N. Chaudhury, J. - In this suo-moto revision petition, question as to validity of the judgment of conviction against accused Mukta Samad and Rohil @ Rohila Samad in Session Case No. 117(T)/2002 has been raised. As many as 10 accused persons were tried on an allegation of witch hunting in aforesaid Sessions Case No. 117(T)/2002 under Section 147/448/302 of the IPC read with Section 149 of the IPC. The 10 accused persons including Smt. Mukta Samad and Rohil @ Rohila Samad were convicted under the aforesaid sections of law. They were sentenced to suffer R.I. for life under Section 302/149 IPC, R.I. for 1 year under Section 147 IPC and R.I. for 1 year under sections 448/149 IPC. An appeal preferred by them before this court in Criminal Appeal (J) No. 105/2003 was dismissed on 29.07.2010 on merit and this is how all these accused persons continued serving the sentence.
2. At this stage, the Chairperson-in-Charge of the Assam State Commission for Protection of Child Rights visited Tinsukia District Jail and noticed that two of the aforesaid 10 convicted persons were juveniles in conflict with law at the time of commission of offence. She accordingly brought it to the notice of the court that Smt. Mukta Samad and Smt. Rohil @ Rohila Samad could have been tried and convicted by the learned Sessions Judge in view of the provision of Section 7A of the Juvenile Justice (Care and Protection of the Children) Act, 2000. On the basis of her letter dated 30.12.2015 addressed to the High Court, this suo-moto revision petition was registered and notices were issued on 02.03.2016.
3. On 22.06.2016, a Division Bench of this Court considered this matter and found that except from the statements under section 313 of the Code of Criminal Procedure recorded on 28.01.2002 by the learned Sessions Judge, there is no other material whatsoever on record to arrive at a finding that these two convicts were juveniles in conflict with law as on the date of commission of offence. The statements recorded under section 313 of the Code of Criminal Procedure reveals that Smt. Mukta Lata Samad claimed to be 16 years of age and Smt. Rohil @ Rohila Samad claimed to be 20 years of age as on 28.01.2002 whereas the incident had taken place on 27.09.2001.
Accordingly, considering the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, an order was passed directing the learned jurisdictional Sessions Judge to hold enquiry and to submit report along with opinion of Medical Board within 15 days as to the age of Smt. Mukta and Smt. Rohila @ Rohil, the two convicts in this case.
Accordingly, the learned Sessions Judge held enquiry and submitted a report along with medical opinion. As per this report dated 20.06.2016, Smt. Mukta Samad and Smt. Rohil @ Rohila Samad who belonged to ''Mura'' caste and also known as ''Mura'' as well as ''Samad'' were around 25 years of age. This opinion was arrived at by a Medical Board constituted by Superintendent of Civil Hospital. The Board consisted of Dr. NC Mahanta, Superintendent as Chairperson, and Dr. GS Gogoi, SDM and HO, Dr. M Gogoi, Sr. M & HO and Dr. M Mahanta, Sr. M & HO of Tinsukia Civil Hospital as members. The Board examined Smt. Mukta Mura @ Mukta Samad and Smt. Rita Mura @ Rohil @ Rohila Samad. On the basis of physiological, dental and radiological assessment the Board held the view that the two convicts are of 25 years of age at present.
4. If the two convicts, namely, Rohila @ Rohil and Mukta are approximately of 25 years of age as on the date, in that event, they were around 9/10 years as on the date of commission of offence on 27.09.2001 which means they were juveniles at that time.
5. The Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ''the Act''), received assent of the President on 30.12.2000 and it came into force on 01.04.2001 i.e. before the date of occurrence. Under section 2(l) of this Act, juvenile in conflict with law has been defined as a juvenile who is alleged to have committed an offence and has not completed 18th year of age as on the date of commission of such offence. Under section 7A of the Act, procedure has been laid down in regard to cases where a claim of juvenility is raised before any court. It provides that if a claim of juvenility is raised before any court or a court is of the opinion that an accused was a juvenile on the date of commission of offence, the court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record such finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. A proviso appended to section 7A(1) clarifies that a claim of juvenility may be raised before any Court and it shall be recognised at any stage even after final disposal of the case and such claim shall be determined in terms of the provisions contained in the Act and the Rules made there-under. Thus, it is clear that even after dismissal of the appeal it is possible to raise the issue of juvenility. Section 7A(2) of the Act further provides that if the Court finds a person to be a juvenile on the date of commission of the offence under subsection (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect. Thus, because of the deeming provision incorporated under section 7A(2) of the Act, any judgment of conviction and sentence becomes ineffective once it is established on enquiry under the Act and the Rules that the accused was a juvenile as on the date of commission of offence.
6. Central Government framed Juvenile Justice (Care and Protection of Children) Rules, 2007 under section 68 of the Act and Rule 12 thereof provides for the procedure to be followed in determination of age. Rule 12 is reproduced below for ready reference:-
"12. Procedure to be followed in determination of age. - (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
7. In the case of Abuzar Hossain v. State of W.B., reported in (2012) 10 SCC 489, the Hon''ble Supreme Court has held that the claim of juvenility may be raised even after final disposal of case and delay in raising the claim shall not be a ground for rejection. This court in earlier order dated 22.06.2016 observed that no claim was raised in appropriate time but now that the issue has been raised it is required to be dealt with under Rule 12 of the Rules as referred to above. This is how the Board constituted in terms of Rule 12 was entrusted with the responsibility to ascertain the age of the two convicts, namely, Rohil @ Rohila Samad @ Mura and Mukta Samad @ Mura. In view of the opinion given by the Medical Board constituted under Rule 12 of the Rules, the convicts Mukta Samad @ Mura and Rita @ Rohila @ Rohil Samad @ Mura convicted in Sessions Case No. 117(T)/2002 were juveniles in conflict with law as on the date of occurrence and consequently the judgment of conviction and sentence passed against them are deemed to be of no effect. Unfortunately, the accused have been in jail since their conviction merely because nobody raised the claim of their juvenility on any earlier date. Had the claim been raised during trial of the Sessions case in that event, these two juveniles in conflict with law would have been referred to the jurisdictional Juvenile Justice Board for appropriate action and even if they would have been found to be involved in that event, they would have been sent to a special home for a period of 3 years under section 15(1)(g) of the Act. Here in this case, they have already served term over 13 years and so there is no question of referring them again to Juvenile Justice Board under section 7A(2) of the Act. The sentence of the aforesaid two accused persons are deemed to be of no effect and accordingly, they be released forthwith from the jail. Issue necessary directions accordingly.
8. The revision petition stands disposed of.
9. Send down the lower court records.
