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New Delhi: The Supreme Court on Friday set aside the death sentence of a rape and murder accused who was found to be a juvenile at the time of the crime.
A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol upheld the conviction but set aside the sentence based on a report Additional Sessions Judge, Manawar, District Dhar, Madhya Pradesh which categorically stated that the accused was 15 years and 4 months of age on the date of the incident, which was December 15, 2017.
The Court noted that as per Juvenile Justice Act, even in case of heinous offences, a minor below 16 years of age cannot be sentenced to more than 3 years in prison.
“In the present case, the appellant is held to be less than 16 years, and therefore, the maximum punishment that could be awarded is upto 3 years. The appellant has already undergone more than 5 years. His incarceration beyond 3 years would be illegal, and therefore, he would be liable to be released forthwith on this count also,” the Court said.
The Court, therefore, set aside the sentence.
However, it upheld the conviction despite the fact that the Juvenile Justice Board (JJB) had failed to conduct an inquiry with respect to the age of the accused.
The Court said that the Juvenile Justice Act intends to benefit minors only with respect to a lenient sentence so as to bring him into the mainstream of the society, and not to make the conviction ineffective.
” … 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. The 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”, the Court observed.
Hence, if the Juvenile Justice Board (JJB) fails to conduct inquiry with respect to the age of the accused, the trial and conviction would not stand vitiated.
“Having considered the statutory provisions laid down in section 9 of the 2015 Act and also section 7A of the 2000 Act which is identical to section 9 of the 2015 Act, we are of the view that merits of the conviction could be tested and the conviction which was recorded cannot be held to be vitiated in law merely because the inquiry was not conducted by JJB. It is only the question of sentence for which the provisions of the 2015 Act would be attracted and 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,” the Court said.
Since the juvenile had already been in prison for 5 years and the maximum sentence that can be awarded as per Juvenile Justice Act of 2015 is 3 years stay in a special home, the Court ordered that he be released from custody.
The bench was hearing the death-row convict’s appeal against a November 2018 order of the Indore bench of the Madhya Pradesh High Court that had upheld his sentence and conviction.
The accused had moved an application claiming juvenility during the pendency of the appeal before the top court.
The top court called for a report from a district judge in the State, after which it was found that the boy was 15 at the time of the crime.
The counsel for the appellant before the top court argued that the death sentence imposed could not have been given effect to under Section 9(2) of the 2015 Act.
The said proviso says that an enquiry has to be conducted if an accused raises claim that he was a juvenile at the time of the offence.
The counsel added that the boy had already undergone over five years in jail and under Section 18 of the 2015 Act, a juvenile below 16 cannot be sentence to more than three years in a correctional home.
The counsel for the State government sought an ossification test to determine his current age.
The top court said that the latter submission cannot be accepted at this stage as the State had not called for such a test before the trial court, and documents relating to date of birth already existed to prove his age.
Further, an ossification test would only give a rough broad assessment of age with an error margin.
On the aspect of the accused’s sentence, the bench at the outset said,
“In view of the statutory provisions and in view of the findings recorded, the appellant having been held to be a child on the date of commission of the offence, the [death] sentence imposed has to be made ineffective.”
It noted that the maximum sentence could not be more than three years in any case.
“His incarceration beyond 3 years would be illegal, and therefore, he would be liable to be released forthwith on this count also,” the judgment emphasised.
However, the bench noted that nothing in Section 9 of the Act implies that a conviction recorded against a person later found to be a juvenile would also lose its effect or stall criminal proceedings.
“If the conviction was also to be made ineffective then either the jurisdiction of regular Sessions Court would have been completely excluded not only under section 9 of the 2015 Act but also under section 25 of the 2015 Act, provision would have been made that on a finding being recorded that the person being tried is a child, a pending trial should also be relegated to the JJB and also that such trial would be held to be null and void.”
The legislative intent of the 2015 Act was not to make minors who had committed heinous crimes go scot-free, the bench made it clear.
In this regard, the Court explained that the object of the 2015 Act deals with the rights and liberties of juveniles, so as to ensure that can be brought into the mainstream through a lenient sentence by lodging them in a juvenile justice board-approved home/institution.
Accordingly, the Supreme Court partly allowed the appeal and set aside the death sentence.
“The conviction of the appellant is upheld; however, the sentence is set aside. Further as the appellant at present would be more than 20 years old, there would be no requirement of sending him to the JJB or any other child care facility or institution. Appellant is in judicial custody. He shall be released forthwith,” the Court ordered.
Senior Advocate Aman Lekhi with advocates Ritwiz Rishab, Sakshi Jain, Sneha Sonam, and Rajat Mittal appeared for the appellant.
Deputy Advocates General Mukul Singh and Ankita Chaudhary with advocates Yashraj Singh Bundela, Sunny Choudhary, Shreyash Balaji, Sandeep Sharma, Ankita Choudhary, Abhinav Shrivastava, and Karan Bishnoi appeared for the State of Madhya Pradesh.
