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2012 DIGILAW 3169 (DEL)

Ravi Kumar @ Ravi v. State Govt. NCT of Delhi

2012-12-06

S.P.GARG, SANJIV KHANNA

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JUDGMENT : Sanjiv Khanna, J. Age inquiry report has been received. As per the opinion expressed in the said report, age of the appellant-Ravi was 17 years of age on the date of the incident i.e. 5th October, 2007. Accordingly, the appellant was a juvenile on the said date and, therefore, was required to be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2000 and not under the provisions of the Indian Penal Code, 1860 read with the Code of Criminal Procedure, 1973. 2. We have also examined the said report, which is detailed and elaborate. As per the Medical Board, consisting of 7 doctors, the appellant was between 22 to 25 years of age on the date of his medical examination i.e. 22nd October, 2012. The Medical Board has referred to the radiological examination, which consists of 7 x-rays, opinions of radiologist, dentist and forensic expert. In terms of the said report of 7 doctors of All India Institute of Medical Sciences, the appellant was between 17 to 20 years on the date of occurrence i.e. 5th October, 2007. 3. In addition to the aforesaid ossification test report, we have statements of father and brother of the appellant, namely, Karan Singh (CW-1) and Rajesh (CW-2). Karan Singh has stated that on the date of his examination in the Court i.e. 31st October, 2012, he was about 52-53 years old. He has three sons, Ravi being the youngest. He claims that Ravi was born in the summer of 1990. He has further stated that he had procured Ravi’s caste certificate dated 27th July, 1995, for admission in a school. The said caste certificate is marked Ex.CW1/A. However, he did not go to any school. CW-1 in his cross-examination avers that his elder sons did not study and were never admitted to any school. In the cross-examination and on Court question, CW-1 had stated that he got married six months after the death of Mrs. Indira Gandhi, the former Prime Minister of India. He was working in Delhi as a daily wage labourer, though his family remained in Ajmer even after he had shifted to Delhi. He claims that Ravi was 5 years old when he had applied and procured the caste certificate to get Ravi admitted in a school. 4. Indira Gandhi, the former Prime Minister of India. He was working in Delhi as a daily wage labourer, though his family remained in Ajmer even after he had shifted to Delhi. He claims that Ravi was 5 years old when he had applied and procured the caste certificate to get Ravi admitted in a school. 4. Rajesh (CW-2), on the other hand, has stated that he had studied in a village school for 2-3 years, but thereafter discontinued study. He claims that Ravi is 11 years younger to him. He gave his year of birth as 1982, which obviously is not correct, as noticed below. 5. The investigating agency could not locate or find any document which could shed light on the age of the appellant. Ravi claims that he has never been to a school. Police has not been able to controvert or deny the said averment. No document to the contrary has been produced. 6. Statements of CW-1 and CW-2 are ambiguous and contradictory. We feel that the only and reliable evidence is in the form of ossification test report of 7 doctors of AIIMS. As per the said report, the appellant could be a juvenile on the date of occurrence i.e. he could be less than 18 years of age as on 5th October, 2007. In these circumstances, the benefit of doubt must go to the appellant in terms of the decisions of the Supreme Court in Arnit Das Vs. State of Bihar AIR 2000 SC 2265, Rajender Chander Vs. State of Chandigarh, AIR 2002 SC 748 and Ashwini Kumar Saxena Vs. State of M.P., 2012 (9) SCALE 19. 7. We may note that two doctors i.e. CW-3, Dr. Chittaranjan Behera, Assistant Professor, Forensic Department, AIIMS and CW-4, Dr. Munish Sharma, Junior Resident, Forensic Department, AIIMS had appeared before the trial court and have stated that it cannot be ruled out that as on 5th October, 2007, the appellant-Ravi was less than 18 years of age. 8. As noticed above, statements of CW-1 and CW-2 are contradictory, but it can be safely accepted that Ravi is the youngest son of CW-1. CW-1 has stated that he was about 52-53 years old when his statement was recorded in the Court on 31st October, 2012. In his cross-examination, he has stated that he had got married sometimes after the death of Mrs. Indira Gandhi. CW-1 has stated that he was about 52-53 years old when his statement was recorded in the Court on 31st October, 2012. In his cross-examination, he has stated that he had got married sometimes after the death of Mrs. Indira Gandhi. He has also relied upon Ravi’s caste certificate dated 21st July, 1995. Keeping in view the aforesaid facts, we can compute and conclude that the appellant was born sometimes in 1990 and thereabout, if the gap between the three children is taken as 2-2.5 years. This corroborates and affirms the ossification/medical report and our observations and findings recorded above. In view of the aforesaid position and the factual matrix, we accept the inquiry report and hold that the appellant was a juvenile on the date of the commission of the offence. 9. When the matter was called out in the morning, we had asked the appellant-Ravi to state whether he would like his conviction to be sustained and we can set aside the sentence awarded to him. The other alternative being to refer the case to the Board under the Juvenile Justice (Care and Protection of Children) Act, 2000. Mr. O.N. Sharma, Advocate for the appellant and Mr. Sanjay Lao, Additional Public Prosecutor were asked to speak to Ravi and the matter was passed over. 10. On the second call, Mr. O.N. Sharma, Advocate, on instructions from Ravi, has stated that the appellant’s conviction may be sustained, but his sentence may be set aside. Ravi has also made a similar statement. We take the statement on record. Accordingly, the conviction of the appellant is sustained, but the sentence awarded to him is set aside. 11. In view of the aforesaid position, we are not inclined to refer the matter to the Juvenile Justice Board after noting that the appellant has suffered incarceration for more than 3 years. The appeal will be treated as disposed of. The appellant will be released, if he is not required to be detained in any other case. Dasti under signature of the Court Master.