KARAN @ FATIYA versus THE STATE OF MADHYA PRADESH

Citation: [2023] 2 S.C.R. 587 · Decided: 03-03-2023 · Supreme Court of India · Bench: BHUSHAN RAMKRISHNA GAVAI · Disposal: Case Partly allowed

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Judgment (excerpt)

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[2023] 2 S.C.R. 587
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KARAN @ FATIYA
v.
 THE STATE OF MADHYA PRADESH
(Criminal Appeal Nos. 572-573 of 2019)
MARCH 03, 2023
[B. R. GAVAI, VIKRAM NATH AND SANJAY KAROL, JJ.]
Juvenile Justice (Care and Protection) Act, 2015 – Claim of
Juvenility – Appellant convicted for various offences under IPC
and POCSO Act was awarded death sentence – Death sentence
affirmed by High Court – During the pendency of the present
appeals, appellant claimed juvenility – Trial Court was directed to
submit report after due inquiry – Report submitted, appellant’s date
of birth was found to be conclusively proved as 25.07.2002 – Date
of incident being 15.12.2017, the appellant was aged 15 years 04
months and 20 days on the date of the incident – Held: No reason
to doubt the correctness of the conclusion arrived at by the Trial
Court regarding the date of birth of the appellant – Appellant held
to be aged 15 years, 4 months and 20 days on the date of the incident
– Conviction of the appellant upheld, sentence set aside – Appellant
being less than 16 years on the date of commission of the offence,
the maximum punishment that could be awarded is upto 3 years –
However, appellant has already undergone incarceration of more
than 5 years – Incarceration beyond 3 years would be illegal –
Appellant to be released from judicial custody – Impugned judgement
passed by High Court modified – Penal Code, 1860 – ss. 363,
376(2)(i), 302, 201 – POCSO Act – s.5(m)/6.
Juvenile Justice (Care and Protection) Act, 2015 – s.94 –
Ossification test – Plea of the State that the appellant be subjected
to an ossification test for determining his correct age as the
documents filed during the inquiry before the Trial Court were not
covered u/s.94 – Held: Rejected – First preference for determination
of age is the birth certificate issued by the school or a matriculation
certificate – It is in the absence of the first category of documents
that the birth certificate from the municipal corporation is to be
considered – An ossification test comes into play when the documents
are not available under the first and second columns – In the instant
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SUPREME COURT REPORTS
[2023] 2 S.C.R.
case, appellant’s birth certificate from the school (a government
primary school) was available – It has been duly proved in the
inquiry before the Trial Court, no reason to doubt its correctness –
Further, an ossification test only gives a broad assessment of the
age – It does not give an exact age – There is an element of margin
of plus or minus 1 to 2 years – Thus, in the present case, even if
ossification test is permitted, it will have no bearing on the
assessment made by the Trial Court after the inquiry.
Juvenile Justice (Care and Protection) Act, 2015 – s.9 – Plea
of Juvenility – Held: Can be raised before any Court and at any
stage even after the case has been finally decided – The claim so
made would be determined even if such person has seized to be a
child whether on or before the commencement of 2015 Act.
Juvenile Justice (Care and Protection) Act, 2015 – s.18 –
Held: Juvenile Justice Board having found a child to be in conflict
with law who may have committed a petty or serious offence and
where heinous offence is committed, the child should be below 16
years, can pass various orders u/clauses (a) to (g) of sub-section
(1) and also sub-section (2) – Whatever punishment is to be provided,
the same cannot exceed a period of three years.
Juvenile Justice (Care and Protection) Act, 2015 – s.9(3) –
Accused held to be a juvenile after conviction at the stage of appeal,
status of the trial, conviction and sentence recorded – Held: A trial
conducted and conviction recorded by the Sessions Court would
not be held to be vitiated in law even though subsequently the person
tried has been held to be a child – Intention of the legislature was
to give benefit to a person who is declared to be a child on the date
of the offence only with respect to its sentence part – It is only the
question of sentence for which the provisions of the 2015 Act would
be attracted – Any sentence in excess of what is permissible under
the 2015 Act will have to be accordingly amended as per the
provisions of the 2015 Act – Juvenile Justice (Care and Protection
of Children) Act, 2000 – s.7A.
Partly allowing the appeals, the Court
HELD: 1.1 During the inquiry before the Trial Court, the
State did not take any objection whatsoever with regard to the
documents filed on behalf of the

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