ORDER

The petitioner was charged for offence under Section 302 read with Section 34 , IPC. In trial, the other accused were convicted but the petitioner was given a benefit of doubt by the trial Court by judgment dated 16.07.1990. However, on appeal being preferred before the High Court both against conviction and acquittal in terms of the judgment dated 13.04.2007, the appellant was also convicted along with the others with the aid of Section 34 , IPC. The Special Leave Petition was dismissed on 03.02.2011.

2. It appears that only thereafter the petitioner was taken into custody to serve out the sentence.

3. The present petition was filed after about a decade alleging that the petitioner was a minor of 16 years at the time of committing the offence, though no such plea was raised during the trial court proceedings. The incident occurred on 19.08.1986 and the charges were framed against the petitioner on 19.01.1987. The claim of the petitioner is that he was born on 10.08.1970 and in support thereof a High School pass certificate dated 12.06.1990 was produced. In support of that plea, a certificate issued by the Principal, MGM Inter College, dated 09.08.2021 was produced. Apart from this document, the driving licence issued on 25.05.2009 and the birth certificate dated 17.08.2021 was also produced recording the date of birth as 10.08.1970.

4. It was the case of the petitioner that if a convicted person is found juvenile on the date of commissioning of the offence, the matter can be investigated at any stage and it is in view thereof that we passed an order on 22.10.2021 directing the Juvenile Justice Board, District Baghpat to look into the claim of the petitioner that he is a juvenile and required a close scrutiny of the documents as this plea was sought to be raised at a belated stage.

5. The report dated 05.01.2022 has been received from the Juvenile Justice Board. The Board has looked into an application filed by Madhubala, wife of the petitioner to the same effect as noted by us aforesaid. She was examined by the Board as DW1 and supported the case. She claimed to have married the petitioner on 08.02.1997 when the petitioner is stated to have been about 21-22 years of age. The questions were put to her qua the age aspect where she did state that personally she did not know the age but was saying so on the basis of the documents. The Principal of MGM Inter College was also examined as DW-2 wherein he stated that the petitioner passed the school as a private student in 1990 where his date of birth is recorded as 10.08.1970. He got the original gazette of private student of High School examination in 1990 and filed a copy of the same on record. The roll number assigned to him was 1191273 in the gazette and his date of birth is 10.08.1970. In view of the material placed before the Court and having perused the evidence, the board opined that the petitioner was a juvenile on the date of the incident.

6. Learned counsel for the petitioner has drawn our attention to the order passed by this Court in Nand Kishore Vs. State of M.P. ,(2014) 15 SCC 180 to submit that if the juvenile has served less than 3 years, then only the occasion to refer it to the Juvenile Justice Board for an appropriate sentence would arise but here the petitioner in the present case has already undergone sentence of about 9 years (in that case it was 11 years) the appropriate direction to be passed would be that the petitioner should be set at liberty forthwith unless his detention is warranted in any other case. In that case, becau