# Chhalla @ Bhagwan Dass v. State of U.P

- **Citation:** (2025) 5 ILRA 832
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-21
- **Case number:** Criminal Appeal No. 1806 of 1991
- **Bench:** Vivek Kumar Birla, Jitendra Kumar Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhalla-bhagwan-dass-v-state-of-u-p-53455
- **Pages:** 10

## Headnote

Law
-
Criminal
Procedure
Code,1973-
Section
313
-
When
the
ossification test was conducted-the appellant
was aged about 55 years on 24.6.2024-
therefore, the age could not have been
ascertained with all exactitude at this age of the
appellant -it would be necessary to refer to the
age already referred to in the St.ment u/s 313
Cr.P.C. on 19.7.1991-the report of the Juvenile
Justice Board has extended two years benefit to
the accused-appellant -and hold him juvenile on
the date of incident- and the same is accepted
and the appellant is declared juvenile on the
date of incident.

Appeal allowed in part. (E-9)

List of Cases cited:

## Text

832 INDIAN LAW REPORTS ALLAHABAD SERIES
award
sentence
heavier
than
those
prescribed by the law. 'P' being less than
12 years of age, she had suffered act of
"aggravated
sexual
assault"
but
not
"aggravated penetrative sexual assault".
Therefore, maximum sentence of seven
years contemplated under Section 10 of
P.O.C.S.O. Act, would suffice.

38. Similar view had been taken
by a co-ordinate bench in Monu Vs.
State of U.P., Neutral Citation No.-
2025:AHC:14721-DB to which one of us
(Saumitra Dayal Singh,J.) was a member.

39. Accordingly,
the
offence
under Section 376 (2)(i) I.P.C. and
Section 5(m)/6 P.O.C.S.O. Act is not
found proven. At the same time, for the
reasons noted above, offence under
Section 7 read with 9 (m) P.O.C.S.O. Act
is found proven. The impugned order
passed by the learned court below, is
modified accordingly.

40. In view of the above, the
order passed by the learned court below
is further modified. Against life sentence
awarded, maximum sentence of seven
years is awarded to the appellant, under
Section 10 P.O.C.S.O. Act.

41. At this stage, we note, as per
the Custody Certificate the appellant has
remained confined for eight years, one
month and thirty days as on 02.05.2025.
As such, he has remained confined for
more
than
the
maximum
sentence
awarded. At present, we note that the
appellant is in jail. He may be released
forthwith. In view of that consideration,
the fine is maintained. In case fine is not
deposited within the aforesaid period, the
sentence of imprisonment shall stand
extended by one year. Obviously, in that
event, the appellant would be entitled to
benefit of sentence undergone.

42. To the extent, it could not be
proven beyond reasonable doubt that the
appellant
had
attempted
to
commit
"penetrative sexual assault", we do not
find it a fit case to convict or punish the
appellant under Section 18 of P.O.C.S.O.
Act.

43. Accordingly, the appeal is
partly allowed.

44. Let the trial court record
along with a copy of this order be
transmitted
to
the
court
concerned
through Registrar (Compliance) forthwith
and a copy of this order may also be sent
to the C.J.M., concerned.

45.
C.J.M.,
concerned
shall
submit his compliance report in this
regard to this Court.

46. A copy of this order be also
sent to the Jail Authorities, concerned for
necessary compliance.
----------
(2025) 5 ILRA 832
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE JITENDRA KUMAR SINHA, J.

Criminal Appeal No. 1806 of 1991

Chhalla @ Bhagwan Dass ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Kumar Pandey, Sri Satish Trivedi
5 All. Chhalla @ Bhagwan Dass Vs. State of U.P.
833
Counsel for the Opposite Party:
D.G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973-
Section
313
-
When
the
ossification test was conducted-the appellant
was aged about 55 years on 24.6.2024-
therefore, the age could not have been
ascertained with all exactitude at this age of the
appellant -it would be necessary to refer to the
age already referred to in the St.ment u/s 313
Cr.P.C. on 19.7.1991-the report of the Juvenile
Justice Board has extended two years benefit to
the accused-appellant -and hold him juvenile on
the date of incident- and the same is accepted
and the appellant is declared juvenile on the
date of incident.

Appeal allowed in part. (E-9)

List of Cases cited:

1. Rishipal Singh Solanki Vs St. of U.P. (2022) 8
SCC 602

2. Pawan Kumar Vs St. of U.P. & ors.(2023) 15
SCC 683

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Ajay Kumar Pandey,
learned counsel for the appellant and Sri
O.P. Dwivedi, learned A.G.A. appearing
for the State respondents.

2. The present appeal has been
filed by the appellants challenging the
judgment and order dated 18.9.1991 passed
by learned Sessions Judge, Bareilly in
Session Trial No. 434 of 1989 convicting
the appellant under Section 302 IPC for life
imprisonment.

3. The prosecution story in brief is
that the complainant Ram Kumar was
residing in Mohalla Punjabpura Chet Ram
Phatak, Bareilly; the complainant and one
Kaka were sitting on a cot on 29.4.1989 at
8:15 P.M. in front of his house and there was
a dibbi light; there was a lantern burning in
the house of Radhey Shyam (deceased); the
accused-appellant Chhalla and his maternal
uncle Kanhai came through the lane; the
deceased was standing on the Chabutara of
his house; the accused Challa showered
abuses on Radhey Shyam; the deceased made
objections; the accused-appellant told to the
deceased that he used to demand house rent
and also want to get it vacated and he would
teach a lesson to him; the co-accused Kanhai
instigated the accused-appellant; the coaccused Kanhai caught the deceased and the
accused-Chhalla caused knife injury to the
deceased; the knife hit the stomach of the
deceased; the deceased raised an alarm; wife,
mother-in-law and sister of the deceased
came to his rescue; the complainant Ram
Kumar and Kaka also came to his rescue;
when they tried to catch the accused they ran
away from the spot along with knife; the
informant took Radhy Shyam to hospital
where he died; the informant came to the
police station at about 9:30 P.M. and lodged
the first information report no. 49 on
29.4.1989.

4. At the very outset, learned counsel
for the appellant submitted that an application
was filed to decide the appeal of the appellant
as a juvenile in conflict with law. The said
application was supported by an affidavit in
which School Leaving Certificate of the year
1982 has been attached in support of his
claim showing his date of birth as 4.7.1975
and date of occurrence on 29.4.1989. It was
contended that from the above material it is
ascertained that on the date of the
commission of crime, i.e. 29.4.1989, the
appellant was below 18 years of age and
therefore, was entitled for the benefit of the
provisions of the Juvenile Justice Act.

5. By an order dated 6.3.2024, the
Juvenile Justice Board was directed to
834 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct inquiry to get the genuineness of
the certificate verified.

6. Pursuant to the order of this
Court dated 8.2.2018 the Juvenile Justice
Board, Bareilly after recording statements
of the witnesses and considering the
evidence on record including the Medical
Board report dated 24.6.2024, according to
which the appellant was aged about 55
years old on 24.6.2024 and in this condition
the accused was found about 19 years 10
months and 6 days old on the date of
incident but it was concluded that based on
facts and circumstances of the case, it
appears just in the eyes of law that benefit
of two years is liable to be given to the
appellant. Therefore, it was held that on the
date of incident dated 29.4.1989 he was 17
years 10 months and 6 days old and,
therefore, was a juvenile. Thus, the
Juvenile Justice Board, Bareilly vide report
dated 3.7.2024 held the appellant Chhalla
@ Bhagwan Das to be a juvenile on the
date of incident i.e. 29.4.1989.

7. We have gone through the
statement of the accused-appellant recorded
under Section 313 Cr.P.C. on 19.7.1991,
wherein his age is shown as 18 years,
therefore, according to that on the date of
incident dated 29.4.1989 he was aged about
16 years.

8. In Rishipal Singh Solanki vs.
State of U.P. (2022) 8 SCC 602 Hon'ble
Apex Court after considering catena of
judgments has laid down the guidelines of
claim of juvenility and how it is to be
proved and it was laid down that hypertechnical approach should not be adopted
when evidence is adduced on behalf of the
accused in support of the plea that he was a
juvenile. It was further held that if two
views are possible on the same evidence,
the court should lean in favour of holding
the accused to be a juvenile in borderline
cases and that the age recorded by the
Juvenile Justice Board is to be deemed to
be true age of the person. However, the
Hon'ble Apex Court has also issued a word
of caution that ossification test cannot be
the sole criterion for age determination and
a mechanical view regarding the age of a
person cannot be adopted solely on the
basis of medical opinion by radiological
examination. Relevant paragraph no. 33 of
Rishipal (supra) is quoted as under:-

 "33.
What
emerges
on
a
cumulative consideration of the aforesaid
catena of judgments is as follows:

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

 33.2. An application claiming
juvenility could be made either before the
Court or the JJ Board.

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

 33.2.2. If an application is filed
before the Court claiming juvenility, the
provision of sub-section (2) of section 94 of
the JJ Act, 2015 would have to be applied
or read along with sub-section (2) of
section 9 so as to seek evidence for the
purpose of recording a finding stating the
age of the person as nearly as may be.
5 All. Chhalla @ Bhagwan Dass Vs. State of U.P.
835
 33.2.3.
When
an
application
claiming juvenility is made under section
94 of the JJ Act, 2015 before the JJ Board
when the matter regarding the alleged
commission of offence is pending before a
Court, then the procedure contemplated
under section 94 of the JJ Act, 2015 would
apply. Under the said provision if the JJ
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Board shall
undertake the process of age determination
by seeking evidence and the age recorded
by the JJ Board to be the age of the person
so brought before it shall, for the purpose
of the JJ Act, 2015, be deemed to be true
age of that person. Hence the degree of
proof required in such a proceeding before
the JJ Board, when an application is filed
seeking a claim of juvenility when the trial
is before the concerned criminal court, is
higher than when an inquiry is made by a
court before which the case regarding the
commission of the offence is pending (vide
section 9 of the JJ Act, 2015).

 33.3. That when a claim for
juvenility is raised, the burden is on the
person raising the claim to satisfy the Court
to discharge the initial burden. However,
the
documents
mentioned
in
Rule
12(3)(a)(i), (ii), and (iii) of the JJ Rules
2007 made under the JJ Act, 2000 or subsection (2) of section 94 of JJ Act, 2015,
shall
be
sufficient
for
prima
facie
satisfaction of the Court. On the basis of
the aforesaid documents a presumption of
juvenility may be raised.

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

 33.5. That the procedure of an
inquiry by a Court is not the same thing as
declaring the age of the person as a juvenile
sought before the JJ Board when the case is
pending for trial before the concerned
criminal court. In case of an inquiry, the
Court records a prima facie conclusion but
when there is a determination of age as per
sub-section (2) of section 94 of 2015 Act, a
declaration is made on the basis of
evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age of
the person brought before it. Thus, the
standard of proof in an inquiry is different
from that required in a proceeding where
the determination and declaration of the
age of a person has to be made on the basis
of evidence scrutinised and accepted only if
worthy of such acceptance.

 33.6. That it is neither feasible
nor desirable to lay down an abstract
formula to determine the age of a person. It
has to be on the basis of the material on
record and on appreciation of evidence
adduced by the parties in each case.

 33.7. This Court has observed
that a hyper-technical approach should not
be adopted when evidence is adduced on
behalf of the accused in support of the plea
that he was a juvenile.

 33.8. If two views are possible on
the same evidence, the court should lean in
favour of holding the accused to be a
juvenile in borderline cases. This is in order
to ensure that the benefit of the JJ Act,
2015 is made applicable to the juvenile in
conflict with law. At the same time, the
Court should ensure that the JJ Act, 2015 is
not
misused
by
persons
to
escape
punishment after having committed serious
offences.
836 INDIAN LAW REPORTS ALLAHABAD SERIES
 33.9.
That
when
the
determination of age is on the basis of
evidence such as school records, it is
necessary that the same would have to be
considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or
official
document
maintained
in
the
discharge of official duty would have
greater credibility than private documents.

 33.10. Any document which is in
consonance with public documents, such as
matriculation certificate, could be accepted
by the Court or the JJ Board provided such
public document is credible and authentic
as per the provisions of the Indian Evidence
Act viz., section 35 and other provisions.

 33.11. Ossification Test cannot be
the sole criterion for age determination and
a mechanical view regarding the age of a
person cannot be adopted solely on the
basis of medical opinion by radiological
examination.
Such
evidence
is
not
conclusive evidence but only a very useful
guiding factor to be considered in the
absence of documents mentioned in Section
94(2) of the JJ Act, 2015."

 (emphasis supplied)

9. The judgment of Rishipal
(supra) was further relied on and referred
to in judgment of Hon'ble Apex Court in
the case of Pawan Kumar vs. State of
U.P. and others (2023) 15 SCC 683,
wherein the law was discussed to the effect
that the medical opinion based on bone
ossification test is not entirely accurate as it
is not an exact science, however, the Court
also noticed the previous case law to the
effect that the radiological examination
leaves a margin of two years on either side
of the age range as prescribed by the test
irrespective of whether the ossification test
of multiple joints is conducted and the
Court in India have accepted the fact that
after the age of thirty years the ossification
test cannot be relied upon for age
determination and it is trite that the
standard of proof for the determination of
age is the degree of probability and not
proof beyond reasonable doubt. However,
it was reiterated that if two views are
possible on the same evidence, the court
should lean in favour of holding the
accused to be a juvenile in borderline cases.
Relevant paragraphs no. 39, 40 and 41 of
Pawan Kumar (supra) are quoted as
under:-

 "39. Further, it must also be kept
in mind that the medical opinion based on
Bone Ossification Test, is not entirely
accurate. This Court in the case of Vinod
Katara v. State of U.P. (2023) 15 SCC 210
has held the following:

 64. The bone ossification test is
not an exact science that can provide us
with the exact age of the person. As
discussed
above,
the
individual
characteristics such as the growth rate of
bones and skeletal structures can affect the
accuracy of this method. This Court has
observed in Ram Suresh Singh v. Prabhat
Singh, (2009) 6 SCC 681 : (2010) 2 SCC
(Cri) 1194, and Jyoti Prakash Rai v. State
of Bihar, (2008) 15 SCC 223 : (2009) 3
SCC (Cri) 796, that the ossification test is
not conclusive for age determination
because it does not reveal the exact age of
the
person,
but
the
radiological
examination leaves a margin of two years
on either side of the age range as prescribed
by the test irrespective of whether the
ossification test of multiple joints is
conducted. The courts in India have
accepted the fact that after the age of thirty
years the ossification test cannot be relied
5 All. Chhalla @ Bhagwan Dass Vs. State of U.P.
837
upon for age determination. It is trite that
the standard of proof for the determination
of age is the degree of probability and not
proof beyond reasonable doubt.

 40. In a case of juvenility where
two views are possible, this Court has held
that
a
liberal
approach
should
be
undertaken. This position was laid down by
this Court in the case of Arnit Das v. State
of Bihar (2000) 5 SCC 488 where it was
held that:

 "19.......... (ii) a hypertechnical
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 on the same evidence, the court
should lean in favour of holding the
accused to be a juvenile in borderline cases;
and"

 41. This proposition of taking a
liberal view and about extending the
benefit of juvenility where two views are
available has been reiterated by this Court
in numerous subsequent decisions such as
Mukarrab and Others v. State of Uttar
Pradesh (2017) 2 SCC 210, Ashwani
Kumar Saxena v. State of Madhya Pradesh
(2012) 9 SCC 7503 as well as Rishipal
Singh Solanki 3 Para 13 v. State of Uttar
Pradesh
(2022)
8
SCC
602
which
concluded as follows in para 33.8:

 33.8. If two views are possible on
the same evidence, the court should lean in
favour of holding the accused to be a
juvenile in borderline cases. This is in order
to ensure that the benefit of the JJ Act,
2015 is made applicable to the juvenile in
conflict with law. At the same time, the
court should ensure that the JJ Act, 2015 is
not
misused
by
persons
to
escape
punishment after having committed serious
offences."

(emphasis supplied)

10. As already referred to above
when the ossification test was conducted
the appellant was aged about 55 years on
24.6.2024, therefore, the age could not
have been ascertained with all exactitude at
this age of the appellant and it would be
necessary to refer to the age already
referred to in the statement recorded under
Section 313 Cr.P.C. on 19.7.1991, wherein
his age was shown as 18 years and incident
is dated 29.4.1989. Therefore, the appellant
as per the facts existing on record was aged
about 16 years on the date of incident.
Further, in the School Leaving Certificate
of Class-I issued on 20.9.1982 his date of
birth is recorded as 04.7.1975.

11. In this background, we find no
hesitation in accepting the report of the
Juvenile Justice Board, Bareilly wherein it
has extended two years benefit to the
accused-appellant and has recorded his age
on the date of incident as 17 years 10
months and 6 days holding him juvenile on
the date of incident and accordingly the
same is accepted and the appellant herein
Chhalla @ Bhagwan Das is declared
juvenile on the date of incident i.e.
29.4.1989.

12. Now, since the appellant was a
Juvenile in conflict with law, on the date of
incident, and presently he has crossed 50
years age, and further no other ground of
appeal having been raised before us,
therefore, at this stage the Court has to take
into consideration provisions of Sections 18
and 21 of Juvenile Justice (Care and
Protection of Children) Act, 2015 and to
pass appropriate orders.
838 INDIAN LAW REPORTS ALLAHABAD SERIES
13. For ready reference Section 18
of Juvenile Justice (Care and Protection of
Children) Act, 2015 is extracted below:-

 "18. Orders regarding child found
to be in conflict with law.-

 (1). Where a Board is satisfied on
inquiry that a child irrespective of age has
committed a petty offence, or a serious
offence, or a child below the age of sixteen
years has committed a heinous offence,
then, notwithstanding anything contrary
contained in any other law for the time
being in force, and based on the nature of
offence, specific need for supervision or
intervention, circumstances as brought out
in the social investigation report and past
conduct of the child, the Board may, if it so
thinks fit,-

 a. allow the child to go home
after advice or admonition by following
appropriate inquiry and counselling to such
child and to his parents or the guardian;

 b. direct the child to participate in
group counselling and similar activities;

 c. order the child to perform
community service under the supervision of
an organisation or institution, or a specified
person, persons or group of persons
identified by the Board;

 d. order the child or parents or the
guardian of the child to pay fine:

 Provided that, in case the child is
working, it may be ensured that the
provisions of any labour law for the time
being in force are not violated;

 e. direct the child to be released on
probation of good conduct and placed under
the care of any parent, guardian or fit person,
on such parent, guardian or fit person
executing a bond, with or without surety, as
the Board may require, for the good behaviour
and child's well-being for any period not
exceeding three years;

 f. direct the child to be released on
probation of good conduct and placed under
the care and supervision of any fit facility for
ensuring the good behaviour and child's wellbeing for any period not exceeding three years;

 g. direct the child to be sent to a
special home, for such period, not exceeding
three years, as it thinks fit, for providing
reformative services including education, skill
development,
counselling,
behaviour
modification therapy, and psychiatric support
during the period of stay in the special home:

 Provided that if the conduct and
behaviour of the child has been such that, it
would not be in the child's interest, or in the
interest of other children housed in a special
home, the Board may send such child to the
place of safety.

 2. If an order is passed under
clauses (a) to (g) of sub-section (1), the Board
may, in addition pass orders to-

 i. attend school; or

 ii. attend a vocational training
centre; or

 iii. attend a therapeutic centre; or

 iv.
prohibit
the
child
from
visiting, frequenting or appearing at a
specified place; or

 v.
undergo
a
de-addiction
programme.
5 All. Chhalla @ Bhagwan Dass Vs. State of U.P.
839
 3.
Where
the
Board
after
preliminary assessment under section 15
pass an order that there is a need for trial of
the said child as an adult, then the Board
may order transfer of the trial of the case to
the Children's Court having jurisdiction to
try such offences."

 13. It is also relevant to quote
section 21 of the Act.

 "21. Order that may be passed
against a child in conflict with law:

 No child in conflict with law shall
be
sentenced
to
death
or
for
life
imprisonment without the possibility of
release, for any offence, either under the
provisions of this Act or under the
provisions of the Indian Penal Code (45 of
1860) or any other law for the time being in
force."

 14. From the perusal of the
aforesaid provisions it is noticed that a
juvenile in conflict with law cannot be
sentenced to undergo life imprisonment,
and further the maximum period for which
a juvenile may be sent to a special home is
only three years.

 15. Further, the accused appellant
no. 1 because of his age, as on today cannot
be sent to special home. However, as is
evident from record that the appellant has
already undergone about 6 months of
imprisonment.

 16. At this juncture, it would be
appropriate to look into the ratio laid down
by Apex Court while dealing with the
similar situation like in the case in hand.

 17. The Hon'ble Supreme Court
in Mahesh and others vs. State of Rajasthan
and others, reported in 2019(3) Crimes 60
(SC) has held as follows:

 "5. The position in law in this
regard is somewhat unsettled as has been
noticed and dealt with by this Court in
Jitendra Singh alias Babboo Singh and
another versus State of Uttar Pradesh1
wherein in paragraphs 24 to 27 four
categories of cases have been culled out
where apparently different approaches had
been adopted by this Court. The net result
is summed up in paragraph 28 of the
aforesaid report which explains the details
of the categorization made in the earlier
paragraphs of the said report. Paragraph 28
of the said report, therefore, would require
a specific notice and is reproduced below:

 "28. The sum and substance of
the above discussion is that in one set of
cases this Court has found the juvenile
guilty of the crime alleged to have been
committed by him but he has gone virtually
unpunished since this Court quashed the
sentence awarded to him. In another set of
cases, this Court has taken the view, on the
facts of the case that the juvenile is
adequately
punished
for
the
offence
committed by him by serving out some
period in detention. In the third set of cases,
this Court has remitted the entire case for
consideration by the jurisdictional Juvenile
Justice Board, both on the innocence or
guilt of the juvenile as well as the sentence
to be awarded if the juvenile is found
guilty. In the fourth set of cases, this Court
has examined the case on merits and after
having found the juvenile guilty of the
offence,
remitted
the
matter
to
the
jurisdictional Juvenile Justice Board on the
award of sentence."

 6. The validity of the conviction
in respect of the incident which occurred
840 INDIAN LAW REPORTS ALLAHABAD SERIES
almost two decades back, in our considered
view, ought to be decided in these appeals
and the entire of the proceedings including
the punishment/sentence awarded should
not be interfered with on the mere ground
that the accused appellants were juveniles
on the date of commission of the alleged
crime. Judicial approaches must always be
realistic and have some relation to the
ground realities. We, therefore, adopt one
of the possible approaches that has been
earlier adopted by this Court in the four
categories of cases mentioned above to
examine the correctness of the conviction
of the accused appellants under the
provisions of the IPC, as noticed above.

 7. In this regard, having perused
the materials on record we find no ground
whatsoever to take a view different from
what has been recorded by the learned trial
Court and affirmed by the High Court. The
conviction of the accused appellants under
Sections 323, 324, 325, 427, 455 read with
Section 149 IPC accordingly shall stand
affirmed.

 8. This will bring us to a
consideration of the sentence to be
awarded. Here again,in the four categories
of cases that have been noticed in Jitendra
Singh (supra) and in several subsequent
decisions of this Court in Abdul Razzaq vs.
State of Uttar Pradesh, Mohd. Feroz Khan
alias Feroz vs. State of Andhra Pradesh,
Mumtaz alias Muntyaz vs. State of Uttar
Pradesh and Mahendra Singh vs. State of
Rajasthan different approaches have been
adopted. In some cases, the question of
punishment has been left to be determined by
the Juvenile Justice Board in view of the
provisions of Section 20 of the Act of 2000.
In other cases, the issue of punishment has
been dealt with by the Court having regard to
the fact that on the date when the Court had
considered the issue the juvenile(s) have
advanced in age.

 9. The present is a case where the
accused appellants though juveniles on the
date of commission of the alleged crime are,
as on today, middle aged persons. The
accused appellant - Mahesh in Criminal
Appeal arising out of Special Leave Petition
(Criminal) No.2934 of 2015 had undergone
the custody for a period of nearly one year
whereas the accused appellant - Arjun in
Criminal Appeal arising out of Special Leave
Petition (Criminal) No.5370 of 2015 had
suffered custody for about eight (08) months.
The maximum sentence, as already noted, is
three years. Having regard to the long efflux
of time we are of the view that it will not be
necessary, in the facts of the present cases, to
cause a remand of the matter to the Juvenile
Justice Board for a decision on the quantum
of sentence for the reason even if such a
remand is made and the Juvenile Justice
Board comes to a decision that in addition to
the period of custody suffered by the accused
appellants they need to suffer a further period
of custody, such custody can only be in a
remand home or a protection home to which
places the accused appellants, because of
their age as on today, cannot be sent.

 10. On the contrary, having regard
to the period of custody suffered; the age of
the accused appellants as on date; the efflux
of time since the date of occurrence and all
other relevant facts and circumstances we are
of the view that while maintaining the
conviction of the accused appellants the
sentence imposed should be modified to one
of
the
period
undergone.
We
order
accordingly."

14. In light of the above legal
position and having regard to the facts and
circumstances of the case, the age of the
5 All. Attar Singh & Ors. Vs. State of U.P.
841
accused appellant as on date, the
efflux of time since the date of occurrence,
we are of the view that while maintaining
the conviction of the accused appellant the
sentence imposed is modified to the period
already undergone.

15. Accordingly, the appeal is
allowed in part. The accused appellant is
availing the benefit of bail by furnishing
adequate sureties and bonds, the same
stands discharged.

16. Lower Court record along with
a copy of this judgement be sent back
immediately to District Court concerned for
compliance and further necessary action.
----------
(2025) 5 ILRA 841
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.05.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 1846 of 1983

Attar Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.N. Mishra, Sri A.N. Mulla, Sri R.R.
Singh, Sri Aditya Prakash, Sri Saurabh
Chaturvedi, Sri V.S. Choudhary, Sri I.K.
Chaturvedi (Sr. Adv.)

Counsel for the Opposite Party:
D.G.A., Sri Satish Kumar Tyagi

Occular evidence-Motive takes backstage in a
case of direct ocular evidence -in the present
case there are three injured witnesses whose
presence on the spot is natural being family
members.
Appeal dismissed. (E-9)

List of Cases cited:

1. Upendra Pradhan Vs St. of Orissa, 2015 (11)
SCC 124

2. Balaka Singh & ors.Vs St. of Pun., AIR 1975
SC 1962

3. Darshan Singh Vs St. of Pun., 2010 (2) SCC
333

4. Krishna Mochi & ors.Vs St. of Bihar, (2002) 6
SCC 81

5. Masalti Vs St. of U.P., AIR 1965 SC 202

6. Darya Singh Vs St. of Pun., AIR 1965 SC 328

7. Appabhai & anr. Vs St. of Guj., AIR 1988 SC
696,

8. St. of A.P. Vs S. Rayappa & ors., (2006) 4
SCC 512

9. Satbir Singh & ors.Vs St. of U.P., (2009) 13
SCC 790

10. Jayabalan Vs U.T. of Pondicherry, 2010 (68)
ACC 308 (SC)

11. Dharnidhar Vs St. of U.P., (2010) 7 SCC 759

12. Baban Shankar Daphal & ors.Vs The St. of
Mah., 2025 SCC Online SC 137

13. Shahaja @ Shahajan Ismail Mohd. Vs St. of
Mah., (2023) 12 SCC 558

14. Pahalwan Singh & ors.Vs St. of U.P., 2020
(6) ALJ 166

15. Kaptan Singh Vs St. of UP, 2020 (1) ADJ 106
(DB)

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Shri I.K. Chaturvedi, learned
Senior Counsel assisted by Shri Aditya
Prakash
alongwith
Shri
Saurabh