PAWAN KUMARversusSTATE OF UTTAR PRADESH & ORS.

                [2023] 15 S.C.R. 261 : 2023 INSC 1012



                           CASE DETAILS

                           PAWAN KUMAR
                                    v.
               STATE OF UTTAR PRADESH & ORS.
                  (Criminal Appeal No. 3548 of 2023)
                         NOVEMBER 21, 2023
  [SANJAY KISHAN KAUL AND SUDHANSHU DHULIA,JJ]
                             HEADNOTES
    Issue for consideration: The question which arise for determination is
whether the appellant was a juvenile at the time of commission of offence.
     Juvenile Justice (Care and Protection of Children) Rules, 2007
– r. 12(3)(b) – Benefit of juvenility – Procedure to be followed in
determination of age – When exact assessment of the age cannot be done:
      Held: Age of a juvenile has to be determined on the basis of the
date of the alleged commission of the crime – In a case of juvenility
where two views are possible, a liberal approach should be undertaken –
Furthermore, as per sub-rule (3)(b) of r. 12, in the case exact assessment
of the age cannot be done, the Court or the Board or, 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 – On facts, as regards the appellant involved
in a crime u/s. 302, 307/34 IPC there were some conflicting aspects as to
the age of the appellant, the margin of age was so thin – As per r. 12, the
school certificates are given more importance than a Panchayat Register,
as such the School leaving certificate of the first school attended by the
appellant would be a certificate liable to be considered and is a valid
proof of evidence for determination of the age of the appellant, whereby
his age was less than 16 years when the offence was committed – Second
certificate is the medical report, Bone Ossification Test which shows that
he was about 19 years of age, which is not entirely accurate – Even if the
medical report which shows the age of the appellant as 19 years is taken

                                   261
262          SUPREME COURT REPORTS                       [2023] 15 S.C.R.


to be correct even then an exact assessment of age was not possible –
Considering the conflicting reports and documents, as per sub rule 3(b)
of r. 12, the Court ought to have given the appellant a benefit of one year
– Thus, the report of the Additional Sessions Judge is accepted and it is
declared that the appellant was a juvenile on the date of the commission
of crime – Since the appellant has been detained beyond the maximum
period, he is directed to be released forthwith – Juvenile Justice (Care and
Protection of Children) Act, 2000 – ss. 15, 16. [Para 26, 30-34]
       LIST OF CITATIONS AND OTHER REFERENCES
      Pratap Singh v. State of Jharkhand and Another [2005] 1 Scr 1019
: (2005) 3 SCC 551; Satya Deo alias Bhoorey v. State of Uttar Pradesh
[2020] 12 SCR 128 : (2020) 10 SCC 555; Hariram v. State of Rajasthan and
Another [2009] 7 SCR 623 : (2009) 13 SCC 211; Shah Nawaz v. State of
Uttar Pradesh and Another (2011) 13 SCC 751: [2011] 9 SCR 859; Vinod
Katara v. State of U.P. 2022 SCC OnLine SC 1204; Arnit Das v. State of
Bihar [2000] 1 Suppl. SCR 69 : (2000) 5 SCC 488; Mukarrab and Others
v. State of Uttar Pradesh [2016] 8 SCR 557 : (2017) 2 SCC 210; Ashwani
Kumar Saxena v. State of Madhya Pradesh [2012] 10 SCR 540 : (2012) 9
SCC 750; Rishipal Singh Solanki v. State of Uttar Pradesh (2022) 8 SCC
602 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3548 of 2023.
     From the Judgment and Order dated 07.05.2019 of the High Court of
Judicature at Allahabad, Lucknow Bench in CRLA No.106 of 2000.
      Appearances:
      Ms. Vanshaja Shukla, Rishad Murtaza, Ms. Ankeeta Appanna, Advs.
for the Appellant.
    Ardhendumouli Kumar Prasad, AAG, Rohit K. Singh, Aviral
Saxena, Pritam Bishwas, Ashish Madan, Ms. Ananya Sahu, Advs. for the
Respondents.
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 263



       JUDGMENT / ORDER OF THE SUPREME COURT
                               JUDGMENT
     SUDHANSHU DHULIA, J.
     Leave granted.
     2. The appellant before this Court has been convicted by the Additional
Sessions Judge, Barabanki in Sessions Trial No.85 of 1996 for offences under
Sections 302 and 307 read with Section 34 of Indian Penal Code, 1860 and
has been sentenced to life imprisonment under Section 302/34 and rigorous
imprisonment for 7 years under Section 307/34 with default stipulations.
The conviction and sentence of the appellant was upheld in appeal by the
High Court, in its order dated 07.05.2019.
     3. There were four accused in the case, which were Gaya Prasad Mishra,
Gulab Chandra, Pawan Kumar and Babadeen. The accused Babadeen passed
away during the trial and his case stood abated and the remaining three were
convicted for the offences as stated above. The said conviction has been
upheld by the High Court of Judicature of Allahabad (Lucknow Bench).
Meanwhile, as far as Gaya Prasad Mishra and Gulab Chandra are concerned,
who are the father and brother of the present appellant respectively, they
were released prematurely after remaining in jail for more than 19 years,
under the remission policy of the State. Consequently, they have not filed
any petition before this Court.
      4. The appellant before this Court apart from challenging the impugned
order on merits has also raised a claim of being a juvenile at the time of the
alleged commission of the crime (dated 01.12.1995), a plea which has been
dismissed by the Trial Court and the High Court.
       5. Before us, the learned counsel for the appellant, Ms. Vanshaja
Shukla has submitted that the plea of juvenility may be considered first as
the claim of the appellant indeed was that at the time of the incident, he
was a juvenile and his plea of juvenility had not been considered in the true
letter and spirit of the applicable law. Consequently, before going through
the case on its merits, we have heard the counsel for the appellant at length
on the plea of juvenility.
264           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      6. We must state at the very outset that the appellant has been raising
the claim of juvenility right since the time of his trial, although belatedly.
The trial court as well as the appellate court after an enquiry have found
that the appellant was not juvenile at the time of the incident. Since this plea
was raised before this Court as well, this court had asked for a report from
the concerned Additional Sessions Judge, Barabanki and consequently a
report was filed on an earlier occasion before this Court, to which we shall
refer in a while. However, the last report (dated 28.09.2022) filed by the
Additional Sessions Judge, Barabanki differs from the earlier findings, and
the claim of the appellant being a juvenile at the time of the commission of
crime has been accepted. We shall be referring to this report later.
      7. The facts of this case must also be stated here. On 01.12.1995,
while the father and brother of the Complainant-Guru Prasad Mishra were
irrigating their land, water flushed towards the adjacent field belonging to one
Gaya Prasad Mishra. The present appellant, who is the son of Gaya Prasad
Mishra reported this to his father and shortly thereafter Gaya Prasad Mishra
along with his two sons, Gulab Chandra and Pawan Kumar (the present
appellant), and one ‘Babadeen’ came to the spot armed with “lathis” and
started assaulting the father and brother of the complainant. After hearing
the ‘hue and cry’, the complainant along with some village persons reached
the spot and he was also assaulted by the accused persons. This incident
resulted in grievous injuries on all and ultimately in the death of one Ganga
Prasad, brother of the complainant. An FIR as Crime No.86 of 1995 was
then filed in Subeha Police Station in Barabanki District, under Sections 307,
504 and 323 IPC against the four named accused as mentioned above. As
the brother of the complainant (Ganga Prasad) died the same day, Section
302 was added in the FIR.
      8. Undoubtedly, the appellant belongs to the aggressor group and
had attacked the deceased and caused injuries and ultimately the death
of one of the injured persons. It is also true that some of the assailants,
including the present appellant, were armed with “lathis”. We have placed
these facts on record to show the nature of the incident. The accused have
committed a heinous crime. Yet they are not hardened criminals. It is also
not a premeditated cold-blooded murder.
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 265
           [SUDHANSHU DHULIA, J.]

      9. While having his statement recorded under Section 313 of CrPC
the age of the appellant was recorded as 18 years and upon further inquiry
the appellant claimed that he was less than 16 years of age at the time of
the commission of the offence, i.e., on 01.12.1995. At the relevant time,
Juvenile Justice Act, 1986 was in force where a juvenile in case of a boy,
was one who had not completed sixteen years of age. This age however, was
increased to eighteen years by the Juvenile Justice (Care and Protection of
Children) Act, 2000 as we shall see later. A formal plea of juvenility was
raised at the stage of trial. In support of his plea, the appellant produced the
Scholar Register of the National Inter College, Barabanki which recorded
his D.O.B. as 05.07.1980 which meant that on the date when the offence
was committed, the appellant would be 15 years, 6 months, and 26 days
old. However, during cross-examination the clerk of National Inter College
who had produced the Scholar Register, admitted that the entry was made
on the basis of a transfer certificate issued by Purva Madhyamik Vidhyalaya
(hereafter referred to as High School, Kamela), which was not placed on
record. Further, the Gram Panchayat Officer was examined who produced
the Family Register of the appellant where D.O.B. of the appellant was
recorded as 1975. The day and month of his birth were not mentioned in
this Family Register. In any case, as per the Family Register of the Gram
Panchayat, the appellant would be around 20 years of age at the time of the
commission of the offence.
     In view of this contradiction, a bone ossification test was conducted
under the supervision of the Chief Medical Officer of District Hospital,
Barabanki where the age of the appellant was recorded as approximately
19 years. Thus, by order dated 21.08.1999 it was concluded by the Trial
Court that the benefit of juvenility cannot be extended to the appellant and
he was directed to face the trial.
      10. The appellant filed a Criminal Revision before the High Court
against the said order dated 21.08.1999 passed by the Additional Sessions
Judge, Barabanki. The High Court dismissed his criminal revision on
16.09.1999. At the stage of filing the criminal revision the trial was almost
complete and the High Court did not consider it appropriate to interfere
with the trial at such a belated stage.
266          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


     11. The Additional Sessions Judge, Barabanki continued with the trial,
where all the accused persons (except Babadeen), including the appellant
were convicted for offences under sections 302/34 and 307/34 of the IPC
for which they were sentenced to life imprisonment and 7 years of rigorous
imprisonment, respectively. One of the co-accused, Babadeen died on
12.12.1998 during the trial and proceedings against him stood abated by
order dated 04.01.1999 passed by the Trial Court.
      12. Against the order of conviction dated 11.02.2000 passed by the
Trial Court all the accused filed their appeal before the High Court of
Judicature at Allahabad (Lucknow Bench). During the pendency of the
appeal, the appellant filed a Criminal Miscellaneous Application under
Section 391 of the CrPC for placing additional evidence on record regarding
his juvenility. Accordingly, the appellant produced Transfer Certificate dated
05.07.1995 issued by High School, Kamela based on which the Scholar
Register of National Inter College, Barabanki which had recorded the age
of the appellant as 05.07.1980. Nevertheless, the High Court vide its order
dated 07.05.2019, dismissed the Criminal Appeal of all the three accused,
including the plea of juvenility raised by the appellant. The High Court
also noted that the State Government had meanwhile remitted the sentence
of the other two co-accused as both had undergone more than 19 years of
imprisonment. However, the appellant was directed to surrender and to carry
out his sentence. While rejecting the plea of juvenility, the reasons given
by the High Court are as follows:
      “20...It is undisputed that juvenility can be examined at any stage,
      if raised by the accused person. In the present case, appellant no. 3
      has raised the point of his juvenility before the trial court, which was
      dealt with after examining the court witnesses and evidences placed
      by means of parivar register, radiological report, C.M.O. report and
      the scholar register of Rashtriya Inter College and rejected by the
      court below vide order dated 21.08.1999. As no good ground has
      been taken in the present appeal of juvenility of appellant no. 3. It is
      also relevant to mention here that aforesaid order dated 21 st August,
      1999 was challenged by the appellant no. 3 in Criminal Revision No.
      271 of 1999, which was also dismissed by this Court vide order dated
      16.09.1999”.
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 267
           [SUDHANSHU DHULIA, J.]

     The appellant had mostly remained on bail during the period of trial
and appeal, but consequent to the decision of the High Court, he surrendered
on 29.07.2019 and since then he has been in jail. By now he has served a
sentence of about 4 ½ years.
      13. The specific grievance of the appellant in the present case is that the
Trial Court had not accepted the veracity of the Scholar Register of National
Inter College, Barabanki because it was based on a Transfer Certificate
issued by High School, Kamela which was not on record. However, when
the appellant had placed the same on record, in his application under Section
391 of CrPC, the same ought to have been considered.
      14. This Court passed order dated 08.10.2021 and directed the Trial
Court to submit a fresh report on the plea of juvenility raised by the appellant,
after appreciating the additional evidence. The order dated 08.10.2021 of
this Court reads as under: -
     “…Learned counsel for the petitioner submits by reference to
     additional documents that CM No.96164/2012 was filed under Section
     391 of the Cr.P.C for taking on record additional documents in the
     form of transfer certificate showing the date of birth of the applicant
     as 05.07.1980. She has also filed a document regarding listing of the
     applications as on 29.01.2020 before the High Court of Judicature at
     Allahabad, Lucknow Bench to show such application as pending as on
     01.11.2012 for disposal. It is thus, her submission that the application
     seeking to bring on record additional documents in support of the plea
     of juvenility was never dealt with.
           Our attention has been invited at para 20 of the impugned order
     which recognizes that plea of juvenility was raised before the trial Court
     and was rejected by the order dated 21.08.1999. It has been observed
     that no ground has been taken in the appeal of juvenility of appellant
     No.3 possibly because a Criminal Revision was filed against the order
     dated 21.08.1999 being Criminal Revision No.271/1999 which was
     also dismissed by the High Court on 16.09.1999.
           It is correct that in the grounds of appeal before the High Court
     no plea of juvenility was raised. The plea of the petitioner is predicated
268           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      only on CM No.96164/2012 filed seeking to raise the plea of juvenility
      based on the additional grounds.
            In view of the aforesaid facts and circumstances, we are of
      the view that the additional documents brought on record ought to
      have been examined and they require examination as to whether the
      petitioner can raise the plea of juvenility.
            We thus, refer the matter to the trial Court for recording evidence
      on the basis of the certificates sought to be produced by the petitioner
      as a transfer certificate and submit a report to this Court….”
      15. Accordingly, the First Additional Sessions Judge, Barabanki
in compliance of the order of this Court had submitted a Report dated
28.02.2022. According to this report, the D.O.B of the appellant should be
taken as recorded in the Family Register, which is 1975 and therefore at
the time of the commission of the offence he was not a juvenile. The Trial
Court had examined the entry of the Scholar Register of the National Inter
College, Barabanki where the D.O.B of the appellant was 05.07.1980. The
D.O.B entered in the Scholar Register was based on a Transfer Certificate
dated 05.07.1995 issued by High School, Kamela which had also been
placed on record by the appellant, however, the original records of High
School, Kamela were not produced and the evidence of the Family Register
and bone ossification test was also against the appellant. By comparing
these evidences, the Trial Court declared the D.O.B of the appellant to be
1975 and consequently, the report of the Additional Sessions Judge dated
28.02.2022 declared that the appellant was not a juvenile on the date of the
commission of the alleged offence.
     16. The report dated 28.02.2022 was examined by this Court and it
was felt that the Trial Court did not examine the Transfer Certificate of the
appellant, which was placed before it. Hence, the issue was again remitted
back to the Additional Sessions Judge, Barabanki on 15.07.2022 by this
Court for fresh consideration on the aspect of juvenility and another report
was directed to be filed. The Order of this Court dated 15.07.2022 is as
follows:
      “We have perused the report of the First Additional Sessions Judge,
      Barabanki dated 28.02.2022 but that report does not analyze the
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 269
           [SUDHANSHU DHULIA, J.]

     transfer certificate which is the document sought to be relied upon by
     the petitioner as an additional document before the High Court for
     which an application had been filed before it. That is what is required
     to be considered.
     Undisputedly, the other documents do not go in favour of the petitioner
     and show the age as more than 16 years.
     It appears that the District Judge has not analysed the document or
     its veracity which is what is required to be considered.
     We have thus, no option but to remit the matter back to the District
     Judge, Barabanki to appreciate the purport of our order and carry
     out the enquiry in that behalf and then submit a report to us.
     Learned counsel for the petitioner states that the original document
     is in the possession of the petitioner and will be filed with an affidavit
     before the District Judge.
     The enquiry report to be submitted within a period of three months
     from the date of the receipt of this order.
     List on the enquiry report being received.”
      17. In compliance of the said order the Additional Sessions Judge,
Barabanki filed a fresh report dated 28.09.2022. In this report the D.O.B has
been determined as 05.07.1980. If this report is accepted then the appellant
was 15 years, 4 months, and 26 days old at the time of commission of the
crime which occurred on 01.12.1995. The relevant observation of the report
is given as under:
     “18. In the end, it is humbly submitted that the date of birth of Pawan
     Kumar, right from the first school where he was admitted, up to the
     last school where he has studied, as per the relevant documents of each
     school has remained the same i.e., 05.07.1980 (Annexure-1) which
     has been issued by the Principal of Pre-secondary School Kamela,
     mentioning his date of birth as 05.07.1980, matches with the date of
     birth of Pawan Kumar as has been mentioned in the relevant registers/
     documents of each and every school, where the petitioner has studied
     at different stages of his education”.
270             SUPREME COURT REPORTS                               [2023] 15 S.C.R.


     18. On behalf of the appellant, we have heard ld. counsel Ms. Vanshaja
Shukla and learned senior counsel Mr. Ardhendumauli Kumar Prasad,
Additional Advocate General (AAG) for the State of Uttar Pradesh. Before
we deal with the submissions made by both sides, it would be prudent to
examine some of the relevant statutory provisions.
      19. The age of a juvenile has to be determined on the basis of the date
of the alleged commission of the crime. The present incident which involved
the appellant in a crime inter alia under Section 302 IPC was allegedly
committed on 01.12.1995. At the relevant point of time, the Act which was
in force for juvenile offenders was known as Juvenile Justice Act, 1986. In
the said Act, Section 2(h) defined juvenile as follows:
       “(h) “juvenile” means a boy who has not attained the age of sixteen
       years or a girl who has not attained the age of eighteen years”
      In the case of the present appellant, the relevant age apparently was
16 years. In order to be a juvenile, he should not have attained the age of
16 years. Till the time the sessions court finally convicted the appellant,
inter alia, under Section 302 of the IPC, the above provision of law was in
force. The Trial court’s decision is of 11.02.2000.
     20. Meanwhile, during the pendency of the appeal before the High
Court, the Juvenile Justice (Care and Protection of Children) Act, 2000
came into force on 01.04.2000, inter alia, repealing the 1986 Act. There
were some major changes in the 2000 Act. The first and foremost was the
definition of juvenile itself. Section 2(k) defined the “juvenile” as follows:
       “(k) “juvenile” or “child” means a person who has not completed
       eighteenth year of age”
    The definition of “juvenile in conflict with law” under Section 2(l),
which stood amended1in 2006 is as follows:
     “(l) “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”


1      Prior to the 2006 amendment, it reads as follows:
      (l) “juvenile in conflict with law” means a juvenile who is alleged to have committed
      an offence. (w.e.f. 22.08.2006)
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 271
           [SUDHANSHU DHULIA, J.]

      The 1986 Act made a distinction between a boy and a girl as to their
claim of juvenility. In the case of boys, it was 16 years, whereas for girls
it was 18 years. The 2000 Act, not only removed this distinction but also
raised the age of juvenility from 16 years to 18 years.
      21. The majority opinion of 4:1 in a Constitution Bench decision of
this Court in the case of Pratap Singh v. State of Jharkhand and Another
(2005) 3 SCC 551, held as follows:
     “(a) The reckoning date for the determination of the age of the juvenile
     is the date of the offence and not the date when he is produced before
     the authority or in the court.
     (b) The 2000 Act would be applicable in a pending proceeding in any
     court/authority initiated under the 1986 Act and is pending when the
     2000 Act came into force and the person had not completed 18 years
     of age as on 01.04.2001.”
     Subsequent to the decision in Pratap Singh (supra) certain amendments
were made in the 2000 Act. Section 7A was introduced which reads as
follows:
     “[7-A. 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 enquiry, take such evidence as may be necessary (but not an
     affidavit) so as to determine the age of such person, and shall record
     a finding whether the person is a juvenile or a child or not, stating his
     age as nearly as may be:
     Provided that a claim of juvenility may be raised before any court
     and it shall be recognised at any stage, even after final disposal of the
     case, and such claim shall be determined in terms of the provisions
     contained in this Act and the rules made thereunder, even if the
     juvenile has ceased to be so on or before the date of commencement
     of this Act.
     (2) If the court finds a person to be a juvenile on the date of commission
     of the offence under sub-section (1), it shall forward the juvenile to the
272           SUPREME COURT REPORTS                            [2023] 15 S.C.R.


      Board for passing appropriate order, and the sentence if any, passed
      by a court shall be deemed to have no effect.]”
    The definition of “juvenile in conflict with law” was also amended
which we have already referred above.
     22. In addition, comprehensive Rules known as Juvenile Justice (Care
and Protection of Children) Rules, 2007, were also made, inter alia, laying
down a detailed procedure as to the determination of the age of a juvenile.
Rule 12 of the said Rules is as follows:
      “12. Procedure to be followed in determination of Age.—(1) In every
      case concerning a child or a juvenile in conflict with law, the court
      or the Board or as the case may be the Committee referred to in Rule
      19 of these rules shall determine the age of such juvenile or child or
      a juvenile in conflict with law within a period of thirty days from the
      date of making of the application for that purpose.
      (2) The court or the Board or as the case may be the Committee shall
      decide the juvenility or otherwise of the juvenile or the child or as the
      case may be the juvenile in conflict with law, prima facie on the basis
      of physical appearance or documents, if available, and send him to
      the observation home or in jail.
      (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
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 273
           [SUDHANSHU DHULIA, J.]

     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.
     (4) If the age of a juvenile or child or the juvenile in conflict with law
     is found to be below 18 years on the date of offence, on the basis of
     any of the conclusive proof specified in sub-rule (3), the court or the
     Board or as the case may be the Committee shall in writing pass an
     order stating the age and declaring the status of juvenility or otherwise,
     for the purpose of the Act and these rules and a copy of the order shall
     be given to such juvenile or the person concerned.
     (5) Save and except where, further inquiry or otherwise is required,
     inter alia, in terms of Section 7-A, Section 64 of the Act and these rules,
     no further inquiry shall be conducted by the court or the Board after
     examining and obtaining the certificate or any other documentary
     proof referred to in sub-rule (3) of this rule.
     (6) The provisions contained in this rule shall also apply to those
     disposed of cases, where the status of juvenility has not been
     determined in accordance with the provisions contained in sub-rule
     (3) and the Act, requiring dispensation of the sentence under the
     Act for passing appropriate order in the interest of the juvenile in
     conflict with law.”
                                                          (emphasis supplied)
      23. Although, during the pendency of the appeal before the Allahabad
High Court (Lucknow Bench), the Juvenile Justice (Care and Protection
of Children) Act, 2015 had come into force repealing the 2000 Act and
subsequent to the 2015 Act, comprehensive and detailed Model Rules
relating to “juvenile in conflict with law” known as Juvenile Justice (Care
274           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


and Protection of Children) Model Rules (hereinafter referred to as ‘JJ
Rules, 2016’) were laid down. Rule 94 of the JJ Rules, 2016 also repeals
the 2007 Rules.
      “94. Repeal.—The Juvenile Justice (Care and Protection of Children)
      Rules, 2007 notified vide G.S.R. 679(E) dated 26th October, 2007 and
      as amended vide GSR 903(E) dated 26th December 2011, are hereby
      repealed:
      Provided that any action taken or order issued under the provisions
      of the Rules of 2007 prior to the notification of these rules shall, in so
      far it is not inconsistent with the provisions of these rules, be deemed
      to have been taken or issued under the provisions of these rules.”
     Nevertheless, the 2015 Act contains an important Section, which is
Section 25, which reads as follows:
      “25. Special provision in respect of pending cases.—Notwithstanding
      anything contained in this Act, all proceedings in respect of a child
      alleged or found to be in conflict with law pending before any Board
      or court on the date of commencement of this Act, shall be continued
      in that Board or court as if this Act had not been enacted.”
      24. In Satya Deo alias Bhoorey v. State of Uttar Pradesh (2020) 10
SCC 555, the impact of Section 25 of the 2015 Act has been explained
in detail. The expression “all proceedings” would not only mean the
trial but will also include revision or appeal. Consequently, since at the
commencement of 2015 Act the proceedings of the present appellant were
pending before the High Court (the appeal was decided on 07.05.2019),
Section 25 of the 2015 Act would be attracted. It would mean that what
would be applicable in the present case would be the 2007 Rules, including
Rule 12 which we have referred above. This aspect has also been examined
in great detail in Hariram v. State of Rajasthan and Another (2009) 13
SCC 211.
     25. In other words, what would be applicable in the present case
regarding the determination of the age of the appellant would be the 2000
Act and the Rules framed therein i.e., 2007 rules. Rule 12 has an important
bearing in the present case, which we have already referred above. The
first document under the 2007 Rules which has to be considered for
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 275
           [SUDHANSHU DHULIA, J.]

determination of the age of a person who is claiming juvenility is the
matriculation certificate and the settled position here is that the appellant had
not done his matriculation and there is no question of the appellant having
such a certificate. The other document which then becomes relevant is the
school leaving certificate of Primary School, Bhatgawan, which is also his
certificate of age.
      26. One important aspect which was missed by the High Court as
well as the Additional Sessions Judge in his report dated 28.02.2022,
was the provisions of Rule 12 of the 2007 Rules which are applicable for
determination of age in the present case and, in particular, the provision under
sub-rule (3)(b) of Rule 12 which states that “in the 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”. We are of the considered view
that in the present case, even assuming for the sake of argument that there
were some conflicting aspects as to the age of the appellant but since the
margin of age was so thin, the aforesaid benefit ought to have been given
to the appellant.
      27. From perusal of the report dated 28.09.2022 the following facts
emerge. The appellant had attended three schools during his life time. The
first was the Primary School at Bhatgawan in Barabanki. The second was
High School, Kamela, Barabanki and the third was National Inter College,
Ranapur, Barabanki (in chronological order). The admitted position is
that the appellant had not completed his matriculation at the time of the
incident in the year 1995 and therefore the only evidence he could place
before the authorities was the copy of the admission register of National
Inter College and the transfer certificate of the college, which had recorded
his date of birth to be 05.07.1980. The appellant took admission in National
Inter College, Barabanki on 25.07.1995 and thereafter since he could not
pay his tuition fee, his name was removed as a student from the college
register on 30.12.1995. The date of birth which was registered in the said
school was 05.07.1980. The date of birth, however, was not taken to be
the correct date of birth in the earlier findings, since the appellant had not
produced any certificate before the inquiry officer on the basis of which
276             SUPREME COURT REPORTS                       [2023] 15 S.C.R.


the date of birth i.e., 05.07.1980 was registered in the school register of
National Inter College. In the subsequent enquiry though he submitted the
transfer certificate from the earlier school register but the same could not
be verified to the satisfaction of the inquiry officer and consequently the
date of birth as claimed by the appellant (05.07.1980) was not accepted. In
the latest enquiry, which has been conducted by the Additional Sessions
Judge, Barabanki dated 28.09.2022, the appellant had produced relevant
certificates of all three schools he had attended.
      28. First is the certificate from Primary School Bhatgawan, Barabanki,
which was the first school attended by the appellant and where his date of
birth recorded was 05.07.1980. The Sessions Judge himself has seen the
school register of the school and had taken the statement of the principal
of the school to consider the veracity of the school register. The other
documents examined were the transfer certificates of High School, Kamela
and National Inter College and the relevant registers of the said schools. The
Additional Sessions Judge, who did not doubt the veracity of any of these
documents which were placed before him, has given a categorical finding
that what has been consistent is that, in all the schools that he has attended,
his date of birth remains the same i.e., 05.07.1980.
      29. However, there are two certificates which have not been considered
by the Additional Sessions Judge in his latest report. The first is the Family
Register in which the year in which appellant was born is recorded as 1975.
As deposed by the concerned Gram Panchayat Officer, there is no precise
date of birth recorded in the Family Register and what has been recorded,
is that the appellant was born in the year 1975. All the same this certificate
will not have the same evidentiary value as the school certificates in the
present case. Moreover, the entry is also not a precise entry. Under the 2007
Rules (i.e., Rule 12), the school certificates are given more importance
than a Panchayat Register. The school leaving certificate of the first school
attended by the appellant which is Primary School, Bhatgawan will be a
certificate that is liable to be considered and the certificate is a valid proof
of evidence for determination of the age of the appellant. [Shah Nawaz
v. Stateof Uttar Pradesh and Another (2011) 13 SCC 7512]. The second


2     Paragraph 24
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 277
           [SUDHANSHU DHULIA, J.]

certificate is the medical report of the appellant i.e., Bone Ossification
Test conducted on 05.02.1996 which is about two months after the alleged
incident where the certificate of the test show that he was about 19 years of
age. The Radiologist (CW-3) who had conducted the test was examined in
the trial, on being questioned about the veracity of the report by the defence,
he said that although he had examined the appellant and conducted the Bone
Ossification Test but, he did not give the precise years i.e., 19 years to be
the age of the appellant. According to him this has been done by the Chief
Medical Officer (CMO). The C.M.O was never examined in the trial. In any
case, a bone ossification test, which is primarily done to determine the age,
does not give the precise age but is at best an approximation.
     30. 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. 2022 SCC OnLine SC 1204 has held the
following:
     60. 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
     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.
      31. 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:
278             SUPREME COURT REPORTS                      [2023] 15 S.C.R.


       “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”
      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 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.
     32. Even if the medical report which shows the age of the appellant as
19 years is taken to be correct even then in a case where an exact assessment
of age was not possible, considering the conflicting reports and documents
in our considered opinion, the provision given in sub-rule 3(b) of Rule 12
would come into play and the Court ought to have given the appellant a
benefit of one year in the present case.
     Consequently, we accept the report of the Additional Sessions Judge,
Barabanki dated 28.09.2022 and declare that the appellant was a juvenile
on the date of the commission of crime i.e., on 01.12.1995.
     33. The other two co-accused i.e., Gaya Prasad Mishra and Gulab
Chandra have been convicted and sentenced inter alia to life imprisonment.
Although both of them have been prematurely released by the State



3     Para 13
 PAWAN KUMAR v. STATE OF UTTAR PRADESH & ORS. 279
           [SUDHANSHU DHULIA, J.]

Government under its remission policy, yet the fact remains that they
were convicted (along with the appellant), for the offences under Sections
302/34 and 307/34 by the Trial Court in trial as well as by the High Court
in appeal after examining the entire evidence in detail. The role assigned
to the present appellant is no different than the role assigned to the other
two accused who were convicted under Sections 302 and 307 read with
Section 34 IPC. It is exactly the same role and clearly section 34 of the
Indian Penal Code is also attracted. We have already declared the appellant
as a juvenile, but there is also an order of conviction against the appellant,
which is based on the evidence placed by the prosecution against the other
two accused and the present appellant, which is common. It is not possible
therefore to take a different view for the present appellant than what has
been taken by the Trial Court and the Appellate court against the other two
accused regarding their conviction. Therefore, we sustain the conviction
of the appellant under Sections 302 and 307 IPC read with Section 34 IPC,
but all the sentences which have been awarded to him are hereby quashed
as such sentences cannot be given to a juvenile, in view of Section 16 of
the Juvenile Justice Act, 2000.
       34. The appeal is partly allowed on the question of juvenility as
indicated hereinabove, and the order of the High Court will stand modified
to this extent. The appellant is presently in jail. He should be around 43 years
of age as of now. Considering all the relevant aspects including the fact that
the appellant has already been declared a Juvenile by this Court and in view
of Sections 15 and 16 of Juvenile Justice Act, 2000, since the maximum
period for which a juvenile can be detained is three years and the appellant
has already undergone imprisonment for 4 ½ years, we hereby order that the
appellant be released forthwith, unless he is required in some other crime.


Headnotes prepared by:                                      Appeal partly allowed.
Nidhi Jain