

1. Heard learned Senior Counsel for the parties. The correctness of the judgment and order of conviction for the charge of offence punishable Under Section 302 Indian Penal Code is under challenge in this appeal on various grounds and pray to set aside the same.

2. The learned Senior Counsel appearing on behalf of the Appellant placed reliance upon the judgment of this Court in Hariram v. State of Rajasthan and Anr. reported in MANU/SC/0744/2009MANU/SC/0744/2009 : 2009 (13) SCC 211 wherein this Court interpreted Section 2(k), 2(1), 7A and 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, (as amended by Act of 2006) claiming benefit of juvenility for the Appellant contending that as on the date of the commission of offence on 24.12.1980 he has not attained the age of 18 years as per his date of birth i.e. 7.7.1964. Therefore, the benefit of Section 2(k) 'juvenile' was determined Under Section 20 of the Act. By virtue of explanation to Section 20 of the Act he is entitled for the benefit. The finding recorded by the learned trial Judge that his date of birth is 7.7.1964 was on the basis of the school records as well as school certificate. This fact has attained finality, not disputed by the Respondent, and that finding has affirmed by the High Court in the appeal filed by the Appellant. The correctness of the concurrent finding is under challenge by the Respondent in these proceedings.

3. The learned Senior Counsel appearing on behalf of the Appellant has placed reliance on the judgment of this Court in Hariram's case (supra) wherein this Court has laid down the law after framing the following question at paragraph 29 which reads as under:

29. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1.4.2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him?

4. The said question, after considering the rival legal submissions made at the Bar with reference to the aforesaid statutory provisions of the Act, 2000, was answered by recording its reasons at paragraphs 68 and 69 which reads thus:

68. Accordingly, a juvenile who had not completed eighteen years on the date of commission of the offence was also entitled to the benefits of the Juvenile Justice Act, 2000, as if the provisions of Section 2(k) had always been in existence even during the operation of the 1986 Act.

69. The said position was re-emphasised by virtue of the amendments introduced in Section 20 of the 2000 Act, whereby the proviso and Explanation were added to Section 20, which made it even more explicit that in all pending cases, including trial, revision, appeal and any other criminal proceedings in respect of a juvenile in conflict with law, the determination of juvenility of such a juvenile would be in terms of Clause (1) of Section 2 of the 2000 Act, and the provisions of the Act would apply as if the said provisions had been inforced when the alleged offence was committed.

5. In view of the aforesaid pronouncement of law laid down by this Court in Hariram's case (referred to supra) upon which reliance has rightly been placed by the learned Senior Counsel for the Appellant we have to apply the said legal principle to the fact situation particularly having regard to the fact that the juvenility as on the date of occurrence is a proved fact.

6. After laying down the principle of law in paras 68 and 69 of the said decision, this Court has set aside the order passed by the High Court keeping in view of the provisions of Section 2(k), 2(1), 7-A and 20 (as amended by Act of 2006) and the Juvenile Justice Rules, 2007 and held that in that case the Appellant was below 18 years of age at the time of commission of the offence and the provisions of the said Act would apply in this case in full force. In view of the aforesaid decision rendered in Hariram's case the said legal principle with all fours is applicable to the facts situation of the present case.

7. Mr. Ratnakar Dash, the learned Senior Counsel for the Respondent/State placed reliance upon the judgment of this Court in Jitendra Singh @ Babboo Singh and Anr. v. State of Uttar Pradesh reported in MANU/SC/0679/2013MANU/SC/0679/2013 : (2013) 11 SCC 193 emphasising paragraph 83-85, which are extracted hereunder:

83. In Kalu Case (reported in MANU/SC/0654/2012MANU/SC/0654/2012 : (2012) 8 SCC 34), the plea of juvenility was raised before this Court for the first time as is the position in the present case also. This Court while dealing with the options available noticed the absence of plea on the ground of juvenility and held that even if such a plea had been raised before the High Court, the High Court would have had to record its finding that Kalu alias Amit was guilty, confirm his conviction, set aside the sentence and forward the case to the Board for passing an order Under Section 15 of the Juvenile Act. The Court observed: (SCC p. 42, para 24)

24. The instant offence took place on 7.4.1999. As we have already noted Kalu alias Amit was a juvenile on that date. He was convicted by the trial Court on 7.9.2000. The Juvenile Act came into force on 1.4.2001. The appeal of Kalu alias Amit was decided by the High Court on 11.7.2006. Had the defence of juvenility been raised before the High Court and the fact that Kalu alias Amit was a juvenile at the time of commission of offence has come to light the High Court would have had to record its finding that Kalu alias Amit was guilty, confirm his conviction, set aside the sentence and forward the case to the Board and the Board would have passed any appropriate order permissible Under Section 15 of the Juvenile Act (see Hari Ram).

84. That procedure has been followed in several other cases where this Court has, after holding the accused to be a juvenile as on the date of the commission of offence, set aside the sentence awarded to him without interfering with the order of conviction. (See Pradeep Kumar v. State of U.P., Bhola Bhagat v. State of Bihar, Upendra Kumar v. State of Bihar and Vaneet Kumar Gupta v. State of Punjab).

85. In the totality of the above circumstances, there is no reason why the conviction of the Appellant should be interfered with, simply because he is under the 2000 Act a juvenile entitled to the benefit of being referred to the Board for an order Under Section 15 of the said Act. There is no gainsaying that even if the Appellant had been less than sixteen years of age, on the date of occurrence, he would have been referred for trial to the Juvenile Court in terms of the occurrence, he would have been referred for trial to the Juvenile Court in terms of Section 8 of the 1986 Act. The Juvenile Court would then hold a trial and record a conviction or acquittal depending upon the evidence adduced before it. In an ideal situation a case filed before an ordinary criminal court when referred to the Board or Juvenile Court may culminate in a conviction at the hands of the Board also. But law does not countenance a situation where a full-fledged trial and even an appeal ends in a conviction of the accused but the same is set aside without providing for a trial by the Board.

He submits that in view of the aforesaid judgment, the order of conviction of the Appellant ought not be interfered with but sentence for life imprisonment passed by the High Court may be set aside.

8. In view of the contentions of both the learned Senior Counsel for the parties and foregoing reasons, we have to hold that the Appellant is entitled for the benefit of the juvenility. In view of the aforesaid pronouncement of law made by this Court in Hariram's case of which relevant portion is extracted above, we are required to set aside the impugned judgment of conviction and sentence and we do so. Accordingly, we allow the appeal and remit the matter to the Juvenile Justice Board, District Etava, to exercise its power Under Section 15 for the purpose of conducting enquiry and dispose of the same within six weeks from the date of receipt of the copy of this judgment. Taking into consideration the age of the Appellant and also the fact that he had underwent sentence for 34 months pursuant to the order of conviction and sentence passed by the learned trial Judge, exercise shall be made by the Board within the time stipulated and pass appropriate order after conducting an enquiry.

