T.S. Thakur, J. - (1.) The appellants in this appeal by special leave have assailed their conviction for offences punishable under Section 304B and 498A IPC and sentence of imprisonment of seven years under the former and two years under the latter provision besides a fine of Rs. 100/- each. Criminal Misc. Petition No. 16974 of 2010 filed by appellant Jitendra Singh prays for permission to raise an additional ground in support of the appeal to the effect that he was a minor within the meaning of Section 2(k) of the Juvenile (Care and Protection of Children) Act, 2000 on the date of the commission of offence and that he ought to have been dealt with under the said Act.
(2.) The case of the appellant as set out in the application is that he was born on 3rd August, 1974 meaning thereby that he was just about 13 years 8 months and 23 days old on 24th May, 1988 the date when the alleged incident is said to have taken place. In support of his assertion that he was a minor on the date of the incident, the appellant has placed on record along with his application a copy of School Leaving Certificate No. 46 and Marks-sheet No. 6031 both dated 17th November, 2009 issued by the Poorav Madhyamik Vidyalaya, Sohayee Bagh, Raibareilly. The application points out that the question whether he was minor on the date of the incident had been raised by the appellant at the earliest available opportunity when an application for bail was moved on his behalf. It is alleged that the appellant had been got medically examined to determine his age which was certified to be around 17th years only. The medical report was then made a basis by the High Court for grant of bail to him in terms of order dated 25th November, 1988. Relying upon the provisions of Section 7A of the Juvenile (Care and Protection of Children) Act, 2000 the appellant seeks permission to raise the question of his juvenility in the present proceedings and contends that the provisions of Section 7A and the pronouncements of this Court entitle him to raise a plea regarding his age at any stage of the proceedings including the proceedings before this Court. The averments made in the application are supported by an affidavit filed alongwith the application.
(3.) When the application came up for hearing before this Court Mr. Sushil Kumar Jain, learned Counsel for the appellant argued that the question whether or not the appellant was a juvenile within the meaning of the Act aforementioned could be raised and shall have to be determined by this Court, no matter no such plea was taken at the trial or even in appeal before the High Court on behalf of the appellant. Reliance in support of that submission was placed by Mr. Jain on the decisions of this Court in Jayendra and Anr. v. State of Uttar Pradesh, (1981) 4 SCC 149, Gopinath Ghosh v. State of West Bengal (1984) Suppl. SCC 228, Bhoop Ram v. State of U.P., (1989) 3 SCC 1, Brij Lal v. Prem Chand and Anr., (1989) 2 Suppl. SCC 680, Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 and Hari Ram v. State of Rajasthan, (2009) 13 SCC 211. It was further argued that the material placed on record by the appellant in the form of a School Leaving Certificate and the Marks-sheet as also the order passed by the High Court granting bail to the applicant in which the medical examination of the appellant and the determination of his age have been referred to, sufficiently establish on a prima facie basis the case of the appellant that he was a minor on the date of the incident. It was submitted even when the offence was committed before the commencement of Juvenile (Care and Protection of Children) Act, 2000 the question whether benefit under the said Act could be extended to cases where the offences were committed prior to 1.4.2001 the date when the said Act came into force, stands concluded in favour of the appellant by the decision of this Court in Hari Rams case (supra).;