JUDGMENT :

ACHINTYA MALLA BUJOR BARUA, J.

1. Heard Ms. D. Ghosh, learned counsel for the petitioner and Ms. L. Hage, learned Additional Public Prosecutor for the State of Arunachal Pradesh.

2. The petitioner-Nibaran Chakma was convicted under section 376(1) of IPC in Sessions Case No. 15(CLG)/2012 by the Sessions Judge, East Sessions Division, Tezu by the judgment dated 10.3.2016 and was sentenced to a rigorous imprisonment for a period of 10 years and a fine of Rs. 25,000, failing which, a further simple imprisonment of six months. As the petitioner was in custody during the trial period or earlier for a period of one year two months and six days, the said period was accordingly set off from the sentence imposed. Accordingly the petitioner has undergone the sentence from 10.3.2016 and is presently lodged in Tezu Distinct Jail. The Sessions Case No. 15(CLG)/2012 was pursuant to Diyun PS Case No. 06/2012 under section 366 A/376(2)(g)/376(1)/387, IPC.

3. The offence is alleged to have been committed on 4.6.2011 and 5.6.2011. In this writ petition, a claim is made by the petitioner that on 4.5.2011 and 5.6.2011 when the alleged offence had taken place, he was a juvenile. To substantiate the stand that the petitioner was a juvenile when the alleged offence had taken place, a birth certificate issued by the Registrar of Births and Deaths, Bordumsa, Changlahg district in Arunachal Pradesh dated 21.4.2003 is annexed as Anenxure-4, page 60 to the writ petition.

4. A reading of the Annexure-4 birth certificate goes to show that the date of birth of the petitioner is 30.3.1995. When the alleged offence had taken place on 4.6.2011 and 5.6.2011, if the date of birth of the petitioner is 30.3.1995, he would have been approximately 16 years 02 months and 25 days when the alleged offence had taken place. In other words, if the petitioner was 16 years 02 months and 25 days at the time when the alleged offence had taken place, he was a juvenile as defined under section 2(35) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act, 2015’).

5. In order to ascertain the plea raised that the petitioner was a juvenile when the alleged offence had taken place on 4.6.2011 and 5.6.2011, by our earlier order dated 24.11.2021, we required the petitioner to be placed before the Juvenile Justice Board at Changlang to determine as to whether the petitioner was a juvenile as on 4.6.2011 and 5.6.2011 : In response thereof, the petitioner appeared before the Juvenile Justice Board at Changlang on 30.11.2021 and upon his appearance, the following order dated 30.11.2021 was passed, the relevant portion of which is extracted as below:-

“Having considered the submission of the Registrar of Births and Deaths, Bordumsa, Changlang and the documents produced therein this Board finds the entry in the birth certificate issued to the applicants is true and correct and accordingly, the actual date of birth of the petitioner-Nibaran Chakma is determined to be 30.3.1995.”

6. From the order of the Juvenile Justice Board, Changlang dated 30.11.2021, it can conclusively be held that the date of birth of the petitioner-Nibaran Chakma is 30.3.1995 and, therefore, as on 4.6.2011 and 5.6.2011 when the alleged offence had taken place, he was a juvenile.

7. On the question whether a conviction and sentence of a person who was a juvenile at the time when the alleged offence had taken place is maintainable, is no longer a res integra and the issue has been settled by a plethora of decisions both by the Supreme Court as well as various High Courts including the Gauhati High Court. To refer the relevant proposition of law in this respect, we may refer to the pronouncement of the Supreme Court in Abuzar Hossain @ Gulam Hossain vs. State of West Bengal, (2012) 10 SCC 489, wherein it had been held that the claim of juvenility can be raised at any stage irrespective of the delay in raising the same. The Supreme Court was of the view that the plea of juvenility can be raised in