Mahesh @ Appi v. State of Kerala

Crl.Appeal No.301 of 2021 1 CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943 ## CRL.A NO. 301 OF 2021 CRIME NO.25/2008 OF Venjaramoodu Police Station, Thiruvananthapuram AGAINST THE JUDGMENT IN SC 163/2010 OF THE ADDITIONAL SESSIONS JUDGE-V, THIRUVANANTHAPURAM ## APPELLANT/S: MAHESH @ APPI AGED 30 YEARS (BORN ON 22-02-1992) S/O. MANOHARAN, RESIDING AT 7/567, RODARUKATHIL VEEDU, VAZHAVILAPOYIKA KUTHIRAKULAM P.O, MANIKKAL, VEMBAYAM, THIRUVANANTHAPURAM DISTRICT, PIN 695 615, FROM CHARUVILA VEEDU, VAZHAVILA POYIKA, NOORU ACRE, EDATHARA MURI, MANIKKAL VILLAGE, VEMBAYAM, THIRUVANANTHAPURAM DISTRICT PIN 695 615 BY ADVS. J.R.PREM NAVAZ SHRI.SUMEEN S. SRI.S.DILEEP SATHYAN ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN 682 032. BY SRI.S.U.NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.301 of 2021 2 ## JUDGMENT Ziyad Rahman A.A., J. This appeal is filed by the 3[rd] accused in S.C.No.163 of 2010 on the file of the Additional Sessions Judge-V, Thiruvananthapuram. He stands convicted for the offences punishable under Sections 302, 307 and 324 r/w. Section 34 of the Indian Penal Code along with two other persons. 2. The prosecution case is that the appellant along with two others, committed the murder of one Sajeev, the brother of PW1, in furtherance of their common intention, by delivering a blow on his head with a wooden stick by the 1[st] accused. The 2[nd] accused had also inflicted blow on the body of the deceased. The overt act alleged against the appellant/3[rd] accused is that, seeing the assault on the said Sajeev, his father intervened and he was attacked by the appellant with a wooden stick. As all the accused have committed acts in furtherance of their common intention, all of them were arraigned as accused for the offences mentioned above. 3. The accused stood trial and as per the judgment impugned in this case, the Sessions Court found all the Crl.Appeal No.301 of 2021 3 accused guilty and passed the sentence mentioned above. This appeal is filed in the above circumstances at the instance of the 3[rd] accused. 4. Heard Sri J.R.Prem Navaz learned Counsel for the appellant and Sri S.U.Nazer, learned Public Prosecutor 5. One of the main grounds raised in this appeal is that, he was a juvenile at the time of commission of offence and the entire proceedings are vitiated, as the Sessions Court lacked jurisdiction to try the case against him. Learned Counsel for the appellant points out that, even though the claim of juvenility was raised before the Sessions Court, it was not considered and instead, the Sessions Court proceeded to complete the trial and it ended up in conviction, without any jurisdiction. 6. When this appeal came up for admission on 26.03.2021, we passed an order directing the Dy.S.P., D.C.R.B, Thiruvananthapuram Rural, to conduct an inquiry as to the date of birth of the appellant and to file a report before this Court. In compliance of the said order, a report is placed on record wherein the Dy.S.P., Crl.Appeal No.301 of 2021 4 D.C.R.B, Thiruvananthapuram Rural has conveyed his finding on the issue. It is stated therein that, in the admission register of Government L.P.S Thalayal, the date of birth of the appellant is recorded as 22.2.1991. As the date of crime is 13.01.2008, on that date, he was aged 16 years 10 months and 22 days. Along with the said inquiry report, the birth certificate of the appellant from Thiruvananthapuram Corporation is also produced, as per which, his date of birth is 14.12.1990. In the hospital records of SAT Hospital Thiruvananthapuram, which is another record made available along with the said report, his date of birth is shown as 14.12.1990. This would indicate that the entry in the Corporation is based on the Hospital records. We notice that, Government L.P.S Thalayal is the first school which he attended. Whichever date is taken, he was a minor at the time of commission of the offence. Thus the appellant was a juvenile in conflict with law as defined under section 2(l) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act). As per the provisions of the same, power to try the offences committed by a Juvenile in conflict with law is Crl.Appeal No.301 of 2021 5 exclusively vested upon the Juvenile Justice Board constituted under section 4 of the Act. 7. Section 7A of the JJ Act contemplates, a detailed procedure for considering the claim of juvenility when it is raised before the Court. The said provision reads as as follows. _"S.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."_ As per the above provision, the question of juvenility can be raised even after final disposal of the case. In Hari Ram V State of Rajasthan and another (2009 (13) SCC 211 ) it was held that claim of juvenility can be raised before any court at any stage and such claim is required Crl.Appeal No.301 of 2021 6 to be determined based on the provisions contained in JJ Act, 2000 and the rules framed thereunder. 8. In section 7A it is further contemplated that, once such a claim is put forward, the court is bound to make an inquiry by taking such evidence(not by an affidavit) as may be necessary, so as to determine the age of such person. In Ashwani Kumar Saxena v. State of M.P. (2012(9) SCC 750) , the Hon’ble Supreme Court observed that the inquiry contemplated under Section 7A is not an investigation or an inquiry contemplated as per the Code of Criminal Procedure. It was observed that, 'age determination inquiry' contemplated under section 7A r/w Rule 12 of the Juvenile Justice Care and Protection of Children)Rules, 2007 is a process which enables the court to seek evidence by obtaining matriculation certificate and in its absence, the birth certificate from the school first attended or the certificate given by the corporation or a municipal authority or panchayat. In this case, certificate from the school which he first attended is produced along with the report of the Dy Superintendent of Police and also the birth certificate issued by Local Self Government Institution. Those are Crl.Appeal No.301 of 2021 7 acceptable documents to determine the age of the appellant, as per Rule 12 of the JJ Rules which was in force at the time of commission of offence. In the light of the above, we declare that the appellant/3[rd] accused was a minor as on the date of occurrence of the crime and was a juvenile in conflict with law. 9. At this juncture, for completeness of the position of law, we wish to point out that, the Juvenile Justice (Care and Protection of Children) Act, 2000 has been repealed as per Section 111 of Juvenile Justice (Care and Protection of Children) Act, 2015 with effect from 1.01.2016. The corresponding provision of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 is Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015(JJ Act, 2015). The said provision contemplates that when an enquiry as to the age of a person is to be conducted, the concerned court before which such person is produced, shall take evidence as may be necessary (but not on an affidavit) to determine the age of such person and shall record the finding on the matter. Section 94 of the JJ Act, 2015 contemplates the documents which can be relied on for Crl.Appeal No.301 of 2021 8 determining the age of a person and the order of preference of such documents. As per the said provision, date of birth certificate from the school or matriculation certificate equivalent certificate from the concerned examination Board, in its absence, a birth certificate given by the Corporation or a Municipal Authority or a Panchayat, are the documents which can be relied on for determining the age. In the absence of any of the said documents, ossification test or any other latest age determination test can be conducted. One of the important deviations from the earlier provisions is that, it does not insist for the certificate from the school first attended, as it provides for certificate from the school or matriculation certificate by the concerned examination board. As the application of the said provision is effective from 1.01.2016 onwards, in all matters where the date of occurrence of the crime is on or after the said date, the procedure to be followed is that contemplated under the Juvenile Justice (Care and Protection of Children) Act, 2015. In such cases, the acceptable documents and the order of preference of such documents, shall be as contemplated in the said Act. Crl.Appeal No.301 of 2021 9 10. Section 7A(2) of the Act provides that, if it is found that a person was a juvenile on the date of commission of a crime, the sentence, if any, passed by any Court shall be deemed to have no effect. In the light of the above statutory provision, the finding entered into by the Sessions Court in this case and the consequent sentence imposed as regard to the appellant will have no effect. As the appellant was a juvenile at the time of commission of the crime, the Sessions Court could not have tried him for the offence as it lacked jurisdiction for the same. As per the provision of J.J.Act, a separate machinery is provided for inquiry and trial of the offences committed by a juvenile, namely Juvenile Justice Board and the allegations against the appellant in this case has to be dealt with by the said Board and punishment also has to passed by them, if required. By virtue of the finding that the appellant/3rd accused was a minor at the time of the accident, the conviction and sentence imposed upon him by the Sessions Court is a nullity. Similarly, section 18 of the JJ Act,2000 provides that a juvenile cannot be tried along with any other person who is not a juvenile. In this Crl.Appeal No.301 of 2021 10 case, he was tried along with other accused who are not juveniles. Hence on this ground also, the proceedings which resulted in his conviction is liable to be set aside, to the extent applicable to him. In the above circumstances, the conviction and sentence passed in SC 163/2010 by the court of Additional Session Judge-V, Thiruvananthapuram, as against the appellant/3rd accused is set aside. The appellant shall be released forthwith and upon his release, he shall appear before the Juvenile Justice Board, Thiruvananthapuram on 4.08.2021. In case the appellant fails to appear before the Juvenile Justice Board on the said date, the Board shall take appropriate steps in accordance with law, for securing his presence. Sd/- K.VINOD CHANDRAN,JUDGE Sd/- ZIYAD RAHMAN A.A.,JUDGE pkk