1989 JTR(SC) 212
1989 AIR(SC) 1329 ; 1990 AllLJ 65 ; 1989 1 AWC 562 ; 1989 CriLR 360 ; 1989 2 Crimes(SC) 294 ; 1990 CrLJ 2671 ; 1989 EastCrC(SC) 367 ; 1989 2 JT 105 ; 1991 1 PLJR(SC) 62 ; 1989 1 RCR(Cri) 573 ; 1989 1 Scale 799 ; 1989 3 SCC 1 ; 1989 SCC(Cri) 486 ; 1989 KHC 893 ; 1989 1 KLT(Online) 1020
SUPREME COURT OF INDIA
S. NATARAJAN AND A.M. AHMADI, JJ.
Bhoop Ram, Appellant
Versus
State of U.P., Respondent.
Criminal Appeal No. 228 of 1989, (Arising out of S.L.P.(Cri.) No. 2301 of 1985)
Decided on 4-4-1989.
Advocates appeared
Mr. Badar Durrez Ahmed and Mr. Parijat Sinha, Advocates, for Appellant; Mr. K. R. Nagaraja, Advocate for the Complainant; Mr. Prithvi Raj, Sr. Advocate and Mr. D. Bhandari Advocate with him, for Respondent.
Act
Referred
:EVIDENCE ACT : S.35
INDIAN PENAL CODE : S.149, S.376, S.323, S.148, S.324, S.302, S.366, S.363
JUVENILE JUSTICE ACT : S.2(h)
PROBATION OF OFFENDERS ACT : S.6, S.4
UTTAR PRADESH CHILDREN ACT : S.29, S.27, S.2(4)
(A) The appellant was convicted under Indian Penal Code sections 148, 302, 323, 324, and read with section 149, and the question arose whether he was a child within section 2(4) of the U.P. Children Act, 1951. The Acts provisions for detention in an approved school till age 18 were engaged, requiring the trial court to determine his age at the time of the offence under sections 302, 323, and 324 read with section 148 and 149. The court examined conflicting evidencea school certificate indicating birth in 1960, a medical certificate estimating age at 30 in 1987, and a Sessions Report estimating age at 2829 in 1987to ascertain whether he had completed 16 years. The evidentiary weight given to the school certificate, the Trial Judges earlier observation that he was a boy of 17, and the principle that error in estimating age by medical opinion should not override clear school records were central. Given the conclusion that he had not completed 16 years on the date of the offence, the U.P. Children Act, and not the adult penal provisions, should have applied, following the logic of Bachchey Lals case.
(B) Key principles include: age determination must be based on reliable evidence and not merely on medical opinion; school certificates recording date of birth are material unless contradicted; Trial Judges observations on age attract weight; where a person is found to be a child, the juvenile provisions of the U.P. Children Act apply; if a child is erroneously sentenced to imprisonment after attaining the maximum detention age in an approved school, the conviction may be sustained but the sentence quashed and the person released.
Facts of the case:
The appellant was convicted along with five others by the VI Additional District and Sessions Judge, Bareilly for offences punishable under sections 148 IPC, 302 IPC, 323 IPC, and 324 IPC read with section 149 IPC. The offences were committed on 3-10-1975. He produced a school certificate showing his date of birth as 24-7-1960, placing him below 16 years at the time. The Sessions Judge relied on a medical certificate estimating his age at about 30 years in 1987 and concluded he was about 2829 years in 1987, rejecting the school certificate on the ground that parents often understate age to secure future benefits. The Trial Judge had, on 12-9-1977, treated him as a boy of 17 years and awarded life imprisonment instead of death. The appellant, being over 28 years at the time of the appeal, could no longer be sent to an approved school.
Findings of Court:
The Court found that the appellant had not completed 16 years of age on the date of the offence. The school certificate was not sufficiently discredited, and the Sessions Judges reliance on medical opinion without independent material was misplaced. The Trial Judges earlier observation lent credence to the appellants contention that he was under 16. Therefore, the appellant should have been dealt with under the U.P. Children Act, 1951, and not subjected to adult imprisonment.
Issues:
Whether the appellant was a child within the meaning of section 2(4) of the U.P. Children Act, 1951 at the time of the offence; whether the Sessions Judge correctly evaluated the conflicting age evidence; and whether, on the corrected finding, the appellant should have been sent to an approved school instead of being sentenced to imprisonment.
Ratio Decidendi:
Where a juveniles age at the time of the offence is in doubt, clear documentary evidence such as a school certificate must prevail over later medical estimates; if the evidence shows the juvenile had not completed 16 years, the U.P. Children Act applies and adult punishment is not permissible; if an accused is later found to have been a child and has passed the maximum age for detention, the conviction can stand but the sentence must be quashed and the person released.
Result:
The conviction is upheld, but the sentence is quashed and the appellant is directed to be released forthwith.
(A) The appellant was convicted under Indian Penal Code sections 148, 302, 323, 324, and read with section 149, and the question arose whether he was a child within section 2(4) of the U.P. Children Act, 1951. The Acts provisions for detention in an approved school till age 18 were engaged, requiring the trial court to determine his age at the time of the offence under sections 302, 323, and 324 read with section 148 and 149. The court examined conflicting evidencea school certificate indicating birth in 1960, a medical certificate estimating age at 30 in 1987, and a Sessions Report estimating age at 2829 in 1987to ascertain whether he had completed 16 years. The evidentiary weight given to the school certificate, the Trial Judges earlier observation that he was a boy of 17, and the principle that error in estimating age by medical opinion should not override clear school records were central. Given the conclusion that he had not completed 16 years on the date of the offence, the U.P. Children Act, and not the adult penal provisions, should have applied, following the logic of Bachchey Lals case.
(B) Key principles include: age determination must be based on reliable evidence and not merely on medical opinion; school certificates recording date of birth are material unless contradicted; Trial Judges observations on age attract weight; where a person is found to be a child, the juvenile provisions of the U.P. Children Act apply; if a child is erroneously sentenced to imprisonment after attaining the maximum detention age in an approved school, the conviction may be sustained but the sentence quashed and the person released.
Facts of the case:
The appellant was convicted along with five others by the VI Additional District and Sessions Judge, Bareilly for offences punishable under sections 148 IPC, 302 IPC, 323 IPC, and 324 IPC read with section 149 IPC. The offences were committed on 3-10-1975. He produced a school certificate showing his date of birth as 24-7-1960, placing him below 16 years at the time. The Sessions Judge relied on a medical certificate estimating his age at about 30 years in 1987 and concluded he was about 2829 years in 1987, rejecting the school certificate on the ground that parents often understate age to secure future benefits. The Trial Judge had, on 12-9-1977, treated him as a boy of 17 years and awarded life imprisonment instead of death. The appellant, being over 28 years at the time of the appeal, could no longer be sent to an approved school.
Findings of Court:
The Court found that the appellant had not completed 16 years of age on the date of the offence. The school certificate was not sufficiently discredited, and the Sessions Judges reliance on medical opinion without independent material was misplaced. The Trial Judges earlier observation lent credence to the appellants contention that he was under 16. Therefore, the appellant should have been dealt with under the U.P. Children Act, 1951, and not subjected to adult imprisonment.
Issues:
Whether the appellant was a child within the meaning of section 2(4) of the U.P. Children Act, 1951 at the time of the offence; whether the Sessions Judge correctly evaluated the conflicting age evidence; and whether, on the corrected finding, the appellant should have been sent to an approved school instead of being sentenced to imprisonment.
Ratio Decidendi:
Where a juveniles age at the time of the offence is in doubt, clear documentary evidence such as a school certificate must prevail over later medical estimates; if the evidence shows the juvenile had not completed 16 years, the U.P. Children Act applies and adult punishment is not permissible; if an accused is later found to have been a child and has passed the maximum age for detention, the conviction can stand but the sentence must be quashed and the person released.
Result:
The conviction is upheld, but the sentence is quashed and the appellant is directed to be released forthwith.
Badar Ahmed, DALVIR BHANDARI, K.R.NAGARAJA, PARIJAT SINHA, Prithvi Raj
JUDGMENT
NATARAJAN, J. :— Leave granted.
2. The only question for consideration in this appeal by special leave is whether the appellant who was convicted along with 5 others by the VI Additional District and Sessions Judge, Bareilly under S. 148 IPC and Ss. 302, 323 and 324 all read with S. 149 IPC and sentenced to imprisonment for life besides concurrent sentence for lesser terms of imprisonment should have been treated as a "child" within the meaning of S. 2(4) of the U. P. Children Act, 1951 (U. P. Act 1 of 1952) and sent to an approved school for detention therein till he attains the age of 18 years instead of being sentenced to undergo imprisonment in jail.
3. In support of his contention that he was less than 16 years of age on 3-10-1075, that being the date of the commission of the offences for which the appellant has been convicted along with others, the appellant relies upon a school certificate (Annexure B) wherein his date of birth is shown as 24-7-1960. The learned Sessions Judge without going into the question whether the appellant was below 16 years of age on the date of the commission of the offences, adverted only to the fact that the appellant was below 18 years of age at the relevant time and proceeded to follow the ratio in Bachchey Lal v. State of U. P; 1976 SCC (Cri) 599, and awarded the lesser sentence of imprisonment for life instead of the extreme penalty of death sentence.
4. In such circumstances this Court felt it necessary, even at the stage of admission of the special leave petition, that the Sessions Judge Bareilly should be called upon to enquire into the age of the appellant and submit a report. The Sessions Judge was permitted to have the appellant examined by ant examined by the Chief Medical Officer of the State and liberty was given to the parties to adduce evidence regarding the age of the appellant.
5. The Chief Medical Officer, Bareilly gave a certificate that as per radiological examination and physical features, the appellant appeared to be 30 years of age a on 30-4-1987. The appellant did not place any other material before the Sessions Judge except the school certificate to prove that he had not completed 16 years on the date of the commission of the offences. The Session Judge, after considering the medical certificate and the school certificate has sent a report on 1-6-1987 stating that the appellant appeared to be about 28-29 years of age which means that the appellant would have completed 16 years on the date of occurrence. The Sessions Judge has rejected the school certificate produced by the appellant on the ground that "it is not unusual that in schools ages are understated by one or two years for future benefits."
6. the learned counsel for the appellant argued that the Chief Medical Officers certificate and the Sessions Judges report regarding the age of the appellant are based only on their respective opinions whereas the school certificate produced by the appellant contains definite information regarding the date of birth of the appellant and hence the school certificate should prevail over the certificate of the doctor and the report of the Sessions Judge especially in the absence of any material to raise doubts about the truth of the entries in the certificate. The learned counsel further stated that the reason given by the Sessions Judge for rejecting the school certificate is merely based on his assumption that parents very often understate the age of their children at the time of their admission in schools in order to secure benefits for the children in their future years. On the other hand, the learned counsel for the State laid stress upon the report of the Chief Medical Officer since it was based upon the fusion of bones etc., and argued that the appellant should have been about 18 years of age on the date of the occurrence and hence the appellant is not entitled to invoke the provisions of the U. P. Children Act.
7. On a consideration of the matter, we are of the opinion that the appellant could not have completed 16 years of age on 3-10-1975 when the occurrence took place and as such he ought to have been treated as a child within the meaning of S. 2(4) of the as U. P. Children Act 1951 and dealt with under S. 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24-6-1960 against the column date of birth. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant Officer that the appellant Officer that the appellant appeared to be about 30 years of age as on 30-4-1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in school for securing benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the Trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12-9-1977 on the ground the appellant was a boy of 17 years of age. The observation of the Trial Judge would lend credence to the appellants case that he was less than 10 (16) years of age on 3-10-1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30-4-1987, his opinion is based only on an estimate and the possibility of an error of estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief Medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date the offences were committed. It therefore follows that the appellant should have been dealt with under the U. P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts.
8. Since the appellant is now aged more than 28 years of age, there is no question of the appellant now being sent to an approved school under the U. P. Children Act for being detained there. In a somewhat similar situation, this Court held in Jayendra v. State of U. P; (1981) 4 SCC 149 that where an accused had been wrongly sentenced to imprisonment instead of being treated as a "child" under S. 2(4) of the U. P. Children Act and sent to an approved school and the accused had crossed the maximum age of detention in an approved school viz. 18 years, the course to be followed is to sustain the conviction but however quash the sentence imposed on the accused and direct his release forthwith. Accordingly, in this case also, we sustain the conviction of the appellant under all the charges framed against him but however quash the sentence awarded to him and direct his release forthwith. The appeal is therefore partly allowed in so far as the sentences imposed upon the appellant are quashed.
Appeal partly allowed.
For Citation : AIR 1989 SC 1329 = (1989) 2 JT 105 = (1989) 3 SCC 1