Crl.RP No. 528/2009 Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Rev.P. No.528/2009 & Crl.MA No.10977/2009 Reserved on : 12.08.2010 Pronounced on: 09.09.2010 IN THE MATTER OF : RADHEY SHYAM ..... Petitioner Through: Mr. Anand Mishra and Mr.J.P.Singh, Advocates versus STATE ..... Respondents Through: Mr. M.N.Dudeja, APP for the State. Mr.Varun Goswami, Advocate for Complainant. CORAM * HON'BLE MS.JUSTICE HIMA KOHLI 1. Whether Reporters of Local papers may be allowed to see the Judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes HIMA KOHLI, J. 1. The petitioner is aggrieved by an order dated 25.7.2009 passed by the learned ASJ, Rohini Court, Delhi, holding inter alia that he is not a juvenile, as defined by the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short `the Act’). Before dealing with the submissions of the counsels for the parties, it is necessary to cull out the backdrop of the matter, as the case has a chequered history. 2. On 8.9.2005, the petitioner was arrested along with one Sh.Jaipal Singh for commission of an offence punishable under Sections 392/302/411/34 IPC and Section 25 of the Arms Act, in respect of an FIR Crl.RP No. 528/2009 Page 2 of 18 No.797/2005 lodged by Sh.Puneet Vasudev, son of the deceased victim, Smt. Promila Vasudeva, registered with PS Prashant Vihar, Delhi. After the investigation was completed, a charge sheet was filed in the Court of the learned MM, who in turn, committed the matter for trial to the Sessions Court on 7.1.2006. After a period of 8 months, on 20.9.2006, the petitioner filed an application for transfer of his case to the Juvenile Court claiming himself to be a juvenile. In support of the application, the petitioner enclosed a photocopy of the scholar’s register of Adarsh Janta Vidyalaya, Salempur, Khutiana, Firozabad(U.P.) showing his date of birth as 28.11.1988. The IO was directed to verify the documents and submit a report to the Court. As per the report submitted by the IO, the date of birth of the petitioner was found to be correct as per the school record and a statement given by the Principal of the school, was enclosed with the report. The IO also mentioned in the report that the date of birth of the petitioner, as recorded in the “Kutumbwar Register” of the village was 14.9.1988 and that there was variation in both the records. 3. Vide order dated 19.3.2007, the learned ASJ directed that an ossification test of the petitioner be got conducted from the All India Institute of Medical Sciences(AIIMS). As per the certificate dated 10.4.2007 issued by the Medical Board, AIIMS, it was opined that the bone age of the petitioner was more than 20 years. However, relying on the school leaving certificate filed by the petitioner and the entry recorded in the Kutumbwar Register, vide order dated 19.4.2007, the learned ASJ concluded that the petitioner was less than 18 years of age as on the date of the alleged offence. The aforesaid order was challenged by the complainant by filing a Crl.RP No. 528/2009 Page 3 of 18 petition in the High Court, registered as Crl.RP. No.610/2007. Vide judgment dated 27.4.2009, the revision petition was allowed and the impugned order dated 19.4.2007 was set aside. It was directed that the petitioner be produced before the ASJ to hold an inquiry under Section 7-A of the Act in the prescribed manner after giving an opportunity to the petitioner, as also the complainant to cross-examine the witnesses who may be produced, to determine the question as to whether the petitioner was a juvenile at the time of commission of the alleged offence or not. 4. Pursuant to the aforesaid order, the learned ASJ held an inquiry under Section 7-A of the Act and considered the deposition of two witnesses produced on behalf of the petitioner, namely, AW-1, Mr.Mihi Lal, Gram Panchayat Adhikari, village Dayalpur, PO Padam, Tehsil Jasrana, District Firozabad (UP) and AW-2, Smt. Seema, Acting Principal of Adarsh Janta Vidyalaya. 5. Insofar as AW-1 was concerned, the Court found the said witness to be completely unreliable as it was observed that whatever documents were demanded from the said witness, were being produced by the relatives of the petitioner, who were present at the time of his examination and that Shri Jaivir Singh, the relative of the petitioner (examined as PW8 in the case) was assisting the witness. It was brought to the notice of the learned ASJ that though AW-1 stated that the Pariwar Register brought by him to the Court was always in his custody during his travel after receiving the summons till that point of time, however, he admitted that when the matter was passed over in Court for the post lunch session after his examination-in-chief and cross-examination, he was sitting Crl.RP No. 528/2009 Page 4 of 18 outside with Shri Jaivir Singh during the lunch recess and that Shri Jaivir Singh had the Register of AW-1 in his hand and after examining the same, he kept it in a polythene bag. Pertinently, counsel for the complainant produced before the learned ASJ a mobile phone showing video recording of the conversation between AW-1 and Shri Jaivir Singh outside the Court which showed that after seeing the Register, Shri Jaivir Singh kept it inside the polythene bag and retained the same with him. The said recording was directed by the learned ASJ to be placed in a CD on the court record. 6. After examining the entries in the Register, learned ASJ arrived at the conclusion that the last pages of the Register were manufactured and cast a doubt on the genuineness of the Register. The trial court further noted that though AW-1 stated that the said Pariwar Register produced by him was in his custody since January, 2007, it did not contain his signatures or initials anywhere. A number of loopholes were observed in the entries made in the Pariwar Register, which compelled the Court to conclude that the same could not be relied upon for determining the age of the petitioner. 7. The second witness, AW-2 was Smt. Seema, Acting Principal of Adarsh Janta Vidhalya, District Firozabad, who deposed that the school was being run by her father-in-law, Shri Vijay Pal Singh Chauhan, who expired two years ago and that she had brought the scholar register and the transfer certificate form of the said school, as maintained by her father-in-law and after his death, she was working as an Acting Principal of the school. She further deposed that the entry in respect of the petitioner shown in the Register (Ex.AW2/A) was not in her handwriting but in the handwriting of her deceased father-in-law and that she had issued the certificate in respect Crl.RP No. 528/2009 Page 5 of 18 of the age of the petitioner in her handwriting on the basis of the entry recorded in the register, though she had no personal knowledge thereof. She stated that prior to the death of her father-in-law, she was working as a teacher in the said school and had not worked as a Principal therein. She also admitted that she did not mention the date of issuance of the certificate, Ex.AW2/DA, which was issued almost two years ago and that there was no other record available or maintained by the school in respect of the petitioner. 8. The learned ASJ scrutinized the evidence of AW-2 and noticed that she was not authorized to issue the certificate in question as she was not the Principal of the school at the relevant time and as her father-in-law, who was earlier the Principal of the school, expired on 07.07.2007, on the day on which Ex.AW2/DA was issued by the witness, her father-in-law was very much alive and working as a Principal and she was therefore not authorized to sign the same. The Court thus concluded that AW-2 had no personal knowledge of the entry recorded in the scholar register brought by her and that she was working as a teacher in the school before the death of her father-in-law and never worked as a Principal therein and further that there was no other record available or maintained by the school in respect of the petitioner. During her cross-examination, AW-2 admitted that though she had appeared in Court on receipt of summons, but she had not brought the same with her. The office copy of the summons issued to the witness revealed that the same were issued in the name of one Smt. Kamla Devi, Principal, Adarsh Janta Vidhalya and not in the name of AW-2, Smt. Seema. AW-2 admitted that the name of the school was not mentioned in the space Crl.RP No. 528/2009 Page 6 of 18 meant for the name of the institution on the scholar register, Ex.AW2/A. She admitted that no birth certificate of the petitioner was produced in support of his date of birth for the entry made in the scholar register and the same was made only on the basis of the school leaving certificate issued by Vijay Vidhalya Samiti, which was run by AW-2, who volunteered that the records of the said school were lost in an accident, but no FIR was got registered about missing of the records till date. Having regard to the fact that the entries in the scholar register and the transfer certificate form brought by AW-2 were not supported by any document and even the school leaving certificate of the previous school from where, the petitioner had passed class 5th examination, which formed the basis of recording his date of birth in the register, Ex.AW2/A, was not found on the record produced by AW-2, the entries in the register, Ex.AW2/A, could not be relied upon. 9. This left the learned ASJ with one other piece of evidence, which was the certificate dated 10.04.2007 issued by the Medical Board of AIIMS. As per the said certificate, the age of the petitioner on the date of issuance of the certificate was found to be more than 20 years. The date of the alleged commission of offence by the petitioner was 05.09.2005. Relying on the aforesaid certificate, the learned ASJ concluded that there was no doubt that the age of the petitioner was more than 18 and a half years on the date of the alleged commission of offence and hence he was held not to be a juvenile. Aggrieved by the said finding, the petitioner has filed the present petition. 10. Learned counsel for the petitioner argued that an ossification test is never completely accurate as it only determines proximate age of the Crl.RP No. 528/2009 Page 7 of 18 person with a variance which can be upto plus/minus two years, depending on various factors and while holding the petitioner not to be a juvenile on the date of the alleged commission of offence, the learned ASJ did not give him any benefit of margin of age. It was urged that the ground for forming such an opinion could have been clarified only upon cross-examination of the doctors, who submitted the ossification report and because the petitioner could not subject the experts, who submitted the certificate, to cross- examination, the same could not be relied upon. It was further contended that as the ossification test was carried out for multiple joints hence, the margin of error could be at least of six months, benefit of which period ought to have gone to the petitioner. In support of the aforesaid submission, counsel for the petitioner relied upon the following judgments:- (i) Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and others AIR 1982 SC 1297; (ii) Babloo Pasi vs. State of Jharkhand and Anr. 2008 (13) SCALE 137. 11. Per contra, counsel for the complainant supported the impugned order and submitted that the medical examination of the petitioner was not limited to a single bone, but was a comprehensive one and hence, the petitioner was not entitled to any age relaxation as sought by him. It was further submitted that the plea of juvenility by the petitioner was a sheer afterthought and that even at the stage of the investigation he had on his own given his age as above 18 years. In this regard, he drew the attention of this Court to the charge-sheet filed by the Investigating Officer in the trial court, wherein the age of the petitioner on the date of the offence was Crl.RP No. 528/2009 Page 8 of 18 declared by him as above 18 years. It was urged that in his test identification parade before the Metropolitan Magistrate on 12.09.2005, the petitioner had stated that he was above 18 years of age. Counsel for the complainant canvassed that the petitioner made every attempt to mislead the court in connivance with both the witnesses, AW-1 and AW-2, by creating false and fabricated documents, which were found to be unreliable by the trial court and rightly discarded. In support of his submissions, counsel for the complainant relied upon the following judgments:- (i) Lal Bahadur vs. State 106 (2003) DLT 481 (ii) Jabar Singh vs. Dinesh & Anr. JT 2010 (2) SC 603 12. This Court has heard the counsels for the parties and carefully perused the impugned judgment as also the documents placed on the record. 13. It is apparent from a perusal of the impugned order that there were only three pieces of evidence available to the learned ASJ for him to decide as to whether the petitioner was a juvenile at the time of commission of the alleged offence, i.e., on 05.09.2005. The first piece of evidence was the deposition of AW-1, Shri Mihi Lal, Gram Panchayat Adhikari, Block Jasrana, District Firozabad, UP. It is apparent from a perusal of the impugned order that the evidence of the said witness was carefully scrutinized by the learned ASJ, who found that the register produced by the witness had entries, which were not reliable and at no place did they contain the signatures of AW-1, who was supposed to be maintaining the said Crl.RP No. 528/2009 Page 9 of 18 register since January 2007. Interestingly, the registers of the said witness were found to be in the custody of the relative of the petitioner, Mr. Jaivir Singh (examined as PW8 in the case). In the Kutumbvar Register brought by the witness, variations were found in the house number of the petitioner. In the true attested copy of the Kutumbvar Register issued by AW-1 (Ex.AW1/DB), the house number of the petitioner was shown as 203, whereas in the Register actually brought by the said witness in Court, the house number of the petitioner was mentioned as 143 at page No.387. The register was not signed or authenticated against the entries made therein whereas, the witness admitted that whenever an entry was made in the Register, the Gram Panchayat Adhikari was required to authenticate and sign the same. The witness admitted that while he had recorded several entries during his tenure as Gram Panchayat Adhikari since 12.12.2006, he had never signed the register at any place for authenticating the entries made therein for recording births, deaths and marriages, etc. 14. Looking at the conduct of AW-1 and taking into consideration his deposition during his cross-examination, which revealed that the documents demanded from the said witness were being produced by the relatives of the petitioner, who were present at the time of his examination, including Shri Jaivir Singh, and after seeing the video recording of the conversation between AW-1 and Shri Jaivir Singh outside the Court as recorded by the counsel for the complainant on his mobile phone, separate directions were issued by the learned ASJ to send a copy of the impugned order to the District Magistrate, Firozabad, UP, for conducting an enquiry against the guilty and if found necessary, to register a criminal case against those found Crl.RP No. 528/2009 Page 10 of 18 to have indulged in the fraudulent act of trying to mislead the Court, with the active connivance of AW-1, a public servant and AW-2, Acting Principal of a private school. 15. The second piece of evidence was the deposition of AW-2, Smt. Seema. The impugned order clearly reveals that AW-2 could not produce any certificate or authorization or any identity card in support of her being appointed as Acting Principal of the school as claimed by her. She admitted that the summons were issued in the name of Smt. Kamla Devi, but she was unable to produce the summons issued by the Court on the basis of which, she appeared in the Court. AW-2 admitted that on the date, when the certificate (Ex.AW2/DA) was issued by her in respect of the age of the petitioner, it was her father-in-law, who was the Principal of the school, and he expired on 07.07.2007 and was alive and working as a Principal of the school at the relevant time. This Court finds no reason to disagree with the finding of the learned ASJ that AW-2 had issued an undated certificate with the intention of helping the petitioner to claim benefit of juvenility and that she had no personal knowledge about the entries recorded in the scholar register brought by her. Further, the register (Ex.AW2/A) brought by AW-2 did not bear the name of the school anywhere and the entries made in the register with regard to the age of the petitioner, were made on the basis of the school leaving certificate issued by Vijay Vidhalya Samiti, which was run by AW-2. AW-2 admitted that the petitioner was admitted to class 6th in Adarsh Janta Vidhalya on the basis of a transfer certificate issued by Vijay Vidhalya Samiti, a branch of her own school, records of which were allegedly lost in an accident, but no FIR was got registered in respect thereof. Hence, Crl.RP No. 528/2009 Page 11 of 18 in the absence of any record of Vijay Vidhalya Samiti, which formed the basis of making the entries in the register of Adarsh Janta Vidhalya (Ex.AW2/A), it was found to be unsafe to rely on the testimony of AW-2 or the documents produced by her. In these circumstances, the learned ASJ cannot be faulted in concluding that AW-2 had issued the certificate deliberately with the intention of helping the petitioner claim the benefit of being a juvenile before the Court. 16. As a result of the above, both the pieces of documentary evidence relied upon by the petitioner stood completely demolished before the learned ASJ and had to be discarded. It is quite apparent from the above that the petitioner left no stone unturned to ensure that he was declared a juvenile and his relatives spared no opportunity to tamper with the government records produced by AW-1 and to influence AW-2, the Acting Principal of a private school to support the plea of the petitioner that he was a juvenile at the time of alleged commission of offence. Counsel for the petitioner has also not made any attempt to controvert the findings of the learned ASJ with respect to the deposition of AW-1 and AW-2. This leaves the third and the only other evidence in the shape of the age certificate dated 10.4.2007, issued by the expert body namely, the Medical Board, constituted by AIIMS on the directions of the court, to opine the bone age of the petitioner. 17. The age certificate issued by the Medical Board constituted at AIIMS, included a Radiologist, a Resident Hospital Administrator and a Professor of Forensic Medicine. The said certificate was issued after Crl.RP No. 528/2009 Page 12 of 18 considering the findings of physical, dental and radiological examination of the petitioner. The Medical Board submitted its report after conducting an ossification test for multiple bones and gave a clear finding that the bone age of the petitioner was more than 20 years. When the report itself categorically certified that the age of the petitioner was more than 20 years as on the date of its issuance, i.e. on 10.04.2007, the question of giving him any age relaxation of six months as claimed by the petitioner, does not appear to be tenable. If the age of the petitioner was 20 years as on 10.04.2007, then on the date of the alleged commission of offence, i.e., on 05.09.2005, he was 18 years 5 months of age. That the petitioner was one month short of 18½ years on the relevant date can hardly be considered to be of such material significance, so as to arrive at an entirely different conclusion as to the juvenility of the petitioner, from that as arrived at in the impugned order. 18. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (for short `the Rules’), which lays down the procedure to be followed for determination of age, does not enjoin the Court to necessarily give the benefit to a child or a juvenile by considering his/her age on the lower side, within the margin of one year. Rule 12 is reproduced hereinbelow for ready reference:- “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. Crl.RP No. 528/2009 Page 13 of 18 (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. (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 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