Judgment:
I.A.1 OF 2014
1. By judgment and order dated 07.12.2007 this criminal appeal along with other connected appeals namely, Criminal Appeal Nos.1130/2003, 1131/03, 1132/03 and 1133/03 were disposed of by confirming the conviction recorded by the trial Court on 22.3.2003, but by reducing the sentence of fine from Rs.35,000/- to Rs.5,00/-. The said judgment and order has attained finality.
2. Now, an application has been filed under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, (hereinafter referred to as the Act ) by raising the question of juvenility of the appellant as on the date of the commission of the offence and therefore, a prayer is sought for holding an enquiry, and for the application being disposed in accordance with law.
3. According to the appellant/accused, the offence said to have been committed by him was on the night of 22/23.04.1998. He was arrested on 9.10.1999. As on the date of commission of the offence, as also on the date of his arrest, the appellant claims to be a juvenile below sixteen years of age, as his date of birth is 16.8.1983. According to him, the issue regarding his juvenility was not considered before the trial Court or before this Court during the pendency of the appeal as he was unable to engage an Advocate, and was defended before both the Courts by an Advocate provided by the Legal Services Authority. That he had no opportunity to instruct his Counsel regarding his age and hence before both the Courts the issue of his juvenility as on the date of the commission of the offence was not considered. The appellant has averred that in support of his date of birth being 16.8.1983, admission register of the school could be considered. He has stated that he is a native of Kurubarahalli Village, Kolar Taluk and District. He was admitted to Government Lower Primary School at the said village and at the time of his admission, his date of birth was recorded in the admission register of the said school as 16.8.1983 which is his real date of birth. Thus, on the date of the commission of offence i.e., on 22/23.4.1998, he was only fourteen years, eight moths and seven days and was below sixteen years of age and was a juvenile. As per the provisions of the Act, he should have been dealt with and tried by the Juvenile Justice Board, but the trial was conducted by the IV Additional City Civil and Sessions Judge, Mayohall, Bengaluru, in S.C.No.500/2000, which did not have jurisdiction to try him for the offences said to have been committed under Section 302 of the IPC and sentenced him under that Section read with Section 149 of the IPC. He was sentenced to undergo rigorous imprisonment (R.I.) for life and to pay a fine of Rs.35,000/- and in default of payment of fine to undergo R.I. for seven months. It is further averred appellant was arrested, he was a young boy of about fifteen years and had no parents and was working as a coolie.
4. It is further averred by the appellant that he could not have been tried along with the other offenders in S.C.No.500/2000, but had to be dealt with by the Juvenile Justice Board. In the circumstances, he has filed an application under Section 7A of the Act, seeking consideration of his claim of juvenility and for modification of the judgment dated 7.12.2007.
5. We have heard learned, Counsel for the appellant and the learned State Public. Prosecutor for the respondent/State and perused the material on record.
6. Learned Counsel for the appellant has submitted a memo containing certain documents including the order sheet pertaining to S.C.No.500/2000 of the trial Court. He drew our attention to the order dated 6.10.2000, 7.12.2000 and 23.12.2000 to contend that the trial Court had passed an order directing the appellant to be subjected to examination by the radiologist in order to ascertain his age and a direction was also issued to produce the radiology report, but subsequently, the said exercise was not taken to its logical conclusion. As a result, the trial Court did not ascertain the age of the appellant and instead he was tried along with other offenders. He contended that if the radiology report had been obtained, it would have established that the appellant was a juvenile as on the date of commission of the offence. Learned Counsel also drew our attention to the enquiry made by this Court and the report submitted by the trial Court so as to contend that the school admission register extract Ex.P-1 would really reveal that the appellant was indeed a juvenile as on the date of commission of the offence and therefore the trial Court could not have convicted him. In the circumstances, appellant/accused was liable to be tried under the provisions of the Act by the Juvenile Justice Board, in which event, the punishment would have been only three years had he been convicted and not beyond that. But in the instant case, the trial Court has sentenced him to life imprisonment, which is contrary to the provisions of the Act. He contended that having regard to the enquiry made by this Court on the application filed and, keeping in mind the orders passed by the trial Court vis- -vis determination of the age of the appellant and the same not having been complied with before the trial commenced should entitle the appellant to be released forthwith. As the order of conviction was passed on 22.3.2003 and since then he has been detained in prison till date, learned Counsel submitted that the application be allowed and the appellant be released forthwith.
7. The State Public Prosecutor-1 and Advocate for the respondent/State has filed statement of objection to the said application and contended inter alia, that the application filed under Section 7A of the Act is devoid of merits and the enquiry report dated 10.2.2016 and additional enquiry report dated 30.4.2016 secured by this Court on the instant application ought to be rejected. Learned State Public Prosecutor refuted the submissions made by the learned Counsel for the appellant and contended that the appellant was a part of a notorious gang known as Dandupalya Gang and the members of the said gang have been convicted for heinous offences and that no exemption could be made as far as the appellant herein is concerned. He therefore, submitted that the application be dismissed.
8. The appellant/accused has relied upon the copy of the school admission extract produced as Ex.P-1 in order to substantiate his case that he was juvenile at the time of commission of the offence. On consideration of the said document, this Court by order dated 30.6.2015 directed the learned Sessions Judge to hold an enquiry. An enquiry was conducted and a report dated 10.2.2016 was submitted stating that the accused/appellant was a juvenile as on the date of the offence as per school admission register Ex.P-1. Pursuant to order dated 4.3.2016, passed by this Court, an additional report dated 30.4.2016 has been submitted by the trial Court stating that Thimmaiah K.V. and Thimma are one and the same person who was residing along with his father late Venkateshappa in Kurubarahalli, Kolar Taluk, as per the evidence of PW.2-Prakash and the evidence of the accused examined as PW.3. It is further averred in the statement of objections that the school admission register extract relied upon by the accused/appellant shows the name of the appellant as Thimmaiah, son of late Venkateshappa. Therefore, his date of birth 16.8.1983. The admission date is 16.8.1988. But in the proceedings before the trial Court as well as this Court, the name of the accused has been shown as Thimmaiah, son of late Venkateshappa and the same has not been disputed by him.
9. That the appellant/accused examined the Head Master of the Government Lower Primary School, Kurubarahalli, Kolar Taluk, as PW.1. He has produced the original school admission register wherein the date of birth of K.V. Thimmaiah is recorded as 16.8.1982 and was admitted to first standard on 16.8.1988. He studied upto third standard in the said school and Transfer Certificate (T.C) was issued on 10.6.1992. The relevant entry is at Ex.P-1(a). On the basis of the said evidence, the trial Court in the enquiry held pursuant to the directions issued by this Court, has held that the accused was a juvenile on the date of commission of the offence.
10. It is contended on behalf of the State that there is manipulation in the school admission extract and therefore the same could not be the basis for holding that the accused was a juvenile or that the entry made in the school admission register pertains to the accused. Further, PW.1 was not the Head Master at the relevant point of time nor Transfer Certificate was issued by him. That in the additional enquiry conducted by the trial Court with regard to the name of the accused, evidence of PW.2 Prakash who claims to be the elder brother of the accused has been recorded as well as the evidence of the accused as PW.3. PW.2 has stated that his father died about fifteen years ago whereas PW.3 has stated that he died about 19-20 years ago and that their father had three children, but the appellant/accused has not stated as to how many children their father had: that PW.2 does not know when the accused was admitted to Government Lower Primary School: according to the appellant/accused, his date of birth is 16.8.1982, but in the school admission register extract (Ex.P-1), the date of birth is noted as 16.8.1983. Even then the accused may have been less than sixteen years as on the, date of commission of the offence. According to the State Public Prosecutor, the date of birth cannot be relied upon as the same is disputed.
11. It is further contended on behalf of the State that the claim of the juvenile has been sought after an inordinate delay. It is submitted that under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter referred to as the Rules for the sake of brevity), the determination of the juvenile is prima facie on the basis of the physical appearance or by seeking evidence by obtaining i) matriculation or equivalent certificate if available and in the absence thereof; (ii) date of birth from the school; iii) birth certificate given by the Corporation etc. That the appellant/accused has not produced any evidence, in accordance with Rule 12, so as to substantiate his claim for his juvenility. Under Section 7A(2) of the Act, if the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court shall be deemed to have no effect. That the object of the said provision is for the Board to send the juvenile to a special home for rehabilitation in the interest of a juvenile.
12. The facts leading to filing of the application and the facts, which have been referred to during the course of this order need not be reiterated again. Having regard to the dicta of the Hon ble Supreme Court and bearing in mind the provisions of the Act and the Rules and the enquiry reports submitted on the said application, the application would have to be decided.
13. Before considering the application on merits, it would be useful to extract Section 7A of the Act, which reads as under:
7A. Procedure to be followed when claim of juvenility is raised before any Court.- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a Court shall be deemed to have no effect.
The said Section was inserted by the Amendment Act of 2006 by Section 8 of the Amendment Act of 2006 made to the Act of 2000.
Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 2007 Rules ) prescribes the procedure to be followed in the determination of age and the same is extracted as under:
12. Procedure to be followed in determination of age.- (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposal off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.
In the said Rule, specific reference has been made to an inquiry under Section 7A of the Act.
Rule 12 has to be read with Section 7A of the Act. Rule 12(2) uses the expression prima facie on the basis of physical appearance or documents , if available.
Rule 12(3) uses the expression by seeking evidence by obtaining the types of documents mentioned there in.
14. It is noted that 2000 Act has been repealed by the Act of 2015. However, under Section 111(2) of the 2015 Act, it is stated that notwithstanding the repeal of the 2000 Act, anything done or any action taken under the said Act shall be deemed to have been taken under the corresponding provisions of the 2015 Act. 2015 Act has been enforced with effect from 31.12.2015. However, it is noted that the application in the instant case has been filed under Section 7A of the 2000 Act on 13.10.2014 and therefore the application has been considered under 2000 Act.
15. The relevant decisions on Section 7A of the Act could be considered at this stage:
(a) In the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh (2012(9) SCC 750], the Hon ble Supreme Court has opined that Section 7A obliges the Courts to make an inquiry and not an investigation or trial under the Code of Criminal Procedure, but under the Act.
(b) Reference could also be made to another decision of the Hon ble Supreme Court in the case of Abuzar Hossain alias Gulam Hossain Vs. State of West Bengal [(2012) 10 SCC 489], wherein it has been summarized as under:
39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial Court and can be raised for the first time before this Court though not pressed before the trial Court and in the appeal Court.
39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the Court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
39.3. As to what materials would prima facie satisfy the Court and/or ae sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the Court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh (2009) 7 SCC 415 and Pawan (2009) 15 SCC 259 these documents were not found prima facie credible while in Jitendra Singh (2010) 13 SCC 523 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellants age. If such documents prima facie inspire confidence of the Court, the Court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.
39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the Court to order an enquiry into determination of the age of the delinquent.
39.5. The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act shall get such benefits. The Courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the Court at the threshold whenever raised.
(c) In Jitendra Ram Vs. State of Jharkhand, ((2006) 9 SCC 428], the Hon ble Supreme Court has sounded a note of caution on the earlier observations made by it in the case of Bhola Bhagat and others Vs. State of Bihar ((1997) 8 SCC 720].
(d) In Arnit Das Vs. State of Bihar. ((2000) 5 SCC 488], the Hon ble Supreme Court has observed that while considering the question of determination of the age of an accused for the purpose of ascertaining as to whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and, if two views may be possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This is because the Act being welfare legislation, the Courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the Courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishment for having committed serious offences.
(e) In another recent judgment of the Hon ble Supreme Court in the case of Parag Bhati (Juvenile through Legal Guardian-Mother-Smt. Rajini Bhati Vs. State of Uttar Pradesh and another (2016 (2) Crimes 268 (SC)], the Hon ble Supreme Court has observed as under:
26. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a causal or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
27. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law cannot be allowed to come to his rescue. (Emphasis added) From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.
(f) Further, in the case of Jabar Singh Vs. Dinesh and another, ((2010) 3 SCC 757), the Hon ble Supreme Court has considered a situation when the entry of date of birth in the admission for of the school records or transfer certificates did not satisfy the condition laid down in Section 35 of the Evidence Act, i.e., as to whether the said entry was not in any public or official register and not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore the said evidence was not relevant for the purpose of determining the age of the accused in the said case. In the aforesaid case, the Hon ble Supreme Court set aside the order of the High Court in revision and confirmed the order of the trial Court holding that the accused therein was a juvenile at the time of the commission of the alleged offence.
(g) In Vijendra Singh Vs. State of Uttar Pradesh, [2017 SCC Online SC 21] in Criminal Appeal No.1448/2010, the Hon ble Supreme Court considered the age of the appellant therein and concluded that he was a juvenile on the date of the offence as the report sought during the trial of the case to that effect had gone unchallenged. In those circumstances relying upon Section 7A of the Act and read with Section 20 of the Act, whereby the proviso and Explanation have been added thereto and read with the rules, remitted the matter to the Juvenile Justice Board with the observation that he had been detained for more than the maximum period for which a juvenile may be confined to a special home and therefore released him from custody forthwith.
16. Having regard to the aforesaid dicta of the Hon ble Supreme Court, the evidence and the materials on record, we shall now consider the application filed by the appellant.
17. It is noted that under Section 7A of the Act, application could be made by a person claiming juvenility on the date of the commission of the offence, even after the disposal of the case. In the instant case, the judgment of the trial Court convicting the appellant herein dated 22.3.2003 has been confirmed by this Court on 07.12.2007 and the said judgment has attained finality and the appellant has been convicted and is detained in prison. Even then the application is maintainable under Section 7A of the Act. The said provision states that when such an application is filed, the Court shall make an enquiry taking such evidence as may be necessary but not an affidavit so as to determine the age of such person and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. The determination of the age has been made in terms of the Act and the rules made thereunder. Even if the juvenile has ceased to be so on or before the date of commencement of the Act, if a person is found to be a juvenile on the date of the commission of the offence, then the matter has to be forwarded to the Board for passing appropriate orders and the sentence, if any, passed by the Court shall be deemed to have no effect. It is noted that under Rule 12(5) exception is made with regard to the enquiry to be conducted under Section 7A and Section 64 of the Act, in that, the nature of enquiry under the aforesaid provision under Section 7A particularly, need not be in terms of Rule 12(3) of the rules. Further, under Rule 12(6) it is stated that where a case is disposed of wherein the status of juvenility has not been determined in accordance with Rule 12(3) of the Rules, then the matter would have to be considered in terms of Rule 12. This implies that while considering the matter under Rule 12, Rule 12(5) would apply. Rule 12(5) refers to not only the certificates mentioned in sub-rule (3) of Rule 12, but also any further enquiry . This means for the purpose of an enquiry under Section 7A of the Act, the expression any other documentary proof referred to in sub-rule (5) would not be restricted by the certificates mentioned in sub-rule (3) of Rule 12.
18. In the instant case, the appellant is no longer a juvenile at present, as he claimed to be about 16 years of age on the date of the commission of the offence i.e., on 22/23.4.1998. Therefore, sub-section (2) of Section 7A would not be applicable. But however, under sub-section (1) of Section 7A an enquiry has been made by this Court on the application in order to ascertain, the age of the appellant as on the date of the commission of offence. In that regard, by order dated 30.6.2016 this Court directed the Principal City Civil and Sessions Judge, Bengaluru City, to ascertain the exact date of birth of the appellant/accused. He was also directed to conduct an enquiry and find out as to whether Thimma, son of Venkateshappa, the appellant in this appeal was a juvenile as on the date of commission of the offence and to submit a report. A direction was issued to the learned Judge to call for the original records if need be, to satisfy himself as to the genuineness of the document produced by either of the parties bearing in mind Rule 12 of the Rules. Thereafter, the learned Principal City Civil and Sessions Judge, Bengaluru, submitted his report dated 10.2.2016. On a perusal of the report, this Court held that it is open for the accused Thimma to produce records or to lead evidence to show that he is also known as Thimmaiah K.V., son of late Venkateshappa as is mentioned in the school records. Thereafter, on the mentioning of the learned State Public Prosecutor as to whether there was any overwriting at Ex.P-1(a) with regard to the date of birth of the accused/appellant, time was granted to get the matter investigated through the State police and for submission of a report. Subsequently, this Court also ordered that the original admission register extract marked as Ex.P-1 be secured from the Government Lower Primary School, Kurubarahalli, Kolar Taluk for perusal.
19. We have perused Ex.P-1(a) and other materials on record including the copies of the documents annexed to the memo dated 28.2.2017, filed by the learned Counsel for the appellant. The orders passed by the trial Court in S.C.No.500/2000 pertaining to the age of the appellant and the enquiry initiated in that regard is extracted as under:
| 6/10/2000 State by PP A1 to 6 in J.C. I.O. to produce A1 to A6 | A5 produced. A1 to 4 and 6 not produced Suppl. charge sheet filed by Prosecutor. A5 state that he is aged 14 years. As such be subjected to Radiologist to ascertain his age. Write to the Suptd. Central Jail in this regard. A5 shall be produced on 8-11-2000 Direct I.O. to produce A1 to 4 and 6 on 8-11-2000. x x x |
| 7/12/2000 State by PP A1 to 6 in J.C. | A3, 5 and 6 produced. A1, 2 and 4 not produced. A1 to 6 shall be produced On 23-12-2000. Re-issue to Jail Suptd. To Produce Radiologist Report Reg.A5. |
| 23/12/2000 State by PP A1 to 6 in J.C. To produce Radiologist Report reg. A5 | A1 to 6 not produced. Direct I.O. to produce accused by 16/1/2001. |
20. Pursuant to the application filed by the appellant herein, this Court has ordered for an enquiry and on perusal of the enquiry report dated 30.4.2016 submitted by the Principal City Civil and Sessions Judge, Bengaluru, it is noted that the report states that the accused Thimmaiah K.V. and Thimma are one and the same person. He was residing with his father, late Venkateshappa in Kurubarahalli, Kolar Taluk. Even prior to that, learned Principal City Civil and Sessions Judge, Bengaluru, submitted a report dated 10.2.2016 after conducting an enquiry in terms of the order passed by this Court by examining C.M. Narayanaswamy, Head Master of the Lower Primary School at Kurubarahalli, Kolar Taluk, as PW.1. He had produced the admission register for the period 1981 to 2015 maintained by the school as Ex.P-1. For the relevant year 1988-89, it is noted in respect of the name of Thimmaiah K.V. son of Venkateshappa, the date of birth recorded in the register is 16.8.1982. The address given is K.V. Thimmaiah, son of Venkateshappa, Kurubarahalli, Kolar Taluk, K.V. Thimmaiah was admitted to the school on 16.8.1988 in 1st Standard. He studied up to 3rd Standard in that school and T.C. was issued on 10.6.1992. Admission extract at Ex.P.2 reveals that the date of birth of the appellant/accused Thimma as 16.8.1983 but in Ex.P-1(a) it is written as 16.8.1982. Even if it is to be construed that there is overwriting in Ex.P-1(a) and that his dated of birth is actually 16.8.1983 or even if the converse is to be taken note of namely that his date of birth is 16.8.1983, but it is over written as 16.8.1982, that would not make any difference to the case of the appellant/accused. If the date of birth is taken as 16.8.1982, then on the date of the commission of the offence on 22/23..4.1998, the accused was fifteen years, eight months and six days and if the date of birth is taken as 16.8.1983, it would be fourteen years, eight months and six days. In either case, the accused was a juvenile as on the date of offence. There is no good reason as to why the aforesaid reports submitted by the learned Principal Sessions Judge, Bengaluru cannot be accepted.
21. That apart, the Trial Judge who had actually observed that the appellant/accused who was arrayed as accused No.5 before the trial Court had actually initiated steps to ascertain the correct age of the appellant as to whether he had to be tried under the provisions of the Act. Unfortunately, the order dated 6.10.2000 was not implemented and consequently the appellant was tried under the general law and not under the provisions of the Act as a juvenile and was convicted and the conviction has been confirmed by this Court and has attained finality.
22. Having regard to the enquiry made by this Court on the application, we find that the appellant/accused was indeed a juvenile as on the date of the commission of the offence. That means he was a child who had not completed eighteen years of age. In the circumstances, he could not have been tried by the Sessions Court, he ought to have been tried under the provisions of the Act. Indeed we find that there has been miscarriage of justice insofar as the appellant/accused is concerned as the enquiry initiated by the trial Court was not taken to its logical conclusion. It would have then been revealed that the accused was a juvenile as on the date of the commission of the offence on an enquiry conducted in terms of Rule 12 of the Rules. Even otherwise, the enquiry having been concluded by this Court on the application filed by the appellant herein clearly establishes that the accused/appellant was indeed a juvenile on the relevant date i.e., on the date of commission of the offence. Copy of Ex.P-1 could be safely relied upon for that purpose. Therefore, the application succeeds. It is held that as on the date of commission of the offence/offences, the accused/appellant was a juvenile. Therefore, his conviction de hors the provisions of the Act is illegal. Consequently, he can no longer be detained pursuant to the conviction, which has been confirmed by this Court as the sentence would no longer remain effective.
23. In the circumstances, the appellant/accused is ordered to be released forthwith.
The application is allowed in the aforesaid terms.
The registry to communicate this order to the Superintendent of Central Prison, Hindalga Jail, Belgaum, for taking necessary steps in the matter.