Allahabad High Court
Lakhan Singh And Others vs State Of U.P. on 8 October, 2020
Bench: Pankaj Naqvi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 43 A.F.R Case :- CRIMINAL APPEAL No. - 2102 of 1983 Appellant :- Lakhan Singh And Others Respondent :- State of U.P. Counsel for Appellant :- P.N.Misra,A.N.Dayal,Apul Misra,Sarvesh Counsel for Respondent :- A.G.A.,Arun Kumar Singh,K.K.Tripathi Hon'ble Pankaj Naqvi,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J) Criminal Misc. Application No. 382916 of 2015
1. The present criminal appeal arises out of the judgement and order dated 3.9.1983, passed by IIIrd Additional Sessions Judge, Kanpur, in Sessions Trial No. 466/M of 1980 (State Vs. Lakhan Singh and others) whereby, accused-appellants Lakhan Singh, Ram Vijai Singh and Shiv Vijai Sigh have been convicted under section 302 read with section 34 I.P.C. and consequently, sentenced to rigorous imprisonment for life.
2. We have heard Mr. Anoop Trivedi, learned Senior Advocate, assisted by Ms. Anjali Singh, learned counsel for accused appellant-2, Ram Vijai Singh. Mr. A.N. Mulla, learned A.G.A along with Mr. Sameer Shankar A.G.A. as well as Mr. A.K. Kushwaha (AGA) and Mr. Arun Kumar Singh, learned counsel for informant.
3. Instant appeal came up for admission on 7.9.1983, when it was admitted and accused-appellants were enlarged on bail.
4. During the pendency of this appeal, appellant-1 Lakhan Singh died and therefore the appeal in respect of aforesaid appellant was abated vide order dated 26.11.2015.
5. After expiry of a period of more than 32 years, from the year of filing of present appeal, accused-appellant-2 Ram Vijai Singh filed an application dated 28.10.2015, claiming juvenility, to the effect on the date of occurrence i.e. on 20.7.1982, he was aged about 13 years and therefore a juvenile.
6. Instant criminal appeal was heard on 26.2.2020 and judgement was reserved. Ultimately, the appeal came to be dismissed by this Court vide judgment and order dated 22.4.2020. However, the application dated 28.10.2015, filed by accused appellant-2 Ram Vijai Singh claiming juvenility remained undecided.
7. Feeling aggrieved by judgement and order dated 22.4.2020, accused appellant-2 Ram Vijai Singh preferred Special Leave to Appeal (Criminal) No. 2898 of 2020 (Ram Vijai Singh vs. State of U.P) before Apex Court. Aforesaid special leave petition came up for orders on 28.7.2020 and Court passed the following order:-
"Having heard Shri Pranav Sachdeva, learned counsel for the petitioner, for some time, we are of the view that the miscellaneous application that was filed in 2015 raising the claim of the petitioner's juvenility at the time of the offence which has still not been decided, be decided within a period of four weeks from today by the High Court and if possible, judgment on the same be delivered within two weeks thereafter.
Adjourned.
Liberty to mention."
8. Pursuant to order dated 20.7.2020, Hon'ble the Chief Justice, vide order dated 30.7.2020 nominated instant Criminal appeal to this Bench for disposal of application dated 28.10.2015, filed by accused appellant-2 Ram Vijai Singh, claiming juvenility. This is how the present criminal appeal has come up for orders before this Bench.
9. The Bench proceeded with the matter. Considering the intricate issue involved in this application, the Court passed following order on 5.8.2020:-
"Re: Criminal Misc. Application dated 28.10.2015.
Pursuant to the order of the Apex Court dated 20.7.2020 in Special Leave Petition (Criminal) No. 2898 of 2020 (Ram Vijay Singh Vs. State of U.P.), the matter is listed before us. The Apex Court has called upon us to decide the application claiming juvenality of appellant no. 2- Ram Vijai Singh.
Case called out.
No one responds on behalf of appellant No.2 - Ram Vijai Singh.
An application dated 28.10.2015 claiming juvenality has been filed by Sri Apul Mishra, Advocate, but the Bench Secretary informed that Mobile phone of Sri Apul Mishra, Advocate, is switched off.
Issue notice to the informant or his legal heirs, if any, in order to enable him / her to file objections to the application dated 28.10.2015.
Learned A.G.A. is also at liberty to file his objection, if any.
The Chief Metropolitan Magistrate, Kanpur Nagar or the Judicial Magistrate concerned, as the case may be, is directed to ensure service of notice along with copy of application dated 28.10.2015 on the informant or his legal heir, if any, as the case may be.
List on 27.8.2020 in the additional cause list.
It is made clear that on the next date matter shall not be adjourned. We further make it clear that in the event learned counsel appearing on behalf of appellant No.2 - Ram Vijai Singh, does not ensure his presence, we may have no option but to appoint an Amicus.
Registry to take follow up action forthwith.
Copy of this order be also served upon Sri. A.N. Mulla, learned A.G.A. forthwith. "
10. Thereafter matter was taken up on 10.9.2020 and the Bench passed following order:-
"This is an expedited appeal from the Apex Court.
Sri Arun Kumar Singh, learned counsel for the informant has filed a counter affidavit, after serving a copy thereof to learned counsel for appellant no. 2 / Ram Vijai Singh today in the Court.
Sri Anoop Trivedi, the learned Senior Counsel for appellant no. 2 prays for and is granted time till Monday (14.9.2020) to rebut the affidavit.
Sri A.N. Mulla, assisted by Sri Sameer Shankar, learned AGA's are also directed to file a counter affidavit, averring therein the factum of obtaining of a fire-arm-licence by appellant no. 2.
Meanwhile, we deem appropriate to call for a radiological / ossification report as regards the age of appellant no. 2 / Ram Vijai Singh.
We, accordingly, direct the Jail Superintendent concerned and the Director, S.G.P.G.I., Lucknow to carry out radiological / ossification or any other latest technique test forthwith in order to ascertain the age of appellant no.2 / Ram Vijai Singh. The report must reflect the inner and the outer limit of age.
List in the additional cause list on 15.9.2020 along with the proposed report in a sealed cover.
Sri Sameer Shanker, the learned AGA shall obtain a computer generated copy of this order and intimate the authorities concerned personally forthwith for immediate compliance of this order as the present exercise is being carried out expeditiously under the orders of the Apex Court. "
11. Pursuant to order dated 10.9.2020, requisite correspondence was made with Sanjay Gandhi Postgraduate Institute of Medical Sciences (S.G.P.G.I), Lucknow to determine the age of accused appellant-2 Ram Vijai Singh by conducting radiological and ossification test. However as age determination facility is not available at S.G.P.G.I, Lucknow, the case of accused appellant-2 Ram Vijai Singh was accordingly referred to King George's Medical University (K.G.M.U), Lucknow.
12. Accordingly, a medical Board was constituted at K.G.M.U, Lucknow to determine the age of accused-appellant-2 Ram Vijai Singh. The same comprised of (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M. and Associated Hospitals, Lucknow, Professor (2) Dr. Mausami Singh, Additional Professor, Forensic Medicine & Texicology, (3) Dr. Garima Sehgal, Associate Professor, Department of Anatomy, (4)Pro. Pavitra, Rastogi, Department of Peridontolody, King George's Medical University (5) Dr. Sukriti Kumar, Assistant Professor, Department of Radiodiagnosis, KGMU, UP, Lucknow. Accused-appellant-2 gave his consent in writing for Medical Examination. Accordingly, X-ray of accused-appellant was taken on 14.9.2020 thereafter aforesaid Medical Board examined accused-appellant-2 Ram Vijai Singh and submitted report dated 18.9.2020 regarding his age. In the opinion of Medical Board, present age of accused-appellant-2 Ram Vijai Singh is in between 40-55 years. For ready reference report dated 18.9.2020 is reproduced herein under:-
KING GOERGE'S MEDICAL UNIVERSITY, U.P.,LUCKNOW.
DEPARTMENT OF FORENSIC MEDICINE & TOXICOLOGY
Ref. No.................. Date. 18/09/2020
EXAMINATION FOR DETERMINATION
Name of the person: Ram Vijai Singh
Address: District Jail, Kanpur
Requisition no: Cri 9089/GA/HC/ALLD/Dated: 10.9.2020 Dated 18/09/2020
From SI: ---- P.S. ........
Brought by PC: Ramesh Babu No: HC-1071 P.S: Police Line, Kanpur
History: ------.................................................
Age: 52 years (as stated by the individual)
Consent: from subject/parent: Attached
Date and time of examination: 18/09/2020, 2:35 PM
Marks of identification (1) Pin point brown mole presentation left side of face, 3 cm lateral to lateral canthus of left eye & 9.5 cm above left angle of ..........
(2) Old healed scar mark of size 1.8 cm x 2.5 cm present at dorsal surface of right forearm, 1.5 cm proximal to right styloid process & 25 cm distal to right elbow joint.
Physical Examination:
Height 168 cm.
Weight 76.7 kg.
General Built Good dood/moderate/poor
Voice Deep (Deep or soft)
Adam's Apple prominent (prominent/not prominent)
Hairs: Pubic Bushy (Absent/Downy/Sparse/Black/Rich/Bushy)
Axillary Bushy ( Absent/Downy/Sparse/Black/Rich/Bushy)
Moustache Bushy (Absent/Downy/Sparse/Black/Rich/Bushy)
Breasts: NA.
External genitaia: Well develioped
History of menarche/ejaculation NA
Other features, if any ...................................................
Dental Examinaton Total Number of Teeth: 29 Dental Formula (FDI/Modified) 17 16 15 14 13 12 11 22 22 23 24 25 26 27 28 47 46 45 44 43 42 41 31 32 33 34 35 36 37 Radiological examination:
X-Rays were taken on: 14/09/2020 Regions Findings:
1. X-Ray skull (Lateral & frontalview) 1. Xiphoid Process has been completely fused with body of sternum
2. X-Ray Chest (PA & lateral view) 2. Manubrium has not been fused.
3. 3. Lambdoid, Coronal & Sagittal Sutures are in uniting phase. They have not been fused completely NCCT head O.Pg Opinion:
Based on the physical, dental and radiological findings. I am of the opinion that the person is aged above Forty (40) years & below Fifty Five (55) years.
Place: Lucknow Head Department of Forensic Medicine & Toxicology K.G's Medical University, UP, Lucknow (1) Dr. Mousami Singh (3) Pro. Patitra Rastogi Additional Professor Department of Periodontology Forensic Medicine & Toxicology King George' Medical University (2) Dr. Garima Sehgal (4) Dr. Sukriti Kumar Associate Professor Assistant Professor Department of Anatomy Department of Radiodiagnosis KGMU, UP Lucknow (5) Prof. A.A. Mehdi Chief Medical Superintendent G.M & Associated Hospitals Lucknow
13. Medical report dated 18.9.2020, was sent to this Court, through the Government Advocate, in a sealed cover.
14. Subsequent to 10.9.2020, the Bench heard the matter on 23.9.2020. On aforesaid dates, above mentioned medical report was placed before the Bench in a sealed cover. The same was taken on record. Thereafter, it was opened and perused by the Bench. In the light of above, the Bench passed following order on 23.9.2020:
"Re: Crl. Misc. Application dated 28.10.2015 Rejoinder affidavit filed today is taken on record.
Two sealed envelops are opened before us, one bearing a letter of the Superintendent Jail, with the endorsement that as the age determination test facility is unavailable at the SGPGI, Lucknown, King George Medical University, Lucknow is being requested to conduct the requisite test of the appellant concerned, and the other is the medical report of the appellant concerned from the latter.
We take the report on record.
The office is directed to tender a copy of the report of the King George Medical University, Lucknow dated 18.9.2020, to all the parties concerned forthwith. Parties are at liberty to file a rebuttal, if any, positively by 26.9.2020.
Sri A.N. Mulla, the learned A.G.A, assisted by Sri Sameer Shanker, appeared for the State.
Put up for further hearing in the additional cause list on 28.9.2020. This date is fixed with the consent of all. "
15. In compliance of order dated 23.9.2020, State has filed a short counter affidavit dated 11.9.2020, whereas, informant has filed his objections dated 27.9.2020 to the Medical Report dated 18.9.2020 submitted by K.G.M.U, Lucknow. We shall refer to above noted counter affidavit/objection in the later part of this order.
16. Ultimately, counsel for parties were heard at length on 28.9.2020 and orders on the application dated 28.10.2015 filed by accused-appellant-2 Ram Vijai Singh claiming juvenility was reserved.
17. Before proceeding to consider the claim of accused-appellant-2 Ram Vijai Singh regarding juvenility, it would be prudent to refer to the statutory provisions contained in the relevant Act and Rules in the light of which, the contested claim of accused-appellant-2 regarding juvenility is to be decided.
18. In order to ameliorate children who are in conflict with law, it was felt necessary to enact a legislation which would be self sufficient in handling various facets of children who need care and protection and also children who are in conflict with law, as well as their reformation, punishment, custody, rehabilitation etc. Accordingly, The Juvenile Justice Act, 1986 was enacted. However, it was found that the act is deficient in catering the needs of a child who is in conflict with law. Accordingly, above Act, 1986 was repealed . Thereafter, Parliament enacted The Juvenile Justice (Care and Protection of Children) Act, 2000. The Act was a self contained Act as it encompasses within itself the method and methodology for reforming a child who is in conflict with law and also a child who needs care and protection. However, aforesaid Act could not keep face with the changing vicissitudes of time. Consequently, aforesaid Act was amended in the year 2006. Surprisingly the Rules supplementing the provisions of Act, 2000 were framed in 2015 known as Juvenile Justice (Care and Protection of Children) Rules, 2015. In spite of various amendments in Act 2000, it was felt that as Act 2000 is insufficient to answer the various contingencies which have arisen but are also required to be dealt with in an effective manner, it was therefore felt imperative that the law in respect of a child who is in conflict with law needs to be streamlined. Accordingly Act, 2000 as amended in 2006 was repealed. Parliament, accordingly, enacted Juvenile Justice (Care and Protection of Children) Act, 2015. To carry out the provisions of Act, 2015 the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 were framed.
19- We shall now refer to the relevant provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "Act, 2000"), as amended in 2006 and also the relevant rules of Juvenile Justice (Care and Protection of Children) Rules, 2015 (hereinafter referred to as "Rules, 2015"), which have a material bearing on the issue in hand. Section 49 of Act, 2000 and Rule 12 of Rules 2015 are relevant for the controversy in hand. Accordingly, same are reproduced herein under:-
"49. Presumption and determination of age.--
(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.
(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person."
"12. Procedure to be followed in determination of Age.
(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or Ihe juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
20. Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "Act, 2015") provides for presumption and determination of age of a juvenile. For ready reference, the same is reproduced herein under:
Presumption and determination of age (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (I) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.
21. It will not be out of place to mention here that to carry out the provision of Act, 2015, "The Juvenile Justice (Care and Protection of Children) Model Rules, 2016", have been framed. However, there is no provision in the aforesaid Rules supplementing the provisions of Section 49 of Act, 2015 which deals with presumption and determination of age of a child who is in conflict with law. Therefore, the Court has to decide the issue of juvenility as raised in above noted application with reference to Section 49 of Act, 2015.
22. Accused-appellant-2 Ram Vijai Singh has claimed juvenility on the ground that on the date of occurrence, he was juvenile as he was aged about 13 years. In support of his claim of juvenility, he has relied upon the entry occuring in the extract of family register, issued in the year 2015-16, wherein the approximate age of accused-appellant-2 Ram Vijai Singh has been mentioned as 31 years in the year 2001. Support has also been drawn from the Adhar Card issued to accused-appellant-2, wherein his year of birth has been mentioned as 1969. On the basis of aforesaid documents, it is sought to be urged by Mr. Anoop Trivedi, learned Senior Counsel for accused-appellant-2 Ram Vijai Singh that on the date of occurrence, accused-appellant-2 was aged about 13 years and therefore a juvenile. Lastly, reliance has been placed upon the order dated 22.10.1982, whereby, this Court enlarged accused-appellant-2 on bail during the pendency of trial on the ground of his being juvenile as per the report of radiologist. For ready reference order dated 22.10.1982 is reproduced herein under:
"The Radiologist's report, admittedly is that the applicant is between 15 ½ to 17 ½ years old. For that consideration alone and also taking in view that the applicant was armed with a Lathi, which is not a deadly weapon as such, the bail application is allowed.
Applicant, Ram Vijai Singh, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the Chief Judicial Magistrate, Kanpur in Crime No. 128 of 1982, P.S. Bidhuna District Kanpur. "
With reference to order dated 22.10.1982, it is sought to be urged by learned Senior Counsel appearing for appellant/accused-appellant-2 that this Court has already enlarged the accused-appellant-2 Ram Vijai Singh on bail on the ground that as per the radiological report, the age of accused-appellant-2 is between 15 ½ to 17 ½ years. The recital contained in the order dated 22.10.1982 shall be deemed to be correct and is not open to challenge. In case the same is diputed by any party, remedy was to approach the court which passed the order dated 22.10.1982. As same has not been done, the correctness or otherwise of the same cannot be examined now. It is also urged by learned Senior Counsel that since the rediologist report referred to in the order dated 22.10.1982 is not on record, the said issue cannot be raised or examined now.
23. Learned A.G.A. has filed short counter affidavit in above mentioned application, wherein it has been averred that information regarding age of accused-appellant-2 was sought to be obtained from Sri Thakur Ji Uttar Madhyamik Vidhyalaya, Koriyan, Sanigawan, Kanpur Nagar. However, the Principal of aforesaid Institution vide his letter dated 5.9.2020, has categorically stated that accused-appellant-2 has never studied in aforesaid institution.
24. It is also averred in counter affidavit that on 24.7.1982 an arm's licence bearing no. 7580, pertaining to S.B.B.L gun was issued in favour of accused-appellant-2.
25- Mr. A.N. Mulla learned A.G.A. alongwith Mr. Sameer Shankar (A.G.A.) and Mr. A.K. Kushwaha (A.G.A) submits that a paradoxical position has emerged in this case. On the one hand is the order dated 22.10.1982 passed by this Court whereby accused-appellant-2 Ram Vijai Singh was enlarged on bail on the ground of his being aged between 15 ½ & 17 ½ years, as per the report of radiologist. But the report of the radiologist relied upon by Court while passing order dated 22.10.1982 is not on record. On the other hand the accused-appellant-2 was issued a gun license bearing no. 7580 on 24.7.1982, whereas the occurrence took place on 20.7.1982. However, there is nothing on record to show that accused-appellant-2 had attained majority before 20.7.1982 or between 20.7.1982 to 24.7.1982.
26. Except for bringing the above noted facts on record, nothing substantial has been averred in the counter affidavit filed by State.
27. Informant has filed an objection to the medical report dated 18.9.2020, primarily on the ground that since gun license was issued in favour of accused-appellant-2, therefore, accused-appellant-2 was a major on the date of occurrence. Accused-appellant cannot blow hot and cold at the same time.
28. In the submission of Mr. Arun Kumar Singh, learned counsel for informant, medical report submitted by Medical Board alone is not sufficient to decide the age of accused appellant-2 and this Court can itself decide the claim of juvenility raised by accused-appellant-2. In support of aforesaid submission, reliance is placed upon Mukarrab and Others Vs. State of Uttar Pradesh, reported in (2017) 2 SCC 210. Referring to section 293 Cr.P.C. it has also been averred in the objection that at least one member of the Board should be summoned by this Court for cross-examination to ascertain the veracity of medical report dated 18.9.2020 submitted by Medical Board, K.G.M.U, Lucknow.
29. On the aforesaid pleadings and submissions urged by respective counsel, this Court has to decide the issue of juvenility raised by accused-appellant-2 Ram Vijai Singh.
30. Before we proceed to evaluate the material on record in the light of provision contained in Section 94 of Act, 2015, it would be worthwhile to refer to the judgement in Mukarrab and Others (Supra), wherein Court has dealt with the issue regarding determination of juvenility in a very pragmatic manner. Paragraphs 10, 11, 12, 15, 18, 19, 21, 22, 23, 24, 25, 26, 27 and 28 are relevant for the controversy in hand and accordingly, they are reproduced herein under:
"10. Age determination is essential to find out whether or not the person claiming to be a child is below the cut-off age prescribed for application of the Juvenile Justice Act. The issue of age determination is of utmost importance as very few children subjected to the provisions of the Juvenile Justice Act have a birth certificate. As juvenile in conflict with law usually do not have any documentary evidence, age determination, cannot be easily ascertained, specially in borderline cases. Medical examination leaves a margin of about two years on either side even if ossification test of multiple joints is conducted.
11. Time and again, the questions arise: How to determine age in the absence of birth certificate? Should documentary evidence be preferred over medical evidence? How to use the medical evidence? Is the standard of proof, a proof beyond reasonable doubt or can the age be determined by preponderance of evidence? Should the person whose age cannot be determined exactly, be given the benefit of doubt and be treated as a child? In the absence of a birth certificate issued soon after birth by the concerned authority, determination of age becomes a very difficult task providing a lot of discretion to the Judges to pick and choose evidence. In different cases, different evidence has been used to determine the age of the accused.
12. This Court in Arnit Das v. State of Bihar (2000) 5 SCC 488, clarified that the review of judicial opinion shows that the Court should not take a hyper-technical approach while appreciating evidence for determination of age of the accused. If two views are possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This approach was further reiterated by this Court in Rajindra Chandra v. State of Chhatisgarh and Another (2002) 2 SCC 287, in which it laid down that the standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt.
15. Summarizing the legal position as to the claim of juvenility and observing that such plea can be raised at any stage and after referring to various decisions, three-Judges Bench of this Court in Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 held as under:-
"39. Now, we summarise the position which is as under:
39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.
39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh (2009) 7 SCC 415 and Pawan (2009) 15 SCC 259 these documents were not found prima facie credible while in Jitendra Singh (2010) 13 SCC 523 the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.
39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.
39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised."
18. The question falling for consideration is whether the opinion of the Medical Board of AIIMS determining the age of the appellants between 35-40 years, can be accepted or not.
19. Learned Senior Counsel for the appellants contended that the general rule about age determination is that the age determined by the Medical Board vary plus or minus two years but the Medical Board in this case had fixed the age of the appellants at 35-40 years and going by the general rule, the age of the appellants is to be estimated as 38 years on the date of medical examination and giving additional benefit of one year in lowering the age in terms of Rule 12(3)(b), age of the appellants is to be determined as 37 years as on the date of medical examination on 02.05.2016. It was, therefore, submitted that taking the age of the appellants as 37 years as on 02.05.2016 which means that at the time of commission of the offence in 1994, the appellants would have been only aged about 15 years and, therefore, the benefit of Juvenile Justice Act to be extended to the appellants.
21. Per contra, learned counsel for the State submitted that the ossification test is not the sole criteria for determining the age and that the medical opinion has to be considered alongwith other cogent evidence. In support of this contention, reliance was placed upon Babloo Pasi v. State of Jharkhand and Anr. (2008) 13 SCC 133.
22. A reading of the above decision in Darga Ram alias Gunga's case shows that courts need to be aware of the fact that age determination of the concerned persons cannot be certainly ascertained in the absence of original and valid documentary proof and there would always lie a possibility that the age of the concerned person may vary plus or minus two years. Even in the presence of medical opinion, the Court showed a tilt towards the juvenility of the accused. However, it is pertinent to note that such an approach in Darga Ram alias Gunga's case was taken in the specific facts and circumstances of that particular case and any attempt of generalising the said approach could not be justifiably entertained.
23. It is well-accepted fact that age determination using ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case. After referring to Bhola Bhagat's case and other decisions, in Babloo Pasi's case, this Court held as under:-
"18. Nevertheless, in Jitendra Ram v. State of Jharkhand (2006) 9 SCC 428 the Court sounded a note of caution that the aforestated observations in Bhola Bhagat (1997) 8 SCC 720 would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit and each case has to be considered on the basis of the materials brought on record.
22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.
23. It is true that in Arnit Das v. State of Bihar (2000) 5 SCC 428 this Court has, on a review of judicial opinion, observed that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishments for having committed serious offences."
24. In Criminal Appeal No. 486 of 2016 dated 12.05.2016, Parag Bhati (Juvenile) through Legal Guardian-Mother-Smt. Rajni Bhati v. State of Uttar Pradesh and Anr., after referring to Abuzar Hossain case and other decisions of this Court, this Court held as under:-
"34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue." [Emphasis added] From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences.
25. Keeping in view the above principles, let us consider the medical opinion of the Medical Board determining the age of the appellants as between 35-40 years on the date of examination that is on 02.05.2016. This wide variation in the age, even as per medical opinion is because of the reason that it was now too late, because of the advanced age of the appellants to have precise determination of his age. As noted earlier, such a plea of juvenility is raised for the first time in this Court and the same has to be considered on the material brought on record before this Court. On the basis of the age of the appellants (Mukarrab and Arshad) determined between 35-40 years in May, 2016, giving a variation of two years in upper age limit i.e. age of the appellants would be 38 years. Giving additional benefit of lowering their age by one year in terms of Rule 12(3)(b) would bring their age as 37 years as on May, 2016. That means the appellants are supposed to be born in 1979 and at the time of occurrence in 1994, the appellants would have been of around 15 years of age.
26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At page 31 of Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.
Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.
27. In a recent judgment, State of Madhya Pradesh v. Anoop Singh (2015) 7 SCC 773, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh's cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in pediatric group in central Rajasthan", which reads as under:-
"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification alongwith epiphyseal fusion.
[Ref: Gray H. Gray's Anatomy. 37th ed. Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342];
A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.
[Ref: Parikh CK. Parikh's Textbook of Medical Jurisprudence and Toxicology. 5th edn.: Mumbai Medico-Legal Centre Colaba:1990;44-45];
Variations in the appearance of center of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of Wrist Ossification for age estimation in pediatric group in Central Rajasthan" by Dr. Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973]."
31. On the pleadings of parties and the law as noted above, two issues arise for determination in this application. Firstly, whether issue of juvenility raised by accused-appellant-2 Ram Vijai Singh that he was a juvenile on the date of occurrence i.e. 20.7.1982 has to be decided as per the provisions of Act, 2000 as applications for claiming juvenility was filed by him in this Court in the year 2015 or Act, 2015 which is now in force and Act, 2000 stands repealed. Secondly, whether on the material available on record, accused-appellant-2 Ram Vijai Singh can be declared to be a juvenile on the date of occurrence i.e. on 20.7.1982 within the parameters circumferenced by Section 49 of Act, 2015.
Issue No.1
32. It transpires from record that the occurrence giving rise to present criminal proceedings took place on 20.7.1982 The application for claiming juvenility was filed by accused-appellant-2 Ram Vijai Singh on 28.10.2015 before this Court i.e. after he had been convicted by Court below vide judgement and order dated 3.9.1983. The application claiming juvenility was filed in the year 2015. At this point of time, Act 2000 was in force. Act, 2000 came to be repealed by Act 2015 which came into force on 1.1.2016. The application for claiming juvenility by accused-appellant-2 Ram Vijai Sigh remained pending, but no order was passed on the same. Unfortunately, the appeal was dismissed vide judgement and order dated 22.4.2020, but the application dated 28.10.2015 was not decided. Against order dated 22.4.2020, accused-appellant-2 Ram Vijai Singh preferred Special Leave to Appeal (Criminal) No. 2898 of 2020 (Ram Vijai Singh vs. State of U.P), wherein an order dated 28.7.2020 was passed, directing this Court to decide the application filed by accused-appellant-2 Ram Vijai Singh claiming juvenility. On date, the provisions of Act, 2015 are in force. Thus the issue required to be determined by us is that once the application claiming juvenility was filed by accused appellant-2 Ram Vijai Singh in the year 2015, the same has to be decided as per Act, 2000 or Act, 2015.
33. Section 111 of Act, 2015 which deals with repeal and saving of Act, 2000 reads as under:
"111. Repeal and Savings.- (1) The Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act."
34. A similar issue arose in respect of Act, 1986 and Act, 2000. The same was considered by a learned Single Judge of this Court in Manoj Vs. State of U.P., 2014 (8) ADJ 293, wherein following has been observed as follows in paragraph 17:-
"17. In the case of Dharambir Vs. State (NCT of Delhi and another) (2010) 5 SCC 344, the Apex Court in case where accused was 16 years 9 months old on date of occurrence 25.8.1991, has held that. "In a claim for juvenility, Juvenile Justice Act, 2000 has a retrospective application to pending case and all persons who were below of age of 18 years on the date of crime, even prior to 1.4.2001, held can claim benefit of juvenility under 2000 Act, even if claim of juvenility is raised after they have attained the age of 18 yeas on or before the age of commencement of 2000 Act and were undergoing sentence upon being convicted." Observing that appellant had undergone sentence of imprisonment of 2 years 4 months and 4 days and is now 35 years old, sustaining the convictions the sentence was quashed with directions for release forthwith. "
35. Similar is the position in the present case. By virtue of Section 111 of Act, 2015, the provisions of this very Act alone shall apply. Accordingly, we hold that the issue of juvenility raised by accused-appellant-2 Ram Vijai Singh claiming himself to be a juvenile on the date of occurrence i.e. 20.7.1982 has to be decided as per the mandate of law contained in Section 94 of Act, 2015 alone.
Issue No.2
36. Issue No.2 involved in this application is to the following effect:- Whether on the material available on record, accused-appellant-2 Ram Vijai Singh can be declared to be a juvenile on the date of occurrence within the parameters circumferenced by Section 49 of Act, 2015.
37. Section 94 of Act, 2015 contemplates that in order to determine the age of a child who is in conflict with law, attempt should be made to obtain the birth certificate from school, or the matriculation or equivalent certificate from the concerned examination Board. Only in the absence of above, reliance can be placed upon the birth certificate given by a corporation or a municipal authority or a panchayat. It is only when either of certificates are not available, only then the age of a child can be referred for determination by conducting an ossification test or any other latest medical age determination test.
38. Admittedly in the present case, there is no date of birth certificate or matriculation or equivalent certificate of accused-appellant-2. Similarly, there is no birth certificate given by a corporation or a municipal authority or a panchayat of accused-appellant-2 on record. Therefore, of necessity the age of accused-appellant-2 can be determined only by getting conducted an ossification test/radiological test.
39. It was in the light of above that this Court passed the order dated 10.9.2020, in compliance of which, duly constituted medical Board got conducted the radiological test as well as ossification test and on the basis thereof determined the age of accused-appellant-2 Ram Vijai Singh as between 40 to 50 years vide its report dated 18.9.2020. We have already reproduced the medical report dated 18.9.2020 at the relevant place.
40. The material on record has created a conundrum before this Court inasmuch as there are three equally weighing circumstances operating in the same circumstance but contradictory. First is the order dated 22.10.1982, passed by this Court, whereby accused-appellant-2 Ram Viajai Singh was enlarged on bail by this Court during the pendency of trial, primarily on the ground that as per the report of radiologist, his age is between 15 ½ to 17 ½ years. However, the radiological report referred to in the order dated 22.10.1982 is not on record. Apart from above, the recital conatined in aforesaid order dated 20.9.1982 shall be deemed to be correct and in case the same is sought to be disputed, it could have been challenged before the Court which passed the order dated 20.9.1982. Admittedly, this was not done. We, therefore, find force in the submission of Mr, Anoop Trivedi, that once the recital contained in the order dated 20.9.1982, has not been challenged at any point of time, the correctness or otherwise of the recital contained in the order dated 20.9.1982 qua the age of accused-appellant-2 Ram Vijai Singh, cannot be agitated at this stage. Secondly, the accused-appellant-2 Ram Vijai Singh, in his statement under section 313 Cr.P.C, has stated that his age is about 16 years, but there is no document to ascertain the same. Thirdly, accused-appellant-2 has been issued a gun license bearing no. 7580 on 24.7.1982, whereas, the occurrence has taken place on 20.7.1982. Thus, the gun license has been issued to accused-appellant-2 after the occurrence had taken place, but there is nothing on record to show that accused-appellant-2 crossed the age prescribed for a juvenile before 20.7.1982 or after 20.7.1982. We may point out that the State has not filed the copy of gun license issued to accused-appellant-2 or the extract of any register pertaining to grant of gun license maintained by the office of District Magistrate, Kanpur to demonstrate that accused-appellant-2 was a major on the date of occurrence.
41. In the absence of any document in reference to Section 94 (2) (i) & (ii) of Act, 2015, this Court of necessity has to rely upon the medical report dated 18.9.2020, submitted by the Medical Board, K.G.M.U, Lucknow.
42. Mr. Arun Kumar Singh, learned counsel for informant had disputed the above noted medical report and also urged before us that one member of Board should be summoned by this Court for cross-examination as the medical report alone is not sufficient to determine the age and this Court is not denuded of its powers to itself examine the issue.
43. We were impressed by aforesaid submission at the first flush particularly in the light of observations made in Mukarrab and Others (Supra) wherein the Court rejected the age determination report prepared by All India Institute of Medical Sciences (AIMS) New Delhi, but upon deeper scrutiny, we do not find any force in this submission. The facts in Mukarrab's case were very clinching which is not the case here. In the present case, excpet for the fact that accused-appellant was issued a gun license on 24.7.1982 which is after the date of occurrence i.e. 20.7.1982, nothing else has been brought on record. The same may create a suspicion. But Suspicion howsoever strong cannot take the place of proof. Perusal of the objections filed by informant does not indicate the grounds on which the member of the Medical Board is sought to be examined and secondly, no such material has been appended along with the objections file by informant on the basis of which prima facie we could feel satisfied to summon a member of Medical Board. We accordingly, negate the submission urged by learned counsel for informant to summon a member of Medical Board for cross-examination.
44. Having dealt with the conflicting claims of the parties, the swinging circumstances of the case and the law as laid down Mukarrab and Others (Supra), we find that the medical report dated 18.9.2020 is worthy of acceptance, wherein the age of accused-appellant-2 Ram Vijai Singh has been determined as 40-55 years on date. The occurrence took place on 20.7.1982 i.e. 38 years ago .When age of accused-appellant-2 Ram Vijai Singh is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then the age of accused-appellant-2 Ram Vijai Singh falls below 17 years.
45. In view of the discussion made above, the inescapable conclusion is that application filed by accused-appellant-2 Ram Vijai Singh, claiming himself to be a juvenile on the date of occurrence i.e. on 20.7.1982 has to be allowed. Accordingly, the same is allowed. Accused-appellant-2 Ram Vijai Singh is declared to be a juvenile on the date of occurrence i.e. on 20.7.1982.
46. We make no order as to costs.
Order Date:- 8.10.2020 Arshad