Kuldeep @ Bholu vs State Of Uttar Pradesh

Notice was issued in the Special Leave Petitions on 18 February 2019. On 5 April 2019, Mr Devansh A Mohta, learned counsel was requested to assist this Court as amicus curiae since the petitioner had filed the Special Leave Petitions from jail. Accordingly, on 12 July 2019, when the Special Leave Petitions came up for hearing before this Court, the following order was passed:

"The petitioner has been convicted of offences punishable under Section 376(2) (g) and Section 302 read with Section 34 of the Indian Penal Code 1860 as also under the Arms Act 1959 in Sessions Trial Nos.869 and 870 of 2003.

The High Court, by its judgment dated 2 August 2007 in Reference No.9 of 2005 and Criminal Appeal No.4166 of 2005, maintained the conviction, but commuted the sentence of death to imprisonment for life.

During the course of the hearing of the Special Leave Petition, Mr Devansh Mohta, who has been appointed as amicus curiae in view of the fact that the Special Leave Petition is filed from jail, submitted that on the date of the incident, namely, 22 August 2003, the petitioner was a juvenile. This has been submitted on the basis of the primary school record [Annexure P-1], in which the date of birth is adverted to as 15 June 1988.

Having regard to the provisions contained in Section 9(2) of the Juvenile Justice (Care and Protection of Children) Act 2015, we are of the view that it would be appropriate to direct the District Judge, Bullandshahar to conduct an enquiry into the claim of juvenility. We grant a period of three months from the date of receipt of a certified copy of this order to the District Judge to complete the enquiry. The District Judge shall forward a copy of the report to the Registry of this Court.

The Registry is directed to forward a certified copy of this order to the District Judge, Bullandshahar.

List the Special Leave Petition after the report is received from the District Judge."

Since the learned amicus curiae had raised the issue of juvenility, a report was summoned from the District Judge, Bulandshahar. The report dated 25 September 2019 was received. By an order dated 18 November 2019, the Registry was directed to supply a copy of the report to the learned amicus curiae and to the learned counsel appearing for the State of Uttar Pradesh. This exercise has been carried out.

The Sessions Judge, Bulandshahar, in his report dated 25 September 2019, has adverted to the fact that an inquiry was conducted earlier by the Sessions Judge while disposing of Criminal Appeal 54 of 2003 filed by the petitioner. By his judgment dated 20 May 2004, the Sessions Judge had come to the conclusion that on 22 August 2003, which is the date of the incident, the petitioner was not a juvenile.

In the recent report dated 25 September 2019, the Sessions Judge has again evaluated the documentary evidence and has come to the conclusion that the date of birth recorded as 15 June 1988 in the transfer certificate cannot be relied upon because of the discrepancies which have been noticed in the report. In that context, it has been observed:

"15. C.W.1 has pointed out in evidence that Kuldeep's date of birth is 15.06.1988 but in cross examination he has stated that there is no proof about date of birth of Kuldeep, submitted by the parents in school. In cross examination C.W. 1 also pointed out that it is not mentioned in the Transfer Certificate that in which class he has taken admission in the school. I have perused T.C.12B in which it is mentioned that the Transfer Certificate was issued after passing the Class 5 on 09.05.1997 and he took the admission on 05.07.1993 in the school is spent four years of period to pass five classes. How can a person pass five classes in four years. It is also not mentioned in the Transfer Certificate that applicant Kuldeep took the admission straight way in class 2. If it is so where he took the admission in class 1st, and of that no documents have been produced so its create suspicion over that document. Accused applicant has not submitted any parivar registered or any certificate about his date of birth.

Opposite/Court's witness O.C.W.1 has pointed out that in class 6th register and Transfer Certificate paper No.26B there is cutting over the name and the school where applicant took his prior education. As per paper No.27, Application was filed up by applicant's father in which previous institution of the applicant was primary pathshala mentioned. While there is cut in the name of the applicant Kuldeep and his previous institution name in paper No.26B.

O.C.W.1 has also pointed out in his evidence that there is over writing in the School register and cutting in the Date of Birth and O.P.W 1 has also pointed out that the serial no. is not in order and there is change in the serial order. I have perused the paper no.28B-2, the serial numbers 2373 and 2374 are disordered. In paper no.28B-3 attendance register, serial numbers 2373 and 2373 are disordered against the name of Kuldeep and also the date of birth of Kuldeep, there is overwriting, that appears to be mala fide and suspicious. So School documents which have given by the applicant appears to be suspicious and other documents filed by the O.P. also creates the suspicion over the Kuldeep school certificate. No date of birth certificate and parivar register has given by the applicant in support of application."

On the basis of the medical evidence, it has been concluded that the age of the accused on 21 October 2003 when he was examined by the Medical Officer of the Government Hospital, Bulandshahr [OCW-2] was between 19 to 20 years.

Having perused the report of the Sessions Judge, Bulandshahr dated 25 September 2019, we find that there has been a careful evaluation of the claim of the petitioner and a conclusion that he was not a juvenile on the date of the incident has been arrived at in accordance with law after due application of mind. The finding of the Sessions Judge does not warrant interference.

There is a delay of 3803 days in filing the Special Leave Petitions. As the Petitions have been lodged from jail, we condone the delay.

We have heard the learned amicus curiae as also the learned counsel for the State.

The High Court has evaluated the ocular evidence, including the eye-witness account of the mother of the deceased - victim PW 1. The judgment of the High Court does not warrant any interference under Article 136 of the Constitution. The Special Leave Petitions are accordingly dismissed.

We appreciate the able assistance rendered to the Court by Mr Devansh A Mohta, learned counsel, who appeared as amicus curiae.