# Ram Nayan & Ors v. State of U.P

- **Citation:** (2023) 6 ILRA 776
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-12
- **Case number:** Criminal Appeal No. 4499 of 2015
- **Bench:** Siddhartha Varma, Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nayan-ors-v-state-of-u-p-50448
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections
147,
302/149
&
201
-
Punishment for murder - Appeal against
conviction - Life imprisonment - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 2(l) - Juvenile Justice
(Care and Protection of Children) Rules,
2007 - Rule 12(3)(b) - Juvenile Justice
Act, 1986 - Section 2(h) - Juvenile Justice
(Care
and
Protection
of
Children)
Amendment Act, 2006 - Section 2(l) -
Juvenile Justice (Care and Protection of
Children ) Act, 2015 - Sections 2(12),
2(13), 9, 94 (2), 111 - Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016 - Rule 90 - Informant's son
(deceased) had gone with one of appellant
and not returned back - Missing report
was lodged - Dead body was found on
pointing of same accused - Charge-sheet
submitted - Convicted - During pendency
of appeal, appellant no.3 filed application
- Plea of juvenility on date of incident -
Report was sought - Declared juvenile -
Held, no illegality committed by JJB in
conducting
enquiry,
followed
due
procedure, as said order was never
challenged either by St. or by informant
and
became
final
-
No
substantial
difference exist between provisions of Act,
2000 and Act, 2015, except that Act, 2015
takes
cares
of
crime
committed
by
children in age group of 16-18 years age -
Said provisions applicable to accused
irrespective of fact that claim was made
after attaining age of 18 years and at a
late stage of trial, inquiry, revision, appeal
in respect of juvenile in conflict with law
in any court. (Para 3, 4, 5, 27, 33, 35, 37)

Criminal Appeal partly allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,970 of 45,281. This is a partial read: ask again with offset=39970 for what follows._

776 INDIAN LAW REPORTS ALLAHABAD SERIES

"29. The sum and substance is
that the evidence of a related or interested
witness
should
be
meticulously
and
carefully examined. In a case where the
related and interested witness may have
some enmity with the assailant, the bar
would need to be raised and the evidence of
the witness would have to be examined by
applying a standard of discerning scrutiny.
However, this is only a rule of prudence
and not one of law, as held in Dalip Singh
[AIR 1953 SC 364] and pithily reiterated in
Sarwan Singh [(1976) 4 SCC 369] in the
following words: (Sarwan Singh case
[(1976) 4 SCC 369, p. 376, para 10)

"10. ... The evidence of an
interested witness does not suffer from any
infirmity as such, but the courts require as a
rule of prudence, not as a rule of law, that
the evidence of such witnesses should be
scrutinised with a little care. Once that
approach is made and the court is satisfied
that the evidence of interested witnesses
have a ring of truth such evidence could be
relied upon even without corroboration."

57. Further delving on the same
issue, it is noted that in the case of
Ganapathi and Anr. v. State of Tamil Nadu
(2018) 5 SCC 549, this Court held that in
several cases when only family members
are present at the time of the incident and
the case of the prosecution is based only on
their evidence, Courts have to be cautious
and meticulously evaluate the evidence in
the process of trial.

58. It is thus settled that the
evidence of the related witnesses have to be
considered by applying discerning scrutiny.
............."

58. On the evaluation of evidence led
by the prosecution in this case and on the
basis of discussions held above, we find
that it would not be safe to rely upon the
testimony of sole eye-witness, namely PW4, to convict the accused appellants under
Section 302, 506 IPC. The finding returned
by the court below with regard to guilt of
the accused appellants is, therefore, liable
to be reversed.

59. We have also factored in the fact
that accused appellants have remained in
incarceration for over sixteen years and
once a doubt is raised with regard to their
implication it would not be safe to hold
them guilty.

60. Accordingly, this appeal succeeds
and is allowed. The impugned judgment
and order dated 26.09.2014 is hereby set
aside and the appellants are acquitted of the
charges levelled against them. Since the
appellants have already been released on
bail by the Supreme Court, as such, their
sureties and bonds shall stand discharged
and they shall be set free, unless they are
wanted in any other case, subject to
compliance of section 437A Cr.P.C.
----------
(2023) 6 ILRA 776
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANISH KUMAR NIGAM, J.

Criminal Appeal No. 4499 of 2015

Ram Nayan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Bipin Kumar Tripathi, Sri Dinesh Kumar
Pandey, Sri Kamalesh Kumar Nishad, Sri
6 All. Ram Nayan & Ors. Vs. State of U.P.
777
Manu Sharma, Sri Nazrul Islam Jafri, Sri
Pradeep Kumar Chaurasia, Sri Ram Awadh
Maurya

Counsel for the Opposite Party:
G.A.,Sri Pawan Kumar, Sri Sanjeev Kumar
Singh

Criminal Law - Indian Penal Code, 1860 -
Sections
147,
302/149
&
201
-
Punishment for murder - Appeal against
conviction - Life imprisonment - Juvenile
Justice (Care and Protection of Children)
Act, 2000 - Sections 2(l) - Juvenile Justice
(Care and Protection of Children) Rules,
2007 - Rule 12(3)(b) - Juvenile Justice
Act, 1986 - Section 2(h) - Juvenile Justice
(Care
and
Protection
of
Children)
Amendment Act, 2006 - Section 2(l) -
Juvenile Justice (Care and Protection of
Children ) Act, 2015 - Sections 2(12),
2(13), 9, 94 (2), 111 - Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016 - Rule 90 - Informant's son
(deceased) had gone with one of appellant
and not returned back - Missing report
was lodged - Dead body was found on
pointing of same accused - Charge-sheet
submitted - Convicted - During pendency
of appeal, appellant no.3 filed application
- Plea of juvenility on date of incident -
Report was sought - Declared juvenile -
Held, no illegality committed by JJB in
conducting
enquiry,
followed
due
procedure, as said order was never
challenged either by St. or by informant
and
became
final
-
No
substantial
difference exist between provisions of Act,
2000 and Act, 2015, except that Act, 2015
takes
cares
of
crime
committed
by
children in age group of 16-18 years age -
Said provisions applicable to accused
irrespective of fact that claim was made
after attaining age of 18 years and at a
late stage of trial, inquiry, revision, appeal
in respect of juvenile in conflict with law
in any court. (Para 3, 4, 5, 27, 33, 35, 37)

Criminal Appeal partly allowed. (E-13)

List of Cases cited:
1. Pratap Singh Vs St. of Jharkhand & anr.
reported in (2005) 3 SCC 551

2. Dharambir Vs St. (NCT of Delhi) & anr.
reported in (2010) 5 SCC 344, (Para 10 to 15)

3. Arnit Das Vs St. of Bihar reported in (2000) 5
SCC 488

4. Umesh Chandra Vs St. of Raj. reported in
(1982) 2 SCC 202

5. Vinod Katara Vs St. of U. P. reported in
(2022) SCC Online SC 1204, (Para 26)

6. Sanjay Patel Vs St. of U.P. reported in 2022
SCC Online SC 450

7. Vaneet Kumar Gupta @ Dharminder Vs St. of
Punjab reported in (2009) 17 SCC 587

8. LakhanLal Vs St. of Bihar reported in (2011) 2
SCC 251

9. Amit Singh Vs St. of Mah. & anr. reported in
(2011) 13 SCC 744

10. Kalu @ Amit Vs St. of Har.reported in (2012)
3 SCC (Crl) 761

11. Babla @ Dinesh Vs St. of Uttarakhand
reported in (2012) 3 SCC (Crl) 1067

(Delivered by Hon'ble Hon'ble Manish
Kumar Nigam, J.)

1. Heard learned Counsel for the
appellant no.3, Suresh @ Suttur and
learned A.G.A. for the State.

2. Present criminal appeal has been
filed
by
appellant
no.1-Ram
Nayan,
appellant no.2-Chetman, appellant no.3Suresh @ Suttur, appellant no.4-Ram Surat
and appellant no.5-Raghav Sharan against
the judgment and order dated 30.9.2015
passed by Addl. Sessions Judge, Court
no.2, Maharajganj in S.T. No.31 of 1998
(State Vs. Suresh @ Suttur & others)
connected with S.T. No.40 of 2000 (State
778 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs.
Raghav
Sharan),
whereby
the
appellants
have
been
convicted
and
sentenced for life imprisonment under
Section 302/149, for imprisonment of two
years under Section 147 IPC and for
imprisonment of three years under Section
201 I.P.C. Fine has also been imposed on
the appellants.

3. A First Information Report was
lodged in Case Crime No.63 of 1993 under
Section 147, 302, 201 I.P.C., P.S.-Kotwali,
District-Maharajganj against the Suresh @
Suttur, Chetman s/o Deep Narain, Ram
Surat s/o Chetman, Ram Nayan s/o Chauthi
Kewat, Raghav Sharan S/o Chetman. As
per the prosecution story on 5.3.1993
accused Suresh @ Suttur Yadav had taken
Udai Raj the son of first informant from his
house and since then Udai Raj had not
come back. Missing report was lodged with
the police. Suresh @ Suttur Yadav was
arrested and on his pointing out dead body
of the deceased Udai Raj was recovered by
the Police. After investigation charge-sheet
was submitted by Police against appellants.
However, no charge-sheet was submitted
against
Raghav
Sharan.
Initially
the
accused Raghav Sharan could not be
arrested by Police as he was absconding
after the incident. Later on when accused
Raghav
Sharan
was
arrested,
a
supplementary
charge-sheet
was
filed
against Raghav Sharan by the Police.
Learned Magistrate thereafter vide orders
dated 11.8.1998 and 2.8.2000 committed
the case to trial before the Sessions Court.
Sessions Trial No.31 of 1998 (State Vs.
Suresh @ Suttur and others) and S.T.
No.40 of 2000 (State Vs. Raghav Sharan)
were tried together by the sessions court
and
all
the
accused-appellants
were
convicted and sentenced by the sessions
Judge vide judgment and order dated
30.9.2015.

4. During the pendency of the present
appeal, an application being Application
No.91499 of 2016 was filed by appellant
no.3 Suresh @ Suttur praying that an
inquiry in respect of the juvenility of the
appellant no.3, who was a minor on the
alleged date of crime i.e. 05.03.1993 be
undergone and necessary orders be passed
in this regard. The claim of the juvenility
was made on the ground that the appellant
no.3, Suresh @ Suttur was admitted in
Class 2nd on 05.09.1983 and has passed
Class-5th on 25.4.1987. The date of birth
mentioned in his mark-sheet was 18.3.1977
which was issued by the Principal, Ram
Aadhar Junior High School Gaushala,
Maharajganj.
Applicant/appellant
no.3
relied upon the transfer certificate issued by
the institution and the other documents
mentioned in the affidavit filed in support
of the application for consideration of his
juvenility. This Court vide order dated
10.10.2017 directed the District Judge,
Maharajganj to get an inquiry conducted
from the concerned Juvenile Justice Board
regarding the plea of juvenility made by the
appellant no.3 Suresh @ Suttur and asked
him to submit his report within two months
from the date of order. On 08.12.2017, a
report was submitted by the Juvenile
Justice Board, Maharajganj to the effect
that on the date of incident i.e. 5.3.1993,
appellant no.3, Suresh @ Suttur was 15
years 11 months and 17 days old. The
aforesaid report along with the documents
considered by the Juvenile Justice Board,
Maharajganj were placed on record in the
present appeal. By order dated 31.10.2019,
learned A.G.A. was granted time to file
counter affidavit to the report of Juvenile
Justice Board, Maharajganj within four
weeks'. On 02.11.2020, an affidavit was
filed by learned A.G.A. mentioning therein
that as per instructions provided by Station
House Officer in writing, no appeal has
6 All. Ram Nayan & Ors. Vs. State of U.P.
779
been preferred to assail the order dated
8.12.2017 passed by Juvenile Justice
Board, Maharajganj.

5. Today when the appeal was taken
up, the Counsel for the appellant no.3
relying upon the report of the Juvenile
Justice
Board,
Maharajganj
dated
8.12.2017 submitted that on the date of
alleged incident i.e. 5.3.1993, the appellant
no.3, Suresh @ Suttur was aged about 15
years 11 months and 17 days i.e. appellant
no.3 was a juvenile who was in conflict
with law on the relevant date. Counsel for
the appellant no.3 submitted that appellant
no.3 may be released forthwith. It has been
submitted by learned Counsel for the
appellant no.3 that the bail application of
appellant no.3 was rejected by this Court
vide order dated 8.4.2016 and has further
submitted that the appellant no.3 Suresh @
Suttur was taken in judicial custody on
29.9.2015 and since then, the appellant
no.3 has remained in jail for about 8 years.
It has been further contended that in view
of Section 18(g) of Juvenile Justice (Care
and Protection of Children) Act, 2015
(hereinafter referred as Act of 2015), a
child can be sent to a special home for a
period not exceeding three years and as the
appellant has remained in jail for about 8
years, the appellant is entitled to be
released forthwith.

6. Per contra, learned A.G.A.
submitted that for the first time, the
appellant has raised the claim of juvenility
before this Court in the present appeal.
Prior to this i.e. during investigation or
during his trial, appellant no.3 never
claimed himself to be a juvenile.

7. It has been further contended by
learned A.G.A. that the alleged incident is
dated 5.3.1993 and on the aforesaid date,
the provisions of Juvenile Justice Act, 1986
(hereinafter referred as Act of 1986) were
in force. Act of 1986 was repealed by
Section 69 of the Juvenile Justice (Care and
Protection
of
Children)
Act,
2000
(hereinafter referred as Act of 2000) which
came in force on 1.4.2001. The learned
A.G.A. relied upon the Constitutional
Bench judgment of the Hon'ble Apex
Court in case of Pratap Singh Vs. State of
Jharkhand and another reported in (2005)
3 SCC 551 wherein, it has been held by the
Hon'ble Apex Court that the Act of 2000
would
be
applicable
in
a
pending
proceeding in any court/authority initiated
under the 1986 Act and was pending when
the Act of 2000 came in force and the
person had not completed 18 years of age
as on 1.4.2001. It has been further
contended by the learned A.G.A. that
admittedly on 1.4.2001, the appellant no.3
had completed 18 years of age and as such,
the provisions of Act of 2000 would not be
applicable. It has been further contended
that Act of 1986 had been repealed and the
appellant had not raised any claim of his
juvenility during the period when the Act
of 1986 was in force and therefore the same
cannot be considered in view of the
judgment of the Apex Court in case of
Pratap Singh (supra). Learned A.G.A.
further contended that the inquiry made by
the Juvenile Justice Board, Maharajganj
was not in accordance with law and the
same cannot be relied upon.

8. In reply, learned Counsel for the
appellant contended that after the case of
Pratap Singh (Supra), certain amendments
were made in the Act of 2000 by the Act
No.33 of 2006. Section 2(l) defining
juvenile in conflict of law was also
amended by Act No.33 of 2006 further
Section 7(A) was added in the Act of 2000
the proviso to Section 16 of Act of 2000
780 INDIAN LAW REPORTS ALLAHABAD SERIES
was also amended by Section 13 of Act No.
33 of 2006.

9. Counsel for the appellant further
contended that the Hon'ble Apex Court in
Case of Dharambir Vs. State (NCT of
Delhi) and another reported in (2010) 5
SCC 344, has held that all persons who
were below the age of eighteen years on the
date of commission of the offence even
prior to 1.4.2001 would be treated as
juveniles even if the claim of juvenile, is
raised after they have attained the age of
eighteen years, on or before the date of
commencement of the Act of 2000 and
were undergoing sentences upon being
convicted.

10. We have considered the rival
submissions.
The
striking
distinction
between the Act of 1986 and Act of 2000 is
with regard to the definition of juvenile.
Section 2(h) of Act of 1986 defines
juvenile as under :-

"2(h) juvenile means a boy who
has not attend the age of 16 years or a girl
who has not attend the age of 18 years"

Section 2(k) of Act of 2000
defines juvenile as under :-

" 2(K) Juvenile or child means a
person who has not completed 18 years of
age."

11. Thus the distinction between the
Act of 1986 and Act of 2000 is that under
the Act of 1986, juvenile means a male
juvenile who has not attained the age of 16
years and a female juvenile who has not
attained the age of 18 years. In the Act of
2000, no distinction have been drawn
between the male and female juvenile. The
limit of 16 years in Act of 1986 has been
raised to 18 years in Act of 2000. In Act of
2000,
wherever
the
word
"juvenile"
appears the same will now have been taken
to mean a person who has not completed 18
years of age.

12. In Pratap Singh (supra), a
reference was made by an order dated
7.2.2003 noticing the conflicting views in
case of Arnit Das Vs. State of Bihar
reported in (2000) 5 SCC 488 and Umesh
Chandra Vs. State of Rajasthan reported
in (1982) 2 SCC 202, the Constitutional
Bench framed two questions, which are as
under :-

(a)
Whether
the
date
of
occurrence will be the reckoning date
for determining the age of alleged
offender as juvenile offender or the date
when he is produced in court/competent
authority.

(b) Whether the Act of 2000 will
be applicable in the case a proceeding is
initiated under the 1986 Act and pending
when the Act of 2000 was enforced w.e.f.
1.4.2001.

13. The Hon'ble Apex Court after
considering the provisions of Act of 1986
as well as the provisions of Act of 2000
answered the question as under :-

The
2000
Act
would
be
applicable in a pending proceeding in
any Court or authority initiated under
1986 Act and is pending when the 2000
Act came into force and the person had
not completed 18 years of age as on
1.4.2001.

Prior
to
amendment,
the
definition of Juvenile in conflict with law
under the Act of 2000 was as under :-
6 All. Ram Nayan & Ors. Vs. State of U.P.
781

"Section
2(l)
(unamended):-
Juvenile in conflict with law" means a
juvenile who is alleged to have committed
an offence.

14. After the amendment by Act No.
33 of 2006 the definition of juvenile in
conflict with law as in the amended Section
2(l) is as under:-

" 2(l) (after amendment), "
Juvenile in conflict with law" means
juvenile who is alleged to have committed
an offence and has not completed 18 years
of age as on the date of commission of such
offence."

15. In Dharambir Vs. State (NCT of
Delhi) and another (supra), the Apex Court
in para 10, 11, 12, 13, 14 and 15 (at pages
346-348) held as under :-

10. Section 20 of the Act of 2000,
the pivotal provision, as amended, reads as
follows:

"20. Special provision in respect of
pending cases.-- Notwithstanding anything
contained in this Act, all proceedings in
respect of a juvenile pending in any court in
any area on the date on which this Act comes
into force in that area, shall be continued in
that court as if this Act had not been passed
and if the court finds that the juvenile has
committed an offence, it shall record such
finding and instead of passing any sentence
in respect of the juvenile, forward the juvenile
to the Board which shall pass orders in
respect of that juvenile in accordance with
the provisions of this Act as if it had been
satisfied on inquiry under this Act that a
juvenile has committed the offence:

Provided that the Board may, for
any adequate and special reason to be
mentioned in the order, review the case and
pass appropriate order in the interest of
such juvenile.

Explanation.- In all pending
cases including trial, revision, appeal or
any other criminal proceedings in respect
of a juvenile in conflict with law, in any
court, the determination of juvenility of
such a juvenile shall be in terms of clause
(l) of Section 2, even if the juvenile ceases
to be so on or before the date of
commencement of this Act and the
provisions of this Act shall apply as if the
said provisions had been in force, for all
purposes and at all material times when the
alleged offence was committed."

11. It is plain from the language
of the Explanation to Section 20 that in all
pending cases, which would include not
only trials but even subsequent proceedings
by way of revision or appeal, etc., the
determination of juvenility of a juvenile has
to be in terms of Clause (l) of Section 2,
even if the juvenile ceases to be a juvenile
on or before 1st April, 2001, when the Act
of 2000 came into force, and the provisions
of the Act would apply as if the said
provision had been in force for all purposes
and for all material times when the alleged
offence was committed.

12. Clause (l) of Section 2 of the
Act of 2000 provides that "juvenile in
conflict with law" means a "juvenile" who
is alleged to have committed an offence and
has not completed eighteenth year of age as
on the date of commission of such offence.
Section 20 also enables the Court to
consider and determine the juvenility of a
person even after conviction by the regular
Court and also empowers the Court, while
maintaining the conviction, to set aside the
sentence imposed and forward the case to
782 INDIAN LAW REPORTS ALLAHABAD SERIES
the Juvenile Justice Board concerned for
passing sentence in accordance with the
provisions of the Act of 2000.

13. At this juncture, it will be
profitable to take note of Section 7A,
inserted in the Act of 2000 with effect from
22nd August, 2006. It reads as follows:

"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 subsection (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."

14. Proviso to sub-section (1) of
Section 7A contemplates that a claim of
juvenility can be raised before any court
and has to be recognised at any stage even
after disposal of the case and such claim is
required to be determined in terms of the
provisions contained in the Act of 2000 and
the rules framed thereunder, even if the
juvenile has ceased to be so on or before
the date of the commencement of the Act of
2000. The effect of the proviso is that a
juvenile who had not completed eighteen
years of age on the date of commission of
the offence would also be entitled to the
benefit of the Act of 2000 as if the
provisions of Section 2(k) of the said Act,
which defines "juvenile" or "child" to mean
a person who has not completed eighteenth
year of age, had always been in existence
even during the operation of the 1986 Act.

"15. It is, thus, manifest from a
conjoint reading of Section 2(k), 2(l), 7A,
20 and 49 of the Act of 2000, read with
Rules 12 and 98 of the Juvenile Justice
(Care and Protection of Children) Rules,
2007 that all persons who were below the
age of eighteen years on the date of
commission of the offence even prior to 1st
April, 2001 would be treated as juveniles
even if the claim of juvenility is raised after
they have attained the age of eighteen years
on or before the date of the commencement
of the Act of 2000 and were undergoing
sentences upon being convicted. In the view
we have taken, we are fortified by the
dictum of this Court in a recent decision in
Hari Ram Vs. State of Rajasthan."

16. Recently the Hon'ble Apex Court
in case of Vinod Katara Vs. State of Uttar
Pradesh reported in (2022) SCC Online
SC 1204 has held in Paragraph 26 which is
quoted as under:-

26. It is thus well settled that in
terms of Section 20 of 2000, in all cases,
where the accused was above 16 years,
below 18 years of age on the date of
occurrence, the proceedings pending in the
Court would continue and be taken to the
6 All. Ram Nayan & Ors. Vs. State of U.P.
783
logical end subject to an exception that
upon finding the juvenile to be guilty, the
Court would not pass an order of sentence
against him but the juvenile would be
referred to the Board for appropriate
orders under the 2000 Act.

17. Further learned Counsel for
appellant invited our attention toward
definition of "child" and "child in conflict
with law" as defined in Act of 2015 and
contended that the definition "juvenile" and
"juvenile in conflict with law" as defined in
Act of 2000 are pari materia.

18. Section 2(12) of the Act of 2015
defines "child" as under:-

2(12). "Child" means a person
who has not completed eighteen years of
age.

Section 2(13) of Act of 2015
defines "child in conflict with law" as
under:-

2(13). "Child in conflict with
law" means a child who is alleged or found
to have committed an offence and who has
not completed eighteen years of age on the
date of commission of offence."

19. We are thus of the considered
view that the contention of learned A.G.A.
that as the appellant no.3 has completed 18
years of age on the date of enforcement i.e.
1.4.2001 of Act of 2000 will not be entitled
for the benefit of Act of 2000 is not tenable
as after the amendment of definition of
juvenile in conflict with law as provided
under Section 2(l) of Act of 2000 by Act
No. 33 of 2006 and in view of judgment of
Apex Court in Dharambir Vs. State (NCT
of Delhi) and another (supra) and Vinod
Katara Vs. State of Uttar Pradesh (supra) ,
the juvenility of accused is to be
determined on the date of offence, and in
case, the accused is juvenile on the date of
offence, he will be entitled for protection of
2000 Act. Judgment in case of Pratap Singh
(supra) will not come in way after the
amendment of definition of "juvenile in
conflict with law" by Act No.33 of 2006
and subsequent pronouncement of Hon'ble
Apex Court referred above. Further in the
light of definition of "child" and "child in
conflict with law" as provided in Act of
2015, there is no change in legal position as
the material date for determining the
juvenility, it is the date of commission of
offence and not the date of commencement
of Act of 2000 as held in Pratap Singh
(supra).

20. Coming to the facts of the present
case,
the
Juvenile
Justice
Board,
Maharajganj has found appellant no.3 to be
aged of 15 years 11 months and 17 days on
the date of occurrence i.e. 5.3.1993,
therefore, even as per the provisions under
the Act of 1986, the appellant no.3 was
juvenile and after the commencement Act
of 2000 or Act of 2015, the juvenility of a
person is to be tested on the date of
occurrence and juvenile means a person
who has not completed the age of 18 years
on the date of occurrence. Thus on both
counts appellant no.3 was a juvenile as per
the report of Juvenile Justice Board,
Maharajganj dated 8.12.2017.

21. Contention of learned A.G.A. for
the State that the enquiry made by the
Juvenile Justice Board, Maharajganj was
not in accordance with law, had to be
rejected for the reason that neither the State
nor the informant had filed any appeal
against the order dated 8.12.2017 passed by
Juvenile
Justice
Board,
Maharajganj
declaring appellant no.3 as juvenile as on
784 INDIAN LAW REPORTS ALLAHABAD SERIES
5.3.1993 i.e. date of occurrence and as such
the order dated 8.12.2017 passed by the
Juvenile
Justice
Board,
Maharajganj
declaring appellant no.3 to be juvenile
became final.

22. Learned Counsel for the appellant
drew our attention towards procedure to be
followed for determination of age provided
under Act of 2000 and Act of 2015.

23. The procedure to be followed for
the determination of age is provided under
Rule 12(3)(b) of Juvenile Justice (Care and
Protection of Children) Rules, 2007 (for
short 2007 Rules).

"12. Procedure to be followed in
determination of age.-(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 opinion will be sought from a
duly constituted 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."

24. The Act of 2000 stands repealed
by the Act of 2015. The procedure for
determining the age is now part of Section
94 of the Act of 2015 which was earlier
provided under the abovementioned Rule
12 of the Rules.

25. Section 94 (2) of Juvenile Justice
(Care and Protection of Children ) Act,
2015 is quoted as under :-

94.Presumption
and
determination of age - (1) Where, it is
obvious to the Committee or the Board, based
on the appearance of the person brought
before it under any of the provisions of this
Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as
nearly as may be and proceed with the
inquiry under section 14 or section 36, as the
case may be, without waiting for further
confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
6 All. Ram Nayan & Ors. Vs. State of U.P.
785
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake
the
process
of
age
determination, by seeking evidence by
obtaining -

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.

26. We have perused the report of the
Juvenile Justice Board, Maharajganj dated
8.12.2017. The Board considered the
relevant documentary evidence produced
before it regarding the age of appellant no.3
and also considered the oral evidence of
Smt. Sudha Bala Singh, Principal of the
Ram Aadhar Junior High School Gaushala,
Maharajganj who was also cross-examined
by the State and came to the conclusion, in
absence of any evidence to the contrary,
that the appellant no.3 was aged 15 years
11 months 17 days on the date of incident
i.e. 5.3.1993. The Board has considered the
relevant material as referred in Rule 12(3)
of 2007 Rules as well as Section 94 of thee
2015 Act and has not committed any
illegality in determining the age of the
accused.

27. We therefore are of the opinion
that no illegality had been committed by
the Juvenile Justice Board, Maharajganj in
conducting an enquiry and declaring
appellant no.3 as juvenile after following
the due procedure as provided under the
Act, coupled with the fact that the aforesaid
order of the Juvenile Justice Board was
never challenged either by the State or by
the informant and has become final.

28. It has been lastly contended by
learned A.G.A. that as the appellant no.3
never claimed the juvenility during the
course of investigation or during the trial
before the Sessions Court and for the first
time claimed the same in the present appeal
by
means
of
an
application
dated
16.3.2016. On the date i.e. 16.3.2016 when
the application was moved by the appellant
the Juvenile Justice (Care and Protection of
Children) Act, 2000 was also repealed by
Section 111 of 2015 Act, and therefore, the
claim of juvenility cannot be decided under
the Act of 2000 as had been done by the
Juvenile Justice Board, Maharajganj.

29. Per contra learned Counsel for the
appellant contended that in view of proviso
to Sub-section (2) of Section 9 of Act of
2015, claim of juvenility could be raised
before any court and it should be
recognised at any stage even after final
disposal of the case, and such a claim
786 INDIAN LAW REPORTS ALLAHABAD SERIES
should be determined in accordance with
provisions contained under the Act of 2015
and rules made these under even if the
person ceased to be a child on or before the
date of commencement of Act of 2015.

30. Section (9) of the Act of 2015 is
quoted as under :-

9. Procedure to be followed by a
Magistrate who has not been empowered
under this Act.- (1) When a Magistrate, not
empowered to exercise the powers of the
Board under this Act is of the opinion that
the person alleged to have committed the
offence and brought before him is a child,
he shall, without any delay, record such
opinion and forward the child immediately
along with the record of such proceedings
to the Board having jurisdiction.

(2) In case a person alleged to
have committed an offence claims before a
court other than a Board, that the person is
a child or was a child on the date of
commission of the offence, or if the court
itself is of the opinion that the person was
a child on the date of commission of the
offence, the said court shall make an
inquiry, take such evidence as may be
necessary (but not an affidavit) to
determine the age of such person, and
shall record a finding on the matter,
stating the age of the person as nearly as
may be:

Provided that such a claim may
be raised before any court and it shall be
recognised at any stage, even after final
disposal of the case, and such a claim shall
be determined in accordance with the
provisions contained in this Act and the
rules made thereunder even if the person
has ceased to be a child on or before the
date of commencement of this Act.

(3) If the court finds that a person
has committed an offence and was a child
on the date of commission of such offence,
it shall forward the child to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by the court shall
be deemed to have no effect.

(4) In case a person under this
section is required to be kept in protective
custody, while the person's claim of being a
child is being inquired into, such person
may be placed, in the intervening period in
a place of safety.

31. Learned Counsel for appellant
drew our attention towards Rule 90 of the
Juvenile Justice (Care and Protection of
Children)
Model
Rules,
2016
and
contended that no child should be denied
the benefits of the Act and the rules made
thereunder and the benefit should be
available to all the persons who were
children at the time of commission of the
offence even if they ceased to be children
during the pendency of inquiry or trial.

32. Rule 90 of the Juvenile Justice
(Care and Protection of Children) Model
Rules, 2016 is quoted as under :-

"90. Pending Cases.- (1) No
child shall be denied the benefits of the Act
and the rules made thereunder.

(2) The benefits referred to in
sub-rule (1) shall be made available to all
persons who were children at the time of
the commission of the offence, even if they
ceased to be children during the pendency
of the inquiry or trial.

(3) While computing the period of
detention or stay or sentence of a child in
conflict with law, all such period which the
6 All. Ram Nayan & Ors. Vs. State of U.P.
787
child had already spent in custody,
detention, stay or sentence of imprisonment
shall be counted as a part of the period of
stay
or
detention
or
sentence
of
imprisonment contained in the final order
of the court or the Board."

33. The submission of learned A.G.A.
as noted in the preceding paragraph primafacie appears to be very attractive but in
fact has no substance. Act of 2000 was
repealed by Section 111 of the Act of 2015
w.e.f 15.1.2016. Section 111 of the Act of
2015 is quoted as under :-

"111. Repeal and savings.-(1)
The Juvenile Justice Juvenile Justice ( Care
and Protection of Children) Act, 2000 is
hereby repealed.

(2) Notwithstanding such repeal,
anything done or any action taken under
the said Act shall be deemed to have been
done or taken under the corresponding
provisions of this Act."

34. Sub-section (2) of Section 111 of
Act of 2015 postulates that any thing done
or any action taken under Act of 2000 shall
be deemed to have been done or taken
under the corresponding provision of Act
of 2015.

35. Having heard the arguments of
respective Counsel, we are of the opinion
that there is no substantial difference
between the provisions of Act 2000 and
Act of 2015 except that Act of 2015 takes
cares of crime committed by children in the
age group of 16-18 years of age.

36. The Hon'ble Apex Court in case
of Sanjay Patel Vs State of U.P. reported
in 2022 SCC Online SC 450 has
entertained plea of juvenility of accused
even after dismissal of Special Leave
Petition by the Supreme Court.

37. Thus in view of provisions of Act
of 1986, Act of 2000, Act of 2015 and the
judgments of Hon'ble Apex Court referred
above, we are of the considered opinion
that if the accused was juvenile in conflict
with law i.e. below the age of 18 years on
the date of incident the protection of Act of
2000 and Act of 2015 would be applicable
to accused irrespective of the fact that
claim was made after attaining the age of
18 years and was made at a late stage of
trial/inquiry or even at the stage of trial,
revision, appeal or any other criminal
proceedings in respect of juvenile in
conflict with law in any court.

38. In the present case, as evident
from the record and submissions raised by
the learned Counsel appearing for appellant
no.3 has already undergone about 8 years
imprisonment. As we have already held
that the appellant no.3 was juvenile in
conflict with the law on the date of
occurrence i.e. 3.5.1993, the appellant is
entitled to the benefit of Act of 2015.

39. Now, since the appellant no.3 was
a juvenile on the date of incident and no
argument
has
been
advanced
about
conviction of the accused-appellant no.3
for the aforesaid offence, therefore, this
Court has to take into consideration
provisions of Section 18 of Act of 2015 to
pass order in respect of appellant no.3
(juvenile in conflict with law). If the
submission raised by the learned Counsel
for the appellant as well as the learned
A.G.A are taken into consideration, the
appellant no.3 declared juvenile in conflict
with the law under the Act of 2015 can be
sent to special home for a maximum period
of 3 years. At this juncture it would be
788 INDIAN LAW REPORTS ALLAHABAD SERIES
appropriate to look into the ratio laid down
by Apex Court while dealing with similar
situation like in this case in hand.

40. In Vaneet Kumar Gupta @
Dharminder Vs. State of Punjab reported
in (2009) 17 SCC 587, accused, who was
sentenced to life under Section 302 read
with Section 149 I.P.C, was found to be a
juvenile at the time of commission of the
offence. The Apex Court noticing the fact
that the accused is in jail for several years
directed his release from the jail.

41. In LakhanLal Vs. State of Bihar
reported in (2011) 2 SCC 251, accused,
who was sentenced to life under Section
302 read with Section 34 IPC was found to
be a juvenile in conflict with law at the
time of commission of offence. By the time
his appeal reached to Supreme Court, he
had crossed 40 years of age. He was in jail
for more than 7 years. Under these
circumstances, the Apex Court set aside his
life sentence and directed his release.

42. In Amit Singh Vs. State of
Maharashtra and another reported in
(2011) 13 SCC 744, accused, was found
guilty under Section 396, 506, 341, 379
read with Section 120-B I.PC.