IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No.47 of 2011. Judgment Reserved on: 07.05.2011 Date of decision: 17.06.2011 Yuv Raj … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.Hardeep Verma, Advocate. For the Respondents: Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. This petition has been preferred by the petitioner herein challenging the order dated 4.3.2011 passed by the learned Additional Sessions Judge, Fast Track Court, Shimla, rejecting the application filed by the petitioner herein claiming that he was a Juvenile on the date when he committed the offence and the case is not triable by the Court, but by the Board under the Juvenile Justice (Care and Protection of Children) Act, (hereinafrer referred to as the `Act’). 2. The petitioner is being tried for offences punishable under Section 302 IPC which was registered 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 against him vide FIR No.107/2010, dated 8.5.2010 in Police Station, Sadar, Shimla. On an application having been made under Section 49 of the Act, it has been stated that the accused was born on 17.7.1994 in Tihri Gharwal in Uttrakhand. The father of the accused is a Nepali migrant labourer. In these circumstances, the petitioner was never admitted in any School in India nor is there any documentary evidence with respect to his age. It is further pleaded that the petitioner was below 18 years of age on the date of offence and, as such, entitled to the protection of the beneficent provision of the Act. 3. Learned Court, on the opinion of the Medical Board Ex.CW-1/A, rejected the application holding that his age is above 18 years. The Board comprised of six doctors, namely; Dr.J.S. Rana, Medical Superintendent- cum-Chairman of the Board, Dr.A.K. Sharma, Department of Forensic Science, Dr.Neena Walia, Dental Surgeon, Dr.Rakesh Kashyap, Medical Specialist and Dr.Jagdish Gupta, Surgeon. It is this order that the petitioner challenges herein. 4. Referring to the provisions of the Act, learned counsel submits that the procedure is prescribed for under Rule 12 of the Juvenile Justice(Care and Protection of Children) Rules, 2007, the method prescribed under Rule 3 is that: “12. … … … … … … … … … … … … … … 3 (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 matriculationor 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 4 proof of the age as regards such child or the juvenile in conflict with law.” It is undisputed at present that neither clause (i), (ii) or (iii) supra are applicable in the absence of the documentary evidence as none is available and that clause (b) supra would govern the case. 5. Emphasis has been placed by learned counsel on clause (b) of sub-rule (3) to urge that he should be given the benefit as contemplated therein and that his age be determined to be below 18 years of age. This submission has been made in view of the fact that in Ex.CW-1/A, the opinion, which has been recorded by the Board of five doctors, is that as per the combined dental and radiological examination skeletal age of the accused ranged between 17 to 21 years. Board then records, “However the Board is of the opinion that his age is above 18 years” and this opinion was rendered on 27.11.2010 by this Board. 6. Learned counsel for the petitioner places reliance on the decision in Rajinder Chandra vs. State of Chhattisgarh and another, AIR 2002 SC 748 holding:- “5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar (2000)5 SCC 488, this Court has, on a review of judicial opinion, held that while dealing with question of determination of 5 the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.” (p.749) 7. He submits that the crucial date for determination of age is the date when the offence was committed and since the medical examination was conducted on 27.11.2010 i.e. after the offence having been committed, it is as on the date of the offence that the age is to be determined. 8. He places reliance on Babban Rai and Another vs. State of Bihar, (2007)13 SCC 88, holding:- “4. … … … … … … … … … … It appears that, pursuant to the order of the Trial Court, during the course of inquiry, a Medical Board was constituted which conducted ossification test and recorded that the age of Dharam Nath Rai on 22nd March, 2007, on which date the Report was prepared, was between 35 to 40 years. If the age of this appellant is taken to be 35 years, then his year of birth would be 1972, which is in conformity with evidence of father of the appellant, who was examined as a witness in this case and in case his year of birth, as deposed to by his father as 1972 is accepted, he would be definitely 6 below sixteen years of age and entitled to claim protection under Juvenile Justice (Care and Protection of Children) Act, 2000. This being the position, we are of the view that the Trial Court was not justified in holding that appellant-Dharam Nath Rai was not under sixteen years of age on the date of alleged occurrence, i.e., 16th March, 1987.” (p-89) 9. Learned counsel then urges that in Babloo Pasi vs. State of Jharkhand and Another, (2008)13 SCC 133, the Court holds:- “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 Vs. State of Bihar (2000)5 SCC 488, this Court has, on a review of judicial opinion, observed that while dealing with a question of determination of age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and 7 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. 31. In our judgment, apart from the fact that the impugned order suffers from the basic infirmity of being violative of the principles of natural justice, it cannot be sustained on merits as well. At the same time, we are also convinced that the order of the Board falls short of a proper enquiry as envisaged in Section 49 of the Act. 32. For the aforementioned reasons, the appeal is allowed and the matter is remitted to the Chief Judicial Magistrate, Deoghar, heading the Board, with a direction to re- determine the age of the accused, as on the date of commission of the alleged offences, in accordance with law, enunciated above. In the event he is found to be a juvenile within the meaning of the Act, he shall be dealt with accordingly. However, if 8 he is not found to be a juvenile, he would face trial under the ordinary criminal law. The inquiry shall be completed expeditiously, preferably within six months of receipt of a copy of this judgment.” (pp-142-144) 10. Learned counsel then adverts to the statement of CW-1, Dr.Vijay Thakur, Assistant Professor, Department of Radiology, Indira Gandhi Medical College, Shimla. He has proved the medical certificate Ex.CW- 1/A and states in cross-examination that there are many methods in medical science to determine the age, but since he is Assistant Professor in Radiology, he can only opine that the skeletal age of the person is not 100% correct. His evidence reads:- “Stated that I am Assistant Professor, Department of Radiology, IGMC, Shimla, HP. On the orders of this court, a medical board was constituted, of which I was the member. The board was required to determine the medical age of Yuvraj son of Janak Bhadur. On 27th November, 2010, he was examined by the board. He was subjected to X-Rays for the determination of his age. After conducting the examination, the medical board was of the view that his skeletal age was 17 to 21 years. But the final opinion was that he was above 18 years of age. Our report is Ex.CW- 1/A. It bears my signatures at portion A and signatures of Dr.A.K. Sharma of Department of Forensic Sciences at portion B, and Signatures of Dr.Neena Walia, of Dental Surgeon at portion C and Dr.Rajesh Kashyap, 9 Medical Specialist at portion D, Dr.Jagdish Gupta, Surgeon at Point E and Dr.K.S. Rana, Medical Superintendent-cum-Chairman of the board at Point F. Ex.CW-1/B-2 to Ex.CW-1/B- 15. xxxxxxxxxxxxxx By Defence counsel There are many methods in medical science to determine the age, but since my field is radiology, I can say and depose only in that respect. The skeletal age of the person is not 100% correct as it gives the age in range. As per the radiology, the accused could not be below 17 years of age, at the time of examination. … … … …” 11. In Cr.M.M.O. No.148 of 2010, titled: Harjinder Singh vs. Ram Gopal, decided on 20.9.2010, this Court had considered in extenso the provisions of the Act relying upon the decision of the Supreme Court in Dharambir vs. State (NCT of Delhi) and another, (2010)5 SCC 344, holding:- “13. At this juncture, it will be profitable to take note of Section 7A, inserted in the Act of 2000 with effect from 22nd August, 2006. It reads as follows: "7A.Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as 10 may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect." 14. Proviso to sub-section (1) of Section 7A contemplates that a claim of juvenility can be raised before any court and has to be recognised at any stage even after disposal of the case and such claim is required to be determined in terms of the provisions contained in the Act of 2000 and the rules framed thereunder, even if the juvenile has ceased to be so on or before the date of the commencement of the Act of 2000. The effect of the proviso is that a juvenile who had not completed eighteen years of age on the date of commission of the offence would also be entitled to the benefit of the Act of 2000 as if the provisions of Section 2(k) of the said Act, which defines "juvenile" or 11 "child" to mean a person who has not completed eighteenth year of age, had always been in existence even during the operation of the 1986 Act. 15. It is, thus, manifest from a conjoint reading of Sections 2(k), 2(l),7-A, 20 and 49 of the Act of 2000, read with Rules 12 and 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 that all persons who were below the age of eighteen years on the date of commission of the offence even prior to 1-4-2001 would be treated as juveniles even if the claim of juvenility is raised after they have attained the age of eighteen years on or before the date of the commencement of the Act of 2000 and were undergoing sentences upon being convicted. In the view we have taken, we are fortified by the dictum of this Court in a recent decision in Hari Ram vs. State of Rajasthan & Another (2009)13 SCC 211.” (pp.347-348) 12. Similarly in Jabar Singh vs. Dinesh and Another, (2010)3 SCC 757, Court rules:- “12. Mr.Kartikay further submitted that under Section 49 of the Act it is only the competent authority which has the jurisdiction to make due enquiry as to the age of a person brought before it and the competent authority in the present case is the Juvenile Justice Board and it is for the Juvenile 12 Justice Board and not the court to determine the age of Respondent No.1. 13. Section 49(1) of the Act is quoted herein below: "49. Presumption and determination of age.- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be." The opening words of sub- section (1) of Section 49, quoted above, shows that only when a person is "brought before the competent authority" under any of the provisions of the Act, the competent authority is required to make due enquiry as to the age of that person and for that purpose take such evidence as may be necessary and record a finding whether the person is a juvenile or not. Section 49 is, therefore, attracted when a person is brought before the competent authority and not otherwise. 14. In the present case, Respondent 1 was not brought before the competent authority, namely, the Juvenile Justice Board. Hence, Section 49 was not attracted and the competent authority had no jurisdiction to make enquiry as to the age of Respondent No. 1 as provided under sub-section (1) of Section 49. In fact, Respondent No.1 was before the trial court when he filed an application 13 claiming juvenility and it was, therefore, for the trial court to make an enquiry and take such evidence as may be necessary to determine the age of Respondent No.1 and decide upon his claim of juvenility. 15. Section 49 of the Act contains no provision prohibiting the court before which a claim of juvenility is raised, to determine the age of the person before the court. The trial court, therefore, had the jurisdiction to inquire into the age of Respondent No.1 and for that purpose take such evidence as may be necessary and record a finding whether Respondent No.1 was a juvenile or not at the time of commission of the offence. 16. As a matter of fact, after the trial court in the present case determined the age of Respondent No.1 and rejected his claim to juvenility by the order dated 14.02.2006, Section 7A has been introduced in the Act with effect from 22.08.2006 laying down the procedure to be followed when claim of juvenility is raised before any court. This insertion of Section 7A in the Act indicates that Parliament never intended to oust the jurisdiction of the court to decide a claim of juvenility raised before it, and that the court always had the power to decide a claim of juvenility raised before it. Hence, the contention raised on behalf of Respondent No.1 that it was only the competent authority which had the jurisdiction to decide whether Respondent No.1 was 14 a juvenile at the time of commission of the alleged offence or not, has no merit. 17. The trial court passed the order on 14.02.2006 rejecting the claim of Respondent No.1 that he was a juvenile at the time of commission of the offence and Section 7A of the Act laying down the procedure to be followed when claim of juvenility is raised before any court had not come into force by 14.02.2006. When the trial court passed the order rejecting the claim of Respondent No.1 of juvenility on 14.02.2006, the Rules, including Rule 12 laying down the procedure to be followed in determination of age of a juvenile in conflict with law, had also not come into force. The trial court, thus, was not required to follow the procedure laid down in Section 7A of the Act or Rule 12 of the Rules. In the absence of any statutory provision laying down the procedure to be followed in determining a claim of juvenility raised before it, the court had to decide the claim of juvenility of Respondent No.1 on the materials or evidence brought on record by the parties and Section 35 of the Evidence Act. 18. This Court has held in Ravinder Singh Gorkhi2 that in case of a dispute with regard to the age of the person who is alleged to have committed the offence, the Court has to appreciate the evidence having regard to the facts and circumstances of the case and it 15 will be the duty of the court to accord the benefit to a juvenile, provided he is found to be a juvenile and not to give the same benefit to a person who, in fact, is not a juvenile and cause injustice to the victim. 19. Again in Jyoti Prakash1 this Court has held that in the absence of any evidence which is relevant under Section 35 of the Indian Evidence Act, the age of a person who has committed the offence must be determined keeping in view the factual matrix involved in each case.” (Emphasis supplied) (pp.761-762) 13. These are the principles which are to be applied for determining the age of a person who claims that he is a juvenile. Though I find from the record of the Board, Ex.CW-1.A, that the Board has come to a definite conclusion that the petitioner is above 18 years of age yet from the evidence of Dr.Vijay Thakur, Assistant Professor, Department of Radiology, in his cross-examination he was emphatic when, according to the radiological opinion, he says that “the skeletal age of the person is not 100% correct as it gives the age in range. As per the radiology, the accused could not be below 17 years of age, at the time of examination.” This indeed raises a serious doubt in my mind. I am at no point questioning the wisdom of the Board of doctors who have given their opinion, but with 16 one of them going the other way and then again signing a certificate stating 18 years as the skeletal age raises some doubt in my mind. Adverting to the definition of juvenile under Section 2(k) of the Act, I find that a person who has not completed 18 years of age is to be treated a juvenile and the date on which determination has been made is date of commission of the offence. 14. In these circumstances, taking into consideration the decision of the Supreme Court in Rajinder Chandra’s case, I direct that the trial may continue, but the learned trial Court shall give an opportunity to the petitioner herein to establish that he was juvenile on the date when the alleged offence was committed. This exercise shall be undertaken by the Court simultaneously with the continuation recording of the evidence and in case the Court thereafter comes to the conclusion that the petitioner is infact a juvenile, his case shall be sent to the appropriate authority with the evidence already recorded and the case of the petitioner be proceeded thereafter in accordance with the Act. The trial Court shall finalize the evidence, on the age immediately. June 17, 2011 (Dev Darshan Sud) (aks) Judge.