Delhi District Court
Nasir @ Nazir Husen, vs The State on 10 August, 2020
1
IN THE COURT OF MOHD. FARRUKH
ASJ05 (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Appeal No. CA/766/2020
Under Sections : 101 Juvenile Justice(Care & Protection of
Children)Act,2015
Police Station : Kotwali
Nasir @ Nazir Husen, VERSUS THE STATE
s/o Rahimuddin
r/o Village Bhog Darbar,
P.O.Bhawani Ganj,
P.S. Thakur Ganj,Beerta Basti,
Distt. Kishan Ganj, Bihar
Date of filing of Appeal : 10.02.2020
Judgment Reserved on : 05.08.2020
Judgment Pronounced on : 10.08.2020
JUDGMENT
Judgment in Criminal Appeal filed U/sec. 101 of the Juvenile Justice (Care and Protection of Children)Act 2015 (hereinafter referred as Act of 2015) against the impugned order dated 08.05.2017 passed by Juvenile Justice BoardI, Seva Kutir Complex, Delhi(hereinafter referred as JJB).
1. The present Criminal Appeal has been filed challenging the impugned order dated 08.05.2017 passed by JJB whereby the appellant has been Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 2 declared not juvenile for the purpose of JJ Act. The aforesaid appeal is also accompanied with an application seeking condonation of delay of 2 years and 7 months in filing the present appeal.
2. The appellant is allegedly involved in a case arising from FIR No.50/17, u/sec. 376 IPC & 6 POCSO Act registered at PS Kotwali and in order to avoid full rigor of criminal law, the appellant has filed the present appeal for setting aside the impugned order dated 08.05.2017 and declare him as juvenile claiming that he was less than 18 years at the time of commission of offence, hence he should be tried as juvenile. The JJB vide impugned order dated 08.05.2017 has held that as per Medical Board Report, the estimated age of the appellant is opined between 20 to 21 years on 26.04.2017 i.e. the date of his medical examination and since the date of commission of alleged offence was November 2016, the appellant was more than 18 years of age on the date of commission of alleged offence in the month of 2016.
3. It is stated in the application seeking condonation of delay in filing the appeal that appellant was not represented by any counsel before JJB; copy of the order dated 08.05.2017 has also not been supplied to him and he was under the impression that he has been declared juvenile and his case has been sent back for trial before concerned court at TisHazari and as such no appeal Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 3 against the impugned order dated 08.05.2017 was preferred by the appellant. It is stated that in the POCSO Court, the charges were framed; prosecution witnesses were examined and when statement of accused was recorded on 29.11.2019, IO has moved an application for taking blood sample of the accused. Thereafter, supplementary charge sheet was filed on 07.01.2020 and after the receipt of supplementary chargesheet, the counsel for the appellant had gone through the file and it was revealed that JJB had ascertained the age of appellant more than 18 years without taking into consideration the law laid down by Hon'ble Supreme Court. It is stated that both the appellant and his father are illiterate and due to this, the appellant should not suffer and thus the delay of 2 years and 7 months in filing appeal against the impugned order dated 08.05.2017 be condoned.
4. On merits, it is contended interalia that JJB has failed to observe that ossification test is not conclusive of age and margin of error in age ascertained by radiological examination is two years on either side and the benefit of the said margin has not been given to the Appellant. It is contended that JJB has declared the age of the appellant to be more than 18 years at the time of the commission of offence relying on the ossification test report which states the age of the appellant to be of 20 to 21 years and had given the benefit of two Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 4 years as per the various judgment of Hon'ble Supreme Court plus one year margin as per the Act, the appellant should be declared as juvenile. On the aforesaid grounds, Ld. Counsel for the appellant is praying for setting aside the impugned order dated 08.05.2017 and declare the appellant as juvenile.
5. Ld. Counsel for the appellant has argued the present appeal at length and has also filed written synopsis alongwith the judgments relied upon in support of his submissions. It is argued that Hon'ble Delhi High Court in "Sheweta Gulati & Anr. V. State of NCT of Delhi 251(2018)DLT667" after placing reliance on the judgments of Hon'ble Supreme Court has held that benefits of doubts in age estimated by bone ossification test is go to the accused and the margin of error in ascertaining age by radiological examination is two years on either side. Ld. Counsel for the appellant has further relied upon judgment "Jyoti Prakash Rai v. State of Bihar, 2008 15 SSC 223" to contend and held that age determination by doctor should be given flexibility of two years of either side. He has further placed reliance upon the judgment of "State of UP v Chotey Lal" to contend that age of the prosecutrix should not be ascertained on the basis of ossification test but on the age of her brother.
6. Per contra Ld. Addl. PP for State has submitted that the present appeal is suffering from delay and latches and the appellant has failed to give any Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 5 sufficient reason to condone the delay. The judgments relied upon by ld. Counsel for the appellant are not applicable to the facts and circumstances of the present case as in the facts of the said judgments, it is revealed that only radiological examinations were conducted while in the present case, the Medical Board has ascertained the age of the appellant on the basis of physical, dental and radiological examination and therefore appellant is not entitled to be given any benefits of relaxation of age on the lower or upper side of the age estimated by the Medical Board. Ld. Addl. PP for State has heavily relied upon the recent judgment of Hon'ble Delhi High Court "Faizan v. State MANU/DE/0390/2020" decided on 03.02.2020 to submit that in the similar circumstances, the Hon'ble Delhi High Court has dismissed the revision petition filed by the petitioner.
7. I have heard the Ld. Counsel for the appellant and Ld. Addl. PP for State, considered their rival submissions made hereinabove and went through the record with utmost circumspection.
8. Though the explanation given by the appellant for condonation of delay of two years and seven months in filing the present appeal is not sufficient, however, keeping in view the ratio of the judgement passed by the Hon'ble Supreme Court in "Ram Narain V. State of UP. 2015(17) SSC 699", holding Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 6 that the claim of juvenility may be raised at any stage, even after final disposal of the case, the present appeal is being adjudicated on merits.
9. The Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, 'the Act of 2015') came into force w.e.f. 01/01/2016 and the Juvenile Justice (Care and Protection of Children) Act, 2000 was thereby repealed. Section 94 of the Act of 2015 requires the Court to make enquiry regarding determination of age of the person accused and the manner of holding enquiry is provided in Section 94 (2)which is pari materia to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule, 2007.Thus, Age determination contemplated under subsection (2) of Section 94 of the Act of 2015 enables the Court to seek evidence and in that course, the Court has to undertake the process of age determination by seeking evidence by obtaining firstly, the date of birth certificate from the school, or the matriculation or other equivalent certificate from the concerned examination Board, if available; and in absence thereof, secondly, the birth certificate given by a corporation or a municipal authority or a panchayat, and thirdly, only in the absence of documents mentioned in (i) and (ii) above, age shall be determined by an ossification test or any other latest medical determination test conducted on the orders of the Committee or the Board. Time limit for conducting age determination test has Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 7 also been provided to be within fifteen days from the date of order in the above stated provision.
10. The procedure prescribed in the Juvenile Justice (Care and Protection of Children) Rules, 2007 (enacted under the JJ Act, 2000) for determination of juvenility came to be considered by the Supreme Court in the matter of "Ashwani Kumar Saxena v. State of Madhya Pradesh, (2012)9 SCC 750"
wherein their lordships of the Supreme Court have held that a duty is cast on the courts/juvenile Boards functioning under the Act to seek evidence by obtaining the certificate mentioned in Rules 12(3)(a)(i) to (iii) of the Rules of 2007, and observed as 1 (2012) 9 SCC 750 under:
"30. Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under Section 7A of the Act. In many of the cases, we have come across, it is seen that the criminal courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7A read with Rule 12.
We also remind all courts/Juvenile Justice Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 8 Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12 (3) (a) (i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection."(emphasis supplied).
11. In the later part of the judgment in Ashwani Kumar Saxena (supra), their lordships of the Supreme Court further held that Court or Board functioning under the Juvenile Justice Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, and observed as under:
"32. "Age determination inquiry" contemplated under Section 7A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 9 exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
Once the court, following the above mentioned procedure, passes an order, that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subrule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to subrule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination(emphasis supplied)."
12. In the present case, birth certificate or the matriculation certificate of the appellant were not available showing his date of birth and therefore JJB constituted Medical Board to ascertain the age of the appellant subject to margin of one year. The medical board after examination of appellant filed its detailed report dated 26.04.2014 with regard to assessment and determination of the age of the appellant and thereafter, Sh. K.V.Singh, Record Clerk, Hidnu Rao Hospital has filed two original XRay before the JJB. Dr. Sarin was also examined as CW1 and she proved the aforesaid Medical Board Report regarding the determination of the age of the appellant.
Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 10 The said report states as under: General development of body including external genitlia. Dental examination recording that the appellant has 32 teeth in total and space is formed behind second molar and third molar teeth has been erupted.
Radiological examination : Epiphyses of upper and lower ends of Radius, Ulna and humerus have fused. Iliac crests and Ischial tuberusity have fused. Medial end of clavicle but not fused. Sacral segments not fused.
On the basis of physical, dental and radiological examination, it is opined that the age of the person examined is between 2021 years.
13. As per Modi's book of Medical Jurisprudence and Toxicology, the age for appearance of iliac crest is17 years and for fusion is 1920 years and the age of the appearance ofischial tuberosity is 1618 years and for fusion is 20 years. As per Dr.R.M.Jhalla and V.B.Raju's Medical Jurisprudence, medial end of clavicle appears at the age of 21 in case of human males. Dr. Escort in his authenticated book of "Dental Evidence in Identification and Criminology" 1954 has stated that if third molar is erupted, it indicates that age of an individual is above 17 years.
14. From the aforesaid report it is also candid that the Medical Board, prior to coming to the conclusion that the appellant's estimated age is between 2021 years on the date of examination i.e 26.04.2016, considered physical, Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 11 dental and radiological tests of the Appellant. The date of commission of the alleged offence in the present case is in November, 2016. In these circumstances the age of the appellant would be at least 19½ years on the date of his examination.
15. The division bench of Hon'ble Delhi High Court in "Mohd Wasim v. State 2012 (4 DLT) (Cri. 228)" where the appellant contended that he should have been given the margin of two years on the lower side of his age assessed by the Medical Board has observed as under : "Relying on the judgment of this Court, State of NCT of Delhi vs. Shiva & Ors.(Crl.L.P.172/2008), the counsel contended that the margin of error in age ascertained by radiological examination is two years on either side and the benefit of such margin of error should have been given to the Appellant. We are unpersuaded with this argument. According to the authorities referred on medical jurisprudence, benefit of margin of error of two years on either side at the maximum can be given in case of determination of age based on ossification test. It is however not so, in case of radiological examination for multiple joints. In a case " State of UP v. Chhotey Lal" (Crl.A.769/2006 decided on 14.01.2011), the Supreme Court observed that :
"There was no such rule much less an absolute one, that 2 years have to be added to be age determined by a doctor." It further observed that, "merely because the doctor‟s evidence showed that the victims belong to the age group of 14 to 16, to conclude that the 2 years‟ age has to be added to the upper age limit is without any foundation.
Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 12 "12. In the case of, Lal Bahadur v. the State"
(Crl.R.145/2003 decided on 25.07.2003) this Court extracted the passage from Jhala and Raju's Medical Jurisprudence :
"If ossification test is done for a single bone, the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion, the margin of error may be reduced. Sometimes this margin is reduced to six months on either side."
And held :
"In the present case, the radiological examination of the petitioner was done for multiple joints, which is evident from the report of the Medical Board. According to the petitioner's own plea, he was just short of eight days in completing 18 years on the date of alleged commission of offence by him. Learned counsel for the petitioner contended that even if the age of the petitioner is to be ascertained in the light of medical report, by giving the benefit of margin of two years, on the date of alleged commission of offence, he would be found to be less than 18 years of age, and thus, a juvenile. While advancing such an argument, learned counsel for the petitioner appears to have taken the age as reflected in the medical report exactly at 21 years losing sight of the fact that it is actually above 21 years, which implies that it cold be anything above 21 years. Taking into account radiological examination in respect of multiple joints, in view of above extracted passage from Medical Jurisprudence by Jhala & Raju, the margin of error in ascertaining the age of the petitioner could be reduced to six months on either side.....
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16. Considering the above factual and legal position, we are of the view that two years margin on either side cannot be given. The Medical Board determined his age between 25 to 27 years on the basis of physical, dental and Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 13 radiological examination. The only question to be considered is whether we should exercise discretion in giving the benefit of one year on the lower side to the Appellant.
17. It is apparent from the Rule 12(3)(b) that the relaxation of one year is not automatic but it should be granted after considering all the evidence available on record.(emphasis Supplied)."
16. In view of the aforesaid judgments of division bench of Hon'ble Delhi High Court where the appellant was not even given the relaxation of one year in his age on the lower side, the appellant in the present case is also not entitled to claim the relaxation of two years on his lower side. Further even if, the applicant/accused is granted one year relaxation in his age, as per rule 2(3)
(b) of the Act 2000, the appellant would still be aged 18 ½ on the date of commission of offence and thus the contention of Ld. Counsel for the appellant that appellant should be given two years benefit on the side of his lower age of 20 years is liable to be rejected and the judgments relied upon by him are not applicable to the facts and circumstances of the present case as the Hon'ble Delhi High Court recently in Faizan (Supra) where Revisionist was claiming that he should be declared as juvenile and the opinion of the Medical Board regarding his age between 20 to 21 years should further be given two years benefit, the Hon'ble Delhi High Court in the aforesaid judgment has held Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 14 as under : "14 . The Ld. Members and the Principal Magistrate, JJBII have considered the testimony of the doctors and their report and found that the revisionist was more than 18 years of age as on the date of commission of the crime. The Courts are not super doctors and the revisionist could not point out any lapse in the procedure adopted by the doctors while determining the age of the revisionist. The doctors are experts in their field and after their due consultation the doctors have opined about the age of the revisionist. This is not for this Court to substitute its own opinion against the opinion of the doctors who are experts in their respective fields.
15. Therefore, in view of the above discussions, I am of the opinion that there is no reason to interfere in the impugned order dated 31.07.2015, the same is therefore, upheld and consequently, the revision petition is dismissed".
17. Having considered the aforesaid facts and circumstances of the present case, report of the Medical Board and the settled law, I am of the opinion that JJB has quite correctly assessed and determined the age of the applicant on the basis and appreciation of medical opinion rendered by the competent Medical Board and rightly held that appellant was above 18 years of age on the alleged date of occurrence of incident in the month of November, 2016, hence, the present appeal is dismissed. Digitally signed by MOHD MOHD FARRUKH FARRUKH Date: 2020.08.11 11:00:43 +0530 Announced & dictated (Mohd. Farrukh) in the open court on 10.08.2020 ASJ05 (Central)/THC, Delhi.
10.08.2020 Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 15 Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State 16 Criminal Appeal No. 766/2020 Nasir @ Nazir Husen v. State