or the JJ Board.

33.2.1. When the issue of juvenility arises before a court,it would be under sub-sections (2) and (3) of Section 9 ofthe JJ Act, 2015 but when a person is brought before acommittee or JJ Board, Section 94 of the JJ Act, 2015applies.

33.2.2. If an application is filed before the court claimingjuvenility, the provision of sub-section (2) of Section 94 ofthe JJ Act, 2015 would have to be applied or read alongwith sub-section (2) of Section 9 so as to seek evidencefor the purpose of recording a finding stating the age ofthe person as nearly as may be.

33.2.3. When an application claiming juvenility is madeunder Section 94 of the JJ Act, 2015 before the JJ Boardwhen the matter regarding the alleged commission of A

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offence is pending before a court, then the procedurecontemplated under Section 94 of the JJ Act, 2015 wouldapply. Under the said provision if the JJ Board hasreasonable grounds for doubt regarding whether the personbrought before it is a child or not, the Board shallundertake the process of age determination by seekingevidence and the age recorded by the JJ Board to be theage of the person so brought before it shall, for the purposeof the JJ Act, 2015, be deemed to be true age of that person.Hence the degree of proof required in such a proceedingbefore the JJ Board, when an application is filed seekinga claim of juvenility when the trial is before the criminalcourt concerned, is higher than when an inquiry is madeby a court before which the case regarding the commissionof the offence is pending (vide Section 9 of the JJ Act,2015).

33.3. That when a claim for juvenility is raised, the burdenis on the person raising the claim to satisfy the court todischarge the initial burden. However, the documentsmentioned in Rules 12(3)(a)(i), (ii) and (iii) of the JJ Rules,2007 made under the JJ Act, 2000 or sub-section (2) ofSection 94 of the JJ Act, 2015, shall be sufficient for primafacie satisfaction of the court. On the basis of the aforesaiddocuments a presumption of juvenility may be raised.

33.4. The said presumption is however not conclusive proofof the age of juvenility and the same may be rebutted bycontra evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a court is notthe same thing as declaring the age of the person as ajuvenile sought before the JJ Board when the case ispending for trial before the criminal court concerned. Incase of an inquiry, the court records a prima facieconclusion but when there is a determination of age asper sub-section (2) of Section 94 of the 2015 Act, adeclaration is made on the basis of evidence. Also the agerecorded by the JJ Board shall be deemed to be the trueage of the person brought before it. Thus, the standard ofproof in an inquiry is different from that required in a proceeding where the determination and declaration of theage of a person has to be made on the basis of evidencescrutinised and accepted only if worthy of suchacceptance.

33.6. That it is neither feasible nor desirable to lay downan abstract formula to determine the age of a person. Ithas to be on the basis of the material on record and onappreciation of evidence adduced by the parties in eachcase.

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33.7. This Court has observed that a hypertechnicalapproach should not be adopted when evidence is adducedon behalf of the accused in support of the plea that hewas a juvenile.

33.8. If two views are possible on the same evidence, thecourt should lean in favour of holding the accused to be ajuvenile in borderline cases. This is in order to ensure thatthe benefit of the JJ Act, 2015 is made applicable to thejuvenile in conflict with law. At the same time, the courtshould ensure that the JJ Act, 2015 is not misused bypersons to escape punishment after having committedserious offences.

33.9. That when the determination of age is on the basisof evidence such as school records, it is necessary that thesame would have to be considered as per Section 35 of theEvidence Act, inasmuch as any public or official documentmaintained in the discharge of official duty would havegreater credibility than private documents.

33.10. Any document which is in consonance with publicdocuments, such as matriculation certificate, could beaccepted by the court or the JJ Board provided such publicdocument is credible and authentic as per the provisionsof the Evidence Act viz. Section 35 and other provisions.

33.11. Ossification test cannot be the sole criterion for agedetermination and a mechanical view regarding the age ofa person cannot be adopted solely on the basis of medicalopinion by radiological examination. Such evidence is notconclusive evidence but only a very useful guiding factor A

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32. Was the Inquiring Judge wrong in giving his findings? Thedocuments on which he has primarily relied upon are the school register,certificate of date of birth of Niranaram issued by the school authoritiesBon 30[th] January 2019 and transfer certificate dated 15[th] August 2001.The latter, however, is not a certificate of transfer showing Niranaram’sshifting to another school but this certificate records that he had leftfrom Class III on 15[th] May 1989. Then there is transfer certificate ofAndaram dated 19[th] September 2003 which shows the date of birth ofAndaram as 4[th] April 1980. There was another transfer certificate beforeCthe Inquiring Judge of Mukhram, but this was discarded by the InquiringJudge as the same did not correspond with the school records. All theaforesaid documents appear to have their origin in the admission registerof the school, the original of which we have secured and seen. Apartfrom the documents of the school, there is a family card, to which weDhave referred to earlier. The date of issue of Family Card is 1989 and, inthis card, issued by the State Government, Nirana’s age is shown to be12 years. But there are two other signatures of authorities on this card,of 1991 and 1992. For this reason, we choose to ignore this documentfor our inquiry. Apart from these materials, there is extract from theelectoral roll which shows age of Niranaram to be 18 years on 1[st] JanuaryE1993. So far as per this recordal, his age at the time of commission ofoffence would be 19 years. The school documents point to Niranaram’sage to be below 16 years in the year of commission of offence. Thecase of Abuzar Hossain (supra) was relied upon by the learned counselfor the State to contend that production of documents of the threshold

Fstage of juvenility-claim is sufficient to call for an inquiry but furtherinquiry is necessary to examine the authenticity or the genuineness ofdocuments involved. In Parag Bhati (Juvenile) through LegalGuardian-Mother-Rajni Bhati -vs- State of Uttar Pradesh andAnother [(2016) 12 SCC 744], in relation to the similar provision under the 2000 Act it has been highlighted that the credibility of documentsGshould be prima facie to direct inquiry. In the cases of Manoj aliasMonu alias Vishal Chaudhary -vs- State of Haryana and Another[(2022) 6 SCC 187], Ravinder Singh Gorkhi (supra) and Birad MalSinghvi (supra) the necessity of the documents being reliable has beenstressed for determining the juvenility claim.H

33. As we have already stated, the school in question is agovernment school. The “date of birth certificate” of Niranaram hasbeen issued by the office of the headmaster of the said school. Thiscertificate has been issued on the letterhead of the State Governmentcarrying the national emblem. The principal of the school has in writingdisclosed that the content of the admission register is maintained in ordinarycourse of business. Hence, in normal course the said register wouldsatisfy the test specified in Section 35 of the 1872 Act, of being a relevantfact. The case of Birad Mal Singhvi (supra) dealt with age disclosurein relation to election and not under 2015 Act. The latter gives a guidelineunder Section 94 thereof about the documents which shall be acceptedas evidence. The certificate of date of birth has not been accepted by usstraightway. In the present application, extract from the admission registerhas been annexed, supported by an affidavit of the applicant himself.Moreover, we had ourselves called for the original school admissionrecord by our order passed on 8[th] September 2022, requesting Dr. ManishSinghvi learned Additional Advocate General, State of Rajasthan to ensureproduction 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. Hissubmission is that at the time the extract therefrom was produced beforethe Inquiring Judge, the same was not paginated. He also argues thatthe register was not stitched. Further, he has submitted that serial entryno. 566 of the register shows the date of entry of the student to be 2[nd]February 1980, which is not in order in relation to the other entries. Hehas also referred certain other entries in the register prior in order toserial no. 568, in which dates of admission of the respective students areearlier than that of the applicant. But these entries, at best, would showsome defect in maintaining the records and cannot lead to the conclusionthat the entire admission register is fabricated. Reference has also beenmade to an entry of one Lekhram, that stood against serial no. 423,which reappeared in entry 562. The endorsement of the school in serialno. 423 is that “his name was deleted” whereas against entry no. 562,recordal is “as per previous records”. This clearly appears to be thecase of re-admission or re-entry in the school. His further stand is thatthere was interpolation of pages. He has again pointed out that one ofthe pages (page no. 33) of the register has been stitched in reverse. Butthese are nitpicking submissions and cannot lead to the conclusion that AB

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Aadmission register itself is fake. So far as Niranaram’s name is concerned,in the admission register there is no discrepancy. His serial number is568 which falls in order in which the register is maintained and is insequence with the admission entries of other students barring few minordiscrepancies as regards names in other entries. Even if the register hasbeen freshly stitched and paginated to be sent to this Court, that wouldBnot 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 ourselvesseen the register and it is of sufficient vintage. Thus, we agree with theInquiring Judge that the date of birth recorded therein was not a fabricatedCentry.

35. Now there are four other dates reflecting different ages ofthe applicant. The first is the age in the chargesheet on the strength ofwhich he has been tried, convicted and sentenced, that is 20 years in theyear 1994. But the source of disclosure of this age has not been broughtDto our notice by learned counsel for the parties, except that the applicant’sage was given by his counsel before the High Court at the stage ofappeal hearing. Next is the age reflected in the electoral roll and if onegoes by that, then his age at the time of commission of offence would be19 years. The electoral roll was referred to in the police report dated 2[nd]March 2019 but does not appear to have been considered by the InquiringEJudge. The third source of his age is the family card, in which it ismentioned that he was 12 years in 1989 or 1991/1992. That would havetaken his year of birth to 1977-79, and that would make him 15 to 17years of age at the time of commission of offence. For the reasons wehave already explained, we have discarded the latter document. Now Fwhich 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 pleawhen documents to raise the plea of juvenility were collected afterconviction. In that judgment, this Court cited the case of Murari Thakur(supra) and the Coordinate Bench observed:- G“41. The question is: should an enquiry be made or report becalled for from the trial court invariably where juvenility isclaimed for the first time before this Court. Where the materialsplaced before this Court by the accused, prima facie, suggestthat the accused was “juvenile” as defined in the 2000 Acton the date of incident, it may be necessary to call for theH

report or an enquiry be ordered to be made. However, in acase where plea of juvenility is found unscrupulous or thematerials lack credibility or do not inspire confidence andeven, 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 courtor the High Court and is raised for the first time before thisCourt, the judicial conscience of the Court must be satisfiedby placing adequate and satisfactory material that the accusedhad not attained the age of eighteen years on the date ofcommission of offence; sans such material any further enquiryinto juvenility would be unnecessary.

42. As regards A-2, two documents are relied upon to showthat he had not attained the age of eighteen years on 25-9-2003/26-9-2003. His age (17 years) mentioned by the trialcourt at the time of recording his statement under Section313 CrPC is a tentative observation based on physicalappearance which is hardly determinative of age. The otherdocument is the school leaving certificate issued by theHeadmaster, Prem Shiksha Niketan, Bilaspur, Rampur whichdoes not inspire any confidence as it seems to have been issuedon 16-10-2006 after A-2 had already been convicted. Primaryevidence like entry from the birth register has not beenproduced. We find it difficult to accept Annexure P-3 (schoolleaving certificate) relied upon by the counsel. For A-1, theonly document placed on record is a school leaving certificatewhich has been procured after his conviction. In his casealso, entry from the birth register has not been produced. Weare not impressed or satisfied with such material. There beingno satisfactory and adequate material, prima facie, we arenot persuaded to call for report about the age of A-1 and A-2 on the date of commission of offence.”

36. So far as the case of the applicant is concerned, on the basisof materials disclosed in the present application, an inquiry was directedin the order passed on 29[th] January 2019. In the case of Pawan (supra)school leaving certificate issued by the headmaster of a school did notinspire the confidence of the Court. Here however, we have called forthe original admission register itself, on the basis of which certificate of AB

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Abirth 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 isrequired to be proved as per the aforesaid provision, the date of birthcertificate is the first document to be examined for determination ofage. Thus, factually the ratio of the said judgment can be distinguished.In the case of Pawan Kumar Gupta (supra), the juvenility claim wasBraised for the second time and for this reason it was held that the sameplea was not maintainable. A Coordinate Bench in the case of Mohd.Anwar (supra) has observed that belated claims not only prevent properproduction and application of the evidence but also undermine thegenuineness of the defence. But this authority does not lay down, as anCabsolute proposition of law, that belated production of age proof cannotbe examined to determine juvenility of an accused. Furthermore, Section9 (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) wouldalso not apply in the facts of this case as in this proceeding the InquiringJudge has gone into the question as to whether the certificates reliedDupon by the applicant belonged to him or not and has returned a findingthat Niranaram was indeed Narayan. We have also tested this findingand 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 SCCE370], Parag Bhati (supra), Manoj (supra), Babloo Pasi -vs- State ofJharkhand and Another [(2008) 13 SCC 133] and Birad Mal Singhvi(supra), different Benches of this Court came to findings as regardsreliability of the documents upon applying mind and none of theseauthorities lay down that the certificate of date of birth by the schoolFauthorities based on admission register of the school will not be acceptablefor an inquiry under Section 9(2) of the 2015 Act. On the other hand, inthe order of priority in the aforesaid provision, the date of birth certificateby the school authority has been given the pre-eminence. Though theheading of the said section reads “presumption and determination of

age”, the section itself does not specify that the date of birth certificateGby the school would only lead to presumption. The way the provisionthereof has been framed, the documents referred to in the first two sub-clauses of sub-section (2) of Section 94 of the 2015 Act, if established inthe order of priority, then the dates reflected therein has to be acceptedto determine the age of the accused or convict claiming to be a juvenileHon 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 tothe documents referred to in sub-clause (ii) thereof. The only caveat,implicit thereto, which has been sounded by several decisions of thisCourt, is that the document must inspire confidence. But lack of inspirationof the age-determining authority must come for some cogent reason andought not to be sourced from such body’s own perception of age of thejuvenile-claimant.

38. A Constitution Bench in the case of Pratap Singh -vs- Stateof Jharkhand and Another [(2005) 3 SCC 551] dealing with themeaning of juvenile under the 1986 Act and the 2000 Act, held:- “12. Clause (l) of Section 2 of the 2000 Act defines “juvenilein conflict with law” as meaning a juvenile who is alleged tohave committed an offence. The notable distinction betweenthe definitions of the 1986 Act and the 2000 Act is that in the1986 Act “juvenile in conflict with law” is absent. Thedefinition of delinquent juvenile in the 1986 Act as noticedabove is referable to an offence said to have been committedby him. It is the date of offence that he was in conflict withlaw. When a juvenile is produced before the competentauthority and/or court he has not committed an offence onthat date, but he was brought before the authority for thealleged offence which he has been found to have committed.In our view, therefore, what was implicit in the 1986 Act hasbeen made explicit in the 2000 Act.”

39. In a later decision, in the case of Jitendra Singh alias BabbooSingh 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 theappellant was above 16 years of age on the date of thecommission of the offence, he was certainly below 18 yearsand hence entitled to the benefit of the 2000 Act, no matterthe later enactment was not on the statute book on the date ofthe occurrence. The difficulty arises when we examine whetherthe trial and the resultant order of conviction of the appellantwould also deserve to be set aside as illegal and withoutjurisdiction. The conviction cannot however be set aside formore than one reason:

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72.1. Firstly, because there was and is no challenge to theorder of conviction recorded by the courts below in thiscase either before the High Court or before us. As a matterof fact the plea of juvenility before this Court by way ofan additional ground stopped short of challenging theconviction of the appellant on the ground that the courtconcerned had no jurisdiction to try the appellant.

72.2. Secondly, because the fact situation in the case athand is that on the date of the occurrence i.e. on 24-5-1988 the appellant was above 16 years of age. He was,therefore, not a juvenile under the 1986 Act that coveredthe field at that point of time, nor did the 1986 Act deprivethe trial court of its jurisdiction to try the appellant for theoffence he was charged with. The repeal of the 1986 Actby the 2000 Act raised the age of juvenility to 18 years.Parliament provided for cases which were either pendingtrial or were, after conclusion of the trial, pending beforean appellate or a revisional court by enacting Section 20of 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, allproceedings in respect of a juvenile pending in anycourt in any area on the date on which this Act comesinto force in that area, shall be continued in that courtas if this Act had not been passed and if the court findsthat the juvenile has committed an offence, it shall recordsuch finding and instead of passing any sentence inrespect of the juvenile, forward the juvenile to the Boardwhich shall pass orders in respect of that juvenile inaccordance with the provisions of this Act as if it hadbeen satisfied on inquiry under this Act that a juvenilehas committed the offence:

Provided that the Board may, for any adequate andspecial reason to be mentioned in the order, review thecase and pass appropriate order in the interest of suchjuvenile.

Explanation.—In all pending cases including trial,revision, appeal or any other criminal proceedings inrespect of a juvenile in conflict with law, in any court,the determination of juvenility of such a juvenile shallbe in terms of clause (l) of Section 2, even if the juvenileceases to be so on or before the date of commencementof this Act and the provisions of this Act shall apply asif the said provisions had been in force, for all purposesand at all material times when the alleged offence wascommitted.”

In Dharambir -vs- State (NCT of Delhi) and Another [(2010)5 SCC 344] and Mahesh Jogi -vs- State of Rajashthan [(2014) 15SCC 184], similar view has been taken by this Court. In Satya Deoalias Bhoorey -vs- State of Uttar Pradesh [(2020) 10 SCC 555], itwas observed by a two-Judge Bench of this Court that in light of Section6 of the General Clauses Act, 1897 read with Section 25 of the 2015Act, an accused cannot be denied his right to be treated as a juvenilewhen he was less than 18 years of age at the time of commission ofoffence. The reasoning of the Court was that such right stood acquiredand fructified under the 2000 Act, even if the offence was committedprior to enforcement of the 2000 Act on 1[st] April 2001.

40. So far as the applicant is concerned, his claim of juvenilitybased on his date of birth in the school certificate would not vary basedon definitions of juvenile, “juvenile in conflict with law” or “child inconflict with law” under the 1986 Act, 2000 Act or the 2015 Act. Forapplying the procedure for determining his claim, of juvenility or of beinga child, in our opinion, the law applicable at the time of undertaking thatexercise by the concerned statutory body would prevail. Hence, in hiscase, we have tested his claim on the basis of the provisions of Section9 read with Section 94 of the 2015 Act.

41. Under the 2015 Act the date of birth certificate ought to bethe main factor for determination of juvenility. In the case of RishipalSingh Solanki (supra), the two-Judge Bench of this Court has laid downthe principle that an inquiry initiated under Section 9 (2) of 2015 Actwould be similar to that contained in Section 94 of thereof. We acceptthis 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 theschool which was in the year 1986. So far as the inconsistent dates of AB

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Abirth mentioned in the other documents, none of them is specified to betaken into consideration for undertaking the process of age determinationas laid down in Section 94 (2) of the said statute. Once the applicant hasdischarged his onus, in support of his claim of juvenility by producing thedate of birth certificate from the school, the State had to come up withany compelling contradictory evidence to show that the recordal of hisBdate of birth in the admission register was false. The State, in this case,has not come up with any such compelling evidence which would rendersuch certificate to be unreliable or false. The State and the complainanthave sought to disprove the applicant’s case on the basis of materialsdisclosed by him only, apart from the electoral roll. Here, we cannotCindulge in any guesswork to doubt the entry in the school register. Noevidence has been led to contradict the basis of the age of the applicantreflected in the aforesaid document. The certificate of date of birth asevidence of age having been provided in the statute itself, we shall go bythat. The other factor which has crossed our mind is as to whether a boyof 12 years could commit such a gruesome crime. But though this factorDshocks us, we cannot apply speculation of this nature to cloud ouradjudication process. We possess no knowledge of child psychology orcriminology to take into account this factor while examining the reportof the Inquiring Judge. Moreover, the age of the applicant revealed inthe ossification test keeps the age of the applicant as claimed by him,Ewithin the range specified in the report. The said test was conducted inthe year 2005, and his age was determined in the range of 22 to 40years. If we take 22 years as his age in 2005, then his year of birthwould haven been 1983. That would broadly correspond to the date ofbirth contained in the admission register.

F42. In the case of Rishipal Singh Solanki (supra), it has beenlaid down that if two views are possible on the same evidence the Courtshould lean in favour of holding the accused to be a juvenile in borderlinecases. In the case of State of Jammu & Kashmir (Now U.T. of Jammuand Kashmir) and Others -vs- Shubham Sangra [2022 SCC OnLineSC 1592], the decision of Parag Bhati (supra) was followed, which laidGdown that benefits of the 2000 Act ought to be extended to only suchcases wherein the accused is held to be a juvenile on the basis of clearand unambiguous case that the accused was minor on the date of theincident and the documentary evidence at least prima facie inspiresconfidence regarding his minority. It was opined in this judgment thatHwhen an accused commits a grave and heinous offence, his plea of

juvenility cannot be allowed to come to his rescue and Court cannot takea casual or cavalier approach in determining his minority. A somewhatdifferent view has been expressed in the case of Rishipal Singh Solanki(supra), which we have referred to above. A view similar to that takenin Rishipal Singh Solanki (supra) was reflected in the decision of atwo-Judge Bench of this Court in the case of Rajinder Chandra -vs-State of Chhattisgarh and Another [(2002) 2 SCC 287]. In our opinionhowever, in the event the Court, Board or the Committee is satisfied thatthe claimant on the date of offence was a juvenile, the dimension ofgravity of the offence cannot be considered by the Court to reject thebenefit granted to an accused or convict under the 2015 Act. We agreewith the observations made in the cases of Shubham Sangra (supra)and Parag Bhati (supra) that a casual or cavalier approach should notbe taken in determining the age of the accused or convict on his plea ofjuvenility, but a decision against determination of juvenility ought not tobe taken solely for the reason that offence involved is heinous or grave.The degree or dimension of the offence ought not to direct approach ofthe 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 providedby the legislature itself in Section 15 of the 2015 Act and if on the basisof commission of heinous crime, a juvenile is required to be denied thebenefit of the 2015 Act, the course specified therein would be requiredto followed.

43. In the light of our findings and the reasons we have disclosedabove for arriving at such finding, we accept the report of the InquiringJudge. We declare that the date of birth of the applicant as reflected inthe certificate issued by the Rajkiya Adarsh Uccha MadhaymikVidyalaya, Jalabsar, tehsil - Shri Dungargarh, district – Bikaner, dated30[th] January 2019, a copy of which has been annexed in the InquiryReport as “I-2”, is to be accepted for determining his age at the time ofcommission of the offence of which he has been convicted. Going bythat certificate, his age at the time of commission of offence was 12years and 6 months. Thus, he was a child/juvenile on the date ofcommission of offence for which he has been convicted, in terms of theprovisions of the 2015 Act. This shall be deemed to be the true age ofNiranaram, who was tried and convicted as Narayan. He has alreadyserved more than 3 years of incarceration and under the law as it prevailedat the time of commission of offence as also under the 2015 Act, hecannot be subjected to capital punishment. In view of this finding, the ABC

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Aorder sentencing him to death passed by the Additional Sessions Judge,Pune in Sessions Case No. 462 of 1994 and subsequently confirmed bythe High Court and by this Court would stand invalidated by operation oflaw. He shall be set free forthwith from the correctional home in whichhe remains imprisoned, as he has suffered imprisonment for more than28 years, having regard to the provisions of Section 18 of the 2015 Act.BSection 21 of the 1986 Act also carried substantially the same provisionon the question of maximum punishment that can be awarded to adelinquent juvenile by the Juvenile Court. The restriction on term ofdetention that can be awarded by the Board under the 2015 Act to achild below 16 years would also apply to the Court before which theCjuvenility question is being determined.

44. I.A. No. 5242 of 2016 as also I.A. No. 5245 of 2016 areapplications taken out by the applicant for reopening the review petition.We are of the view, however, that an application under Section 9(2) ofthe 2015 Act is an independent proceeding and we have decided theDsame without revisiting the review order. Crl. M.P. No. 155609 of 2019has 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.

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