JUDGMENT

H. L. Dattu, J.-Leave granted.

2. This appeal is directed against the judgment and order passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No.1481 of 2001 dated 21.07.2009. By the impugned judgment, the High Court has confirmed the Order of conviction and sentence of the appellant passed by the Trial Court under Section 302 read with Section 149 of the Indian Penal Code, 1860 (for short ‘the IPC’).

3. The appellant was one of the accused before the Trial Court for the alleged offences punishable under Section 302 read with Sections 149 and 147 of the IPC. The Trial Court by its judgment and order dated 18.10.1995 in Sessions Trial No. 39 of 1992, convicted and sentenced the appellant for rigorous imprisonment of two years under Section 147 and imprisonment for life under Section 302 read with Section 149 IPC, both sentences to run concurrently. Aggrieved by the order so made, the appellant and others approached the High Court of Uttarakhand at Nainital by way of criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) on various grounds.

4. Before the High Court, apart from others, the learned counsel for appellant raised the contention that the appellant was juvenile on the date of the commission or occurrence of the offence, i.e. on 01.12.1991. The said contention was rejected by the High Court on the ground that it was not raised before the Trial Court and no evidence has been adduced in defence and no suggestion had been made to the witnesses during the trial and that the appellant admitted his age as 20 years at the time of recording his statement under Section 313 of the Cr. P.C.. In conclusion, the Court has observed:

“11. Learned counsel for the appellants contended that appellants Gadha and Babla, were minors on the day of the incident. But no such suggestion was made to any of the witnesses nor is any evidence adduced in defence. Rather the accused / appellants Gadha and Babla have disclosed their age 20 years on the day when their statement under Section 313 Cr.P.C. were recorded also makes out the case that their age was more than 16 years on the day of the incident. It is pertinent to mention here that on the day of the incident, and during the trial, Juvenile Justice Act, 1986, was applicable to the cases of Juveniles and not Juvenile Justice (Care and Protection of Children) Act 2000.”

5. After issuing notice to the opposite parties in the special leave petition, by our Order dated 18.04.2011, we had directed the learned Sessions Judge or his nominee to conduct an inquiry into the question of the age of the appellant on the date of commission of offence and to submit a report as envisaged under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short ‘Rules, 2007).

6. Pursuant to the aforesaid direction, the inquiry report was submitted before this Court, but the same was not accepted, as it was merely based on the opinion of an individual doctor which was not in accordance with the procedure prescribed under Rule 12 of the Rules, 2007. Therefore, by our Order dated 01.11.2011, we had, once again, directed the learned Sessions Judge to conduct an inquiry as prescribed under Rule 12 of the Rules, 2007 and submit his report.

7. Pursuant to the directions issued by us, the learned Additional Sessions Judge has conducted inquiry by following the prescribed procedure under the Rules, 2007 and submitted his inquiry report dated 03.12.2011, wherein, it is concluded that the appellant was aged about 10-15 years on the date of the commission of the offence i.e. 01.12.1991. Therefore, the appellant is juvenile within the meaning of the expression under Section 2(h) of the Juvenile Justice Act, 1986 and Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000.

8. This report is not disputed by the learned counsel for the respondent- State.

9. We have heard the learned counsel for the parties t