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CASE NO.:

Review Petition (crl.) 1105 of 2000

Appeal (crl.) 4 of 2000

PETITIONER:

RAM DEO CHAUHAN @ RAJ NATH

Vs.

RESPONDENT:

STATE OF ASSAM

DATE OF JUDGMENT: 10/05/2001

BENCH:

R.P. Sethi

JUDGMENT:

SETHI,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Equating him with a beast, this Court [2000 (7) SCC 455]

confirmed the death sentence awarded to the petitioner by

the trial court and the High Court on proof of his having

caused the death of four persons of a family including

ladies and a child of two and a half years of age.

Confirming the death sentence this Court had held:

"We are satisfied that the present case is an

exceptional case which warrants the awarding of maximum

penalty under the law to the accused/appellant. The crime

committed by the appellant is not only shocking but it has

also jeopardised the society. The awarding of lesser

sentence only on the ground of the appellant being a youth

at the time of occurrence cannot be considered as a

mitigating circumstance in view of our findings that the

murders committed by him were most cruel, heinous and

dastardly. We have no doubt that the present case is the

rarest of the rare requiring the maximum penalty, imposable

under law."

Not satisfied with the murder of human beings, the

petitioner has now tried to scuttle the process of law and

thwart the course of Justice by resort to having recourse of

seeking review of sentence on imaginative and concocted

grounds. He has contended that as he was a juvenile within

the meaning of Section 2(h) of the Juvenile Justice Act, he

could not be sentenced to any imprisonment much less the

death sentence. In support of his contentions the learned

counsel appearing for the petitioner has relied upon a host

of authorities, wherein keeping in view the age of the

accused and treating them as child, this Court had passed

orders for setting those accused persons at liberty.

After issue of notice, a two-judge Bench of this Court

held that the question of conviction of the petitioner under

Section 302 of the IPC cannot be re-opened. Taking note of

the contention of the learned counsel for the petitioner

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that the accused was juvenile at the appropriate time and

there was prohibition regarding the sentence to be imposed

on him, the review petition was directed to be considered

for that limited purpose only. As the question was

important, the matter was referred to a larger Bench.

Heard the learned counsel appearing for the parties at

length and critically examined the whole record in the case

for appreciating the submissions made on behalf of the

petitioner who has been awarded the death sentence.

This Court considered the scope of review and the

limitations imposed on its exercise under Article 137 of the

Constitution of India in Lily Thomas v. Union of India &

Ors. [JT 2000 (5) SC 617] and held: "The dictionary

meaning of the word "review" is the act of looking, offer

something again with a view to correction or improvement.

It cannot be denied that the review is the creation of a

statute. This Court in Patel Narshi Thakershi & Ors. Vs.

Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273 held that

the power of review is not an inherent power. It must be

conferred by law either specifically or by necessary

implication. The review is also not an appeal in disguise.

It cannot be denied that justice is a virtue which

transcends all barriers and the rules or procedures or

technicalities of law cannot stand in the way of

administration of justice. Law has to bend before justice.

If the Court finds that the error pointed out in the review

petition was under a mistake and the earlier judgment would

not have been passed but for erroneous assumption which in

fact did not exist and its perpetration shall result in

miscarriage of justice nothing would preclude the Court from

rectifying the error. This Court in S.Nagaraj & Ors.etc.

Vs. State of Karnataka & Anr.etc. [1993 Supp. (4) SCC

595] held:

"Review literally and even judicially means re-

examination or re-consideration. Basic philosophy inherent

in it is the universal acceptance of human fallibility. Yet

in the realm of law the courts and even the statutes lean

strongly in favour of finality of decision legally and

properly made. Exceptions both statutorily and judicially

have been carved out to correct accidental mistakes or

miscarriage of justice. Even when there was no statutory

provision and no rules were framed by the highest court

indicating the circumstances in which it could rectify its

order the courts culled out such power to avoid abuse of

process or miscarriage of justice. In Raja Prithwi Chand

Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court

observed that even though no rules had been framed

permitting the highest Court to review its order yet it was

available on the limited and narrow ground developed by the

Privy Council and the House of Lords. The Court approved

the principle laid down by the Privy Council in Rajunder

Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that

an order made by the Court was final and could not be

altered:

'...nevertheless, if by misprision in embodying the

judgments, by errors have been introduced, these Courts

possess, by Common Law, the same power which the Courts of

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record and statute have of rectifying the mistakes which

have crept in.... The House of Lords exercises a similar

power of rectifying mistakes made in drawing up its own

judgments, and this Court must possess the same authority.

The Lords have however gone a step further, and have

corrected mistakes introduced through inadvertence in the

details of judgments; or have supplied manifest defects in

order to enable the decrees to be enforced, or have added

explanatory matter, or have reconciled inconsistencies.'

Basis for exercise of the power was stated in the same

decision as under:

'It is impossible to doubt that the indulgence extended

in such cases is mainly owing to the natural desire

prevailing to prevent irremediable injustice being done by a

Court of last resort, where by some accident, without any

blame, the party has not been heard and an order has been

inadvertently made as if the party had been heard.'

Rectification of an order thus stems from the

fundamental principle that justice is above all. It is

exercised to remove the error and not for disturbing

finality. When the Constitution was framed the substantive

power to rectify or recall the order passed by this Court

was specifically provided by Article 137 of the

Constitution. Our Constitution-makers who had the practical

wisdom to visualise the efficacy of such provision expressly

conferred the substantive power to review any judgment or

order by Article 137 of the Constitution. And clause (c) of

Article 145 permitted this Court to frame rules as to the

conditions subject to which any judgment or order may be

reviewed. In exercise of this power Order XL had been

framed empowering this Court to review an order in civil

proceedings on grounds analogous to Order XLVII Rule 1 of

the Civil Procedure Code. The expression, for any other

sufficient reason in the clause has been given an expanded

meaning and a decree or order passed under misapprehension

of true state of circumstances has been held to be

sufficient ground to exercise the power. Apart from Order

XL Rule 1 of the Supreme Court Rules this Court has the

inherent power to make such orders as may be necessary in

the interest of justice or to prevent the abuse of process

of Court. The Court is thus not precluded from recalling or

reviewing its own order if it is satisfied that it is

necessary to do so for sake of justice."

The mere fact that two views on the same subject are

possible is no ground to review the earlier judgment passed

by a Bench of the same strength.

This Court in M/s.Northern India Caterers (India) Ltd.

Vs. Lt.Governor of Delhi [AIR 1980 SC 674] considered the

powers of this Court under Article 137 of the Constitution

read with Order 47 Rule 1 CPC and Order 40 Rule 1 of the

Supreme Court Rules and held:

"It is well settled that a party is not entitled to seek

a review of a judgment delivered by this Court merely for

the purpose of a rehearing and a fresh decision of the case.

The normal principle is that a judgment pronounced by the

Court is final, and departure from that principle is

justified only when circumstances of a substantial and

compelling character make it necessary to do so. Sajjan

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Singh v. State of Rajasthan, (1965) 1 SCR 933 at p.948.

For instance, if the attention of the Court is not drawn to

a material statutory provision during the original hearing.

G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The

Court may also reopen its judgment if a manifest wrong has

been done and it is necessary to pass an order to do full

and effective justice. ON Mohindroo v. Dist. Judge,

Delhi, (1971) 2 SCR 11 at p.27. Power to review its

judgments has been conferred on the Supreme Court by Art.137

of the Constitution, and that power is subject to the

provisions of any law made by Parliament or the rules made

under Art.145. In a civil proceeding, an application for

review is entertained only on a ground mentioned in O.

XLVII, Rule 1 of the Code of Civil Procedure and in a

criminal proceeding on the ground of an error apparent on

the face of the record. (Order XL, R.1, Supreme Court

Rules, 1966). But whatever the nature of the proceeding, it

is beyond dispute that a review proceeding cannot be equated

with the original hearing of the case, and the finality of

the judgment delivered by the Court will not be reconsidered

except where a glaring omission or patent mistake or like

grave error has crept in earlier by judicial fallibility.

Chandra Kanta v. Sheikh Habib, (1975) 3 SCR 935."

Article 137 empowers this Court to review its judgments

subject to the provisions of any law made by Parliament or

any rules made under Article 145 of the Constitution. The

Supreme Court Rules made in exercise of the powers under

Article 145 of the Constitution prescribe that in civil

cases, review lies on any of the ground specified in Order

47 Rule 1 of the Code of Civil Procedure which provides:

"Application for review of judgment -(1) Any person

considering himself aggrieved -

(a) by a decree or order from which an appeal is

allowed, but from which, no appeal has been preferred.

(b) by a decree or order from which no appeal is

allowed, or

(c) by a decision on a reference from a Court of Small

Causes, and who, from the discovery of new and important

matter or evidence which, after the exercise of due

diligence, was not within his knowledge or could not be

produced by him at the time when the decree was passed or

order made, or on account of some mistake or error apparent

on the face of the record, or for any other sufficient

reason, desires to obtain a review of the decree passed or

order made against him, may apply for a review of judgment

to the Court which passed the decree or made the order."

Under Order 40 Rule 1 of the Supreme Court Rules no

review lies except on the ground of error apparent on the

face of the record in criminal cases. Order 40 Rule 5 of

the Supreme Court Rules provides that after an application

for review has been disposed of no further application shall

be entertained in the same matter.

In A.R. Antulays case (supra) this Court held that the

principle of English Law that the size of the Bench did not

matter has not been accepted in this country. In this

country there is a hierarchy within the Court itself where

larger Benches overrule smaller Benches. This practice

followed by the Court was declared to have been crystalised

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as a rule of law. Reference in that behalf was made to the

judgments in Javed Ahmed Abdul Hamid Pawala v. State of

Maharashtra [1985 (2) SCR 8], State of Orissa v. Titaghur

Paper Mills [AIR 1985 SC 1293], Union of India v. Godfrey

Philips India Ltd. [1985 Supp. (3) SCR 123. In that case

the Bench comprising seven judges was called upon to decide

as to whether the directions given by the Bench of this

Court comprising five judges in the case of R.S. Nayak v.

A.R. Antulay [AIR 1984 SC 684] were legally proper or not

and whether the action and the trial proceedings pursuant to

those directions were legal and valid. In that behalf

reference was made to the hierarchy of Benches and practice

prevalent in the country. It was observed that Court was

not debarred from reopening the question of giving proper

directions and correcting the error in appeal if the

direction issued in the earlier case on 16th February, 1984

were found to be violative of limits of jurisdiction and

that those directions had resulted in deprivation of

fundamental rights of a citizen granted by Articles 14 and

21 of the Constitution of India. The Court referred to its

earlier judgment in Prem Chand Garg vs. Excise Commissioner

U.P., Allahabad [AIR 1963 SC 996], Naresh Shridhar Mirajkar

v. State of Maharashtra [1966 (3) SCR 744 = AIR 1967 SC 1],

Smt.Ujjam Bai v. State of U.P. [1963 (1) SCR 778 = AIR

1962 SC 1621] and concluded that the citizens should not

suffer on account of directions of the Court based upon

error leading to conferment of jurisdiction. The directions

issued by the Court were found on facts to be violative of

the limits of jurisdiction resulting in the deprivation of

the fundamental rights guaranteed to the appellant therein.

It was further found that the impugned directions had been

issued without observing the principle of audi alteram

partem.

It follows, therefore, that the power of review can be

exercised for correction of a mistake and not to substitute

a view. Such powers can be exercised within the limits of

the statute dealing with the exercise of power. The review

cannot be treated an appeal in disguise. The mere

possibility of two views on the subject is not a ground for

review. Once a review petition is dismissed no further

petition of review can be entertained. The rule of law of

following the practice of the binding nature of the larger

Benches and not taking different views by the Benches of

coordinated jurisdiction of equal strength has to be

followed and practised. However, this Court in exercise of

its powers under Article 136 or Article 32 of the

Constitution and upon satisfaction that the earlier

judgments have resulted in deprivation of fundamental rights

of a citizen or rights created under any other statute, can

take a different view notwithstanding the earlier judgment."

In the instant case, the review is sought on the ground

that the petitioner was juvenile on the date of commission

of the offence. According to the learned counsel appearing

for the petitioner it is contended that as per school

records the date of birth of the petitioner was 1.2.1977.

He was 15 years 1 month and 7 days old on the date of

occurrence. According to him the medical examination

conducted on 23rd December, 1997 revealed that the accused

was 15 years two months and 15 days old on the relevant

date. It is contended that the petitioner could not have

been tried by a court other than the juvenile court as per

Sections 23 and 24 of the Juvenile Justice Act, 1986

(hereinafter referred to as "the Act"). As the trial was

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concededly not conducted by a juvenile court, the whole

proceedings were liable to be quashed. It is further

contended that the trial court wrongly held the petitioner

to be more than 20 years of age and the High Court erred in

not deciding the question of age despite concession made by

the counsel appearing for the petitioner. It is submitted

that the counsel of the accused could not have sacrificed

the interest of the accused and should have insisted for a

finding from the court regarding his being a child or a

juvenile. It is further submitted that the evidence on

record requires re-examination as allegedly there are

numerous inconsistencies and contradictions, the benefit of

which is to go to the accused. Though not pleaded, yet the

learned counsel argued that as the judgment was pronounced

on the same day when the conviction was recorded, the

mandate of Section 235 of the Code of Criminal Procedure

(hereinafter referred to as "the Code") stood violated.

The grounds urged in the petition and at the Bar do not

make out a case for review. In the guise of this petition,

the petitioner has sought the re-appraisal of the whole

evidence firstly to hold him not guilty and even if he is

found guilty to give him the benefit of the Act. The

contentions raised and the prayer made are admittedly beyond

the scope of review. This petition can be dismissed only on

this ground. However, being the case of death sentence, we

have decided to consider the whole matter in depth to

ascertain as to whether the petitioner is entitled to the

benefit of the Act or not. We have further opted to

consider that even if he is not proved to be juvenile, can

he be given the benefit of his age on the ground of his

allegedly being on the borders of the age contemplated under

the Act for the purposes of awarding him the alternative

sentence of imprisonment for life.

A perusal of the record shows that during the

investigation, inquiry and trial, though represented by

Senior Counsel, no plea was ever raised regarding the

petitioner being juvenile and the case being governed by the

provisions of the Act. Only at the time of arguments, plea

regarding the accused being Juvenile was raised on the basis

of defence evidence and the statement of Dr.B.C. Roy Medhi.

However, such evidence appears to have been brought on

record for the purposes of avoiding the death sentence and

not for the applicability of the Act. Even in his

application for grant of bail under Section 437 of the Code,

the petitioner had not raised the plea of being under the

age of 16 years entitling him bail under the first proviso

to Sub-section (1) of Section 437 of the Code. Neither in

his confessional statement, recorded by the Magistrate, nor

in the memo of appeal filed in the High Court, such plea was

ever raised.

The Act has been enacted to provide for the care,

protection, treatment, development and rehabilitation of

neglected or delinquent juveniles and for the adjudication

of certain matters relating to and disposition of delinquent

juveniles. The object of the Act is to provide

extraordinary procedure for offences alleged to be committed

by a child/juvenile and punishment thereof. The Act is a

complete Code in itself. "Juvenile" has been defined to

mean a boy who has not attained the age of 16 years or a

girl who has not attained the age of 18 years and

"delinquent juvenile" means a juvenile who has been found to

have committed an offence. Section 5 of the Act authorises

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the State government for constitution of juvenile courts for

exercising the powers and discharging the duties conferred

on such courts in relation to delinquent juvenile under the

Act. Section 8 of the Act provides that when any Magistrate

not empowered to exercise the power of a Board or a Juvenile

Court under this Act is of the opinion that a person brought

before him under any of the provisions of the Act is a

juvenile, he shall record such opinion and forward the

juvenile and the record of the proceeding to the competent

authority having jurisdiction over the proceeding. Such a

power can be exercised by the Magistrate either on the

complaint made to it or its own observations regarding the

age of the accused appearing before him. In the absence of

an order of a Magistrate, the competent authority under the

Act cannot hold inquiry for the purpose of determining

whether the person brought before it is a juvenile or not.

In the instant case when the accused was produced before the

Magistrate, powers under Section 8 were not exercised,

obviously upon satisfaction of the Magistrate that the

accused did not appear to be a juvenile. No plea appears to

have been taken by the accused of his being a child/

juvenile either before the Magistrate or before the court,

with the result that no inquiry, as contemplated under the

Act, was ever held about his age. Even in the absence of an

inquiry under the Act, the Sessions Court, after the case is

committed to it has the power to make inquiry and determine

the age of the accused if it considers it necessary in the

interests of justice or a prayer is made in that behalf.

The word "inquiry" appearing in sub-section (2) of Section 8

means inquiry under the Act and not inquiry under Section

2(g) of the Code.

Chapter III of the Code deals with the powers of the

Criminal Courts. Section 26 specifies the courts by which

various offences are triable. Section 27 deals with the

jurisdiction of the criminal courts in case of juvenile. It

provides that when any offence not punishable with death or

imprisonment for life, committed by any person, who, at the

date when he appears or is brought before the court is under

the age of sixteen years, such accused can be tried by the

court of Chief Judicial Magistrate or by any court specially

empowered under the Children Act or any other law for the

time being in force providing for the treatment, training or

rehabilitation of the youthful offenders. The Act was

enacted in the year 1986, without incorporating any

amendment in Section 27 of the Code. A harmonious reading

of the Act, particularly Section 8 and Section 27 of the

Code would lead us to hold that whenever any delinquent

juvenile, accused of an offence, irrespective of the

punishment imposable by law, is produced before a Magistrate

or a court, such Magistrate or the court, after it is

brought to its notice or is observed by the Magistrate or

the court itself that the accused produced before it was

under the age of 16 years, shall refer the accused to the

Juvenile Courts if the Act is applicable in the State and

the courts have been constituted or otherwise refer the case

to the Court of Chief Judicial Magistrate who will deal with

the matter in accordance with the provisions of law. As

noticed earlier, neither the investigating agency, nor the

Magistrate or the Court or the accused felt the necessity of

application of the provisions either of Section 27 of the

Code or the provisions of the Act, particularly Section 8

thereof.

In the case of the petitioner, it appears that the

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investigating officer, the Magistrate before whom the

accused was produced, the Magistrate who recorded his

confessional statement and the Sessions Court to whom the

accused was committed did not find that the accused was a

juvenile or a child. Such Magistrate and court were in a

better position to form an opinion regarding the age of the

accused who had admittedly appeared before them as they had

the opportunity to see and observe him. There is no doubt

in our mind that the plea of the petitioner being the

juvenile is not only an after-thought but a concoction of

his imagination at a belated stage to thwart the course of

justice by having resort to wrangles of procedures and

technicalities of law.

In a case where the accused had not raised the plea of

his being a child/Juvenile either before the committal

court, or the trial court, in appeal the High Court basing

merely on an entry made in the statement recorded under

Section 313 of the Code, wherein his age was mentioned as 17

year, concluded that he was a child. Setting aside the

Judgment of the High Court in State of Haryana vs. Balwant

Singh [1993 Supp. (1) SCC 409] this Court held:

"We have gone through the records carefully. It appears

that the respondent took his trial before the trial court

only on being committed by the Magistrate. It may be

noticed that the age of the respondent before the trial

court even at the stage of framing the charge was given at

17 years. Evidently, the Magistrate before whom the

respondent was brought, was not satisfied that the

respondent was a child within the definition of word 'child'

under the Haryana Children Act. Admittedly, neither before

the committal court nor before the trial court, no plea was

raised on behalf of the respondent that he was a child and

that he should not have been committed by the Magistrate and

thereafter tried by the Sessions court and that he ought to

have been dealt with only by the court of Juveniles. When

it is not the case of the respondent that he was a child

both before the committal court as well as before the trial

court, it is very surprising that the High Court, based

merely on the entry made in Section 313 statement mentioning

the age of the respondent as 17 has concluded that the

respondent was a 'child' within the definition of the Act on

the date of the occurrence though there was no other

material for that conclusion. This observation of the High

Court, in our considered view, cannot be sustained either in

law or on facts. Hence, we set aside that finding of the

High Court that the respondent was a 'child'."

On the contrary, in the instant case, the Supervision

Notes (dated 9.3.1992 to 12.3.1992) of Shri NM APS

Additional Superintendent of Police, Morigaon, Assam, who

was supervising the investigation, noted Ram Deo Chauhan

accused to be of about 20 years of age. In the confessional

statement of the accused recorded on 27th March, 1992 his

age is mentioned as 20 years. Such age appears to have been

either disclosed by the accused himself or observed by the

court recording the statement and is no way near the age of

a juvenile prescribed under the Act. In Exhibit 5, page

128, the Magistrate has recorded, "Statement of accused,

aged about 20 years made in the Assamese language".

In his statement recorded by the trial court on 31st

March, 1998, the petitioner gave or the court observed his

age as 25 years 6 months as on 20th September, 1997, which

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shows that he was more than 20 years of age on the date of

occurrence, concededly not near or about the age of juvenile

as defined under the Act.

Dealing with the arguments of the petitioner being a

juvenile, though raised at a belated stage, the trial court

dealt with the question of his age from paras 47 to 62 of

its judgment and concluded:

"As such, in my view, he was not below 16 years of age

at the time of alleged commission of the crime and he was

not a juvenile to attract the provisions of Juvenile Justice

Act, 1986."

The High Court is also shown to have looked into the

statements of Firato Chauhan (DW 1) Satnarayan Jadav (DW 2)

besides Dr. B.C. Roy Medhi court witness for the purposes

of ascertaining the age of the accused. However, the

statements of those witnesses were not discussed in detail

in view of the statement of Mr. J.M. Choudhry, advocate

stated to be renowned criminal lawyer, who represented the

accused, that he was not challenging the findings of the

trial court on the point of age of the accused. It appears,

as usually happens during the course of the arguments in a

court, that the evidence produced regarding the age of the

accused in this case, was deliberated and realising the

tentative views of the court on the point and in the light

of preponderance of evidence, the learned defence counsel

rightly conceded, "he was not challenging the findings of

the Trial Court on the point of age of the accused". It is

contended that despite such a statement of the defence

counsel, the High Court ought to have discussed the

statement of the witnesses regarding age and arrived at its

own independent conclusions. We feel such a course, if

adopted, would have been appreciable but if after noticing

the statements of the witnesses, hearing arguments and in

view of concession made by a counsel of stature, the High

Court itself has not returned a finding, that would not

render its judgment either illegal or be made a ground for

holding that the accused was minor at the time of

occurrence. Failure of the High Court to return a positive

finding on the subject with regard to the age of the accused

has necessitated the examination of whole evidence by us

even at this stage of the proceedings.

I am also satisfied that the petitioner was not a

juvenile within the meaning of the Act nor did he seriously

claim to be a juvenile for the purposes of getting the

benefit of Section 22 of the Act. The Judgment of the trial

court and the High Court cannot be assailed on the ground of

having been passed in violation of the mandate of law.

Despite holding that neither the petitioner was juvenile

nor the provisions of the Act were applicable in the case,

we examined this matter from another angle, i.e., to find

out as to whether the petitioner was near or about the age

of a juvenile for the purposes of ascertaining as to whether

the death sentence can be substituted by imprisonment for

life. We are of the considered opinion that the

technicalities of law cannot come in the way of dispensing

justice in a case where the accused is likely to be given

the extreme penalty imposable under law. In deference to

the judgment of this Court in Gopinath Ghosh v. State of

West Bengal [1984 Supp SCC 228] and Bhola Bhagat v. State

of Bihar [1997 (8) SCC 720] we have taken upon ourselves to

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examine as to whether the accused was a child or was near or

about the age of a juvenile for the purposes of ascertaining

as to whether the death sentence can be substituted by

imprisonment for life. The plea regarding the age of the

accused was determined by the trial court which dealt with

the evidence relating to the age of the accused before, it

holding:

"DW1 Firato Chauhan was subjected to severe cross-

examination and in the cross examination he admitted that

Rajanth, the accused is his second son after Suraj Chauhan,

his eldest son. There are three other sons after Ramdeo

Chauhan. According to him, his present age is 70 years and

the age of his only wife if 60 years. Two sons died and

thereafter his eldest son Suraj was born. Every son and

daughter born at an interval of three years. When he was 30

years old, his first child was born, that means, before 40

years his first child was born and his second child was born

before 37 years. Suraj was born before 34 years. So,

Ramdeo Chauhan must be bron befosre 31 years, that means,

present age of Ramdeo Chauhan is 31 years. Furthermore, his

first son Susraj has married before 10 years. He is now a

father of one female child. Rajnath Chauhan is his second

son, i.e. he was born after Suraj. Even if I hold that

Suraj was 18 years at the time of his marriage, now he must

be 28 years of age and Ramdeo Chauhan must be now 25 years

of age. If he is now 25 years of age, at the time of

alleged crime, he must be 19 years of age.

According to CW 1 Dr. Bhushan Chandra Roy Medhi, the

present age of the accused was above 20 years. He also

admitted that now-a-days, computerised method is used to

ascertain the age of a person, but that facility is not

available at GMCH. He further admitted that computerised

method of ascertaining age is a recent invention in the

medical science. Ultimately, he stated that accused cannot

be below 20 years, but it can exceed by one year.

In Jayamala v. Home Secretary, Govt of Jammu and

Kashmir in AIR 1982 SC 1247 (1982 Cr.L.J. 173) in paragraph

9, the Apex Court observed that - one can take judicial

notice that the margin of year in age examined by a

radiological examination is of two years on either side. In

the case in our hand, CW 1 Dr. Bhusan Cahndra Roy Medhi

categorically stated that the age of the accused cannot be

below 20 years, but it can exceed by one year. If we apply

the variation of margin of 2 years on lower side, the

accused must be eighteen years at present. If he is

eighteen years at present, at the time of alleged occurrence

he must be twelve years of age which is absolutely

impossible because according to evidence adduced by the

defence his age was above fifteen years at the time of

alleged occurrence. If we apply the variation of margin of

two years on the other side, accused may be twenty three

years at present. Then the accused cannot be below sixteen

years of age at the time of alleged occurrence to attract

the provisions of Juvenile Justice Act, 1986 as the alleged

occurrence took place before six years.

DW Satya Narayan Yadav exhibited the school admission

register and the relevant entry. But it seems that the

entry in the school admission register is based on a

transfer certificate issued by another school. As such,

Mailoo Hindi School is not the first school where the

accused first got admitted. Furthermore, from the cross

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examination, it appears that registers of the school are not

maintained properly. In the cross examination, prosecution

find out many irregularities in maintaining the school

register. This register did not contain any official label

which seems to be torn away. There was no note regarding

the age at the time of admission in register. He could not

say on what basis date of birth was noted in the school

admission register. There is no mention of the year in the

admission here and there. He could not say who recorded the

entry in the register. Moreover, the school register

contains no serial page mark and as such there is scope of

manipulating the record by inserting new sheet of papers.

there is no seal and signature of the authority who supplied

the register to the school. It seems that it was made and

prepared at the school and DW 2 Sri Satya Narayan Yadav was

not the headmaster at the relevant time. He is present

headmaster and joined at school very recently. He has no

personal knowledge regarding the exhibit as well as the age

of the accused. In view of such evidence, the school

admission register cannot be said to be authentic and

original document of the age of the accused. Furthermore,

Rajasthan High Court in Smt. Tara Devi, Appellant v. Smt.

Sudesh Chaudhary, respondent reported in AIR 1998 Rajasthan

59 held that - Date of birth - Entries in school record -

Made by Headmasters in discharge of their official duties -

can be regarded as pieces of circumstantial evidence only

within meaning of s. 114 and not as direct evidence of date

of birth. Furthermore, in this case, the DW 2 the present

headmaster did not make the entries nor the entries were

made within his knowledge. But age of the boy was entered

into the register on basis of a Transfer Certificate

produced at the time of his admission in that school. The

source of the age recorded in the original school is not

known to us in order to ascertain whether the information

furnished at the time of first admission in the school was

correct or not and in his respect, no evidence has been

adduced. Furthermore, if the admission of the father in his

cross examination regarding the age of the accused is

accepted, entries in the school certificate cannot be said

to be correct particulars of the age of the accused. In

order to hold a school register or a school certificate as

the correct document regarding the age of a person, the

school certificate must be related to the accused and the

entries therein must be correct in their particulars. There

is no dispute that the school certificate relates to the

accused, but entries therein cannot be said to be correct in

view of the evidence of DW 2, the headmaster of Mailoo Hindi

High School and the admission of DW 1, the father of the

accused in his cross examination.

The prosecution also adduced evidence regarding the age

of the accused.

PW 4 Rani Kanta Das stated in his deposition that when

he first met the accused in the house of his younger brother

in the month of November, 1991 he asked him about his

address, father's name and also his age. He stated to him

that he was 20 years of age. According to PW 4, he seems to

be a grown up boy aged about 20 years at that time. But

that portion of the evidence was not challenged by defence

while cross examining PW 4. In my view, this controversy of

age is the outcome of after thought when it was seen that

prosecution almost succeeded in establishing the case

against the accused.

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As per Ext. 25, the accused Ramdeo Chauhan alias

Rajnath Chauhan stated before I/O that he was 20 years of

age when his statement was recorded by I/O on 8.3.92.

If he was 20 years in 1991, he must be now above 26

years which almost tallies with the age ascertained from DW

1, the father, in his cross examination, Furthermore, the

manner in which he committed the murder in a pre-planned

manner and without hesitation by chopping one after another

with a spade, which has been vividly described by him 9n his

confession made before the Judicial Magistrate, I think such

type of pre plan, cold blooded, ghastly, gruesome murder

cannot be possible for a boy below 16 years of age. It is

quite natural on the part of the father and the defence to

suppress the actual age to save the accused from the penalty

likely to be awarded for the brutal murder as provided U/S

302 IPC. If such type of incredible evidence is allowed, in

many cases, the accused will come up with such plea and

thereby rendering our justice system ineffective and also

eroding the credibility of the system. I am firm in my view

that accused must be minimum 25 years of age at present."

After examining the evidence led before the trial court

in this regard I find no reason to disagree with the

reasoned conclusions arrived at by the trial court.

It is not disputed that the Register of Admission of

students relied upon by the defence is not maintained under

any statutory requirement. The author of the Register has

also not been examined. The register is not paged at all.

Column No.12 of the register deals with "age at the time of

admission". Entries 1 to 45 mention the age of the students

in terms of the years, months and days. Entry No.1 is dated

25th January, 1988 whereas Entry No.45 is dated 31st March,

1989. Thereafter except for Entry No.45, the page is

totally blank and fresh entries are made w.e.f. 5.1.1990,

apparently by one person upto Entry No.32. All entries are

dated 5.1.1990. The other entries made on various dates

appear to have been made by one person though in different

inks. Entries for the years 1990 are upto the Entry No.64

whereafter entries of 1991 are made again apparently by the

same person. Entry No.36 relates to Raj Nath Chauhan, son

of Firato Chauhan. In all the entries except Entry No.32,

after 5.1.1990 in column No.12 instead of age some date is

mentioned which, according to the defence is the date of

birth of the student concerned. In Entry 32 the age of the

concerned student has been recorded. In column No.12 again

in the entries with effect from 9.1.1992, the ages of the

students are mentioned and not their dates of birth. The

manner in which the register has been maintained does not

inspire confidence of the court to put any reliance on it.

Learned defence counsel has also not referred to any

provision of law for accepting its authenticity in terms of

Section 35 of Evidence Act. The entries made in such a

register can not be taken as a proof of age of the accused

for any purpose.

Referring to the testimony of Dr.Bhushan Chandra Roy

Medhi, CW1, the learned counsel for the accused has tried to

make out a mountain out of mole. It appears that as per the

direction of the court dated 20th December, 1997, the

petitioner accused was examined by a Board of doctors to

ascertain his age. In their report Exhibit C dated

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23.12.1997 the Board opined "on the basis of physical

examination and radiological investigation of Sh.Raj Nath

Chauhan @ Ram Deo Chauhan, we are of the opinion that the

age of the individual at present is above (20) years" If the

accused was of atleast 20 years of age on 23.12.1997, his

date of birth can be held to be near or about 23rd December,

1977. In that way, taking his minimum age to be 20 years at

the time of his examination, he can be held to be of the age

of about 15 years and 10 months. As the doctors were

categoric in terms that he was above the age of 20 years on

the date of examination, it can safely be said that he was

more than 16 years of age on the date of occurrence. In

reply to a question the doctor Sh.Bhushan Chandra Roy Medhi

had stated that in my opinion the age of the accused cannot

be more than 21 years. In reply to a question by the

prosecution he had stated that "in my opinion the accused

definitely has not attained the age of 25 years". In reply

to the question put by the defence, the witness said "it is

not a fact that he was of 18 or 19 years of age at the time

of my examination. In this case the age of the accused

cannot be below 20 years, it can exceed one year but cannot

be below 20 years. It is not a fact that the accused was

below 20 years at the time of my examination".

Relying upon a judgment of this Court in Jaya Mala v.

Home Secretary, Government of Jammu & Kashmir & Ors. [1982

(2) SCC 538], the learned defence counsel submitted that the

court can take notice that the marginal error in age

ascertained by radiological examination is two years at

either side. The aforesaid case is of no help to the

accused inamsuch as in that case the court was dealing with

the age of a detenu taken in preventive custody and was not

determining the extent of sentence to be awarded upon

conviction of an offence. Otherwise also even if the

observation made in the aforesaid judgment are taken note

of, it does not help the accused in any case. The doctor

has opined the age of the accused to be admittedly more than

20 years and less than 25 years. The statement of the

doctor is no more than an opinion. the court has to base

its conclusions upon all the facts and circumstances

disclosed on examining of the physical features of the

person whose age is in question, in conjunction with such

oral testimony as may be available. An X-ray ossification

test may provide a surer basis for determining the age of an

individual than the opinion of a medical expert but it can

by no means be so infallible and accurate a test as to

indicate the exact date of birth of the person concerned.

Too much of reliance cannot be placed upon text books, on

medical jurisprudence and texicology while determining the

age of an accused. In this vast country with varied

latitude, heights, environment, vegetation and nutrition,

the height and weight cannot be expected to be uniform.

From the evidence produced and the material placed

before the courts below, there is not an iota of doubt in my

mind to hold that the petitioner was a child or near or

about the age of being a child within the meaning of the

Juvenile Justice Act or the Children Act. He is proved to

be major at the time of the commission of the offence. No

doubt, much less a reasonable doubt is created in the mind

of the Court, for the accused entitling him the benefit of a

lesser punishment. It is true that the accused tried to

create a smoke screen with respect to his age but such

efforts appear to have been made only to hide his real age

and not to create any doubt in our mind. The judicial

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system cannot be allowed to be taken to ransom by having

resort to imaginative and concocted grounds by taking

advantage of loose sentences appearing in the evidence of

some of the witnesses, particularly at the stage of special

leave petition. The law insists for finality of judgments

and is more concerned with the strengthening of the judicial

system. The courts are enjoined upon to perform their

duties with the object of strengthening the confidence of

the common man in the institution entrusted with the

administration of justice. Any effort which weakens the

system and shakens the faith of the common man in the

justice dispensation system has to be discouraged.

After committing the crime of murder of four innocent

persons, the petitioner cannot be permitted to resort to

adopt means and tactics or to take measures which, if

accepted or condoned, may result in the murder of the

judicial system itself. The efforts made by the accused by

way of this petition, are not likely to advance the

interests of justice but on the contrary frustrate it.

Learned counsel for the petitioner again made a futile

attempt to challenge the verdict of the trial court under

the cloak of technicalities and submitted that as the

sentence and conviction were recorded on the same day, the

judgment of the trial court was against the law. In support

of his contentions he relied upon the judgments of this

Court in Muniappan v. State of Tamil Nadu [1981 (3) SCC

11], Malkiat Singh & Ors. v. State of Punjab [1991 (4) SCC

341], State of Maharashtra v. Sukhdev Singh & Anr. [1992

(3) SCC 700].

Sub-section (2) of Section 235 of the Code provides that

if the accused is convicted, the judge shall unless he

proceeds in accordance with the provisions of Section 360,

hear the accused on the question of sentence and then pass

sentence on him according to law. In Muniappan's case

(supra) this Court held that the obligation to hear the

accused on the question of sentence is not discharged by

putting formal questions to him. The judge must make a

genuine effort to elicit from the accused all information

which will eventually bear on the question of sentence. It

was the duty of the court to cast aside the formalities of

the court scene and approach the question of sentence from a

broad, sociological point of view. In Malkiat Singh's case

(supra) this Court observed that hearing contemplated under

Section 235(2) of the Code is not confined merely to oral

hearing but also is intended to afford an opportunity to the

prosecution as well as the accused to place facts and

materials relating to various factors on the question of

sentence and if desired by either side to have evidence

adduced to show mitigating circumstances to impose a lesser

sentence or aggravating grounds to impose death penalty. It

was further observed that sufficient time must be given to

the accused or the prosecution on the question of sentence,

to show the grounds on which the prosecution may plead or

the accused may show that the maximum sentence of death may

be the appropriate sentence or the minimum sentence of life

imprisonment may be awarded as the case may be. It was

further observed that the sentence awarded on the same day

of finding guilt was not in accordance with law.

In both the aforesaid judgments the amendment made in

Section 309 of the Code was not taken note of. By Criminal

Procedure Code Amendment Act, 1978, a proviso was added to

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sub-section (2) of Section 309 to the effect that "Provided

also that no adjournment would be granted for the purposes

only of accepting the accused person to show cause against

the sentence proposed to be imposed upon him".

In Sukhdev Singh's case (supra) this Court while dealing

with Section 309(2), third proviso and Section 235(2) of the

Code and after referring to its earlier decisions in

Allauddin Mian & Ors. v. State of Bihar[1989 (3) SCC 5]

and Malkiat Singh's case, (supra) held:

"This proviso must be read in the context of the general

policy of expeditious inquiry and trial manifested by the

main part of the section. That section emphasises that an

inquiry or trial once it has begun should proceed from day

to day till the evidence of all the witnesses in attendance

has been recorded so that they may not be unnecessarily

vexed. The underlying object is to discourage frequent

adjournments. But that does not mean that the proviso

precludes the court from adjourning the matter even where

the interest of justice so demands. The proviso may not

entitle an accused to an adjournment but it does not

prohibit or preclude the court from granting one in such

serious cases of life and death to satisfy the requirement

of justice as enshrined in Section 235(2) of the Code.

Expeditious disposal of a criminal case is indeed the

requirement of Article 21 of the Constitution; so also a

fair opportunity to place all relevant material before the

court is equally the requirement of the said Article.

Therefore, if the court feels that the interest of justice

demands that the matter should be adjourned to enable both

sides to place the relevant material touching on the

question of sentence before the court, the above extracted

proviso cannot preclude the court from doing so."

The mandate of the Legislature is clear and unambiguous

that no adjournment can be granted for the purpose only of

enabling the accused person to show cause against the

sentence proposed to be imposed upon him. In a case

punishable with death or imprisonment for life, there is no

difficulty for the court where the sentence proposed to be

imposed is alternative sentence of life imprisonment but if

it proposes to award the death sentence, it has discretion

to adjourn the case in the interests of justice as held in

Sukhdev Singh's case. I have no doubt in holding that

despite the bar of third proviso to sub-section (2) of

Section 309, the Court, in appropriate cases, can grant

adjournment for enabling the accused persons to show cause

against the sentence proposed on him particularly if such

proposed sentence is sentence of death. We hold that in all

cases where a conviction is recorded in cases triable by the

Court of Sessions or by Special Courts, the court is

enjoined upon to direct the accused convict to be

immediately taken into custody, if he is on bail, and kept

in jail till such time the question of sentence is decided.

After the sentence is awarded, the convict is to undergo

such sentence unless the operation of the sentence awarded

is stayed or suspended by a competent court of jurisdiction.

Such a course is necessitated under the present

circumstances prevalent in the country and is in consonance

with the spirit of law. A person granted bail has no right

to insist to remain at liberty on the basis of the orders

passed in his favour prior to his conviction.

Upon consideration of all relevant circumstances and in

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view of the settled position of law, I have no doubt in my

mind that the present Review Petition is without merit, the

grounds mentioned therein have been concocted and carved out

for escaping the rigours of law and the sentence imposed

upon the accused by well considered judgments of the trial

court, High Court and this Court. The review petition is

accordingly dismissed.