# JITENDRA SINGH @ BABBOO SINGH & ANR v. STATE OF U.P

- **Citation:** [2013] 13 S.C.R. 764
- **Court:** Supreme Court of India
- **Decided:** 2013-07-10
- **Case number:** Criminal Appeal No. 763 of 2003
- **Bench:** T.S. Thakur, Madan B. Lokur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jitendra-singh-babboo-singh-anr-v-state-of-u-p-28989
- **Pages:** 56

## Headnote

Juvenile Justice (Care and Protection of Children) Act,
2000:
ss. 2(k), 7A and 20 - Prosecution of accused u/ss. 147,
302, 3048 and 498A /PC - During trial, accused raised plea
of juvenifity underJuvenile Justice Act, 1986 - Plea rejected,
finding him to be above 16 years of age - After trial, convicted
uls. 3048 and 498A and sentenced to 7 years and 2 years
D imprisonment respectively with fine of Rs. 1001- - Conviction
and sentence confirmed in High Court - In appeal to this
Court, accused took plea of juvenility under Juvenile Justice
Act, 2000 - On direction of Supreme Court trial court's report
as to age of the accused stating him to be of 13 years 8
E months on the date of incident as per his school certificate
and as per medical examination and other records his age
was 17 years - Held: Per Madan Lokur, J: The accused was
17 years of age on the date of occurrence, and hence a
juvenile under 2000 Act - His conviction is confirmed - The
F punishment which can be awarded to the accused is to require
him to pay afine under clause (e) of s.21(1) of Juvenile Justice
Act, 1986 -
The fine of Rs. 1001- imposed by trial court is
inadequate, in view of the gravity of the offences - Therefore,
matter remanded to Juvenile Justice Board for determining
G appropriate quantum of fine -
Per Thakur,
J.
(Supplementing) - Since the accused was above 16 years
of age, on the date of occurrence, being not a juvenile under
1986 Act, there was no error of jurisdiction in trying the
H
764
f
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 765
U.P.
.)'
accused - Being a juvenile under 2000 Act, in view of ss. 7 A
A
and 20, the court is not obliged to set aside the conviction,
but 017ly his sentence awarded by the regular court can be set
aside and making reference to the Juvenile Justice Board -
Juvenile Justice Act, 1986 - s. 21(1)(e) - Penal Code, 1860
- ss. 304B and 498A.
B
Trial of a person - By a regular criminal court - Who, at
subsequent stage found to be a juvenile - Measures for
prevention of such situation - Suggested.
... '·
Maxim -
'expressio unius est exclusio alterious' -
c
Applicability of.
Per Madan B. Lokur, J.
1. The Report given by the Additional Sessions
Judge whereby he has stated that the appellant was a
D
juvenile on the date of the incident, has been examined
,)
and there is no reason to reject it. There is documentary
evidence to show from the school admission register
(which has not been tampered with) that the date of birth
of the appellant is 31st August 197 4. That apart, the
medical examination of the appellant conducted on 8th
E
July 1988 less than two months after the incident, also
shows his age to be about 17 years. This was not
doubted by the Additional Session Judge while rejecting
the bail application of the appellant and was also not
doubted by the High Court while granting bail to him.
F
Therefore, it does appear that the appellant was about 17
years of age when the incident had occurred and that he
had set up a claim of being a juvenile or child soon after
his arrest and before the charge sheet was filed. Thus,
' -'I
the appellant was a juvenile or a child within the meaning
G
of that expression as defined in Section 2(k) of the
Juvenile Justice (Care and Protection of Children) Act,
2000. [Para 21] [785-D-G]
2.1. A plain reading of section 3048 IPC, which
explains a dowry death, makes it clear that its ingredients
H
766
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A are (a) the death of a woman is caused by burns or a
bodily injury or that it occurs otherwise than under
normal circumstances; (b) the death takes place within
seven years of her marriage; (c) the woman was
subjected, soon before her death, to cruelty or
B harassment by her husband or any relative of her
husband for, or in connection with, any demand for
dowry. In the present case, in the facts of the case, the
ingredients of Section 304-8 of the IPC were made out.
[Paras 24 and 25) (786-G-H; 787-D]
C
2.2. On the basis of the facts found by the Trial Cour

## Text

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A
B
c
[2013] 13 S.C.R. 764
JITENDRA SINGH @ BABBOO SINGH & ANR.
v.
STATE OF U.P.
(Criminal Appeal No. 763 of 2003)
JULY 10, 2013
[T.S. THAKUR AND MADAN B. LOKUR, JJ.]
Juvenile Justice (Care and Protection of Children) Act,
2000:
ss. 2(k), 7A and 20 - Prosecution of accused u/ss. 147,
302, 3048 and 498A /PC - During trial, accused raised plea
of juvenifity underJuvenile Justice Act, 1986 - Plea rejected,
finding him to be above 16 years of age - After trial, convicted
uls. 3048 and 498A and sentenced to 7 years and 2 years
D imprisonment respectively with fine of Rs. 1001- - Conviction
and sentence confirmed in High Court - In appeal to this
Court, accused took plea of juvenility under Juvenile Justice
Act, 2000 - On direction of Supreme Court trial court's report
as to age of the accused stating him to be of 13 years 8
E months on the date of incident as per his school certificate
and as per medical examination and other records his age
was 17 years - Held: Per Madan Lokur, J: The accused was
17 years of age on the date of occurrence, and hence a
juvenile under 2000 Act - His conviction is confirmed - The
F punishment which can be awarded to the accused is to require
him to pay afine under clause (e) of s.21(1) of Juvenile Justice
Act, 1986 -
The fine of Rs. 1001- imposed by trial court is
inadequate, in view of the gravity of the offences - Therefore,
matter remanded to Juvenile Justice Board for determining
G appropriate quantum of fine -
Per Thakur,
J.
(Supplementing) - Since the accused was above 16 years
of age, on the date of occurrence, being not a juvenile under
1986 Act, there was no error of jurisdiction in trying the
H
764
f
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 765
U.P.
.)'
accused - Being a juvenile under 2000 Act, in view of ss. 7 A
A
and 20, the court is not obliged to set aside the conviction,
but 017ly his sentence awarded by the regular court can be set
aside and making reference to the Juvenile Justice Board -
Juvenile Justice Act, 1986 - s. 21(1)(e) - Penal Code, 1860
- ss. 304B and 498A.
B
Trial of a person - By a regular criminal court - Who, at
subsequent stage found to be a juvenile - Measures for
prevention of such situation - Suggested.
... '·
Maxim -
'expressio unius est exclusio alterious' -
c
Applicability of.
Per Madan B. Lokur, J.
1. The Report given by the Additional Sessions
Judge whereby he has stated that the appellant was a
D
juvenile on the date of the incident, has been examined
,)
and there is no reason to reject it. There is documentary
evidence to show from the school admission register
(which has not been tampered with) that the date of birth
of the appellant is 31st August 197 4. That apart, the
medical examination of the appellant conducted on 8th
E
July 1988 less than two months after the incident, also
shows his age to be about 17 years. This was not
doubted by the Additional Session Judge while rejecting
the bail application of the appellant and was also not
doubted by the High Court while granting bail to him.
F
Therefore, it does appear that the appellant was about 17
years of age when the incident had occurred and that he
had set up a claim of being a juvenile or child soon after
his arrest and before the charge sheet was filed. Thus,
' -'I
the appellant was a juvenile or a child within the meaning
G
of that expression as defined in Section 2(k) of the
Juvenile Justice (Care and Protection of Children) Act,
2000. [Para 21] [785-D-G]
2.1. A plain reading of section 3048 IPC, which
explains a dowry death, makes it clear that its ingredients
H
766
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A are (a) the death of a woman is caused by burns or a
bodily injury or that it occurs otherwise than under
normal circumstances; (b) the death takes place within
seven years of her marriage; (c) the woman was
subjected, soon before her death, to cruelty or
B harassment by her husband or any relative of her
husband for, or in connection with, any demand for
dowry. In the present case, in the facts of the case, the
ingredients of Section 304-8 of the IPC were made out.
[Paras 24 and 25) (786-G-H; 787-D]
C
2.2. On the basis of the facts found by the Trial Court
as well as the High Court from the evidence on record
that a case of causing a dowry death had convincingly
been made out against the appellant. There is no
apparent reason to disturb the concurrent findings of fact
D arrived at by the Trial Court and the High Court and so
the conviction of the appellant must be upheld. [Para 27)
[787-G-H]
2.3. The case of the juvenile has to be examined on
merits. If it is found that the juvenile is guilty of the offence
E alleged fo have been committed, he simply cannot go
unpunished. However, as the law stands, the punishment
to be awarded to "him or her must be left to the Juvenile
Justice Board constituted under the Juvenile Justice
(Care and Protection of Children) Act, 2000. This is the
F plain requirement of the Act. [Para 42) [791-C-D]
2.4. In the present case, the offence was committed
by the appellant when the Juvenile Justice Act, 1986 was
in force. Therefore, only the 'punishments' not greater
than those postulated by the Juvenile Justice Act, 1986
G ought to be awarded to him. This is the requirement of
Article 20(1) of the Constitution. The 'punishments'
provided under the 1986 Act are given in Section 21
thereof. [Para 43) [791-E-F]
H
2.5. A perusal of the 'punishments' provided for
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 767
U.P.
under the Juvenile Justice Act, 1986 indicate that given
A
the nature of the offence committed by the appellant,
advising or admonishing him [clause (a)] is hardly a
'punishment' that can be awarded since it is not at all
commensurate with the gravity of the crime. Similarly,
considering his age of about 40 years, it is completely
B
illusory .to expect the appellant to be released on
probation of good conduct, to be placed under the care
of any parent, guardian or fit person [clause (b)]. For the
.. ;a.
same reason, "'the appellant cannot be released on
probation of good conduct under the care of a fit c
institution [clause (c)] nor can he be sent to a special
home under Section 10 of the Juvenile Justice Act, 1986
which is intended to be for the rehabilitation and
reformation of delinquent juveniles [clause (d)]. The only
realistic punishment that can possibly be awarded to the
D
_)
appellant on the facts of this case is to require him to pay
a fine under clause (e) of Section 21 (1) of the Juvenile
Justice Act, 1986. [Para 44] [793-C-E]
2.6. While dealing with the case of the appellant
under the IPC, the fine imposed upon him is only Rs.100/
E
-. This is ex facie inadequate punishment considering the
fact that the deceased suffered a dowry death. [Para 45]
[793-F]
)o
2.7. The appropriate course of action in the present
F
case WOIJld be to remand the matter to the jurisdictional
Juvenile Justice Board constituted under the Juvenile
Justice (Care and Protection of Children) Act, 2000 for
determining the appropriate quantum of fine that should
be levied on the appellant and the compensation that G
-'f
should be awarded to the family of the deceased. [Para
46] [793-H; 794-A-B]
Ankush Shivaji Gaikwad vs. State of Maharashtra 2013
(6) SCALE 778; Ashwani Kumar Saxena vs. State of Madhya
Pradesh (2012) 9 SCC 750: 2012 (10) SCR 540 - relied on.
H
-1
768
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
Jayendra vs. State of Uttar Pradesh (1981) 4 .. CC 149;
Bhoop Ram vs. State of U. P. (1989) 3 SCC 1; Pradeep
Kumar vs. State of U.P. 1995 Supp (4) SCC 419; Bhola
Bhagat and other vs. State of Bihar (1997) 8 SCC 720: 1997
(4) Suppl. SCR 711; Upendra Kumar vs. State of Bihar
B (2005) 3 SCC 592; Gurpreet Singh vs. State of Punjab (2005)
12 SCC 615: 2005 (5) Suppl. SCR 90; Vijay Singh vs. State
of Delhi (2012) 8 SCC 763: 2012 (7) SCR 434; Satish @
Dhanna vs. State of Madhya Pradesh (2009) 14 SCC 187:
2009 (6) SCR 486; Dharambir vs. State (NCT of Delhi) (2010)
c 5 SCC 344: 2010 (5) SCR 137; Hari Ram vs. State of
Rajasthan (2009) 13 SCC 211: 2009 (7) SCR 623; Daya
Nand vs. State of Haryana (2011) 2 SCC 224: 2011 (1) SCR
173 - referred to.
3.1. The purpose of the Act is to rehabilitate a juvenile
D in conflict with law with a view to reintegrate him into
society. This is by no means an easy task and it is worth
researching how successful the implementation of the
Act has been in its avowed purpose in this respect. [Para
E
54] [796-D]
•
3.2. The Act and the Model Rules clearly constitute
an independent code for issues concerning a child or a
juvenile, particularly a juvenile in conflict with law. This
code is intended to safeguard the rights of the child and
F a juvenile in conflict with law and to put him in a category
separate and distinct from an adult accused of a crime.
[Para 57) [796-H; 797-A]
3.3. Keeping in mind the standards and safeguards
required to be met as per international obligations, it
G becomes obligatory for every Magistrate before whom an
accused is produced to ascertain, in the first instance or
as soon thereafter as may be possible, whether the
accused person is an adult or a juvenile in conflict with
law. The reason for this, obviously, is to avoid a two-fold
H
•
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 769
)'
U.P.
difficulty: first, to avoid a juvenile being subjected to
A
procedures under the normal criminal law and de hors the
Act and the Rules, and second, a resultant situation, where
the "trial" of the juvenile is required to be set aside and
quashed as having been conducted by a court not having
jurisdiction to do so or a juvenile, on being found guilty,
B
going 'unpunished'. This is necessary not only in the best
interests of the juvenile but also for the better
• :1
administration of criminal justice so that the Magistrate or
the Sessions Judge (as the case may be) does not waste
~
his time and energy on a "tri~I". [Para 58) [797-B-D]
c
3.4. It must be appreciated by every Magistrate that
when an accused is produced before him, it is possible
that the prosecution or the investigating officer may be
,,,,,
under a mistaken impression that the accused is an
D
adult. If the Magistrate has any iota of doubt about the
juvenility of an accused produced before him, Rule 12
provides that a Magistrate may arrive at a prima facie
conclusion on the juvenility, on the basis of his physical
appearance. In such a case, this prima facie opinion
should be recorded by the Magistrate. Thereafter, if
E
custodial remand is necessary, the accused may be sent
to jail or a juvenile may be sent to an Observation Home,
)
as the case may be, and the Magistrate should
simultaneously order an inquiry, if necessary, for
determining the age of the accused. Apart from anything
F
else, it must be appreciated that such an inquiry at the
earliest possible time, would be in the be!!t interests of
the juvenile, since he would be kept away from adult
-~
under-trial prisoners and would not be subjected to a
regi~en in jail, which may not be conducive to his well
G
being. It would also be in the interests of better
administration of criminal justice. It is, therefore, enjoined
upon every Magistrate to take appropriate steps to
ascertain the juvenility or otherwise of an accused
person brought before him or her at the earliest possible
H
770
SUPREME COURT REPORTS
[2013) 13 S.C.R.
{
A point of time, preferably on first production. [Para 59]
[797-E-H; 798-A-B]
3.5. Due to his juvenility, a juvenile in conflict with law
may be presumed not to know or understand the legal
B procedures making it difficult for him to put forth his claim
for juvenility when he is produced before a Magistrate.
Added to this are the factors of poor education and poor
economic set up that are jointly the main attributes of a
~
. .,
juvenile in conflict with law, making it difficult for him to
c negotiate the legal procedures. [Para 60] [798-C-D]
:-
3.6. It is difficult to expect a juvenile in conflict with
law to know his rights upon apprehension by a police
officer and if the precautions that have been suggested
are taken, the best interests of the child and thereby of
D society will be duly served. Therefore, it may be
....
presumed, by way of a benefit of doubt that because of
his status, a juvenile may not be able to raise a claim for
juvenility in the first instance and that is why it becomes
the duty and responsibility of the Magistrate to look into
E this aspect at the earliest point of time in the proceedings
before him. This may be a satisfactory way of avoiding
the recurrence of a situation such as the one dealt with.
[Para 61] [799-8-C]
~
F
Abuzar Hossain vs. State of West Bengal (2012) 10 SCC
489: 2012 (9) SCR 244 - relied on.
3.7. International obligations as laid down in the
Convention on the Rights of the Child and the Beijing
Rules require the involvement of the parents or legal
'r--
G guardians in the legal process concerning a juvenile in
conflict with law. [Para 62] [799-D-E]
3.8. The procedures laid down in Cr.P.C., in as much
as they are for the benefit of a juvenile or a child, apply
,
with full rigour to an apprehension made of a juvenile in
H
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 771
U.P.
conflict with law under Section 10 of the Act. If these
A
procedures are followed, the probability of a juvenile, on
apprehension, being shown as an adult and sent to
judicial custody in a jail, will be considerably minimized.
If these procedures are followed, as they should be, along
with the requirement of a Magistrate to examine the
B
juvenility or otherwise of an accused person brought
before him, subjecting a juvenile in conflict with law to a
't
j
trial by a regular Court may become a thing of the past.
[Para 67] [802~E-G]
D.K. Basu vs. State of West Bengal (1997) 1 SCC 416: c
1996 (10) Suppl. SCR 284 - relied on.
3.9. Keeping in mind the domestic law of India and
the international obligations, it is directed that the
. ).
provisions of Cr.P.C. relating to arrest and the provisions
D
of the Juvenile Justice (Care and Protection of Children)
Act, 2000 being the law of the land, should be scrupulously
followed by th.e concerned authorities in respect of
juveniles in conflict with law. [Para 69] [803-C-D]
3.10. It is also directed that whenever an accused,
E
who physically appears to be a juvenile, is produced
t
before a Magistrate, he or she should form a prima facie
..
opinion on the juvenility of the accused and record it. If
any doubt persists, the Magistrate should conduct an age
F
inquiry as required by Section 7A of the Juvenile Justice
(Care and Protection of Children) Act, 2000 to determine
the juvenility or otherwise of the accused person. In this
regard, it is better to err on the side of caution in the first
--+
instance rather than have the entire proceedings
G
reopened or vitiated at a subsequent stage or a guilty
person go unpunished only because he or she is found
to be a juvenile on the date of occurrence of the incident.
[Para 70] [803-E-G]
H
772
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
Pawan vs. State of Uttaranchal (2009) 15 SCC 259: 2009
(3) SCR 468 - referred to.
Per T.S. Thakur, J. (Supplementing):
1.1. The appellant was above sixteen years as on the
8 date of the commission of the offence, no matter the
enquiry report submitted by the Trial Court has held him
to be less than 16 years on that date. It is important to
mention that the question whether the appellant was less
~ f
or more than 16 is important not because the benefit of
C the 2000 Act depends on that question, but because the
answer to that question has a bearing on whether the
conviction of the appellant was itself illegal, hence liable
to be set aside. This is because, the benefit of the 2000
Act, would be in any case available to the appellant, so
D long as he was less than 18 years cif age on the crucial
.(..
date, and it is nobody's case that he was above that age
on that date. [Para 6] [806-F-H; 807-A]
Hari Ram v. State of Rajasthan (2009) 13 SCC 211:
E 2009 (7) SCR 623 - referred to.
1.2. As on the date of the commission of the offence
and right up to the date the trial Court convicted and
sentenced the appellant to imprisonment, the provisions
of Juvenile Justice Act, 1986 (in short, the "1986 Act")
F held the field. Apart from the fact that the upper age limit
for claiming juvenility was 16 years for boys, the question
whether a person was or was not a juvenile could be
decided by the Court on the basis of documentary or
medical evidence or on a fair assessment of both of them.
G That is because, the provisions of 1986 Act, did not,
prioritise the basis on which such determination could be
made. It was left for the accused to produce evidence or
the Court to direct a medical examination for determining
his age. The weightage which the Rules framed under the
H 2000 Act provide and the order of preference settled for
--
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 773
U.P.
y
purposes of placing reliance upon evidence coming from
A
different sources were not in vogue while the 1986 Act
held the field. The result was that the Court was free to
determine the question on the basis of one such piece
of evidence or on a cumulative effect and on such
evidence that may have been produced before it. It is · 8
necessary to bear in mind this dichotomy in the legal
framework while determining whether the trial Court had
committed an error of jurisdiction in holding the appellant
t *
to be not a juvenile and hence triable by it. [Para 7] [807_ _,.,
D-H; 808-A]
C
1.3. The question whether the appellant was a
juvenile was. first raised before the trial Court at a very
early stage of the case. The appellant had prayed for bail
on that basis, which appears to have led the Court to
direct assessment of his age on the basis of a medical
D
examination. The medical examination, however,
determined the age of the appellant to be 17 years, which
took him beyond the upper age of juvenility under the
1986 Act. No attempt was made by the appellant to
adduce any evidence to support his claim of being a
E
juvenile nor was any documentary evidence in the form
of school certificate or otherwise adduced. As a matter
of fact, the chapter was totally forgotten, and the trial
aHowed to proceed to its logical conclusion without tl1e
appellant raising his little finger against the competence
F
of the Court or agitating the issue regarding his age in
any higher forum. The conviction and sentence recorded
by the trial Court was also assailed on merits before the
High Court but not on the ground that the trial was
vitiated on account of the appellant being a juvenile, not G
triable by an ordinary criminal Court. [Para 8] [808-8-E]
1.4. It was only in this Court that long after the appeal
was filed that a fresh claim for benefit under the 2000 Act
was made by the appellant in which this Court directed a
H
774
SUPREME COURT REPORTS
(2013] 13 S.C.R.
A fresh enquiry that was conducted in terms of Rule 12 of
"{
the Rules framed under the 2000 Act. The enquiry report
submitted supports the appellant's claim of his being a
juvenile under Section 2(k) of the 2000 Act, hence, entitled
to the benefits admissible thereunder. Although an
B attempt was made by the respondent-State to assail the
finding that the appellant was less than 18 years of age
on the date of the occurrence. There is no cogent reason
to hold that the appellant was more than 18 years on the
-* i
date of the occurrence. The determination of age of the
c appellant, by the trial Court, on the basis of the first medical
examination is fully supported and corroborated by the
-
medical examination of the appellant conducted in the
<
course of the enquiry directed by this Court . The medical
examination conducted by the Board of Doctors has
D determined the appellant's age to be 40 years as on 24th
December, 2010 which implies that he was around 17 Yz
-~
years old on the date of the occurrence. Superadded to
the medical evidence is the documentary evidence that
has come to light in the course of the enquiry in the form
E of the Family Register (Ex. Ka-3) maintained by the
Panchayat and proved by A.P.W.2-Gram Panchayat
Officer. According to this witness who spoke from the
register, the appellant was born in the year 1969. The
Electoral roll for the year 2009 for the constituency in
~
F
which the appellant's village falls, also mentions this age
to be 37 years, implying thereby that he was around 17
years old on the date of the occurrence. Deposition of the
Gram Sabha Head examined as PW-12 in the course of
the enquiry is supportive of the age of the appellant as
given in the Electoral roll. The two medical examinations
-t-·
G and the documents come from proper custody and lend
complete corroboration to the appellant's age being above
16 years on the date of the occurrence. Besides, what
cannot be lightly brushed away is the fact that the
appellant was a married man on the date of the occurrence
H and that the charge levelled against him was one of dowry
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 775
U.P.
harassment and dowry death of his wife who was 19 years
A
old at the time of her demise. If the appellant was only 13
years and 8 months old as suggested by the school
certificate the question of his harassing the deceased
almost six years his senior would not arise for he would
be only an adolescent while his wife-the deceased was a
B
grown up girl who could hardly get harassed by a mere
child so young in age that he had barely cut his teeth. The
l' ;..-
trial Court did not in that view commit any error of
jurisdiction in trying the appellant for the offences alleged
against him. [Para 8) [808-E-H; 809-A-GJ
c
-
1.5. While the appellant was above 16 years of age
on the date of the commission of the offence, he was
certainly below 18 years and hence entitled to the benefit
of the 2000 Act, no matter the later enactment was not on
D
Jo:
the statute book on the date of the occurrence. [Para 9)
[809-H; 810-A]
2.1. The conviction cannot however be set aside for
more than one reason. Firstly because there was and is
• no challenge to the order of conviction recorded by the
E
Courts below in this case either before the High Court or
before this Court. As a matter of fact the plea of juvenility
r
before this Court by way of an additional ground stopped
~
short of challenging the conviction of the appellant on the
ground that the Court concerned had no jurisdiction to
F
try the appellant. Secondly because the fact situation in
the case at hand is that on the date of the occurrence the
appellant was above 16 years of age. He was, therefore,
not a juvenile under the 1986 Act that covered the field
at that point of time, nor did the 1986 Act deprive the trial
G
Court of its jurisdiction to try the appellant for the offence
he was charged with. Repeal of the 1986 Act by the 2000
Act raised the age of juvenility to 18 years. Parliament
provided for cases which were either pending trial or
were, after conclusion of the trial, pending before an
H
776
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A appellate or a revisional Court by enacting Section 20 of
the Juvenile Justice (Care and Protection) Act, 2000.
[Para 9, 10] [810-B-E]
2.2. The provision u/s. 20 of 2000 Act starts with a
8 non-obstante clause, which implies that the provisions
have an overriding effect on all other provisions
contained in the enactment. The provision deals with
proceedings pending against a juvenile in any court. The
provision sanctions the continuance of such pending
proceedings in the very same court, as if the 2000 Act had
C not been enacted.The provision requires the Court
seized of the matter to record a finding as to whether the
juvenile has committed an offence. If the finding is
against the juvenile in that he is found to have committed
an offence, the court is required to forebear from passing
D an order of sentence and instead forward the juvenile to
the Board, which shall then pass an order in accordance
with the provisions of the Act, as if it had been satisfied
on inquiry under the Act that the juvenile had committed
an offence.In all pending cases including trial, revision.
E appeal or any other criminal proceedings the
determination of juvenility shall be in terms of clause
(I) of Section 2 even if the juvenile ceases to be so on or
before the date of commencement of the 2000 Act. [Para
11] [811-E-H; 812-A-C]
F
2.3. A case that was pending before 'any Court'
(which expression would include both the trial Court and
the High Court) would continue in that Court, who would
not only proceed with the trial and/or hearing of the case
as if the 2000 Act was not on the Statute book, but also
G record a finding as to the guilt or innocence of the
juvenile. Far from stipulating a specific prohibition, the
provisions of Section 20, make it obligatory for the Court
concerned to proceed with the matter and record its
conclusion as to the guilt or otherwise of the juvenile. The
H
--
+
•
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 777
U.P.
y
prohibition is against the Court passing an order of A
..J
sentence against the juvenile, for which purpose the
•'
juvenile has to be forwarded to the Board for appropriate
,
orders. [Para 12) [812-D-F]
2.4. In all such cases wh~re the accused was above
B
16 years but below 18 years of age on the date of
occurrence, the proceedings pending in the Court
*
concerned will continue and be taken to their logical end
~
except that the Court upon finding the juvenile guilty
would not pass an order of sentence against him. Instead c
-
he shall be referred to the Board for appropriate orders
under the 2000 Act. Applying that proposition to the
present case, the trial Court and the High Court could and
indeed were legally required to record a finding as to the
guilt or otherwise of the appellant. All that the Courts
D
.>
could not have done was to pass an order of sentence,
for which purpose, they ought to have referred the case
to the Juvenile Justice Board. [Para 18) [817-B-D]
2.5. Section 7A (2) of the 2000 Act prescribes the
procedure to be followed, when a cl~im of juvenility is
E
made before any Court. Although a claim of juvenility can
be raised by a person at any stage and before any Court,
,.
upon such Court finding the person to be a juvenile on
..
the date of the commission of the offence, it has to
forward the juvenile to the Board for passing appropriate
F
orders and the sentence, if any, passed shall be deemed
to have effect. There is no provision suggesting, or
making it obligatory for the Court before whom the claim
for juvenility is made, to set aside the conviction of the
• --+-
· juvenile on the ground that on the date of commission
of the offence he was a juvenile, and hence not triable by
G
an ordinary criminal court. Applying the maxim of
expressio unius est exclusio alterious, it would be
reasonable to hold that the law in so far as it requir~s a
reference to be made to the Board, excludes by
H
778
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A necessary implication any intention on the part of the
-,..-
legislature requiring the Courts to set aside the
~
conviction recorded by the lower court. The Parliament,
...
it appears, was content with setting aside the sentence
of imprisonment awarded to the juvenile and making of
B a reference to the Board without specifically or by
implication requiring the court concerned to alter or set
aside the conviction. [Paras 19 and 20] [817-E, G-H; 818A-CJ
)t' ,
c
2.6. There is no reason why the conviction of the
appellant should be interfered with, simply because he
-
is under th.e 2000 Act, a juvenile entitled to the benefit of
being referred to the Board for an order under Section
15 of the said Act. There is no gainsaying that even if the
D
appellant had been less than sixteen years of age, on the
date of the occurrence, he would have been referred for
)".._
trial to the Juvenile Court in terms of Section 8 of the
1986 Act. The Juvenile Court would then hold a trial and
record a conviction or acquittal depending upon the
evidence adduced before it. In an ideal situation, a case
E filed before an ordinary Criminal Court when referred to
the Board or Juvenile Court may culminate in a
conviction at the hands of the Board also. But law does
not countenance a situation where a full-fledged trial and
__,
even an appeal ends in a conviction of the accused but
•
F the same is set aside withou~ providing for a trial by the
Board. [Para 23] [819-D-G]
Pratap Singh v. State of Jharkhand and Anr. (2005) 3
SCC 551: 2005 (1) SCR 1019; Bijender Singh v. State of
G Haryana and Anr. (2005) 3 SCC 685: 2005 (2) SCR 1131
·+-
'
Dharambir v. State (NCT of Delhi) (2010) 5 SCC 344: 2010
(5) SCR 137; Daya Nand v. State of Haryana (2011) 2 SCC
224: 2011 (1) SCR 173; Kalu@ Amit v. State of Haryana
(2012) 8 SCC 34; Pradeep Kumar & Ors. v. State of U.P.
H 1995 Supp (4) SCC 419; Bhola Bhagat & Ors. v. State of.
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 779
U.P.
'r
Bihar (1997) 8 sec 720: 1997 (4) Suppl. SCR 711;
A
Upendra Kumar v. State of Bihar (2005) 3 SCC 592; Vaneet
_ Kumar Gupta @ Dharmindher v. State of Punjab (2009) 17
sec 587 - relied on.
Case Law Reference
B
In the Judgment of Madan B. Lokur:
:*
2009 (3) SCR 468
referred to
Para 11
:-
(1981) 4 sec 149
referred to
Para 29
-..
(1989) 3 sec 1
referred to
Para 30
c
1995 Supp (4) sec 419
referred to
Para 31
1997 (4) Suppl. SCR 711
referred to
Para 32
,)I
(2005) 3 sec 592
referred to
Para 33
D
2005 (5) Suppl. SCR 90
referred to
Para 34
2012 (7) SCR 434
referred to
Para 35
2009 (6) SCR 486
referred to
Para 36
2010 (5) SCR .137
referred to
Para 36
E
2009 (7) SCR 623
referred to
Para 37
"'r
2011 (1) SCR 173
referred to
Para 38
-
2012 (10) SCR 540
relied on
-Para 39
F
2013 (6) SCALE 778
relied on
Para 46
2~12 (9) SCR 244
relied on
Para 60
1996 (10) Suppl. SCR 284
relied on
Para 63
--tIn the Judgment of T.S. Thakur:
G
2009 (7) SOR623
referred to
Para 6
2005 (1) SCR 1019
relied on
Para 13
2005 (2) SCR 1131
relied on
Para 14
H
780
SUPREME COURT REPORTS
[2013] 13 S.C.R
r
r
'i'
A
~010 (5) SCR 137
relied on
Para 15
2011 (1) SCR 173
relied on
Para 16
(2012) s sec 34
relied on
Para 17
1995 Supp (4) sec 419
relied on
Para 22
B
1997 (4) Suppl. SCR 711
relied on
Para 22
(2005) 3 sec 592
relied on
Para 22
'* '
(2009) 11 sec 587
relied on
Para 22
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
-
No. 763 of 2003.
t
From the Judgment & Order dated 23.05.2003 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
D Criminal Appeal No. 464 of 1990.
)'l.._
Sushil Kumar Jain, Anurag Gohil, Ruchika Gohil for the
Appellants.
Ameet Singh, Mukul Singh, Pragati Neekhra for the
E Respondent.
The Judgment of the Court was delivered by
MADAN 8. LOKUR, J. 1. Three principal issues arise for
--(
•
F consideration in this appeal. The first is whether the appellant
was a juvenile or a child as defined by Section 2(k) of the
Juvenile Justice (Care a.nd Protection of Children) Act, 2000
on the date of occurrence of the offence he was charged with.
On a consideration of the Report called for by this Court on this
G
question, the issue must be answered in the affirmative.
+
2. The second is whether the conviction of the appellant
can be sustained on merits and, if so, the sentence to be
awarded to the appellant. In our opinion the conviction of the
appellant must be upheld and on the quantum of sentence, he
H ought to be dealt with in accordance with the provisions of
JITENDRA SINGH @ 8A8800 SINGH v. STATE OF 781
U.P. [MADAN 8. LOKUR, J.]
_-..,
Section 20 of the Juvenile Justice (Care and Protection of
A
Children) Act, 2000 read with Section 15 thereof.
3. The third questiqn is whether any appropriate measures
can be taken to prevent the recurrence of a situation, such as
the present, where an accused is subjected to a trial by a
regular Court having criminal jurisdiction but he or she is later
8
found to be a juvenile. In this regard, we propose to give
)I
appropriate directions to all Magistrates which, we hope, will
"'
prevent such a situation from arising again.
The facts:
c
· 4. On the midnight of 23rd I 24th May 1988 it is alleged
that Asha Devi was set on fire by the appellants and two other
persons. A demand for dowry, which she was unable to meet,
.,......_
resulted in the unfortunate incident.
D
5. On 24th May 1988 at about 5 a.m., Asha Devi's uncle
came to know of the incident and he lodged a complaint with
the local police. In the meanwhile, Asha Devi had been taken
to the District Hospital where she succumbed to the burns.
E
6. After completing the investigation, the local police filed
a charge sheet on 10th July 1988 against the appellants and
'r
two other persons. The charge sheet alleged offences
committed under Section 147, Section 302, Section 304-8 and
Section 498-A of the Indian Penal Code (for short the 'IPC').
F
7. Thereafter the case proceeded to trial and the Sessions
Judge, Rae 8areli in S.T. No. 186of1988 delivered judgment
on 30th August 1990 convicting the appellants and acquitting
' -+--
the other two persons. The appellants were convicted under
G
Section 304-8 of the !PC (dowry death) and sentenced to
undergo 7 years rigorous imprisonment. They were also
convicted under Section 498-A of the IPC (husband or relative
of husband of a woman subjecting her to cruelty) and sentenced
to undergo 2 years rigorous imprisonment and to pay a fine of
H
Rs.100/- each.
782
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
8. Feeling aggrieved by their conviction and sentence, the
appellants preferred Criminal Appeal No. 464 of 1990 in the
Lucknow Bench of the Allahabad High Court. By its judgment
and order dated 23rd May 2003 the High Court dismissed the
Criminal Appeal. This is reported as 2003 (3) ACR
B 2431=MANU/UP/2115/2003.
9. Against the judgment and order passed by the
Allahabad High Court the appellants came up in appeal to this
Court. It may be mentioned that during the pendency of this
C appeal the second appellant (father of the first appellant) died
and therefore only the appeal filed by the first appellant, the
husband of Asha Devi, survives.
10. During the pendency of these proceedings the
appellant filed Criminal Miscellaneous Petition No. 16974 of
D 2010 for raising additional grounds. He sought to contend that
on the date of commission of the offence, he was a juvenile or
child within the meaning of that expression as defined in
Section 2(k) of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereinafter referred to as. the 'Act').
E According to the appellant his date of birth was 31st August
1974 and therefore, when the offence is alleged to have been
committed, he was about 14 years of age.
11. The application for urging additional grounds was
F considered by this Court and by an order dated 19th November
2010 it was held, while relying upon Pawan v. State of
Uttaranchal, (2009) 15 SCC 259 that prima facie there was
material which necessitated an inquiry into the claim of the
appellant that he was a juvenile at the time of commission of
the offence. Accordingly, the following direction was given:
G
"In the result we allow the appellant to urge the
additional ground regarding juvenility of the appellant on
the date of the commission of the offence and direct the
Trial Court to hold an enquiry into the said question and
H
submit a report as expeditiously as possible, but not later
~- -
JITENDRA SINGH @ BABBOO SINGH v. STATE OF 783
U.P. [MADAN B. LOKUR, J.)
...,.
than four months from today. We make it clear that the Trial
A
Court shall be free to summon the concerned School,
Panchayat or the Electoral office record or any other record
from any other source which it considers necessary for a
proper determination of the age of the appellant. We also
make it clear that in addition to the above, the Trial Court
B
shall be free to constitute a Medical Board comprising at
least three experts on the subject for determination of the
Jt-•
age of the appellant, based on medical tests and
"'
examination."
Report of the Additional Sessions Judge:
c
""'*
12. The Additional Sessions Judge, Rae Bareli acted on
the order dated 19th November 2010 and registered the
proceedings as Miscellaneous Case No. 1 of 2010. He then
,..4
submitted his Report dated 18th February 2011 in which he
D
accepted the claim of the appellant that his date of birth was
31st August 1974. As such, the appellant was a juvenile on the
date of commission of the offence.
13. For the purposes of preparing his Report, the
E
Additional Sessions Judge examined several witnesses
including A.P.W. 1 Samar Bahadur Singh, Principal, PreMiddle School, Sohai Bagh who produced the school
'r
admission register pertaining to the admission of the appellant
in the school. The register showed the date of birth of the
F
appellant as 31st August 1974 and the Additional Sessions
Judge found that the register had not been tampered with.
14. The Additional Sessions Judge also examined A.P.W.
11 Dr. Birbal who was a member of the Medical Board
. ---+-
constituted by him. The Medical Board examined the appellant
G
on 24th December 2010 and gave his age as about 40 years.
Reference 'in this context was also made to an ossification test
conducted on the appellant while he was in judicial custody in
the District Jail in Rae Bareli during investigation of the case.
/
H
784
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A The ossification test was conducted on 8th July 1988 and that
"-(
' -
determined the appellant's age as about 17 years.
15. At this stage, it may be mentioned that on the basis of
the ossification test the appellant had applied for bail before
B the Additional Sessions Judge in Rae Bareli being Bail
-,
Application No. 435 of 1988. The Additional Sessions Judge
noted that while the age of the appellant was determined at
about 17 years by the Chief Medical Officer, there could be a
)l_
difference of about 2 years either way and therefore by an order
..
c dated 13th July 1988 the application for bail was rejected.
F16. The appellant then moved the Lucknow Bench of the
Allahabad High Court by filing a bail application which was
registered as Criminal Miscellaneous Case No. 1859(B) of
1988. By an order dated 25th November 1988 the Allahabad
D High Court granted bail to the appellant while holding, inter a/ia,
L
that it was difficult to discard the opinion of the Chief Medical
Officer regarding the appellant's age.
17. Coming back to the Report, the Additional Sessions
E Judge also examined A.P.W. 5 Pankulata the younger sister
of deceased Asha Devi. She stated that Asha Devi was about
4 or 5 years older than the appellant and that it was not
unknown, apparently in their community, for the wife to be older
-(
than the husband. The record of the case shows that Asha Devi
F
died at the age of about 19 after having been married for about
4% years. This would mean that the appellant was married to
Asha Devi when he was about 9 years old and that on the date
of the incident he was about 14 years old.
18. The Additional Sessions Judge also examined A.P.W.
-4-- ..,
G 8 Sanoj Singh, husband of Pankulata, who gave a statement
'
in tune with that of his wife. The Additional Sessions Judge also
examined A.P.W. 9 Narendra Bahadur Singh husband of
A.P.W. 10 Kanti Singh. All these witnesses stated to the effect
that apparently in their community the wife is normally older than
H the husband at the time of marriage. All these persons also
JITENDRA SINGH@ BABBOO SINGH v. STATE OF 785
U.P. [MADAN B. LOKUR, J.]
produced proof of their age to show that the wife (A.P.W. 5
A
Pankulata and A.P.W. 10 Kanti Singh) was older than her
husband at the time of their marriage.
19. On the basis of the material before him, the Additional
Sessions Judge accepted the claim of the appellant that he was
B
younger than his wife at the time of marriage and that his date
of birth was 31st August 1974.
~
·~
20.