Judgment

CRR No.36/2016

Sanjay Dhar, J.-Petitioner has challenged order dated 17.03.2016 passed by the learned 3rd Additional Sessions, Judge, Jammu (hereinafter referred to as the “Trial Court”), whereby, pursuant to the directions of this Court contained in its order dated 05.10.2015, the learned Trial Court has, after conducting inquiry with regard to the plea of juvenility of the petitioner, submitted its report, holding that date of birth of the petitioner is proved to be 12.01.1987 and that on date of the occurrence, i.e. on 28.08.2005, he was more than 18 years of age and as such, was not a juvenile.

2. Before coming to the aforesaid order of the learned Trial Court and the contentions raised there against by the petitioner in the instant revision petition, it would be profitable to give background of the facts that have led to the instant proceedings.

3. A charge-sheet was laid by the police of Police Station, Pacca Danga, Jammu against the petitioner in pursuance of the investigation conducted by the police in respect of FIR No. 144 of 2005. As per the case of prosecution, petitioner is alleged to have kidnapped minor daughter of PW-Abdul Rehman from his rented accommodation at Rani Talab, Jammu and thereafter, subjected her to forcible sexual intercourse and murder. The occurrence is alleged to have been taken place on 28.08.2005. Thus, the petitioner is alleged to have committed offences under Sections 363, 376 & 302 RPC.

4. The petitioner was, accordingly, tried by the learned Trial Court for commission of the aforesaid offences, whereupon he was convicted for commission of the aforementioned offences in terms of the judgment dated 13.03.2014 passed by the learned Trial Court. Vide order dated 27.03.2014 passed by the learned Trial Court, the petitioner was, in proof of offence under Section 302 RPC, awarded death sentence whereas in proof of offence under Section 376 RPC, he was awarded rigorous imprisonment for life and fine of Rs. 10,000/-. In proof of offence under Section 363 RPC, the petitioner was sentenced to rigorous imprisonment of seven years and fine of Rs. 2,000/-.

5. The aforesaid judgment of conviction and sentence came to be challenged by the petitioner before this Court by way of Criminal Appeal bearing CRA No. 23/2014, which came up for hearing before this Court along with Reference for Confirmation of sentence made by the learned Trial Court before this Court.

6. One of the grounds urged in the appeal by the petitioner herein is that he was a juvenile at the time of commission of alleged offences and that his date of birth was 15.01.1991, which means that at the time of alleged occurrence, i.e. on 28.08.2005, his age was just above 14 years. It is contended by the petitioner in the appeal that the plea of juvenility was raised by him before the learned Trial Court, but the said court landed itself into an error by not declaring him as a juvenile and giving him the benefit of juvenility in terms of the Jammu and Kashmir, Juvenile Justice Act, 1997 (hereinafter referred to as the “Act of 1997”), which was applicable at the relevant time.

7. It is pertinent to mention here that before filing of the charge-sheet, the Investigating Officer got the ossification test of the petitioner conducted for the purpose of determination of his age. As per this report, the age of the petitioner was found to be more than 17 years and less than 19 years. After presentation of the charge-sheet on 27.05.2006, the learned counsel representing the petitioner before the Trial Court had placed on record a photo copy of the date of birth certificate issued by the Headmaster, Government Middle School, Takia Magam, according to which, his date of birth was 15.01.1991. The learned Trial Court summoned record pertaining to the said certificate from the concerned school, and the petitioner also produced the original certificate. On 30.10.2006, the learned Trial Court in spite of getting the record pertaining to the date of birt