The Supreme Court on Friday ordered the release of a 20-year-old man, who was awarded the death penalty for rape and murder of a four-year-old child in the Dhar district of Madhya Pradesh in 2017, after holding he was juvenile when the offense was committed. A bench of Justices BR Gavai, Vikram Nath, and Sanjay Karol said, “The conviction of the appellant (youth) is upheld; however, the sentence is set aside”.It said since the appellant at present would be more than 20 years old, there was no requirement of sending him to the Juvenile Justice Board or any other childcare facility or institution.?

“Appellant is in judicial custody. He shall be released forthwith,” the bench said and modified the November 15, 2018 order of the Indore bench of the Madhya Pradesh High Court by which it had confirmed his conviction and death sentence in the case.?The top court, which passed the verdict on the appeal of the ?youth, had ordered an inquiry by the trial court into the juvenility claim made by him.“We have perused the report and also the material evidence led before the Trial Court on the basis of which the conclusion has been drawn by the Trial Court. The report is based upon documentary evidence as also oral evidence of the present headmistress, the retired headmaster, five teachers of the primary institution, and also the guardian of the appellant,” the bench said.

It said it would also be pertinent to note that the institution is not a private institution but a government primary school and this court does not find any reason to disbelieve or even doubt the testimony of government servants both working and retired.?“In addition to the mark sheets by the institution, there is also the date of a birth certificate issued by the institution. Further, the original Scholar register and other documents were also produced before the Trial Court in the inquiry.?"This Court, therefore, has no reason to doubt the correctness of the conclusion arrived at by the Trial Court regarding the date of birth of the appellant. We, therefore, accept the report of the Trial Court and hold that the appellant was aged 15 years, 4 months, and 20 days on the date of the incident,” the bench held.

The top court rejected the plea of the state government that the accused be sent for an ossification test to ascertain his claim of juvenility on the ground that the state has not raised any objection during the inquiry done by the trial court.?“Secondly, the ossification test will only give a broad assessment of the age. It cannot give an exact age. There is also an element of margin of plus or minus 1 to 2 years. Even if we permit the said test, it does not lead us anywhere. It will have no bearing on the assessment made by the Trial Court after the inquiry,” it said. Referring to the provisions of the Juvenile Justice (Care and Protection) Act, 2015, the bench said the law provides full coverage to a person who is established to be a child on the date of the offense to avail the benefits admissible to a child under the law, even if the case has been finally decided and also the such person has attained majority.?

It said that sub-section (3) provides that if it is found in the inquiry that such a person was a child on the date of commission of such offense, then the Court is required to forward the child to the Juvenile Justice Board for passing appropriate orders and further if any sentence has been imposed by the Court, the same shall be deemed to have no effect.?“In view of the above statutory provisions and view of the findings recorded, the appellant having been held to be a child on the date of commission of the offense, the sentence imposed has to be made ineffective,” the bench said. Dealing with the conviction of the youth by the trial court and later affirmed by the high court, the bench said that having considered the statutory provisions laid down in 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 said the object under the 2015 Act dealing with the rights and liberties of the juvenile is only to ensure that if he or she could be brought into the mainstream by awarding a lesser sentence and also directing other facilities for the welfare of the juvenile in conflict with the law during his stay in any of the institutions defined under the 2015 Act.“The intention of the legislature was to give benefit to a person who is declared to be a child on the date of the offense only with respect to its sentence part.?"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, the 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,” it said.?

On December 15, 2017, the four-year-old went missing while playing with her friends outside her house in the Dhar district. Her parents filed a missing person’s complaint but the child’s mutilated and nude body was found the next morning a few meters away from her house. Police said she was bludgeoned to death with a stone.?Upon investigation, police questioned people in the vicinity and detained the youth, whose statements were found to be inconsistent.?The trial was fast-tracked and he was held guilty and sentenced to death by the lower court on May 17, 2018.?Under the Juvenile Justice Act, if a child above 16 but below 18 years of age has committed a heinous offense, he or she will be tried as an adult. The children’s court (section 18 of the JJ Act) can pass a sentence of more than 3 years imprisonment but not the death penalty or life imprisonment to juveniles in conflict with the law.