Jharkhand High Court
Rajesh Ram vs The State Of Jharkhand on 29 September, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2003 of 2018
Rajesh Ram, aged about 30 years, son of late Grishchandra Ram, resident of
village Gaditelwa, P.O. and P.S. Simultallah, District-Jamui, State-Bihar
...... Petitioner
Versus
1. The State of Jharkhand
2. Suraj Kumar Pandit, son of Chandeshwar Pandit, resident of village-Alipur,
At & P.O. Alipur, P.S. Buniyadganj, District-Gaya (Bihar) at present residing
at Chouri Basti, Hindustani Dhaba, Bhuti Chowk, P.O. and P.S. Kanke,
District-Ranchi
...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Sameer Saurabh, Advocate
For the State : Mr. P.A.S. Pati, G.A.-II
For the O.P. No. 2 : Mr. Ashish Kumar Thakur, Advocate
................
C.A.V. on 22.09.2022 Prononunced on :-29/09/2022
The Court heard Mr. Sameer Saurabh, learned counsel appearing on behalf of the petitioner, Mr. P.A.S. Pati, learned counsel appearing on behalf of State and Mr. Ashish Kumar Thakur on behalf of O.P. No. 2 at length on 22.09.2022 and on that date judgment was reserved.
2. In this petition prayer has been made for quashing of the order dated 22.02.2018 passed in connection with S.T. No. 484/2007 arising out of Giridih (M) P.S. Case No. 176/2007 and G.R. No. 1108/2007 passed by the learned District & Additional Sessions Judge-VIII, Giridih pending in that Court.
3. The F.I.R. has been lodged on the basis of fardbeyan of informant alleging therein that from CIP Hospital, Kanke, six persons sat on the vehicle for going to Deoghar, out of which two were ladies and one was child. At about 12.15 A.M. on 29.05.2007 the informant reached Giridih and was enquiring about the road of Deoghar and because of the mid night, the informant did not 2 want to go to Deoghar but they forcibly told the O.P. No. 2 for going Deoghar and after 10.12 K.M. they told the informant to stop the vehicle but he did not stop, then they forcibly stopped the vehicle and assaulted the informant and one person had putting rope on the neck of the informant and pressed the same, resultantly he became unconscious and after that all the persons fled away after throwing the informant.
It is further alleged that when the informant gain conscious, then he found himself near a pond and from there he reached on road and on being asked by the persons, he came to know that he is in village-Punaidih. It has further been alleged that he had one Mobile and cash of Rs. 150/-, the same were looted. Hence, this case.
4. Mr. Sameer Saurabh, learned counsel appearing on behalf of the petitioner submitted that in course of trial, the petitioner filed an application before the learned trial court that the age of the petitioner was 26 years on the date of recording the statement under Section 313 of Cr.P.C. but his age has been entered as 30 years which is not true. The petitioner is an illiterate person and he never went to school and requested for assessment of his age by the Medical Board. According to him the trial court on the application of the petitioner vide order dated 04.01.2018 observed that it would be proper that the age of the petitioner be assessed by the Medical Board for the ends of justice and accordingly, directed the Civil Surgeon, Giridih to constitute a Medical Board. He submitted that Medical Board was constituted and the said Board opined the age of the petitioner as 25-26 years as on 01.02.2018. He submitted that case was again taken up by the learned Court for passing appropriate order on the application of the petitioner. According to him, the petitioner was juvenile at the time of occurrence i.e. 29.05.2007 and the petitioner requested to the learned court to declare him juvenile. The learned Court by the impugned order dated 22.02.2018 refused to accept the age 3 determined by the Medical Board on the ground that if the report of the Medical Board is relied upon the age of the petitioner would be 15 years and 04 months on the date of occurrence, but the said opinion cannot be accepted on the ground that at the time of remand his age was mentioned as 23 years and in the confessional statement of the petitioner recorded on 29.05.2007 the age was 24 years and at the time of recording of the statement under section 313 Cr.P.C. the petitioner disclosed his age 30 years and for the first time after recording the statement under section 313 Cr.P.C. the petitioner has taken the ground of juvenility and accordingly, the learned trial court held that the petitioner was not juvenile on the date of occurrence. He submitted that section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015 specifically provides that if there is no certificate available to prove the date of birth, then the age will be determined by ossification test. He submitted that in view of Medical Board after examining the petitioner found in between 25-26 years as on 01.02.2018 and on the basis of the said assessment, the age of the petitioner comes to 15 years and 04 months on the date of occurrence and as such the same has to be accepted by the learned trial court. He relied on judgmement in the case of " Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal" reported in 2012 10 SCC 489 wherein paragraph nos. 39, 43, 47, 48 the Hon‟ble Supreme Court has 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 4 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 : (2009) 3 SCC (Cri) 431] and Pawan [(2009) 15 SCC 259 : (2010) 2 SCC (Cri) 522] these documents were not found prima facie credible while in Jitendra Singh [(2010) 13 SCC 523 : (2011) 1 SCC (Cri) 857] 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.
43. What would constitute a "glaring case" in which an affidavit may itself be sufficient to direct an inquiry, is a question that cannot be easily answered leave alone answered by enumerating exhaustively the situations where an enquiry may be justified even in the absence of documentary support for the claim of juvenility. Two dimensions of that question may all the same be mentioned without in the least confining the sweep of the expression "glaring case" to a straitjacket formulation:
43.1. The first of these factors is the most mundane of the inputs that go into consideration while answering a claim of juvenility like "physical appearance" of the accused made relevant by Rule 12(2) of the Rules framed under the Act. The Rule reads:
"12. Procedure to be followed in determination of age.--(1) *** (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 appearances or documents, if available, and send him to the observation home or in jail."
Physical appearance of the accused is, therefore, a consideration that ought to permeate every determination under the Rule aforementioned no matter appearances are at times deceptive, and depend so much on the race or the region to which the person concerned belongs. Physical appearance can and ought to give an idea to the court at the stage of the trial and even in appeal before the High Court, whether the claim made by the accused is so absurd or improbable that nothing short of documents referred to in this Rule 12 can satisfy the court about the need for an enquiry. The advantage of "physical appearance" of the accused may, however, be substantially lost, with the passage of time, as longer the interval between the incident and the court's decision on the question of 5 juvenility, the lesser the chances of the court making a correct assessment of the age of the accused. In cases where the claim is made in this Court for the first time, the advantage is further reduced as there is considerable time lapse between the incident and the hearing of the matter by this Court.
43.2. The second factor which must ever remain present in the mind of the Court is that the claim of juvenility may at times be made even in cases where the accused does not have any evidence showing his date of birth by reference to any public document like the Register of Births and Deaths maintained by the municipal authorities, panchayats or hospitals nor any certificate from any school, as the accused was never admitted to any school. Even if admitted to a school no record regarding such admission may at times be available for production in the court. Again, there may be cases in which the accused may not be in a position to provide a birth certificate from the corporation, the municipality or the panchayat, for we know that the registration of births and deaths may not be maintained and if maintained may not be regular and accurate, and at times truthful.
47. One of such realities is that illiteracy and crime have a close nexus though one may not be directly proportional to the other. Juvenile delinquency in this country as elsewhere in the world, springs from poverty and unemployment, more than it does out of other causes. A large number of those engaged in criminal activities, may never have had the opportunity to go to school. Studies conducted by the National Crime Records Bureau (NCRB), Ministry of Home Affairs, reveal that poor education and poor economic set up are generally the main attributes of juvenile delinquents. Result of the 2011 study further show that out of 33,887 juveniles arrested in 2011, 55.8% were either illiterate (6122) or educated only till the primary level (12,803). Further, 56.7% of the total juveniles arrested fell into the lowest income category. A similar study is conducted and published by B.N. Mishra in his book Juvenile Delinquency and Justice System, in which the author states as follows:
"One of the prominent features of a delinquent is poor educational attainment. More than 63 per cent of delinquents are illiterate. Poverty is the main cause of their illiteracy. Due to poor economic condition they were compelled to enter into the labour market to supplement their family income. It is also felt that poor educational attainment is not due to the lack of intelligence but may be due to lack of opportunity. Although free education is provided to Scheduled Castes and Scheduled Tribes, even then, the delinquents had a very low level of expectations and aspirations regarding their future which in turn is due to lack of encouragement and unawareness of their parents that they play truant."
(emphasis supplied) What should then be the approach in such cases, is the question. Can the advantage of a beneficial legislation be denied to such unfortunate and wayward delinquents? Can the misfortune of the accused never going to a school be followed or compounded by denial of the benefit that the legislation provides in such emphatic terms, as to permit an enquiry even after the last Court has disposed of the appeal and upheld his conviction? The answer has to be in the negative.
48. If one were to adopt a wooden approach, one could say nothing short of a certificate, whether from the school or a municipal authority would satisfy the court's conscience, before directing an enquiry. But, then directing an enquiry is not the same thing as declaring the accused to be a juvenile. The standard of proof required is different for both. In the former, the court simply records a prima facie conclusion. In the latter, the court makes a declaration on evidence, that it scrutinises and accepts only if it is worthy of such acceptance. The approach at the stage of directing the enquiry has of necessity to be more liberal, lest, there is avoidable miscarriage of justice. Suffice it to say that while affidavits may not be generally accepted as a good enough basis for directing an enquiry, that they are not so accepted is not a rule of law but a rule of prudence. The Court would, therefore, in each case weigh the relevant factors, insist upon filing of better affidavits if the need so arises, and even direct, any additional information considered relevant including the information regarding the age of the parents, the age of siblings and the like, to be 6 furnished before it decides on a case to case basis whether or not an enquiry under Section 7-A ought to be conducted. It will eventually depend on how the court evaluates such material for a prima facie conclusion that the court may or may not direct an enquiry.
Relying on the aforesaid judgment, learned counsel for the petitioner submitted that the claim of the juvenility can be raised at any stage even after final disposal of the case.
5. Learned counsel for the petitioner further relied on judgment in the case of " Vinod Katara Vs. State of Uttar Pradesh" reported in 2022 SCC Online SC 1204 wherein paragraph nos. 48, 49, 50, 52, 55, 60, 65 the Hon‟ble Supreme Court has held as under:-
"48. Clause (a) of Rule 12(3) of the 2007 Rules contains a hierarchical ordering, evident from the use of the language "in the absence whereof". This indicates that where a matriculation or equivalent certificate is available, the documents adverted to in (ii) and (iii) cannot be relied upon. The matriculation certificate, in other words, is given precedence. It is in the absence of a matriculation certificate that the date of birth certificate of the school first attended, can be relied upon. It is in the absence of both the matriculation and the birth certificates of the first school attended that a birth certificate issued by the corporation, municipal authority or panchayat could be obtained.
49. In Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC 751, this Court, while examining the scope of Rule 12 of the 2007 Rules, has reiterated that medical opinion from the Medical Board should be sought only when the matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a corporation or a municipal authority or a panchayat or municipality is not available. This Court had held that the entry related to the date of birth entered in the marksheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.
50. In the instant case, the accused has not produced any matriculation certificate or equivalent certificate to prove his age. What is produced by him is only the Family Register issued under the U.P. Panchayat Raj Act, 1947. The document cannot be accepted as equivalent to matriculation certificate to prove the age of the accused. However, the evidentiary value of the Family Register will have to be looked into in the course of the inquiry that we may order.
52. In Court On Its Own Motion v. Dept. of Women and Child Development, reported in 2012 SCC OnLine Del 2774, the petitioners therein highlighted that how several hundred children were languishing in the Tihar Jail because the police mentioned them as adults in the arrest memo.
55. What needs to be kept in mind is the main object and purpose of the Juvenile Justice Act. The focus of this legislation is on the juvenile's reformation and rehabilitation so that he also may have an opportunity to enjoy as other children. In Pratap Singh (supra), this Court, elaborating on the objects and purpose of the Juvenile Justice Act, made the following observations:--
"...The said Act is not only a beneficent legislation, but also a remedial one. The Act aims at grant of care, protection and rehabilitation of a juvenile vis-à- vis the adult criminals. Having regard to Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility were also one of the factors in defining a juvenile. The first objective, therefore, is the promotion of the well-being of the juvenile and the second objective to bring about the principle of proportionality whereby and 7 whereunder the proportionality of the reaction to the circumstances of both the offender and the offence including the victim should be safeguarded..."
60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796, that the ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt.
65. We are conscious of the fact that in the case on hand the convict was subjected to medical examination after being referred to the Medical Board. However, the report on record does not inspire much confidence. Over and above the same, the decision in the case of Ram Vijay Singh (supra) makes it very clear that in the absence of a reliable and trustworthy medical evidence to find out the age of the appellant herein, the ossification test conducted in the year 2021 when the appellant was above 50 years of age cannot be conclusive to declare him as a juvenile on the date of the incident. This Court observed that when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. In such circumstances, it will be a matter of debate as to what extent the new ossification test report that may come on record can be relied upon and to what extent the same would be helpful to the appellant herein.
Relying on the aforesaid judgment, learned counsel for the petitioner submitted that ossification test is not exact sign however, the Hon‟ble Supreme Court has considered that before the age of 30 years, said test can be considered. According to him in the case of petitioner the Court is bound to accept the report of Medical Boarad and the petitioner was required to declare juvenile.
6. Learned counsel for the petitioner further relied on judgment in the case of "Rishipal Singh Solanki Vs. State of Uttar Pradesh and Others"
reported in 2021 SCC Online SC 1079 wherein paragraphs Nos. 27, 28 and 29 the Hon‟ble Supreme Court has held as under:-
"27. Further, unlike section 49 of JJ Act, 2000, section 94 of JJ Act, 2015 provides for presumption and determination of age if the Juvenile Justice Board or the Committee has reasonable grounds to doubt whether the person brought before it is a child or not. It shall undertake the process of determination of age by seeking evidence such as:
(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 8 panchayat; and
(iii) 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.
28. The difference in the procedure under the two enactments could be discerned as under:
(i) As per JJ Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2) of Section 94(a) and (b), there is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child.
(ii) With regard to the documents to be provided as evidence, what was provided under Rule 12 of the JJ Rules, 2007 has been provided under subsection 2 of section 94 of the JJ Act, 2015 as a substantive provision.
(iii) Under Section 49 of the JJ Act, 2000, where it appeared to a competent authority that a person brought before it was a juvenile or a child, then such authority could, after making an inquiry and taking such evidence as was necessary, record a finding as to the juvenility of such person and state the age of such person as nearly as may be. Sub-section (2) of Section 49 stated that 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 had been made is not a juvenile and the age recorded by the competent authority to be the age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person.
29. But, under Section 94 of the JJ Act, 2015, which also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence."
Relying on aforesaid judgment, the learned counsel for the petitioner submitted that Section 94 of Juvenile Justice (Care & Protection of Children) Act, 2015 deals with presumption and determination of age, the committee or Juvenile Justice Board has to record such observation stating the age of child. He further submitted that in the said judgment it has been observed that beneficent and salutary provisions contained in 2000, Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of 2000 Act, shall get such benefits and on these grounds, the impugned order is not in accordance with law and the same is fit to be allowed.
7. On the other hand,, Mr. P.A.S. Pati, learned counsel appearing on behalf of the State submitted that Section 94 of the Act speaks of determination of age. He further submitted that Medical Board is not final 9 report and it is not bound to be accepted by the Court itself if the court is to decide as to whether said Medical Board is acceptable or not. He further submitted that the learned trial court has rightly observed that Medical Board cannot be accepted to be true if there is some material on record which could help in assessment of age. Learned court has considered that when the petitioner was remanded in this case for the first time learned Magistrate assessed the age of the petitioner 23 years as per appearance of the petitioner.
At the time of confessional statement on 29.05.2007, the petitioner himself has disclosed his age about 24 years and again the petitioner disclosed his age 30 years during his statement under section 313 Cr.P.C. He submitted that the learned court has rightly passed impugned order and there is no illegality in the impugned order. He relied on judgment in the case of " Ram Vijay Singh Vs. State of Uttar Pradesh" reported in 2021 SCC Online SC 142 wherein paragraph nos. 8, 9, 10,11, 15 and 16 the Hon‟ble Supreme Court has held as under:-
"8. There is no dispute that the plea of juvenility can be raised at any stage even after finality of the proceedings before this Court. In the present case, the appellant has raised the plea of juvenility before the High Court vide Criminal Miscellaneous Application No. 382916 of 2015. This Court in a judgment reported as Abuzar Hossain alias Gulam Hossain v. State of West Bengal3 held 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."
9. Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 20004 contemplated that whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary. In terms of the provisions of the 2000 Act, the Juvenile Justice (Care and Protection of Children) Rules, 20075 have been framed. Rule 12 of the Rules contemplates a procedure to be followed for determination of age. The 2000 Act has been repealed by the Juvenile Justice (Care and Protection of Children) Act, 20156. Section 9(2) of the Act is the analogous provision to Section 7-A of the 2000 Act. The procedure for determining the age is now part of Section 94 of the Act which was earlier part of Rule 12 of the Rules. Section 94 of the Act reads thus:
"Section 94. 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 10 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 true age of that person."
10. The judgment in Abuzar Hossain considered Section 7-A of the Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the Rules shows that in the absence of documents as mentioned in clause (i), (ii) or (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. It was further provided that in case wherein the exact assessment of the age cannot be done, the Court or the Juvenile Justice Board, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. However, it is to be noted that Section 94 of the Act does not have any corresponding provision of giving benefit of margin of age.
11. Admittedly, in the present case, there is no Date of Birth Certificate from the school or matriculation or equivalent certificate or a Birth Certificate given by a Corporation or Municipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board comes into play.
15. We find that the procedure prescribed in Rule 12 is not materially different than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as the Rule 12(3)(a)(i) and (ii) have been clubbed together with slight change in the language. Section 94 of the Act does not contain the provisions regarding benefit of margin of age to be given to the child or juvenile as was provided in Rule 12(3)(b) of the Rules. The importance of ossification test has not undergone change with the enactment of Section 94 of the Act. The reliability of the ossification test remains vulnerable as was under Rule 12 of the Rules.
16. As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal7 held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a 11 basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.
Learned counsel for the State submitted that case of Abuzar Hossain(supra) has been considered in para 10 of the aforesaid judgment.
He submitted that in this judgment it has been held that section 94 of the Act does not have any corresponding provision of giving benefit of margin of age.
He further submitted that in case of doubt, the process of age determination by seeking evidence becomes necessary, age declared by the Medical Board cannot be conclusive to declare him juvenile.
8. Mr. Pati, further relied on judgment in the case of "Mukarrab & Others Vs. State of Uttar Pradesh" reported in (2017) 2 SCC 210 wherein paragraph nos. 13, 14, 23 the Hon‟ble Supreme Court has held as under:-
"13. It is noteworthy that the Juvenile Justice (Care and Protection of Children) Act, 2000 does not lay down any fixed criteria for determining the age of the person. Section 49(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for presumption and determination of age as 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 a 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 a child or not, stating his age as nearly as may be."
From a reading of the above provision, it is clear that it provides that when it appears to the competent authority, namely, the Board that the person brought before it is a juvenile, the Board is obliged to make it clear as to the age of that person and for that purpose the Board shall take such evidence as may be necessary and then record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.
14. Under Rule 12, the Board is enjoined to take evidence for determination of age. Rule 12 is as under:
"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;12
(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 the 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 7-A, 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."
23. It is a 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 case [Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 : 1998 SCC (Cri) 125] and other decisions, in Babloo Pasi case [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] , this Court held as under : (SCC pp. 140-42, paras 18, 22 & 23) "18. Nevertheless, in Jitendra Ram v. State of Jharkhand [Jitendra Ram v. State of Jharkhand, (2006) 9 SCC 428 : (2006) 2 SCC (Cri) 623] the Court sounded a note of caution that the aforestated observations in Bhola Bhagat [Bhola Bhagat v. State of Bihar, (1997) 8 SCC 720 : 1998 SCC (Cri) 125] 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 (1) v. State of Bihar [Arnit Das (1) v. State of Bihar, (2000) 5 SCC 488 : 2000 SCC (Cri) 962] 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 hypertechnical 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."
Relying on the aforesaid judgment, learned counsel for the State submitted that Medical Board is not conclusive on the rule which is beneficial legislation the petitioner is not required to be given shelter of the Act for the grave and heinous offence. On these grounds, he submitted that there is no 13 illegality and this petition may be dismissed and the petitioner may be directed to face trial at this stage.
9. Mr. Ashish Kumar Thakur, learned counsel for the O.P. No. 2 submitted that in the light of sub section 2 of section 9 of Juvenile Justice (Care & Protection of Childen) Act, 2015, the Court‟s opinion was required to form for declaring the age on the claim of the petitioner however, this opinion of the Court is not there and only on the application of the petitioner Medical Board was directed to be formed. He further submitted that illiteracy is not a ground to provide benefit of this legislation. He referred to para 24 of the judgment relied by Mr. Pati in the case of Mukarrab (supra) and submitted that it has been held that purpose of juvenile of 2000 Act is not to give shelter to accused of grave and heinous offence.
10. In view of above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that on the fardbeyan of informant-Suraj Kumar Pandit the case has been registered.
The petitioner was produced before the learned Magistrate on 05.07.2007 and the age of the petitioner was assessed 23 years at that time. In the confessional statement on 29.05.2007 the petitioner has disclosed his age 24 years but these dates which have been recorded is nearer either 23 or 24 years. When the statement under section 313 Cr.P.C. of the petitioner was recorded he disclosed his age 30 years. Thus, it is crystal clear that the petitioner himself has disclosed his age 24 years and 30 years during confession and trial. Admittedly, at the belated state a petition was filed by the petitioner when the statement had already been recorded under section 313 Cr.P.C. There is no doubt that plea of juvenility can be raised at any point of time however it is required to be disclosed on affidavit if it is being filed belatedly. The Hon‟ble Supreme Court has held that claimant must produce some material which may prima facie satisfy the court that an inquiry into the 14 claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. In the case in hand this is lacking. Moreover what are the grounds taken in the petition for forming Medical Board is not clear as the petition filed for constituting Medical Board is not on record and the same is not annexed with this petition. The age determination using ossification test does not yield accurate and examinee crosses the the age of 30 years that is well settled as has been held in the case of Mukarrab (supra). The age of claimant on the date of incident documentary evidence atleast prima facie materials are required to be proved. The entitlement of said protection under Juvenile Justice (Care & Protection of Children) Act and admittedly this Act only applies wherein accused is held to be juvenile on the basis of atleast prima facie evidence. The purpose of 2000 Act is not to give shelter to the accused of grave and heinous offence. In the case of Ram Vijay Singh (supra) the Hon‟ble Supreme Court has held in paragraph 16 that in the absence of any reliable and trustworthy medical evidence to find out the age of the claimant, ossification test which is conducted in the year, 2020 cannot be conclusive to declare him juvenile on the date of incident. Admittedly, twice the petitioner himself has admitted his age as 24 years and 30 years as discussed here-in-
above. The question of determination on the basis of materials adduced by the parties, recently the Hon‟ble Supreme Court in the case of "Manoj @ Monu @ Vishal Chaudhary Vs. State of Haryana & Another" reported in (2022) 6 SCC 187 has held that if the reliance of document seeking juvenile which is not reliable or justified in nature, the applicant cannot be treated only on same Act as beneficial legislation. In the said judgment ossification test, radiological test, medical evidence in determination of age and the principles have been clarified in that judgment in paragraph nos. 20, 21, 22, 23 which are quoted here-in-below:-
"20. The Court held as under : (Jyoti Prakash Rai case [Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796] , SCC pp.15
228-29, paras 12-13) "12. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on record by the parties. In the absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant.
13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] opined : (SCC p. 290, para 20) „20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.‟ In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."
21. In a judgment in Mukarrab v. State of U.P. [Mukarrab v. State of U.P., (2017) 2 SCC 210 : (2017) 1 SCC (Cri) 710] , it was observed that a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by the radiological examination. It was also held that the purpose of the 2000 Act is not to give shelter to the accused of grave and heinous offences. Relying upon judgment of this Court in Abuzar Hossain v. State of W.B. [Abuzar Hossain v. State of W.B., (2012) 10 SCC 489 :
(2013) 1 SCC (Cri) 83] and Parag Bhati v. State of U.P. [Parag Bhati v. State of U.P., (2016) 12 SCC 744 : (2017) 3 SCC (Cri) 819] , it was held as under :
(Mukarrab case [Mukarrab v. State of U.P., (2017) 2 SCC 210 : (2017) 1 SCC (Cri) 710] , SCC p. 225, para 27) "27. In a recent judgment, State of M.P. v. Anoop Singh [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] , it was held that the ossification test is not the sole criteria for age determination.
Following Babloo Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 :
(2009) 3 SCC (Cri) 266] and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208] , 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."
22. This Court in a judgment in Babloo Pasi v. State of Jharkhand [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] held that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It was held as under : (SCC p. 142, para 22) "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. In Ramdeo Chauhan v. State of Assam [Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714 : 2001 SCC (Cri) 915] , it was held that 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 16 infallible and accurate test so as to indicate the exact date of birth of the person concerned. It was held as under : (SCC pp. 738-39, para 21) "21. Relying upon a judgment of this Court in Jaya Mala v. State of J&K [Jaya Mala v. State of J&K, (1982) 2 SCC 538 : 1982 SCC (Cri) 502] the learned defence counsel submitted that the Court can take notice that the marginal error in age ascertained by radiological examination is two years on either side. The aforesaid case is of no help to the accused inasmuch 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 observations 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 textbooks, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."
11. It is well settled that ossification test is not sole criteria for age determination. Ossification test cannot be regarded as conclusive when comes to ascertaining the age of the person. Moreover the petitioner herein has accepted his age as 24-30 years twice before the learned court. There are various criteria for age determination of any individual of eruption of teeth and ossification activities of bone are important. Nevertheless age can usually be assessed more accurately in younger age. Thus, in the light of sub-section 2 of Section 9 of the Act, opinion of the learned court was required to be formed at the earliest when the claim was made but the same was not claimed at the earliest by the petitioner. The petitioner himself admitted his age as 24 years and 30 years which has been discussed by the learned trial court in the impugned order and after recording of the age and statement under section 313 cr.P.C. the petition was filed and the said petition has not been annexed with this petition which suggests that what are ground for forming of the Medical Board, was made by the petitioner, is not before this Court. When the ossification test is not trustworthy and reliable, the said test cannot be made basis to determine the age of the 17 person concerned on the date of incident. Accordingly, no case of interference is made out. Accordingly, this petition is dismissed. Pending, I.A, if any, stands disposed of. Interim order is vacated.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated. 29/09/2022 Satyarthi/- N.A.F.R