Holding

The review petition was dismissed as there was no error apparent on the face of the record and the accused was not a juvenile, so the death sentence stands.

Summary

The Supreme Court considered a review petition filed by R.D. Chauhan, who claimed he was a juvenile at the time of committing murder under Section 302 IPC and therefore could not be sentenced to death. The petition argued that the trial and appellate courts failed to apply the Juvenile Justice Act, 1986, and that the conviction should be quashed. The Court examined the scope of review under Article 137 of the Constitution and held that review in criminal cases is limited to errors apparent on the face of the record, which were absent here. Evidence, including police notes, confessional statements, and expert medical opinion, established that the accused was over 20 years old, negating the juvenile claim. Consequently, the death sentence was upheld and the review petition dismissed, though the Court noted the petitioner's right to seek remission under Sections 432, 433, and 433A of the CrPC.

Issues considered

The applicability of the Juvenile Justice Act, 1986 to the accused and whether he was a juvenile at the relevant date.
The scope and grounds for a review of a criminal judgment under Article 137 and Supreme Court Rules.
Whether the trial court erred by not granting an adjournment for the accused to show cause against the proposed death sentence.
The validity of various pieces of evidence (school register, medical opinion, statements) for determining the accused's age.
The effect of Sections 432, 433, 433A of the CrPC and Articles 72, 161 of the Constitution on the death sentence.

Legislation cited

Code of Civil Procedure, 1908s. Order 40 Rule 1, s. Order 47 Rule I
Code of Criminal Procedure, 1973s. Section 235, s. Section 235(2), s. Section 27, s. Section 309(2), s. Section 432, s. Section 433, s. Section 433A
Constitution of Indias. Article 13(7), s. Article 137, s. Article 14, s. Article 145, s. Article 161, s. Article 21, s. Article 72
Indian Evidence Act, 1872s. Section 114
Indian Penal Code, 1860s. Section 302
Juvenile Justice Act, 1986s. Section 22(1), s. Section 27, s. Section 2(h), s. Section 5, s. Section 8
Supreme Court Rules, 1966s. Order 40 Rule 1, s. Order 40 Rule 5, s. Order XLVll Rule I

Subjects

review petitionjuvenile justicedeath penaltyArticle 137Criminal Procedure CodeSection 27 CrPCSection 22 Juvenile Justice Actage determinationadjournmentremissionpardon

Judgment

RAMDEO CHAUHAN@ RAJ NATH A

STATE OF ASSAM

MAY 10, 2001

[K.T. THOMAS, R.P. SETHI AND S.N. PHUKAN, JJ.] B

Constitution of India, 1950-Art icle 13 7-Review-Scope of-In
criminal cases-Held, the power is subject to the provisions of law made by
parliament or any rules made under Article 145 of the Constitution-The
mere Jae/ that two vie11's on the same su~ject are possible, is no ground to C
review the earlier judgment passed by a Bench of the same strength-Civil_
Procedure Code, 1908-0rder XLVll Rule /-Supreme Court Rules, 1966-
0rder XL rules I & 5.

Articles 72 and 161--Power to pardon-Held, the powers are absolute D
and cannot be fettered by any statut01y provision-Criminal Procedure
Code, 1973-Section 432, 433 and 433.4,.

Penal Code, 1860-Section 302-Juvenile Justice Act, 1986-Section
22(1) & 8-Death sentence-Review of-On the ground of petitioner being
juvenile on the relevant date-Plea raised for the first time-Petitioner not E
proved to be juvenile on the relevant date-Held, the sentence cannot be
altered-Criminal Procedure Code, 1973-Section 27.

Criminal Procedure Code, 1973

----., Sections 235 and 309(2) Third proviso (as amended) by Act 45 of F
1978)-Adjournment of case-To enable the accused to show cause against
the sentence proposed-Requirement of-Held, not required-Yet, in
appropriate cases, the Court can grant adjournment, particularly if proposed
sentence is sentence of death-Opportunity of hearing to the accused-
Necessity of-Lego/ position reiterated and directions issued.
G
Section 432-Remission of sentence-Held, does not mean aquittal,

- and does not amount to inte1ference with due and proper course of justice.

Sections 433 & _433A-The power to commute a sentence of death is
independent of Section 433A.-The restrictia11 under Section 433A of the
669
H
SUPREME COURT REPORTS [200 I] 3 S. C.R.

A Code comes into operation only after power under Section 433 is exercised.
Criminal Trail-Age of the .accused-Determination of-Reliance on
text books, medical jurisprudence and toxicology-Held, too much reliance
cannot be placed on them-Evidence Act, 1872.

B Words & Phrases-'Remit'-Meaning of-In the context of Section 432
Cr.P.C

Against the judgment of Supreme Court confirming the death sentence
awarded by the Trial Court and the High Court, petitioner has preferred the ',<___
C review petition.

The petitioner contended that he could not be sentenced in either
imprisonment or death sentence, because he was a juvenile within the meaning
of Section 2(h) of Juvenile Justice Act, 1986. Notice was issued on the
limited point of sentence.
D The plea of the petitioner being juvenile was raised for the first time
before this Court, and was not raised at the time of investigation, inquiry and
trial, or in his application for grarit of bail, or in his confessional statement
recorded by the Magistrate, or in the memo of appeal filed in the High Court.

E Prosecution tried to establish that the petitioner was not a juvenile at
the relevant date on the basis of the supervision notes of the Superintendent
of Police, the confessional statement of the petitioner, statement of the
accused under Section 161 Cr.P.C., evidence of the father of the petitioner,
the evidence of PW-4, and the sheet on which the statement of the accused
was record~d by the trial Court under Section 235 Cr.P.C.
F
The petitioner contended that the whole trial proceedings were liable
to be quashed, as he could not have been tried by a court other than the
juvenile court as per sections 23 and 24 of the Juvenile Justice Act; and that
the trial court wrongly held that he was more than 20 years of age; and that
G the evidence on record required re-examination as there were numerous
inconsistencies and contradictions viz. as per the school admission register,
the age of the petitioner was 11 months short of 16 years on the relevant
date and as per the opinion of the radiological expert the petitioner was
within the range of 20 and 21 years on the date of examination and as such r
within 15 and 16 years on the relevant date; as the marginal error in age
1-t ascertained by· radiological examination is two years at either side, the
\y- --

R.D. CHAUHAN v. STATE OF ASSAM 671

benefit of which should go to the accused; and that the mandate of Section A
235 Cr.P.C., was violated as the judgment was pronounced on the same day
when the conviction was recorded.

As regards the necessity to afford opportunity of hearing to the accused
on the question of sentence, reiterating the legal position, the following
directions were issued by the Court : B
t. When the conviction is under Section 302 IPC (with or without the
aid of Section 34 or 149 or 1208 of IPC) if the Sessions Judge does not
propose to impose death penalty on the convicted person it is unnecessary
to proceed to hear the accused on the question of sentence. Section 235(2)
of the Code will not be violated if the sentence of life imprisonment is
c
awarded for that offence without hearing the accused on the question of
sentence.

2. In all other cases the accused must be given sufficient opportunity
of hearing on the question of sentence.
D
3. The normal rule is that after pronouncing the verdict of guilty the
hearing should be made on the same day and the sentence shall also be
"" pronounced on the same day.
'""'
4. In cases where the Judge feels or if the accused demands more time
E
for hearing on the question of sentence (especially when the Judge propose
to impose death penalty) the proviso to Section 309(2) is not a bar for
affording such time.

5. For any reason the court is inclined to adjourn the case after
~
pronouncing the verdict of guilty in grave offences the convicted person shall F
~.
be committed to jail till the verdict on the sentence is pronounced. Further
detention will depend upon the process of law.

Dismissing the petition by majority, without prejudice to the right of
the petitioner to get the benefit under Sections 432, 433 and 433A of the
Code of Criminal Procedure, the Court G
HELD: Per Sethi, J.

--~
I. I. The grounds urged in the petition and at the Bar do not make out
" a case for review. In the guise of this petition, the petitioner has sought the
reappraisal of the whole evidence, firstly to hold him not guilty and even if H
-(
672 SUPREME COURT REPORTS [2001] 3 S.C.R.

A he is found guilty to give him benefit of tl1e Juvenile Justice Act.·
1684-H; 685-AJ ·
;>.....
1.2. The mere fact, that two views on the same subject are possible, is
no ground to review the earlier judgment passed by a Bench of the same
strength. Article 137 of the Constitution of India, 1950 empowers this Court
B to review its judgments subject to the provisions of any law made by
Parliament or any rules made under Article 145 of the Constitution. The
Supreme Court Rules, 1966 made in exercise of the powers under Article
145 of the Constitution prescribe that in civil cases, review lies on any of
the grounds specified in Order 47 Rule J of the Civil Procedure Code, 1908.
"-
. '
Under Order 40 Rule 1. of the Supreme Court Rules no review lies except
c on the ground of error apparent on the face of the record in criminal cases.
Order 40 Rule 5 of the Supreme Court Rules provides that after an application
for review has been disposed of; no further application shall be maintained
in the same matter. 1681-E; 682-D-E; 683-A-BI

D Lily Thomas v. Union of India and Ors., JT (2000) 5 SC 617; Mis
Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, AIR (1980) SC
674; Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, 11985) 2
SCR 8; State of Orissa v. Titaghur Paper Mills, AIR (1985) SC I 293; Union !'·

of India v. Godfrey Philips India Ltd., 119851Suppl.3 SCR 123; R.S. Nayak :>--
v. A.R. Antulay, AIR (1984) SC 684; Prem Chand Garg v. Excise Commissioner
E UP. Allahabad, AIR (1963) SC 996; Naresh Shridhar Mirajkar v. State of
Maharashtra, 119661 3 SCR 744 and Smt. Ujjam Bai v. State.pf UP., 11963)
1 SCR 778, referred to.

2.1. The petition~r was not a juvenile within the meaning of the Juvenile
Justice Act; not did he seriously claim to be a juvenile for the purposes of _.,'
F getting the benefit of Section 22 of the Act. The judgment of the trial Court
)'- ~
and the High Court cannot be assailed on the ground of having been passed
in violation of the mandate o"f law. From the evidence produced and the
material placed before the Courts below, there is not an iota of doubt to hold
that the petitioner was a child or near or about tlie age of being a child within
G the meaning of the Juvenile Justice Act or Children Act. He is proved to be
major at the time of the commission of the offence. 1689-D; 694-GI

2.2. The plea of the petitioner being juvenile is not··only an after-
thought but a concoction of his imagination at a belated stage to thwart the r-
course of justice by having resort to wrangles of procedures and technicalities •
H of law. In case of the petitioner, the investigating officer, the Magistrate
R.D. CHAUHAN v. STATE OF ASSAM 673

before whom the accused was produced, the Magistrate who recorded his A
confessional statement and the Sessions Court to whom the accused was
~ committed did not find the accused a juvenile or a child. Such Magistrate and
Court were in a better position to form an opinion regarding the age of the
• accused who had admittedly appeared before them as they had the opportunity
to see and observe him. (687-B-DJ
B
State of Ji.myana v. Ba/want Singh, (J 9931 Suppl. I SCC 409, relied
on.

2.3. A harmonious reading of the Juvenile Justice Act, particularly
_;/:
Section 8 and Section 27 Cr.P.C., would show that whenever any delinquent
juvenile, accused of an offence, irrespective of the punishment imposable by c
law, is produced before a Magistrate or a Court, such Magistrate or the
court, after it is brought to its notice or is observed by the Magistrate or
the Court itself, that the accused produced before it was under the age of 16
years, shall refer the accused to the Juvenile Courts, ifthe Act is applicable
in the State and the Courts have been constituted, or otherwise refer the case D
to the Court of Chief Judicial Magistrate who will deal with the matter in
accordance with the provisions of law. In the instant case, no one - the
'l
investigating agency, the Magistrate the Court the accused - felt the necessity
of application of the provisions either of Section 27 of Criminal Procedure
"" Code or the provisions of the Juvenile Justice Act, particularly Section 8
thereof. (686-G-H; 687-A-B) E

• 2.4. Too much reliance cannot be placed upon text books, on medical
jurisprudence and toxicology while determining the age of the accused. In
this vast country with varied latitude, heights, environment, vegetation and
nutrition, the height and weight cannot be expected to be uniform. The doctor
has opined the age of the accused to be admittedly more than 20 years and
F
less than 25 years. The statement of the doctor is no more than an opinion.
The Court has to base its conclusions upon all the facts and circumstances
disclosed on examining the physical features of the person whose age is in
question, in conjunction with such oral testimony as may be available. An X-
; ray ossification test may provide a surer basis for determining the a~e of G
an individual than the opinion of a medical expert but it can by no means be
s~ infallible and accurate a test as to indicate the exact date of birth of the
·person concerned. f694-D-FI

Jaya Mala v. Home Secretmy, Government of Jammu & Kashmir and
Ors .. 119821 2 sec 538, distinguished. H
674 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A 2.5. The manner in which the school admission register has been
maintained does not inspire confidence of the Court to put any reliance on
it. The entries made in such a register cannot IJe taken as a proof of age
of the accused for any purpose. (693-D-E[ ·

3. The mandate of the legislature is clear and unambiguous that no
B adjournment can be granted for the purpose only of enabling the accused
person to show cause against the sentence proposed to be imposed upon him.
In a case punishable with death or imprisonment for life, there is no difficulty
for the Court where the sentence proposed to be imposed is alternative
sentence of life imprisonment but if it proposes to award the death sentence, ·x__
C it has discretion to adjourn the case in the interests of justice. Despite the
bar of third proviso to sub-section (2) of Section 309 Cr.P.C., the Court, in
appropriate cases, can grant adjournment for enabling the accused persons
to show cause against the sentence proposed on him par_ticularly if such
proposed sentence is sentence of death. In all cases where a conviction is
recorded in cases triable by the Court'of Sessions or by Special Courts, the
D Court is enjoined upon to direct the accused convict to be immediately taken
into custody, if he is on bail, and kept in jail till such time the question of
sentence is decided. After the sentence is awarded, the convict is to undergo
such sentence unless the operation of such sentence awarded is stayed or
suspended by a competent Court of jurisdiction. Such a course is necessitated
E under the present circumstances prevalent in the country and is in consonance ;-

with the spirit of law. A person granted bail has no right to insist to remain
at liberty on the basis of the orders passed in his favour prior to his
conviction. (697-B-E[

Muniappan v. State of Tamil Nadu, 11981 [ 3 SCC 11 and Malkiat
F Singh and Ors. v. State of Punjab, (1991[ 3 SCC 341, distinguished.
>-.
State of Maharashtra v. Sukhdev Singh and Anr., [19921 3 SCC 700
and Allauddin Mian and Ors. v. State of Bihar, [19891 3 SCC 5, referred to.

G Per Phukan, J. (concurring)

1. Power of review is a restricted power which authorises the Court
which passed the order sought to be reviewed, to look over and go through
the order, not in order to substitute a fresh or a second order, but in order
to correct it or improve it becau<;e some materials which it ought to have
H ~onsi~cred has rscapcd its consideration. [698-H; 699-A-B[
R.D. Cll1\UHAN v. ST/\TEOF ASSAM 675

2.1. The accused is not remediless. Sections 432, 433 and 433A of the A
Code of Criminal Procedure and Articles 72 and 161 of the Constitution deal
with pardon. The power under Article 72 and Article 161 of the Constitution
is absolute and cannot be fettered by any statutory provision such as Sections
432, 433 and 433A of the Code or by any Prison Rules. (698-C-EI

2.2. There is no obstacle in the way of the President or Governor, as B
the case may be in remitting the sentence of death. A remission of sentence
does not mean acquittal. The release of the prisoners condemned to death in
·exercise of the powers conferred under Section 432 of the Criminal Procedure
-"X Code and Article 161 of the Constitution does not amount to interference
with due and proper course of justice, as the power of the Court to pronounce C
upon the validity, propriety and correctness of the conviction and the sentence

- remains unaffected. Similar power as those contained in Section 432 of the
Code or Article 161 of the Constitution can be exercised before, during or
after the trail. The power exercised under Section 432 of the Code is largely
an executive power vested in the appropriate Government and by reducing the
sentence, the authority concerned thereby modify the judicial sentence. The D
section confines the power of the Government to the suspension of execution
of the sentence or the remission of the whole or any part of the punishment.
Section 432 of the Code gives no power to the Government to revise the
judgment of the Court. It only provides power of remitting the sentence.
Remission of punishment assumes correctness of the conviction and only E
reduces punishment in part or whole. The word 'remit' as used in Section
432 is not a term of art. Some of the meaning of the word 'remit' are 'to
pardon, to refrain from inflicting, to give up'. 1698-F-H; 699-A-BI

2.3. The power to commute a sentence of death is independent of
Section 433A. The restriction under Section 433A of the Code comes into p
operation only after power under Section 433 is exercised. Section 433A is
applicable to two categories of convicts: (a) those who could have been
punished for sentence of death and (b) those whose sentence have been
converted into imprisonment for life under Section 433. Section 433A does

..
not violate Article 20(1) of the Constitution. 1699-CI
G
Mura Ram v. Union of India, I l 981 I I SCC 106, referred to.

Per Thomas, J (dissenting)

I. Power of Supreme Court as envisaged under Article 137 of the
Constitution is wider than the review jurisdiction conferred by other statutes H
676 SUPREME COURT REPORTS j2001) 3 S.C.R~

A on the Court. Article 137 empowers the Supreme Court to review any
judgment pronounced or order made, subject to the provisions of any law
made by Parliament or any rule made under Article 145 of the Constitution.
1702-B-CI

P.N. lswara Iyer v. Registrar, Supreme Court of India, (19801 4 SCC
B 680 and Suthendraraja v. State, 119991 9 sec 323, referred to.
2.1. When the possibility of the petitioner having been a juvenile on the
relevant date cannot be excluded from the conclu~ion by adopting reasonable •
1

standards, the .interdict contained ip Section 22(1) of the Juvenile Act cannot
be bypassed for awarding death penalty to the petitioner so long as the death
C penalty is permitted to survive Article 21 of the Constitution, only if the
lesser alternative can be foreclosed unquestionably. In other words, ifthe age
of the petitioner cannot be held to be unquestionably above 16 on the relevant
date its corollary is that the lesser sentence also cannot unquestionably be
foreclosed. f707-G-1-U

0 Bachan Singh v. State of Punjab, 119801 2 SCC 684, relied on.

2.2. The fact that the tria! Court and the High Court did not accept the
plea of the petitioner on the score of his juvenility, or the fact that this Court
did not upset such finding, is not enough to hold that petitioner's plea
regarding his juvenility as on the crucial date does not survive for
E consideration. 1704-D)
f
2.3. The Court cannot act on any of the materials projected by the
prosecutio'l for the purpose of reaching a conclusion regarding the age of
the petitioner as on the relevant date. The exercise of hatching or brewing
up possible date or year of birth with the help of scattered answers given by
F the father of the peti~ioner, all during cross-examination, is a very unsound
course to be adopted. At any rate such an exercise cannot be sustained to
the detriment of the person concerned. l'lor can the Court rely on the
testimony of PW-4 who said that the accused told ~im in 1991 that his age
was 20. Such a statement cannot be regarded as reaching anywhere near the
proximity of reliability for fixing up tfle correct ~ge of a person. The statem~nt
recorded under Section 161 of the Code is not permitted by hw to be used
except for contradicting the author oft!Je statement. Hence it is impermissible
to look into that material also. Unless the person, who filled up tile prefatory
columns on the sheet on which statement -0f the accused was recorded under
Section 235 of the Code, is examined for showing how he gathered the
H information .regarding all such columns, the entries therein cannot he

•.
R.D. CHAUHAN v. STATE OF ASSAM 677
regarded as legal evidence. At any rate, the Court cannot proceed on a A
~ption that such columns were filled up by the accused himself.
1706-B-EJ
__/
2.4. The evidence of the court witness, the doctor, is a material, which
; creates reasonable doubts as to the possibility of the petitioner having been
below the age of 16 on the relevant date. Of course the doctor's estimate of B
age is not a sturdy substitute for proof as it is only his opinion. But such
opinion of an expert cannot be side lined in the realm where the Court gropes
in dark to find out what would possibly have been the age of a citizen for the
purpose of affording him a constitutional protection. In the absence of all
_ _,>(
other acceptable materials, if such opinion points to a reasonable possibility
regarding the range of his age, it has certainly to be considered.
c
1707-A; F-G)

3. The sentence cannot be altered on the reasoning that the trial Court
did not adjourn the proceedings, after pronouncing the conviction, for the
p_y-pose of providing the convicted person time to reflect on the question of
D
·sentence. The trial judge chose to pronounce the sentence on the same day
of pronouncing the verdict of conviction. When the Code of Criminal
Procedure was amended in 1978 (by Act 45of1978) a proviso was introduced
.I to sub-section (2) of Section 309 of the Code by which an interdict has been
...... added that "no adjournment shall be granted for the purpose only of enabling
the accused persons to show cause against the sentence proposed to be E
imposed on him." The said proviso does not make a distinction between
offences punishable with death or imprisonment for life and the other offences,
.in relation to the application of the said proviso. The proviso thus reflects
the parliamentary concern that the rule in all cases must be that sentence
shall be passed on the same day of pronouncement of judgment in criminal
F
cases as far as possible, and perhaps by way of exception the said rule can
be relaxed QY adjourning the case to another day for passing orders on the
sentence. f699-G-H; 700-A-CI

State of Maharashtra v. Sukhdev Singh and Anr., 11992) 3 SCC 700,
relied on. G
Allauddin Mian and Ors. v. State of Bihar, 11989) 3 SCC 5 and Malkiat
"""'.. Singh and Ors. v. State of Punjab, 119911 4 'sec 341, distinguished.

Muniappan v. State of Tamil Nad11, 119811 3 SCC 11, referred· to.

CRIMINAL APPELLATE JURISDICTION : Review Petition (Crl.) H
678 SUPREME COURT REPORTS [200 I) 3 S.C.R.

A No. 1105 of 2000.

(Under Article 137 of the Constitution of India)

IN

CRIMINAL APPEAL NO. 4 OF 2000
B
From the Judgment and Order dated 1.2.99 of the Gauhati High
Court in Crl. A. No. 109(J)/98 Cr!. D.R. No. 1/98.

S. Muralidhar for the Petitioner/ Appellant.

Sunil Kr. Jain, Amitesh Lal for Mis. Jain Hansaria and Co., for the
c Respondent.
The Judgments of the Court were delivered by

SETHI, J. Equating him with a beast, this Court [2000] 7 SCC 455] '\ '
confirmed the death sentence awarded to the petitioner by the trial court and
D the High Court on proof of his having caused the death of four persons of
a family including ladies and a child of two and a half years of age. Confirming
the death sentence this Court had held:

"We are satisfied that the present case is an exceptional case which
warrants the awarding of maximum penalty under the law to the
E accused/appellant. The crime committed by the appellant is not only
shocking but it has also jeopardised the society. The awarding of
lesser sentence only on the ground of the appellant being a youth at
the time of occurrence cannot be considered as a mitigating
circumstance in view of our findings that the murders committed by
him were most cruel, heinous and dastardly. We have no doubt that
F
the present case is the rarest of the rare requiring the maximum
penalty, imposable under law."

Not satisfied with the murder of human beings, the petitioner has now
tried to scuttle the process of law and thwart the course of Justice by resort
G to having recourse of seeking review of sentence on imaginative and
concocted grounds. He has contended that as he was a juvenile within the
meaning of Section 2(h) of the Juvenile Justice Act, he could not be sentenced
to any imprisonment much less the death sentence. In support of his
contentions the learned counsel appearing for the petitioner has relied upon
a host of authorities, wherein keeping in view the age of the accused and
-
H treating them as chi Id, th is Court had passed orders for setting those accused
R.D. CHAUHAN v. STATE OF ASSAM [SETI-IL .I.] 679
persons at liberty. A
After issue of notice, a two-judge Bench of this Court held that the
question of conviction of the petitioner under Section 302 of the IPC cannot
· be re-opened. Taking note of the contention of the learned counsel for the
petitioner that the accused was juvenile at the appropriate time and there was
prohibition regarding the sentence to be imposed on him, the review petition B
was directed to be considered for that limited purpose only. As the question
was important, the matter was referred to a larger Bench.

Heard the learned counsel appearing for the parties at length and
critically examined the whole record in the case for appreciating the C
submissions made on behalf of the petitioner who has been awarded the
death sentence.

This Court considered the scope of review and the limitations imposed
on its exercise under Article 137 of the Constitution of India in lily Thomas
v. Union of India & Ors., JT [2000] 5 SC 617 and held: D
"The dictionary meaning of the word "review" is the act of looking,
offer something again with a view to correction or improvement. It
cannot be denied that the review is the creation of a statute. This
Court in Patel Narshi Thakershi & Ors. v. Pradyunmansinghji
Arjunsinghji, AIR (1970) SC 1273 held that the power ofreview is not E
an inherent power. It must be conferred by law either specifically or
by necessary implication. The review is also not an appeal in disguise.
It cannot be denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of law cannot
stand in the way of administration of justice. Law has to bend before F
justice. If the Court finds that the error pointed out in the review
petition was under a mistake and the earlier judgment would not have
been passed but for erroneous assumption which in fact did not exist
and its perpetration shall result in miscarriage of justice nothing would
preclude the Court from rectifying the error. This Court in S. Nagaraj
& Ors. etc. v. State of Karnataka & Anr. etc. [1993] Supp. 4 SCC 595 G
held:

''Review literally and even judicially means re-examination or re-
consideration. Basic philosophy inherent in it is the universal
acceptance of human fallibility. Yet in the realm of law the courts
and even the statutes lean strongly in favour of finality· of H
680 SUPREME COURT REPORTS [2001] 3 S.C.R.

A decision legally and properly made. Exceptions both statutorily
and judicially have been carved out to correct accidental mistakes
or miscarriage of justice. Even when there was no statutory
provision and no rules were framed by the highest court
indicating the circumstances in which it could rectify its order
the courts culled out such power to avoid abuse of process or
B miscarriage of justice. In Raja Prithwi Chand Law Choudhury
v. Sukhraj Rai, AIR (1941) FC I the Court observed that even
though no rules had been framed permitting the highest Court
to review its order yet it was available on the limited and narrow·
ground developed by the Privy Council and the House of Lords.
c The Court approved the principle laid down by the Privy Council
in Rajunder Narain Rae v. Bijai Govind Singh, (1836) I Moo PC
117 that an order made by the Court was final and could not be
altered:

' ... nevertheless, if by misprision in embodying the judgments, by
D errors have been introduced, these Courts possess, by Common
Law, the same power which the Courts of record and statute
have of rectifying the mistakes which have crept in .... The House
of Lords exercises a similar power of rectifying mistakes made in
drawing up its own judgments, and this Court must possess the
same authority. The Lords have however gone a step further,
E and have corrected mistakes introduced through inadvertence in
the details of judgments; or have supplied manifest defects in
order to enable the decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies.'

F
Basis for exercise of the power was stated in the same decision
as under:

'It is impossible to doubt that the indulgence extended in such
-· -
cases is mainly owing to the natural desire prevailing to prevent
irremediable injustice being done by a Court of last resort, where
by some accident, without any blame, the party has not been
G heard and an order has been inadvertently made as if the party
had been heard.'
Rectification of an order thus stems from the fundamental principle
that justice is above all. It is exercised to remove the error and
not for disturbing fina,lity. When the Constitution was framed
H the substantive power to rectify or recall the order passed by
R.D. CHAUHAN v. STATE OF ASSAM !SETHI, .1.) 681

this Court was specifically provided by Article 137 of the A
Constitution. Our Constitution-makers who had the practical
wisdom to visualise the efficacy of such provision expressly
conferred the substantive power to review any judgment or
order by Article 137 of the Constitution. And clause (c) of
Article 145 pennitted this Court to frame rules as to the conditions B
subject to which any judgment or order may be reviewed. rn
exercise of this power Order XL had been framed empowering
this Court to review an order in civil proceedings on grounds
analogous to Order XLVH Rule I of the Civil Procedure Code.
The expression, 'for any other sufficient reason' in the clause
has been given an expanded meaning and a decree or order C
passed under misapprehension of true state of circumstances
has been held to be sufficient ground to exercise the power.
Apart from Order XL Rule 1 of the Supreme Court Rules this
Court has the inherent power to make such orders as may be
necessary in the interesr of justice or to prevent the abuse .of
process of Court. The Court is thus not precluded from recalling D
or reviewing its own order if it is satisfied that it is necessary
to do so for sake of justice."

The mere fact that two views on the same subject are possible is no
ground to review the earlier judgment passed by a Bench of the same
strength. E

This Court in Mis. Northern India Caterers (India) Ltd v. Lt.
Governor of Del/ii, AIR (1980) SC 674 considered the powers of this
Court under Article 137 of the Constitution read with Order 47 Rule
I CPC and Order 40 Rule I of the Supreme Court Rules and held:
F
"It is well settled that a party is not entitled to seek a review of
a judgment delivered by this Court merely for the purpose of a
rehearing and a fresh decision of the case. The normal principle
is that 3 judgment pronounced by the Court is final, and
departure from that principle is justified only when circumstances G
of a substantial and compelling character make it necessary to
do so. Sajjan Singh v. State of Rajasthan, [1965] I SCR 933 at
p. 948. For instance, if the attention of the Court is not drawn to
a material statutory provision during the original hearing. G. L.
Gupta v. D.N. Mehta, [1971] 3 SCR 748 at p.760. The Court may
also reopen its judgment if a manifest wrong has been done and H
682 SUPREME COURT REPORTS [2001] 3 S.C.R.

A it is necessary to pass an order to do full and effective justice.
ON Mohindroo v. Dist. Judge, Delhi, [ 1971] 2 SCR 11 at p.27.
Power to review its judgments has been conferred on the Supreme
Court by Art.137 of the Constitution, and that power is subject
to the provisions of any Jaw made by Parliament or the rules
made under Art.145. In a civil proceeding, an application for
B ·review is entertained only on a ground mentioned in 0. XLVll,
Rule I of the Code of Civil Procedure and in a criminal proceeding
on the ground of an error apparent on the face of the record.
(Order XL, R.1, Supreme Court Rules, 1966). But whatever the
nature of the proceeding, it is beyond dispute that a review
c proceeding cannot be equated with the original hearing of the
case, and the finality of the judgment delivered by the Court will
l")Ot be reconsidered except 'where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility'.
Chandra Kanta v. Sheikh Habib, [1975] 3 SCR 935."

D Article 137 empowers this Court to review its judgments subject to the
provisions of any law made by Parliament or any rules made under
Article 145 of the Constitution. The Supreme Court Rules made in
exerc"ise of the powers under Article 145 of the Constitution prescribe
that in civil cases, review lies on any of the ground specified in Order
47 Rule I of the Code of Civil Procedure which provides:
E
"Application for review of judgment -(I) Any person considering
himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but
from which, no appeal has been preferred.
F
(b) by a decree or order from which no appeal is allowed, or
·'""
(c) by a decision on a reference from a Court of Small Causes, f
and who, from the discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within his knowledge
G
or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent
on the face of the record, or for any other sufficient reason, desires ~
I

to obtain a review of the decree passed or order made against him, ·~

may apply for a review of judgment to the Court which passed the
H decree or made the order."
R.D. CHAUHAN v. STATE OF ASSAM ISETlll. .I.I 683

Under Order 40 Rule 1 of the Supreme Court Rules no review lies A
except on the ground of error apparent on the face of the record in
criminal cases. Order 40 Rule 5 of the Supreme Court Rules provides
that after an application for review has been disposed of no further
application shall be entertained in the same matter.
B
In A.R. Antulay's case (supra) this Court held that the principle of
English Law that the size of the Bench did not matter has not been
accepted in this country. In this country there is a hierarchy within
the Court itself where larger Benches overrule smaller Benches. This
practice followed by the Court was declared to have been crystalised
as a rule of law. Reference in that behalf was made to the judgments C
in Javed Ahmed Abdul Hamid Pa•mla v. State of Maharashtra, [ 1985)
2 SCR 8; State ofOrissa v. Titaghur Paper Mills, AIR (1985) SC 1293
and Union of India v. Godfrey Philips India Ltd, (1985) Supp. 3 SCR
123. In that case the Bench comprising seven judges was called upon
to decide as to whether the directions given by the Bench of this D
Court comprising five judges in the case of R.S. Nayak v. A.R. Antulay,
AIR (1984) SC 684 were legally proper or not and whether the action
and the trial proceedings pursuant to those directions were legal and
valid. In that behalf reference was made to the hierarchy of Benches
and practice prevalent in the country. It was observed that Court was
not debarred from reopening the question of giving proper directions E
and correcting the error in appeal if the direction issued in the earlier
case on 16th February, 1984 were found to be violative of limits of
jurisdiction and that those directions had resulted in deprivation of
fundamental rights of a citizen granted by Articles 14 and 21 of the
Constitution of India. The Court referred to its earlier judgment in F
Prem Chand Garg v. Excise Commissioner UP., Allahabad, AIR
(1963) SC 996; Naresh Shridhar Mirajkar v. State of Maharashtra,
(1966) 3 SCR 744 =AIR (1967) SC I and Smt.Ujjam Baiv. State of UP.,
(1963) I SCR 778=AIR(1962)SC 1621 andconcludedthatthecitizens
should not suffer on account of directions of the Court based upon G
error leading to conferment of jurisdiction. The directions issued by
the Court were found on facts to be violative of the limits of jurisdiction
resulting in the deprivation of the fundamental rights guaranteed to
the appellant therein. It was further found that the impugned directions
had been issued without observing the principle of audi a/teram
partem. H
684 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A It follows, therefore, that the power of review can be exercised for
correction of afmistake and not to substitute a view. Such powers can
be exercised ~ithin the limits of the statute dealing with the exercise
of power. ThJ review cannot be treated an appeal in disguise. The
mere possibil~ty of two views on the subject is' not a ground for
review. Once f- revi.ew petition is dismissed no further petition of
B' review can be entertained. The rule of law of following the practice
of the binding nature of the larger Benches and not taking different
views b~ the Benches of coordinated jurisdiction of equal strength
has to b~ followed and practised. However, this Court in exercise of
its powJrs under Article 136 or Article 32 of the Constitution and
C upon satisfaction that the earlier judgments have resulted in µeprivation
of fundamental rights of a citizen or rights created under any other
statute, can take a different view notwithstanding the earlier judgment."

In the instant case, the review is sought on the ground that the petitioner was
juvenile on the date of commission of the offence. According to the learned
D counseJ appearing for the petitioner it is contended that as per school records
the date of birth of the petitioner was 1.2.1977. He was 15 years 1 month and
7 days old on the date of occurrence. According to him the medical examination
conducted on 23rd December, 1997 revealed that the accused was 15 years
two months and J 5 days old on the relevant date. It is contended that the
E petitioner could not have been tried by a court other than the juvenile court
as per Sections 23 and 24 of the Juvenile Justice Act, 1986 (hereinafter
referred to as "the Act"). As the trial was concededly not conducted by a
juvenile court, the whole proceedings were liable to be quashed. It is further
contended that the trial court wrongly held the petitioner to be more than 20
years of age and the High Court erred in not deciding the question of age
F despite concession made by the counsel appearing for the petitioner. It is
submitted that the counsel of the accused could not have sacrificed the
interest of the accused and should have ·insisted for a finding from the court
·regarding his being a child or a juvenile. It is further submitted that the
evidence on record requires re-examination as allegedly there are numerous
G inconsistencies and· contradictions, the benefit of which is to go to the
accused. Though not pleaded, yet the learned counsel argued that as the
judgment was pronounced on the same day when the conviction was recorded,
the mandate of Section 235 of the Code of Criminal Procedure (hereinafter
referred to as "the Code") stood violated.

The grounds urged in the petition and at the Bar do not make out a case
R.D. CHAUHAN v. STATE OF ASSAM [SETHI, J.] 685

for review. In the guise of this petition, the petitioner has sought the re- A
appraisal o~ the whole evidence firstly to hold him not guilty and even if he
. --<. is found guilty to give him the benefit of the Act. The contentions raised and
the prayer made are admittedly beyond the scope ofreview. This petition can
be dismissed only on this ground. However, being the case of death sentence,
we have decided to consider the whole matter in depth to ascertain as to B
whether the petitioner is entitled to the benefit of the Act or not. We have
fm1her opted to consider that even if he is not proved to be juvenile, can he
be given the benefit of his age on the ground of his allegedly being on the
borders of the age contemplated under the Act for the purposes of awarding
~ him the alternative sentence of imprisonment for life.
c
A perusal of the record shows that during the investigation, inquiry
and trial, though represented by Senior Counsel, no ·plea was ever raised
regarding the petitioner being juvenile and the case being governed by the
provisions of the Act. Only at the time of arguments, plea regarding the
accused being Juvenile was raised on the basis of defence evidence and the
statement of Dr. B.C. Roy Medhi. However, such evidence appears to have D

.. been brought on record for the purposes of avoiding the death sentence and
not for the applicability of the Act. Even in his application for grant of bail
under Section 437 of the Code, the petitioner had not raised the plea of being
under the age of 16 years entitling him bail under the first proviso to Sub-
section (I) of Section 437 of the Code. Neither in his confessional statement, E
recorded by the Magistrate, nor in the memo of appeal filed in the High Court,
such plea was ever raised. \
I
The Act has been enacted to provide for the care, protection, treatment,
development and rehabilitation of neglected or deliJ.I.~Uent juveniles and for F'
the adjudication of certain matters relating to and disposition
I ,
of delinquent
juveniles. The object of the Act is to provide extraordinary procedure for
offences alleged to be committed by a child/juvenile and punishment thereof.
The Act is a complete Code in itself. "Juvenile" has been defined to mean
a boy who has not attained the age of 16 years or a girl who has not attained
the age of 1s years and "delinquent juvenile" means a juvenile who has been G
found to have committed an offence. Secti_on 5 of the Act authorises the State
government for constitution of juvenile courts for exercising the powers and
discharging the duties conferred on such courts in relation to delinquent
juvenile under the Act. Section 8 of the Act provides that when any Magistrate
not empowered to exercise the power of a Board or a Juvenile Court under
this Act is of the opinion that a person brought before him under any of the H
••--(

686 SUPREME COURT REPORTS [200 I] 3 S.C.R.

J\ provisions of the Act is a juvenile, he shall record such opinion and forward
the juven.ile and the record of the proceeding to the competent authority
having jurisdiction over the proceeding. Such a power can be exercised by
the Magistrate either on the complaint made to it or its own observations
regarding the age of the accused appearing before him. In the absence of an
order of a Magistrate, the competent aut~ority under the Act cannot hold
B inquiry for the purpose of determining whether the person brought before it
is a juvenile or not.

In the instant case when the accused was produced before the
Magistrate, powers under Section 8 were not exercised, obviously upon
C satisfacti_on of the Magistrate that the accused did not appear to be a juvenile.
No plea appears to have been taken by the accused of his being a child/
juvenile either before the Magistrate or before the court, with the result that
no inquiry, as contemplated under the Act, was ever held about his age. Even
in the absence of an inquiry under the Act, the Sessions Court, -after the case
is committed to it has the power to make inquiry and determine the age of
D the accused if it considers it necessary in the interests of justice or a prayer ·
is made in that behalf. The word "inquiry" appearing in sub-section (2) of
Section 8 means inquiry under the Act and not inquiry under Section 2(g) of
the Code.

E Chapter Ill of the Code deals with the powers of the Criminal Courts.
Section 26 specifies the courts by which various offences are triable. Section
27 deals with the jurisdiction of the criminal courts in case of juvenile. It
provides that when any offence not punishable with death or imprisonment
·for life, committed by any person, who~ at the date when he appears or is
brought before the court is under the age of sixteen years, such accused can
F be tried by the court of Chief Judicial Magistrate or by any court specially
empowered under the Children Act or any other law for the time being in force
providing for the treatment, training or rehabilitation of the youthful offenders.
The Act was enacted in the year 1986, without incorporating any amendment
in Section 27 of the Code. A harmonious reading of the Act, particularly
Section 8 and Section 27 of the Code would lead us to hold that whenever
G
any delinquent juvenile, accused of an offence, irrespective of the punishment
imposable by law, is produced before a Magistrate or a court, such Magistrate
or the court, after it is brought to its notice or is observed by the Magistrate
or the court itself that the accused produced before it was under the age of
16 years, shall refer the accused to the Juvenile Courts if the Act is applicable
H in the State and the courts have been constituted or otherwise refer the case
R.D. CHAUHAN v. STATE OF ASSAM !SETHI • .I.] 687

to the Court of Chief Judicial Magistrate who will deal with the matter in A
accordance with the provisions of law. As noticed earlier, neither the
~ investigating agency, nor the Magistrate or the Court or the accused felt the
necessity of application of the provisions either of Section 27 of the Code or
the provisions of the Act, particularly Section 8 thereof.

In the case of the petitioner, it appears that the investigating officer, the B
Magistrate before whom the accused was produced, the Magistrate who ·
recorded ·his confessional statement and the Sessions Court to whom the
accused was committed did not find that the accused was a juvenile or a child.
~
Such Magistrate and court were in a better position to form an opinion
regarding the age of the accused who had admittedly appeared before them
as they had the opportunity to see and observe him. There is no doubt in
c
our mind that the plea of the petitioner being the juvenile is not only an after-
thought but a concoction of his imagination at a belated stage to thwart the
course of justice by having resort to wrangles of procedures and technicalities
oflaw.
D
In a case where the accused had not raised the plea of his being a child/
Juvenile either before the committal court, or the trial court, in appeal the High
Court basing merely on an entry made in the statement recorded under
~ Section 3 I 3 of the Code, wherein his age was mentioned as I 7 year, concluded
that he was a child. Setting aside the Judgment of the High Court in State
of Haryana v. Ba/want Singh, [1993] Supp. I SCC 409 this Court held: E
"We have gone through _the records carefully. It appears that the
respondent took his trial before the trial court only on being committed
by the Magistrate. It may be noticed that the age of the respondent
before the trial court even at the stage of framing the charge was
given at I 7 years. Evidently, the Magistrate before whom the F
......
respondent was brought, was not satisfied that the respondent was
a child within the definition of word 'child' under the Haryana Children
Act. Admittedly, neither before the committal court nor before the trial
court, no plea was raised on behalf of the respondent that he was a
child and that he should not have been committed by the Magistrate
G
and thereafter tried by the Sessions court and that he ought to have
been dealt with only by the court of Juveniles. When it is not the case
of the respondent· that he was a child both before the committal cou1t
·-~-.: as well as before the trial court, it i.s very surprising that the High
Court, based merely on the entry made in Section 313 statement
mentioning the age of the respondent as 17 has concluded that the H
688 SUPREME COURT REPORTS [2001] 3 S.C.R.

A respondent was a 'child' within the definition of the Act on the _date
of the occurrence though there was no other material for that
conclusion. This observation of the High Court, in our considered
view, cannot be sustained either in law or on facts. Hence, we set
aside that finding of the Higl!, Court that the respondent was a 'child'."

B On the contrary, in the instant case, the Supervision Notes (dated
9.3.1992 to 12.3.1992) of Shri NM APS Additional Superintendent of Police,
Morigaon, Assam, who was supervising the investigation, noted Ram Deo
Chauhan accused to be of about 20 years of age. In the confessional statement
of the accused recorded on 27th March, 1992. his age is mentioned as 20 ·~
C years. Such age appears to have been either disclosed by the accused himself
or observed by the court recording the statement and is no way near the age
of a juvenile prescribed under the Act. In Exhibit 5, page 128, the Magistrate
has recorded, "Statement of accused, aged about 20 years made in the,
Assamese language". /

D In his statement recorded by the trial court on 31st March, 1998, the
petitioner gave or the court observed his age as 25 years 6 months as on 20th
September, 1997, which shows that he was more than 20 years of age on the
date of occurrence, concededly not near or about the age of juvenile as .r
defined under the Act. ..J._

E Dealing with the arguments of the petitioner being a juvenile, though
raised at a belated stage, the trial court dealt with the question of his age from
para,s 4 7 to 62 of its judgment and concluded:

"As such, in my view, he was not below 16 years of age at the time
of alleged commission of the crime and he was not ajuvenile to attract
F the provisions of Juvenile Justice Act, 1986."

The High Court is also shown to have looked into the statements of Firato
Chauhan (OW l) Satnarayan Jadav (OW 2) besides Dr. B.C. Roy Medhi court
witness for the purposes of ascertaining the age of the accused. However, the
G statements of those witnesses were not discussed in detail in view of the
statement of Mr. J.M. Choudhry, advocate stated to be renowned criminal
lawyer, who represented the accused, that he was not challenging the findings
of the trial court on the point of age of the accused. It appears, as usually
happens during the course of the arguments in a cou1t, that the evidence
produced regarding the age of the accused in this case, was deliberated and
H realising the tentative views of the court on the point and in the light of
R.D. CHAUHAN v. STATE OF ASSAM [SETHI. .I.] 689
preponderance of evidence, the learned defence counsel rightly conceded, A
"he was not challenging the findings of the Trial Court on the point of age
of the accused''. It is contended that despite such a statement of the defence
colJ)1sel, the High Court ought to have discussed the statement of the witnesses
regarding age and arrived at its own independent conclusions. We feel such
a course, if adopted, would have been appreciable but if after noticing the B
statements of the witnesses, hearing arguments and in view of concession
made by a counsel of stature, the High Court itself has not returned a finding,
that would not render its judgment either illegal or be made a ground for
holding that the accused was minor at the time of occurrence. Failure of the
High Court to return a positiv~ finding on the subject with regard to the age
of the accused has necessitated the examination of whole evidence by us C
even at this stage of the proceedings.

I am also satisfied that the petitioner was not a juvenile within the
meaning of the Act nor did he seriously claim to be a juvenile for the
purposes of getting the benefit of Section 22 of the Act. The Judgment of
the trial court and the High Court cannot be assailed on the ground of having D
been passed in violation of_the mandate of law.

Despite holding that neither the petitioner was juvenile nor the provisions
of the Act were applicable in the case, we examined this matter from another
angle, i.e., to find out as to whether the petitioner was near or about the age E
of a juvenile for the purposes of ascertaining as to whether the death sentence
can be substituted by imprisonment for life. We are of the considered opinion
that the technicalities of law cannot come in the way of dispensing justice
in a case where the accused is likely to be given the extreme penalty imposable
under law. In deference to the judgment of this Court in Gopinath Ghosh v.
State of West Bengal, [1984] Supp. SCC 228 and Bhola Bhagat v. State of F
Bihar, [1997] 8 SCC 720 we have taken upon ourselves to examine as to
whether the accused was a child or was near or about the age of a juvenile
for the purposes of ascertaining as to whether the death sentence can be
substituted by imprisonment for life. The plea regarding the age of the
accused was determined by the trial court which dealt with the evidence G
relating to the age of the accused before, it holding:

"DWI Firato Chauhan was subjected to severe cross-examination and
in the cross examination he admitted that Rajnath, the accused is his
second son after Suraj Chauhan, his eldest son. There are three other
sons after Ramdeo Chauhan. According to him, his present age is 70 H
----(
690 SUPREME COURT REPORTS [2001) 3 S.C.R.

A years and the age of his only wife if 60 years. Two sons died and
thereafter his eldest son Suraj was born. Every son and daughter born
at an interval of three years. When he was 30 years old, his first child
was born, that means, before 40 years his first child was born and his
second child was born before 37 years. Suraj was born before 34
years. So, Ramdeo Chauhan must be born before 31 years, that means,
B present age of Ramdeo Chauhan is 31 years. Furthermore, his first son
Suraj has married before I 0 years. He is now a father of one female
child. Rajnath Chauhan is his second son, i.e. he was born after Suraj.
Even if l hold that Su raj was 18 years at the time of his marriage, now
he must be 28 years of age and Ramdeo Chauhan must be now 25
c years of age. lf he is now 25 years of age, at the time of alleged crime,
he must be 19 years of age.

According to CW I Dr. Bhushan Chandra Roy Medhi, the present
age of the accused was above 20 years. He also admitted that now-
a-days, computerised method is used to ascertain the age of a person,
D but that facility is not available at GMCH. He further admitted that
computerised method of ascertaining age is a recent invention in the
medical science. Ultimately, he stated that accused cannot be below
20 years, but it can exceed by one year.

ln Jayamala v. Home Secretary, Govt of Jammu and Kashmir in
E AIR (1982) SC 1247 (1982) Cr.L.J. 173 in paragraph 9, the Apex Court
observed that - one can take judicial notice that the margin of.year
in age examined by a radiological examination is of two years on either
side. In the case in our hand, CW 1 Dr. Bhusan Cahndra Roy Medhi
categorically stated that the age of the accused cannot be below 20
years, but it can exceed by one year. If we apply the variation of
F margin of 2 years on lower side, the accused must be eighteen years
at present. If he is eighteen years at present, at the time of alleged
occurrence he must be twelve years of age which is absolutely
impossible because according to evidence adduced by the defence
his age was ~ove fifteen years at the time of alleged occurrence. If
G we apply j<e variation of margin of_ two years on the other side,
accused may be twenty three years at present. Then the accused
cannot be below sixteen years of age at the time of alleged occurrence
to attract the provisions of Juvenile Justice Act, 1986 as the alleged
occurrence took place before six years.

H OW Satya Narayan Yadav exhibited the school admission register
Y-
I

R.D. CHAUHAN v. STATE OF ASSAM [SETHI. .I.] 691

and the relevant entry. But it seems that the entry in the school A
admission register is based on a transfer certificate -issued by another
school. As such, Mailoo Hindi School is not the first school where
the accused f:;·st got admitted. Furthennore, from the cross examination,
it appears that registers of the school are not maintained properly. In
the cross examination, prosecution find out many irregularities in B
maintaining the school register. This register did not contain any
official label which seems to be torn away. There was no note regarding
the age at the time of admission in register. He could not say on what
basis date of birth was noted in the school admission register. There
is no mention of the year in the admission here and there. He could
not say who recorded the entry in the register. Moreover, the school C
register contains no serial page mark and as such there is scope of
manipulating the record by inserting new sheet of papers. There is no
seal and signature of the authority who supplied the register to the
school. It seems that it was made and prepared at the school and OW
2 Sri Satya Narayan Yadav was not the headmaster at the relevant
time. He is present headmaster and joined at school very recently. He D
has no personal knowledge regarding the exhibit as well as the age
of the accused. In view of such evidence, the school admission
register cannot be said to be authentic and original document of the.
age of the accused. Furthermore, Rajasthan High Court in Smt. Tara
Devi, Appellant v. Smt. Sudesh Chaudhary, respondent reported in E
AIR (1998) Rajasthan 59 held that - Date of birth - Entries in school
record -Made by Headmasters in discharge of their official duties -can
be regarded as pieces of circumst~ntial evidence only within meaning
of s. 114 and not as direct evidence of date of birth. Furthermore, in
this case, the OW ~ the present headmaster did not make the entries
nor the entries were made within his knowledge. But age of the boy F
was entered into the register on basis of a Transfer Certificate produced
at the time of his admission in that school. The source of the age
recorded in the original school is not known to us in order to ascertain
whether the information furnished at the time of first admission in the
school was correct or not and in his respect, no evidence has been G

-
, --~
adduced. Furthermore, if the admission of the father in his cross
examination regarding the age of the accused is accepted, entries in
the school certificate cannot be said to be correct particulars of the
age of the accused. In order to hold a school register or a school
certificate as the correct document regarding the age of a person, the
school certificate must be related to the accused and the entries H
692 SUPREME COURT REPORTS [2001) 3 S.C.R.

A therein must be correct in their paiticulars. There is no dispute that
the school certificate relates to the accused, but entries therein cannot
be said to be correct in view of the evidence of OW 2, the headmaster )...._
of Mai loo Hindi High School and the admission of OW I, the father
of the accused in his cross examination.

B The prosecution also adduced evidence regarding the age of the
accused.

PW 4 Rani Kanta Das stated in his deposition that when he first
met the accused in the house of his younger brother in the month of
November, 1991 he asked him about his address, father's name and
c · also his age. He stated to him that he was 20 years of age. Accord~ng
to PW 4, he,seems to be a grown up boy aged about 20 years at that
time. But that portion of the evidence was not challenged by defence
while cross examining PW 4. In my view, this controversy of age is
the outcome of after thought when it was seen that prosecution
D almost succeeded in establishing the case against the accused.

As per Ext. 25, the accused Ramdeo Chauhan alias Rajnath
Chauhan stated before 110 that he was 20 years of age when his
statement was recorded by I/O on 8.3.92.

E If he was 20 years in 1991, he must be now above 26 years which
almost tallies with the age ascertained from OW I, the father, in his

\ cross examination. Furthermore, the manner in which he committed the
murder in a pre-planned m.anner and w,~out hesitation by chopping
one after another with a spade, which has been vividly described by
him in his confession made before the Judicial Magistrate, I think
F such type of pre plan, cold blooded, ghastly, gruesome murder cannot
be possible for a boy below 16 years of age. It is quite natural on the
part of the father and the defence to suppress the actual age to save
the accused from the penalty likely to be awarded for the brutal
murder as provided UIS 302 IPC. If s.uch type of incredible evidence
G is allowed, in many cases, the accused will come up with such plea
and thereby rendering our justice system ineffective and also eroding
the credibility of the system. I am firm in my view that accused must
be minimum 25 years of age at present."
-
After examining the evidence led before the trial court in this regard I
H find no reason to disagree with the reasoned conclusions arrived at by the
r--
R.O. CHAUHJ\N v. ST1\TE OF ASSAM [SETHI. .I.] 693

trial court. A
__,( It is not disputed that the Register of Admission of students relied
upon by the defence is not maintained under any statutory requirement. The
author of the Register has also not been examined. The register is not paged
at all. Column No.12 of the register deals with "age at the time of admission".
Entries I to 45 il:1ention the age of the students in terms of the years, months B
and days. Entry No. I is dated 25th January, 1988 whereas Entry No.45 is dated
3 I st March, 1989. \hereafter except for Entry No.45, the page is totally blcink
and fresh entries are made w.e.f. 5. I. I 990, apparently by one person upto
~ Entry No.32. All entries are dated 5. I .1990. The other entries made on various
dates appear to have been made by one person though in different inks. c
Entries for the years I 990 are upto the ~ntry No.64 whereafter entries of 1991
are made again apparently by the same person. Entry No.36 relates to Raj .
Nath Chauhan, son of Firato Chauhan. In all the entries except Entry No.32,
after 5.1. I 990 in column No. I 2 instead of age some date is mentioned which,
according to the defence is the date of birth of the student concerned. In
Entry 32 the age of the concerned student has been recorded. In column D
No. I 2 again in the entries with effect from 9. 1.1992, the ages of the students
,. are mentioned and not their dates of birth. The manner in which the register
-l;_
has been maintained does not inspire confidence of the court to put any
reliance on it. Learned defence counsel has also not referred to any provision
of law for accepting its m1th.::nticity in terms of Section 35 of Evidence Act.
E
The entries made in such a register can not be taken as a proof of age of the
accused for any purpose.

Referring to the testimony of Dr. Bhushan Chandra Roy Medhi, CWl,
the learned counsel for the accused has tried to make out a mountain out of
-'(,
mole. It appears that as per the direction of the court dated 20th December, F
I 997, the petitioner accused was examined by a Board of doctors to ascertain
his age. In their report Exhibit C dated 23. I 2. I 997 the Board opined "on the
basis of physical examination and radiological investigation of Sh. Raj Nath
Chauhan @ Ram Deo Chauhan, we are of the opinion that the age of the
individual at present is above (20) years" If the accused was of atleast 20
years of age on 23. I 2. I 997, his date of birth can be held to be near or about
G
23rd December, 1977. In that way, taking his minimum age to be 20 years at
the time of his examination, he can be held to be of the age of about 15 years
,,._ and 10 months. As the doctors were categoric in terms that he was above the
~-
age of 20 years on the date of examination, it can safely be said that he was
more than 16 years of age on the date of occurrence. In reply to a question H
694 SUPREME COURT REPORTS 12001] 3 S.C.R.

A the doctor Sh. Bhushan Chandra Roy Medhi had stated that in my opinion
the age of the accused cannot be more than 21 years. In reply to a question
by the prosecution he had stated that- "in my opinion the accused definitely
has not attained the age of 25 years". In reply to the question put by the
defence, the witness said "it is not a fact that he was of 18 or 19 years of
B age at the time of my examination. In this case the age of the accused cannot
be below 20 years, it can exceed one year but cannot be below 20 years. It
is not a fact that the accused was below 20 years at the time of my examination".

·Relying upon a judgment of this Cou11 in Jaya Mala v. Home Secretmy,
Government of Jammu & Kashmir & Ors.. [ 1982] 2 SCC 538, the learned >-...
c defence counsel submitted that the cour1 can take notice that the marginal
error in age ascertained by radiological examination is two years at either side.
The aforesaid case is of no help to the accused inamsuch as in that case the
court was dealing with the age of a detenu taken in preventive custody and
was not determining the extent of sentence to be awarded upon conviction
of an offence. Otherwise also even if the observation made in the aforesaid
D judgment are taken note of, it does not help the accused in any case. The
doctor has opined the age of the accused to be admittedly more than 20 years
and less than 25 years. The statement of the doctor is no more than an

>- "
opinion. the court has to base its conclusions upon all the facts and
circumstances disclosed on examining of the physical features of the person
E whose age is in question, in conjunction with such ora1 testimony as may be
available. An X-ray ossification test may provide a surer basis for detem1ining
the age of an individual than the opinion of a medical expert but it can by
no means be so infallible and accurate a test as to indicate the exact date of
birth of the persoll concerned. Too much of reliance cannot be placed upon
text books, on medical jurisprudence and texicology while determining the age
F of an accused. In this vast country with varied latitude, heights, environment,
;..
vegetation and nutrition, the height and \veight cannot be expected to be
I-
unifonn.

From the evidence produced and the material placed before the courts
G below, there is not an iota of doubt in my mind to hold that the petitioner was
a child or near or about the age of being a child within the meaning of the
Juvenile Justice Act or the Children Act. He is proved to be major at the time
of the commission of the offence. No doubt, much less a reasonable doubt
is created in the mind of the Court, for the accused entitling him the benefit
of a lesser punishment. It is true that the accused tried to create a smoke
H screen with respect to his age but such efforts appear to have been made only
R.D. CllJ\LJllJ\N F. ST/\Tt-: OF ASSAM jSL~Tlll. .I.] 695

to hide his real age and not lo create any doubt in our mind. The judicial A
system cannot be allowed to be taken to ransom by having resort to
imaginative and concocted grounds by taking advantage of loose sentences
appearing in the evidence of some of the witnesses, particularly at the stage
of special leave petition. The law insists for finality of judgments and is more
concerned with the strengthening of the judicial system. The courts are B
enjoined upon to perform their duties with the object of strengthening the
confidence of the common man in the institution entrusted with the
administration of justice. Any effort which weakens the system and shakens
the faith of the common man in the justice dispensation system has to be
discouraged.

After committing the crime of murder of four innocent persons, the
c
petitioner cannot be permitted to resort to adopt means and tactics or to take
measures which, if accepted or condoned, may result in the murder of the
judicial system itself. The efforts made by the accused by way of this petition,
are not likely to advance the interests of justice but on the contrary frustrate
~ D
Learned counsel for the petitioner again made a futile attempt to challenge
;... the verdict of the trial court under the cloak of technicalities and submitted
~ that as the sentence and conviction were recorded on the same day, the
judgment of the trial court was against the law. In support of his contentions E
he relied upon the judgments of this Court in Muniappan v. State of Tamil
Nadu, [ 1981] 3 SCC I 1; Malkiat Singh & Ors. v. State of Punjab [ 1991] 4 SCC
341 and State of Maharashtra v. Sukhdev Singh & Anr., [1992] 3 SCC 700.

Sub-section (2) of Section 235 of the Code provides that if the accused
is convicted, the judge shall unless he proceeds in accordance with the F
provisions of Section 360, hear the accused on the question of sentence and
then pass sentence on him according to law. In Muniappan 's case (supra) this
Court held that the obligation to hear the accused on the question of sentence
is not discharged by putting formal questions to hitR The judge must make
a genuine effott to elicit from the accused all information which will eventually G
bear on the question of sentence. It was the duty of the court to cast aside
the formalities of the court scene and approach the question of sentence from

- •"'(
a broad, sociological point of view. In Malkiat Singh '.1· case (supra) this Court
observed that hearing contemplated under Section 235(2) of the Code is not
confined merely to oral hearing but also is intended to afford an opportunity
to the prosecution as well as the accused to place facts and materials relating H
696 SUPREME COURT REPORTS [2001] 3 S.C.R.

A to. various factors on the question of sentence and if desired by either side
to have evidence adduced to show mitigating circumstances to impose a
lesser sentence or aggravating grounds to impose death penalty. It w..as ~
further observed that sufficient time must be given to the accused or the
prosecution on the question of sentence, to show the grounds on which the
prosecution may plead or the accused may. show that the maximum sentence
B of death may be the appropriate ~~ntence or the minimum sentence of life
imprisonment may be award~d as the case may be. It was further observed
that the sentence awarded on the same day of finding guilt was not in
accordance with law.

C Iii both the aforesaid judginents the amendment made in Section 309 of
the Code was not taken note of. By Criminal Procedure Code Amendment Act,
1978, a proviso was added to sub-section (2) of S.,1.-,;0;1 309 to the effect that
"Provided also that no adjournment would be granted for the ·purposes only
of accepting the accused person to show cause against the sentence proposed
to be imposed upon him".
D
In Sukhdev Singh 's case (supra) this Court while dealing with Section
309(2), third proviso and Section 235(2) of the Code and after referring to its
earlier decisions in Allauddin Mian & Ors. v. State of Bihar, [I 989] 3 SCC 5
and Malkiat Singh 's case, (supra) held:
E
',~This proviso must be read in the context of the general policy of
expeditious inquiry and trial manifested by the main part of the section.
That section emphasises that an inquiry or trial once it has begun
should proceed from day to day till the evidence of all the witnesses
in attendance has been recorded so that they may not be unnecessarily
F vexed. The underlying object is to discourage frequent adjournments.
But that does not mean that the proviso precludes the court from
adjourning the matter even where the interest of justice so demands.
The proviso may not entitle an accused to an adjournment but it does
not prohibit or preclude the court from granting one in such serious
cases of life and death to satisfy the requirement of justice as enshrined
G
in Section 235(2) of the Code. Expeditious disposal of a criminal case
is indeed the requirement of Article 2 I of the Constitution; so also a
fair opportunity to place all relevant material before the court is equally
the requirement of the said Article. Therefore, if the court feels that
the interest of justice demands that the matter should be adjourned
H to enable both sides to place the relevant material t5uching_ on tlie
R.D. CHAUHAN v. STATE OF ASSAM jl'HUKJ\N . .I.] 697

question of sentence before the court, the above extracted proviso A
cannot preclude the court from doing so."

The mandate of the Legislature is clear and unambiguous that no
adjournment can be granted for the purpose only of enabling the accused
person to show cause against the sentence proposed to be imposed upon
him. In a case punishable with death or imprisonment for life, there is no B
difficulty for the court where the sentence proposed to be imposed is alternative ,
sentence of life imprisonment but if it proposes to award the death sentence,
it has discretion to adjourn the case in the interests of justice as held in
Sukhdev Singh 's case. I have no doubt in holding that despite the bar of third
proviso to sub-section (2) of Section 309, the Court, in appropriate cases, can C
grant adjournment for enabling the accused persons to show cause against
the sentence proposed on him particularly if such proposed sentence is
sentence of death. We hold that in all cases where a conviction is recorded
in cases triable by the Court of' Sessions or by Special Courts, the court is
enjoined upon to direct the accused convict to be immediately taken into
custody, if he is on bail, and kept in jail till such time the question of sentence D
is decided. After the sentence is awarded, the convict is to undergo ·such
sentence unless the operation of the sentence awarded is stayed or suspended
by a competent court of jurisdiction. Such a course is necessitated under the
present circumstances prevalent in the country and is in consonance with the
spirit of law. A person granted bail has no right to insist to remain at liberty E
on the basis of the orders passed in his favour prior to his conviction.

Upon consideration of all relevant circumstances and in view of the
settled position of law, I have no doubt in my mind that the present Review
Petition is without merit, the grounds mentioned therein have been concocted

- and carved out for escaping the rigours of law and the sentence imposed
upon the accused by well considered judgments of the trial court, High Court
F

and this Court. The review petition is accordingly dismissed.

PHU KAN, J. After reading draft judgments by my learned Brothers, I
record my separate views on the sentence to be imposed on the accused- G
petitioner in this Review Petition.

Review as the expression itself shows is a fresh view of matters already
exam in ed. As my learned Brothers have elaborately delineated the scope of
review, it is unnecessary to traverse the path again. Suffice it would be to say
that power of review is a restricted power which authorises the Cou11 which H
698 SUPREME COURT REPORTS [2001] 3 S.C.R.

A passed the order sought to be reviewed, to look over and go through the
order, not in order to substitute a fresh or a second order; but in order to
co1Tect it or improve it because some materials which it ought to have considered '>.....
has escaped its consideration. As my learned Brothers. have agreed on the
scope of review, the sentence of death imposed cannot be reopened. With
B respect, I agree with my learned Brother Mr. Justice R.P. Sethi.

But, a question that remains to be considered fu1ther is the effect of
conclusion a1Tived at by my learned Brother Mr. Justice Thomas. Is the
accused remediless; that remains to be seen. Few provisions in the Code of
Criminal Procedure (for short the 'Code') and other in the Constitution deal
C with such situation. Sections 432, 433 and 433A of the Code and Articles 72
and 161 of the Constitution deal with pardon. Article 72 of the Constitution
confers upon the President power to grant of pardons, reprieves, respites or
remission of punishment or to suspend, remit or commute sentence of any
person of any offence. The power so conferred is without prejudice to the
similar power conferred on the ·Governor of the State. Article 161 of the
D Constitution confers upon the Governor of a State similar powers in respect
of any offence against any law relating to a matter to which the executive
power of the State extends. The power under Article 72 and Article .161 of the
Constitution is absolute and cannot be fattered by any statutory provision
such as Sections 432, 433 and 433A of the Code or by any Prison Rules.
E
Section 432 of the Code empowers the· appropriate Government to
suspend or remit sentences. The expression "appropriate Government" means
the Central Government in cases where the sentences or order relates to the
matter to which the executive power of the Union extends, and the State
Government in other cases. The release of the prisoners condemn to death
F in exercise of the powers conferred under Section 432 and Article 161 of the
Constitution does not amount to interference with due and proper course of
justice, as the power of the Court to pronounce upon the validity, propriety
and correctness of the conviction and sentence remains unaffected. Similar
power as those contain in Section 432 of the Code or Article 161 of the
G Constitution can be exercised before, during or after trial. The power exercised
under Section 432 of the Code is largely an executive power vested in the
appropriate Government and by reducing the sentence, the authority concerned
thereby modify the judicial sentence. The Section confines the power of the
Government to the suspension of the execution of the sentence or remission ,:..---.·
of the whole or any part of the punishment. Section 432 of the Code gives
H no power to the Government to revise the judgment of the court. It only
R.D. CHAUHAN v. STATE OF ASSAM [THOMAS, J.] 699

provides power of remitting the sentence. Remission of punishment assumes A
the correctness of the conviction and only reduces punishment in part or
J whole. The word 'remit' as used in Section 432 is not a term of art. Some of
the meanings of the word 'remit' are "to pardon, to refrain from inflicting to
give up". It is therefore no obstacle in the way of the President or Governor,
as the case may be in remitting the sentence of death. A remission of B
sentence does not mean acquittal.

The power to commute a· sentence of death is independent of Section
433A. The restriction under Section 433A of the Code comes into operation
only after power under Section 433 is exercised. Section 433A is applicable
to two categories of convicts : (a) those who could have been punished with C
sentence of death and (b) those whose sentence have been converted into
imprisonment for life under Section 433. It was observed in Mura Ram v.
Union of India, [ 1981] l SCC 106 that Section 433A does not violate Article
20( l) of the Constitution.

In the circumstances, if ~ny motion is made in terms of Sections 432, D
433 and 433A of the Code and/or Article 72 or Article l6i of the Constitution
as the case be, the same may be appropriately dealt with. It goes without
saying that at the relevant stage, the factors which have weighed with my
learned Brother Mr. Justice Thomas can be duly taken note of in the context
of Section 432(2) of the Code.
E
THOMAS, J. After reading the draft judgment prepared by my esteemed
brother Sethi, J. supported by reasons forcefully and lucidly advanced there
could not have been much difficulty for me to concur with it. However, having
regard to certain aspects revolving on the issue whether a young man should
be hanged by neck till he is dead pursuant to the judgment pronounced by F
us, I am unable to resist the urge to look at the question of sentence once
again in an effort to see whether there is any legally permissible outlet
through which his life can be spared from the hangman's noose. In my
thoughtful rumination on that alternative option I feel inclined to respectfully
dissent from my learned brother's conclusion that there is no scope to alter
the death penalty imposed on the petitioner. G
At the outset I may state that I have no doubt in my mind regarding
the correctness of the observations of Sethi, J, that the sentence cannot be
altered on the reasoning that the trial court did not adjourn the proceedings,
after pronouncing the conviction, for the purpose of providing the ~onvicted
person time to reflect on the question of sentence. The trial judge chose to 1-l
700 SUPREME COURT REPORTS [2001] 3 S.C.R.

A pronounce the sentence on the same day of pronouncing the verdict of
conviction. When the Code of Criminal Procedure was amended in 1978 (By
Act 45 of 1978) a proviso was introduced to sub-section (2) of Section 309
of the Code by which an interdict has been added that "no adjournment shall
be granted for the purpose only of enabling the accused persons to show
cause against the sentence proposed to be imposed on him." We make a note
B that the said proviso does not make a distinction between offences punishable
with death or imprisonment for life and the other offences, in relation to the
application of the said provi~o. The proviso thus reflects the parliamentary
concern that the rule in all cases must be that sentence shall be passed on
the same day of pronouncement of judgment in criminal cases as far as
C possible, arid perhaps by way of exception the said rule can be relaxed by
adjourning the case to another day for passing orders on the sentence.

In Muniappan v. State of Tamil Nadu, [1981] 3 SCC 11 this Court
emphasised the need to make a genuine effort to elicit all relevant information
from the accused for considering the question whether the extre111~ penalty
D is to be awarded or not. In Allauddin Mian and Ors. v. State of #ihar, (1989]
3 SCC 5 a two Judge Bench of this Court S. Natarajan, J and A.M Ahmadi,
J as he then was and again in Malkiat Singh and Ors. v. State of Punjab,
[1991] 4 SCC 341 a three Judge Bench (AM. Ahmadi,,V. Ramaswamy and K
Ramaswamy, JJ) have indicated the need to adjourn the case to a future dat~
E after pronouncing the verdict of conviction. In those two decisions the
direction contained in the proviso to sub-section (2) of Section 309 of the
Code was not considered, presumably because it was not brought to the
notice of the court. Hence in State of Maharashtra v. Sukhdev Singh and
anr., (1992] 3 SCC 700 the two Judg~ Bench (AM. Ahmadi and K. Ramaswamy,
JJ) considered the implication of the said proviso also. Learned judges observed
F that the proviso to Section 309(2) does not entitle an accused to adjourn
though it does not prohibit the court from granting such adjournment in .>-
serious cases. This is what Ahmadi J (as he then was) observed for the
Bench:

"If the court feels that the irHerest of justice demands that the matter
G should be adjourned to enable both sides to place the relevant material
touching on the _question of sentence before the court, the above
extracted proviso cannot preclude the court from doing so."

It must be remembered that two alternative sentences alone are permitted >--
for imposition as for the offence under Section 302 IPC - imprisonment for life
H or death. Thus no court is permitted to award a sentence less than
)--

R.D. CHAUHAN v. STATE OF ASSAM [THOMAS, J.] 701

imprisonment for life as for the offence of murder. The normal punishment for A
the offence is life imprisonment and death penalty is now permitted to be
___,( awarded only "in the rarest of the rare cases when the lesser alternative is
unquestionably foreclosed". vi de Bachan Singh v. State of Punjab, [ 1980] 2
SCC 684. The requirement contained in Section 235(2) of the Code (the
obligation of the Judge to hear the accused on the question of sentence) is
intended to achieve a purpose. The said legislative provision is meant for
B
affording benefit to the convicted person in the matter of sentence. But when
the Sessions judge does not propose to award death penalty to a person
convicted of the offence under Section 302 !PC what is the benefit to be
secured by hearing the accused on the question of sentence. However much
it is argued the Sessions Judge cannot award a sentence less than imprisonment c
for life for the said offence. If a Sessions Judge who convicts the accused
under Section 302 IPC (with or without the aid of other sections) does not
propose to award death penalty, we feel that the Court need not waste time
on hearing the accused on the question Of sentence. We therefore choose to
use this occasion for reiterating the legal position regarding the necessity to
afford opportunity for hearing to the accused on the question pf sentence. D
(1) When the conviction is under Section 302 IPC (with or without
the aid of Section 34 or 149 or 1208 of !PC) ifthe Sessions Judge
~ does not propose to impose death penalty on the convicted
person it is unnecessary to proceed to hear the accused on the
question of sentence. Section 235(2) of the Code will not be E
violated if the sentence of life imprisonment is awarded for that
offence without hearing the accused on the question of sentence.
(2) In all other cases the accused must be given sufficient opportunity
of hearing on the question of sentence.
F
-./ (3) The normal rule is that after pronouncing the verdict of guilty
1 the hearing should be made on the same day and the sentence
shall also be pronounced on the same day.

(4) In cases where the Judge feels or if the accused demands more
time for hearing on the question of sentence (especially when G
the Judge propose _to impose death penalty) the proviso to
Section 309(2) is not a bar for affording such time.

,.~ (5) For any reason the court is inclined to adjourn the case after
pronouncing the verdict of guilty in grave offences the convicted
person shall be committed to jail till the verdict on the sentence H
702 SUPREME COURT REPORTS [2001) 3 S.C.R.

A is pronounced. Fu1ther detention will depend upon the process
oflaw.

But what causes concern to me is whether the new point advanced by
Shri S. Muralidhar, learned counsel for the convicted person in this review
petition, that the interdict contained in Section 22(1) of the Juvenile Justice
B Act, 1986 (for short the Juvenile Act) can have impact on the question of
death penalty imposed on the petitioner. The power of review of Supreme
Court as envisaged under Article 13 7 of the Constitution is no doubt wider
than the review jurisdiction conferred by other statutes on the Court.

Article 137 of the Constitution empowers the Supreme court to review
C any judgment pronounced or order made, subject of course to the provisions
of any law made by Parliament or any rule made under Article 145 of the
constitution. Rule I or O.XL of the Supreme court Rules can be quoted:
"The Court may review its judgment or order, but no application for
review .will be entertained in a civil proceeding except on the ground
D mentioned in Order XL VII Rule I of the Code, and in a criminal
proceeding except on the ground of an error apparent on the face of
the record."
A Constitution bench of this Court has considered the scope of the
review jurisdiction of this court vis-a-vis the fore-quoted rule in PN lswara
E Iyer v. Registrar, Supreme Court of India, [1980) 4 SCC 680.
The following observations made in the said decision are apposite now.
Hence there are extracted below:

"The rule, on its face, affords a wider set of grounds for review for
orders in civil proceedings, but limits the ground vis-a-vis criminal
F proceedings to 'errors apparent on the face of the record.' If at all, the
concern of the law to avoid judicial error should be heightened when
life or liberty is in peril since civil penalties are often less traumatic.
So, it is reasonable to assume that the framers of the rules cou Id not
have intended a restrictive review over criminal orders of judgments.
It is likely to be the other way about. Supposing an accused is
G
sentenced to death by the Supreme Court and the 'deceased' shows
up in court and the comt discovers the tragic treachery of the recorded
testimony. ls the court helpless to review and set aside the sentence
of hanging? We think not. The power to review is in article 137 and
it is equally wide in all proceedings. The rule me;ely canalises the flow
H from the reservoir of power. The stream cannot stifle the source.
R.IJ. CHAUHAN v. STATE OF ASSAM [THOMAS • .I.] 703

Moreover, the dynamics of interpretation depend on the demand of A
the context and the lexical limits of the test. Here 'record' means any
material which is already on record or may, with the permission of the
court, be brought on record. If justice summons the judges to allow
a vital material in, it becomes part of the record; and if apparent error
is there, correction becomes necessitous.
B
In Suthendraraja v. State, [ 1999] 9 SCC 323 a three Judge Bench,
following the aforesaid observations of the Constitution Bench, has said "the
scope of review in criminal proceedings has been considerably widened by
the pronouncement in the aforesaid judgment." We are proceeding to consider
the point raised by the learned counsel for the petitioner after informing C
ourselves of the width and dimensions of the review jurisdiction of this Court.

Shri S. Muralidhar, learned counsel, made a fervent plea for giving all
the benefits to the petitioner as provided in Section 22(1) of the Juvenile Act.
We made it clear to the learned counsel, during the arguments, that we were
not inclined to reopen the whole gamut to sue~ far reaching extent. However, D
we offered to consider the contention based on Section 22(1) of the Juvenile
Act for the limited purpose of deciding whether the death sentence imposed
on the petitioner is liaole to bt:"reviewed and the lesser alternative can be
awarded.

Section 22(1) of the Juvenile Act says that no delinquent juvenile shall E
be sentenced to death, (of course this sub-section also says that no juvenile
shall be sentenced to imprisonment). We have already held on facts that
petitioner did not succeed in proving that he was aged below 16 years on the
date of occurrence. As petitioner was arrested on the same day of occurrence
it is immaterial whether the crucial date for reckoning the age of juvenility is F
the date of occurrence or date of arrest. Hence we are not inclined to consider
whether the petitioner was entitled to be treated as a juvenile for the purpose
of dealing with him under the provisions of the Juvenile Act.

But I am inclined to approach the question from a different angle. Can
death sentence be awarded to a person whose age is not positively established G
by the prosecution as above 16 on the crucial date. If the prosecution failed
to prove positively that aspect, can a convicted person be allowed to be
hanged by neck till death in view of the clear interdict contained in Section
22(1) of the Juvenile Act. A peep into the historical background of how death
penalty survived Article 21 of ·the Constitution would be useful in this
context. H
704 SUPREME COURT REPORTS [2001) 3 S.C.R.

A Apart from the two schools of thought putting forward their respective
points of view stridently - one pleading for retention of death penalty and the
other for abolition of it - a serious question arose whether the law enabling
the State to take away the life of a person by way of punishment would be
hit by the forbid contained in Article 21 of the Constitution. In Bachan Singh
B v. State of Punjab (supra) the majority Judges of the Constitution Bench
saved the death penalty from being chopped out of the statute book by
ordering that death penalty should be strictly restricted to the tiniest category
of the rarest of the rare cases in which the lesser alternative is unquestionably
foreclosed.

C The question here, therefore, is whether the plea of the petitioner that
he was below the age of 16 on the date of his arrest could unquestionably
be foreclosed. If it cannot be so foreclosed, then imposing death penalty on
him would, in my view, be violative of A1ticle 21 of the Constitution.

The fact that the trial court and the High Court did not accept his plea
D on that score, or the fact that in our judgment we did not upset such finding,
is not enough to hold that petitioner's plea regarding his juvenility as on the
crucial date does not survive for consideration. In this context we may point
out that the petitioner was defended in the trial court by a counsel provided
• ,.J..-
by the Court. In the High Court when the appeal was heard the petitioner was
E unable to engage a counsel. Hence the High court appointed an advocate on
State brief. In this Court also when we heard the appeal the petitioner did not
have a counsel on his own engagement and hence we appointed an advocate
as amicus curiae to argue for him. It is only now when the review petition is
filed that the petitioner engaged his own counsel. The reason for pointing out
those aspects is to infonn ourselves as to the disability of the petitioner for
F effectively giving instructions to his counsel at least when the matter was
before the High Court for the statutory appeal and in this Court for the appeal
by special leave. It is reasonable to presume, in such circumstances, that the
\

amicus curiae or the advocate appointed on State brief, would not have been
able even. to see the petitioner,
/
much less to collect instructions from him,
G during the second and thirdiiers. We bear in mind the aforesaid handicap of
the petitioner when we look back to the findings already rendered by the
courts regarding the present claim based on juvenility.

Jn the High Court, the counsel appointed on State brief appeared to
r -
have conceded that the petitioner was above the age of 20. How could he
H have conceded on such a very crucial aspect, particularly when that counsel
R.D. CHAUHAN v. STATE OF ASSAM [THOMAS . .I.] 705

was not engaged by the party himself. The Division Bench of the High Court A
has skirted the issue concerning his age only on the strength of such
concession made by the advocate appointed on State brief. In this Court,
when this appeal was heard learned amicus curiae did not focus on the age
factor and hence we did not go into that aspect in our judgment. For all these
reasons we are now unable to sidestep that aspect when Shri S. Muralidhar,
learned counsel for the petitioner, focused on it and addressed detailed B
arguments.

There are four items of evidence with which the prosecution tried to
establish that the petitioner was not a juvenile on 8.3 .1992 (which is the
-.....(,
relevant date). They are the following: C
(I) Father of the petitioner was examined as DW-1 and during his
cross examination it was elicited from him that ~is first child was
born when he was aged 30; the petitioner is his 4th child; the
interval between the birth of each child was three years. On the
basis of such answers prosecution worked out the age of the D
petitioner as 26 years on the date of occurrence.

(2) PW-4 in his evidence said that when accused petitioner worked
as a domestic servant in the house of that witness he asked the
petitioner about his age in 1991 and the petitioner then replied
that he was then 20 years old. E
(3) In Ext.25 the statement of the accused was recorded under
Section 161 of the Code of Criminal Procedure on 8.3.1992. In
that statement the accused said that he was then 20 years old.

(4) On the sheet where the statement of the accused was recorded F
by the trial court under Section 235 of the Code on 20.9.1997, the
age of the accused was shown as 25 years and 6 months.

As against those materials Sh. S. Muralidhar, learned counsel, tried to
project two materials:
G
(i) The school register proved by the Headmaster of the school
concerned (DW-2) which shows the entry made against the
name Ram Deo Chauhan which is said to be that of the accused.
.- ... As per the said entry the date of birth was 1.2.1997 (if so he
would have been eleven months short of the age of 16 on the
relevant date). H
706 SUPREME COURT REPORTS (2001] 3 S.C.R.

A (ii) Dr. B.C. Roy (a court witness) examined the petitioner on
23.12.1997 for ascertaining his age. In the opinion of that doctor
the petitioner would have been within the range of 20 and 21
years on the said date. (This me~ns that he would have been
within the range of 15 to 16 years on the relevant date.

B We are unable to act on any one of.o the materials projected by the
prosecution for the purpose of reaching a conclusion regarding the age of the
petitioner as on the relevant date. The exercise of hatching or brewing up
possible date or year of birth with the help of scattered answers given by the
father of the petitioner, all during cross-examination, is a very unsound course
to be adopted. At any rate such an exercise cannot be sustained to the >----..,
C detriment of the person concerned. Nor can I rely on the testimony of P·W-
4 who said that the accused' told him in 1991 that his age was 20. Such a
statement cannot be regarded as reaching anywhere near the proximity of
reliability for fixing up· the correct age of a person. The statement recorded
under Section 161 of the Code is not permitted by law to be used except for
D contradicting the author of the statement. Hence it is impermissible to look
into that material also. The sheet on which the statement of the accused was
recorded under Section 235 of the Code contains some columns in the prefatory
portion, one among them was regarding the age. The statement of the accused
actually starts only. after making such entries in those prefatory columns.
Unless the person who filled up such prefatory columns is examined for
E showing how ~e gathered the information regarding all such columns the
entries therein cannot be regarded as legal evidence. At any rate, we cannot
proceed on a presumption that such columns were filled up by the accused
himself.

Now, while switching over to the other side, if the school register can
F be accepted as reliable and the relevant entry can be taken as unmistakably
referring to the petitioner-accused then he would certainly have been a
juvenile on the relevant date. But the trial court did not accept that evidence
due to the reasons mentioned in the judgment. Those reasons cannot be said
to be weak. It is not shown that the school register was maintained by a
G public servant in the discharge of his official duty or by any other person in
the performance of a duty specially enjoined by the law of the country in
which such register is kept. Thus the entry in the school register remains
away from the range of acceptability as proof positive regarding the date of
birth of the petitioner.

H But the evidence of the court witness (Dr.B.C. Roy) is a material which
R.D. CHAUHAN v. STATE OF ASSAM !THOMAS • .I.] 707

creates reasonable doubts in our mind as to the possibility of the petitioner A
having been below the age of 16 on the relevant date. Dr. B.C. Roy who
reached the said conclusion was an Associate Professor in Forensic Medicine.
He examined the petitioner on 20.12.1997 focussing on the anatomical features.
He then subjected the petitioner to a radiological examination and obtained
a report thereof. On the basis of the data collected from such examination he
formed his opinion that petitioner could be above 20 years on the date of B
examination, but he could not be above the age of 21 years. If his opinion
is acceptable it means that the petitioner could have b.een below the age of
16 years though it is possible that he could have been above that age also
but not beyond 17.

In his report the doctor has detailed all the data on which he reached
c
his conclusion. I do not propose to extract all such data here except pointing
out that such data collected by Dr. B.C. Roy are in consonance with the
guidelines provided in the text-books on medical jurisprudence. (vide Modi's
Medical Jurisprudence and Jhala & Raju's Medical Jurisprudence). Ossification
test is done for multiple joints, for which the radiological report was obtained. D
The margin of error according to authorities on medical jurisprudence can be
two years either way as the maximum. In this context it is useful to extract
the relevant passage from Jhala & Raju's Medical Jurisprudence (6th Edn.,
page 198):

"If ossification test is done for a single bone the error may be two E
I
years either way. But if the test is done for m'ultiple joints with
overlapping age of fusion the margin of error may be reduced.
Sometimes this margin is reduced to six months on either side."

Of course the doctors' estimates of age is not a sturdy substitute for
proof as it is only his opinion. But such opinion of an expert cannot be F
sidelined in the realm where we grope in the dark to find out what would
possibly have been the age of a citizen for the purpose of affording him a
constitutional protection. In the absence of all other acceptable materials, if
such opinion points to a reasonable possibility regarding the range of his age
it has certainly to be considered. When the possibility of the petitioner G
having been a juvenile on the relevant date. cannot be excluded from the
conclusion by adopting such reasonable standards, the interdict contained in
Section 22( 1) of the Juvenile Act cannot be bypassed for awarding death
penalty to the petitioner so long as the death penalty is permitted to survive
Article 21 only if the lesser alternative can be foreclosed unquestionably. In
other words, if the age of the petitioner cannot be held to be unquestionably H
708 SUPREME COURT REPORTS [200 I] 3 S.C.R.

A abovi:: 16 on the relevant date its corollary is that the lesser sentence also
cannot unquestionably be foreclosed. We have to abide by the declaration
of law made by the majority of Judges of the Constitution Bench in Bachan ).._
Singh 's case (supra) ..

For the aforesaid reasons I am persuaded to allow this review petition
B and alter the sentence of death to imprisonment for life. The review petition
is disposed in the above terms.

ORDER

In view of the majority judgment the review petition is dismissed.
c
However, this is without prejudice to the right of the petitioner to get
the benefit under Sections 432, 43 & 433-A of the Code of Criminal Procedure.

K.K.T. Petition dismissed.