IMPORTANT POINTS
(1) Juvenile accused – Medical opinion based on Bone Ossification Test, is not entirely accurate – In a case of juvenility where two views are possible, liberal approach should be undertaken.
(2) Benefit of juvenility in pending cases – School leaving certificate of first school attended by appellant will be a certificate that is liable to be considered and certificate is a valid proof of evidence for determination of age of appellant.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. Leave granted.

2. The appellant before this Court has been convicted by the Additional Sessions Judge, Barabanki in Sessions Trial No. 85 of 1996 for offences under Sections 302 and 307 read with Section 34 of Indian Penal Code, 1860 and has been sentenced to life imprisonment under Section 302/34 and rigorous imprisonment for 7 years under Section 307/34 with default stipulations. The conviction and sentence of the appellant was upheld in appeal by the High Court, in its order dated 07.05.2019.

3. There were four accused in the case, which were Gaya Prasad Mishra, Gulab Chandra, Pawan Kumar and Babadeen. The accused Babadeen passed away during the trial and his case stood abated and the remaining three were convicted for the offences as stated above. The said conviction has been upheld by the High Court of Judicature of Allahabad (Lucknow Bench). Meanwhile, as far as Gaya Prasad Mishra and Gulab Chandra are concerned, who are the father and brother of the present appellant respectively, they were released prematurely after remaining in jail for more than 19 years, under the remission policy of the State. Consequently, they have not filed any petition before this Court.

4. The appellant before this Court apart from challenging the impugned order on merits has also raised a claim of being a juvenile at the time of the alleged commission of the crime (dated 01.12.1995), a plea which has been dismissed by the Trial Court and the High Court.

5. Before us, the learned counsel for the appellant, Ms. Vanshaja Shukla has submitted that the plea of juvenility may be considered first as the claim of the appellant indeed was that at the time of the incident, he was a juvenile and his plea of juvenility had not been considered in the true letter and spirit of the applicable law. Consequently, before going through the case on its merits, we have heard the counsel for the appellant at length on the plea of juvenility.

6. We must state at the very outset that the appellant has been raising the claim of juvenility right since the time of his trial, although belatedly. The trial court as well as the appellate court after an enquiry have found that the appellant was not juvenile at the time of the incident. Since this plea was raised before this Court as well, this court had asked for a report from the concerned Additional Sessions Judge, Barabanki and consequently a report was filed on an earlier occasion before this Court, to which we shall refer in a while. However, the last report (dated 28.09.2022) filed by the Additional Sessions Judge, Barabanki differs from the earlier findings, and the claim of the appellant being a juvenile at the time of the commission of crime has been accepted. We shall be referring to this report later.

7. The facts of this case must also be stated here. On 01.12.1995, while the father and brother of the Complainant-Guru Prasad Mishra were irrigating their land, water flushed towards the adjacent field belonging to one Gaya Prasad Mishra. The present appellant, who is the son of Gaya Prasad Mishra reported this to his father and shortly thereafter Gaya Prasad Mishra along with his two sons, Gulab Chandra and Pawan Kumar (the present appellant), and one ‘Babadeen’ came to the spot armed with “lathis” and started assaulting the father and brother of the complainant. After hearing the ‘hue and cry’ the complainant along with some village persons reached the spot and he was also assaulted by the accused persons. This incident resulted in grievous injuries on all and ultimately in the death of one Ganga Prasad, brother of the complainant. An FIR as Crime No. 86 of 1995 was then filed in Subeha Police Station in Barabanki District, under Sections 307, 504 and 323 IPC against the four named accused as mentioned above. As the brother of the complainant (Ganga Prasad) died the same day, Section 302 was added in the FIR.

8. Undoubtedly, the appellant belongs to the aggressor group and had attacked