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2013 DIGILAW 1021 (DEL)

Bhim @ Sagar v. State

2013-05-23

SANJIV KHANNA, VED PRAKASH VAISH

body2013
JUDGMENT : Sanjiv Khanna, J. 1. The appellant Bhim @ Sagar has been convicted under Section 394 and 397 of the Indian Penal Code, 1860 and Sections 27 and 25 of the Arms Act, 1959 by judgment dated 9th March, 2010 in the criminal case arising out of FIR No. 206/2008, P.S. Adarsh Nagar. By order on sentence dated 22nd March, 2010, Bhim has been sentenced to rigorous imprisonment for life for offences under Sections 392/34 IPC read with Section 394 and 397 IPC. He has also been sentenced to pay fine of Rs. 50,000/- and in default of payment fine, he is to undergo simple im-prisonment for one month. The appellant has also been sentenced rigorous imprisonment for five years and fine of Rs. 1000/- for the offence under Sec¬tions 27 read with Section 25 of the Arms Act and in default of payment of fine he is to undergo simple imprisonment of five days. 2. The co-accused Ajay and Devi Prakash have been also convicted and sen¬tenced. But we are not concerned with the conviction and sentence awarded to them. 3. Along with the grounds of appeal, the appellant had filed the present applica¬tion CrI.M.A. No. 20091/2012 under Section 482 Cr. P.C., 1973 read with Juvenile Justice (Care and protection of Children) Act, 2000 (J.J. Act for short) with a prayer that the Court may take into consideration the school certificate of the appellant (photocopy of which is enclosed) and declare that he was a juvenile on the date of commission of of¬fence i.e. on 3rd September, 2008. 4. By order dated 18th December, 2012, the State was asked to verify the school certificate and to submit a report within fifteen days. The State took time to verify the school certificate. Subsequently, vide order dated 12th February, 2013, the ap¬pellant was directed to be produced before the trial court on 25th February, 2013 and that an inquiry to ascertain the age of the ap-pellant would be conducted and completed within two months. Two months time was granted as re¬cords from outside Delhi were to be verified and checked. 5. The trial court has conducted the said inquiry and submitted a report dated 8th April, 2013. Two months time was granted as re¬cords from outside Delhi were to be verified and checked. 5. The trial court has conducted the said inquiry and submitted a report dated 8th April, 2013. The trial court has, inter alia, concluded that different dates of birth of the appellant stand recorded in (i) the school re¬cords; (ii) the Kutumb Register (Family Reg¬ister) maintained by the panchayat; and (iii) in the ration card. As per the ration card, the appellant was 20 years of age in the year 2006 and in the Kutumb Register the appel¬lant's date of birth is recorded as 17.6.1988. In the school record, the appellant's date of birth has been mentioned as 6th September, 1991. The trial court has opined that date of birth as mentioned in the Kutumb Register should be accepted in preference to the date of birth mentioned in the school record. Two reasons have been ascribed. Firstly, the date of birth in the Kutumb Register was recorded at the time of birth of the appellant and is, therefore, more authentic and correct, whereas date of birth in the school records, was on oral statement of the parents and there is no document or basis for recording the said date. Secondly, it is highlighted that it is highly improbable that the appellant was born on 6th May, 1991 as recorded in the school record. The difference between date of birth of Malti (elder sister) and the appel¬lant is only about eight months. The trial court has relied upon Section 35 of the Evi¬dence Act to support its conclusion that on the date of occurrence i.e. 3rd September, 2008 the appellant was 20 years, 2 months and 16 days old. 6. The enquiry report submitted by the trial court is contested before us by the counsel for the appellant who has drawn our attention to Rule 12(3) of the Juvenile justice (Care & Protection of Children) Rules, 2007 and Delhi Juvenile Justice (Care & Protection of Children) Rules, 2009 which for the sake of convenience are hereinafter referred to as J.J. Rules and Delhi J.J. Rules, respec¬tively. 7. Rule 12(3) of J.J. Rules reads as un¬der: "12. 7. Rule 12(3) of J.J. Rules reads as un¬der: "12. Procedure to be followed in de¬termination of Age : xxxxxxxxxxxxxx "(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be con¬ducted by the court or the Board or, as the case may be, the committee by seek¬ing evidence by obtaining - (a)(i) the matriculation or equivalent certificates, if available; and in the ab¬sence 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 bene¬fit to the child or juvenile by considering his/her age on lower side within the mar¬gin of one year, and, while passing or¬ders 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." 8. Rule 12(3) of Delhi JJ. Rules is as under: "12. Procedure to be followed in de¬termination of Age. Rule 12(3) of Delhi JJ. Rules is as under: "12. Procedure to be followed in de¬termination of Age. xxxxxxxxxxxxxx (3) In every case concerning a child or juvenile in conflict with law, the age de¬termination inquiry shall be conducted by the court or the Board or, as the case may be, the committee by seeking evi¬dence by obtaining— (a)(i) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (ii) the birth certificate given by a cor¬poration or a municipal authority or a panchayat; (iii) the matriculation or equivalent certificates, if available; (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 bene¬fit to the child or juvenile by considering his/her age on lower side within the mar¬gin of one year and, while passing orders in such case shall, after taking into con¬sideration 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." 9. A reading of the said Rules 12(3) in the two Rules would indicate that there is a slight difference in the order of priority. As per J.J. Rules first preference is to be given to matriculation or equivalent certifi¬cate, if available, in its absence, date of birth certificate from school other than the play school first attended should be relied upon. Birth certificate given by the corporation, municipal authority or panchayat can be re¬lied and acted upon only in the absence of matriculation and school certificate. Thus the date of birth certificate is third in the or¬der of priority, in the absence of any of the three certificate, medical opinion can be sought from a duly constituted medical board. Birth certificate given by the corporation, municipal authority or panchayat can be re¬lied and acted upon only in the absence of matriculation and school certificate. Thus the date of birth certificate is third in the or¬der of priority, in the absence of any of the three certificate, medical opinion can be sought from a duly constituted medical board. Under the Delhi J.J. Rules, first prefer¬ence is to be given to the date of birth certifi¬cate from school other than the play school first attended and in absence whereof birth certificate given by the corporation, munici¬pal authority or panchayat is relied and acted upon, in the absence of these two certifi¬cates, under clause (iii) to Rule 12 (3) (a) ma¬triculation or equivalent certificate can be relied, when none of the three certificates are available, medical opinion can be sought from a duly constituted medical board. Thus, the opinion of the medical board is the last option. The two Rules stipulate that the court or the board or committee for reasons to be re¬corded, if consider necessary can give bene¬fit of upto one year on lower side to the child/juvenile, after taking into consider¬ation such evidence as is available including the medical opinion. 10. It is an accepted and admitted po¬sition that the appellant is not a matriculate and does not have matriculation certificate. The appellant it is accepted, was admitted to Class 1 in Government Primary School, Ubarpur, Lal Ganj, District Ajam Garh, U.P. on 1st August, 1997 and had studied in the said school till Class V. He left the school on 30th June, 2002. The date of birth as men¬tioned in the school records is 6th May, 1991. The aforesaid factual position has been proved on the basis of the school certif¬icate as well as school records which were produced by CW2 Muna Prashad Chaurasiya, Head Master of the said school. He had also produced the transfer certificates issued by the said school. 11. The panchayat records were pro¬duced and proved by Raj Nath Tiwari CW1, Gram Panchayat Adhikari, Vikas Khand Lal Ganj, Azamgarh, Uttar Pradesh (Ex. CW1/A). The register maintain by them has been marked Ex CW1/C. He also proved the ration card register maintained in the office of the Block Panchayat of the district. 11. The panchayat records were pro¬duced and proved by Raj Nath Tiwari CW1, Gram Panchayat Adhikari, Vikas Khand Lal Ganj, Azamgarh, Uttar Pradesh (Ex. CW1/A). The register maintain by them has been marked Ex CW1/C. He also proved the ration card register maintained in the office of the Block Panchayat of the district. CW1 has deposed that the said records were pre-pared in the year 2006 and in the said records the date of birth of the appellant is recorded as 17th June, 1988. 12. We have seen the photocopy of the said register Ex.CW1/C). Entries in the said register appear to be in the same hand-writing and by the same person. It is appar¬ent that the details of family members and their dates of birth were recorded on the same date and not at the time of birth or im¬mediately after birth of any child. CW1 Raj Nath Tiwari has stated these entries were made in the year 2006. The trial court has erred in recording the finding that the entry regarding date of birth of the appellant in the Kutumb Register was recorded immediately after the birth of the appellant. 13. Dates of births in the Kutumb Register as reproduced in the .inquiry report of different family members is as under: S. No. Name DOB 1. Suryan Bhan (Brother) 18.17.1974 2. Chander Bhan (Brother) 10 1.1979 3. Inder Bhan (Brother-expired) 13.3.1980 4. Lal Ji (Brother) 26.5.1984 5. Aarti (Sisister) Not mentioned in the register 6. Gyanti (Sister) Not mentioned in the register 7. Malti (Sister) 23.8.1986 8. Bhim @ Sagar 17.6.1988 Medically it is not possible that Malti would have been born in the year 1986, if date of birth of Lalji 26th May, 1984 is cor¬rect. Thus, the dates of birth recorded in the Kutumb Register are approximate and reflect guess work. These entries were recorded to procure BPL rations and social/economic benefits. 14. Thus the date of birth of the appel¬lant as recorded in the Kutumb Register i.e. 17th June, 1988, is a mere approximation and not true and correct date, in any case we have to ignore this date of birth in view of Rule 12(3) of J.J. Rules and Delhi J.J. Rules. The date of birth of the appellant as recorded in the school first attended other than the play school accepted and admitted is 6th May, 1991. The date of birth of the appellant as recorded in the school first attended other than the play school accepted and admitted is 6th May, 1991. As per Rule 12(3) of the J.J. Rules and Delhi J.J. Rules, this date of birth has to be accepted. 6th May, 1991 was recorded as the date of birth at the time of ad-mission of the appellant in the said school on 1st August, 1997. On the same date, appel¬lant's elder sister Malti was admitted in the same school and her date of birth as recorded was 6th September, 1990. This makes Malti hardly eight months elder to the appellant. The trial court has accordingly observed that the appellant's date of birth recorded in the school records is incorrect. However, it is equally possible that Malti's date of birth as recorded in the school records may be incor¬rect. 15. The discussion above, elucidates and it has to be conceded that the date of birth as recorded in the school records on 1st August, 1997 was approximate, but is the first official document in which the date of birth was recorded, chances are that this date would reflect and was the most accurate and correct. 16. The said date of birth has to be ac¬cepted in view of the specific legislative in¬tend and language of Rule 12(3) of J.J. Rules or Rule 12(3) Delhi J.J. Rules. The law on the subject is no longer res intergra or debat¬able in view of the decision in Ashwani Kumar Saxena vs. State of M.P. 2012 (9) SCALE 90 . in the said case the Supreme Court examined several earlier decisions and interpreted Section 7A of the Act and Rule 12 of the J.J. Rules and has observed as un¬der: "25. Section 7A, obliges the court only to make an inquiry, not an investi¬gation or a trial, an inquiry not under the code of criminal Procedure, but under the J.J. Act. Criminal Courts, J.J. Board, committees etc., we have noticed, pro¬ceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an 'inquiry' and in what manner that inquiry has to be con¬ducted is provided in JJ Rules. Criminal Courts, J.J. Board, committees etc., we have noticed, pro¬ceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an 'inquiry' and in what manner that inquiry has to be con¬ducted is provided in JJ Rules. Few of the expressions used in Section 7A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression "court shall make an in¬quiry", "take such evidence as may be necessary" and "but not an affidavit". The Court or the Board can accept as ev¬idence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence. 26. Rule 12 which has to be read along with section 7A has also used certain ex¬pressions which are also be borne in mind. Rule 12(2) uses the expression "prima facie" and "on the basis of physi-cal appearance" or "documents, if avail¬able". Rule 12(3) uses the expression "by seeking evidence by obtaining". These expressions in our view re-em¬phasize the fact that what is Contem¬plated in Section 7A and Rule 12 is only an inquiry. Further, the age determina¬tion inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word 'inquiry' has not been defined under the J.J. Act, but section 2(y) of the J.J. Act says that all words and expressions used and not de¬fined in the J.J. Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respec¬tively assigned to them in that Code. xxxxxxxxxxxxx 30. Consequently, the procedure to be followed under the J.J. Act in conduct¬ing an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules, we cannot import other pro¬cedures laid down in the Code of Crimi¬nal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under Section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or in¬quiry under the Code as if they are trying an offence under the Penal laws forget¬ting the fact that the specific procedure has been laid down in section 7A read with Rule 12. 31. we also remind all Courts/J.J. Board and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certifi¬cate etc. mentioned in Rule 12 (3) (a) (i) to (in). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection. 32. "Age determination inquiry" con¬templated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matric¬ulation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the ab¬sence of matriculation or equivalent cer¬tificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certifi¬cates or documents). The question of ob¬taining medical opinion from a duly con¬stituted Medical Board arises only if the above mentioned documents are un¬available, in case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if consid-ered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year. 33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be con¬ducted by the court or the Board after ex¬amining and obtaining the certificate or any other documentary proof after refer¬ring to sub-rule (3) of the Rule 12. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be con¬ducted by the court or the Board after ex¬amining and obtaining the certificate or any other documentary proof after refer¬ring to sub-rule (3) of the Rule 12. Fur¬ther, section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination. 34. Age determination inquiry con¬templated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certifi¬cate given by a Corporation or a Munici¬pal Authority or a Panchayat may not be correct. But court, J.J. Board or a Com¬mittee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certifi¬cates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the J.J. Board or the committee need to go for medical report for age de-termination. 35. We have come across several cases in which trial courts have examined a large number of witnesses on ei¬ther side including the conduct of ossifi¬cation test and calling for odontology re-port, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases ex¬press doubts over the principal of school and having noticed the fact that the Ap¬pellant was born on 24.10.1990, what prompted the court not to accept that ad¬mission register produced by the princi¬pal of the school. The date of birth of the Appellant was discernible from the school admission register. Entry made therein was not controverted or coun¬tered by the counsel appearing for the State or the private party, which is evi¬dent from the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was noth¬ing to refute or rebut the factum of date of birth entered in the School Admission Register. Entry made therein was not controverted or coun¬tered by the counsel appearing for the State or the private party, which is evi¬dent from the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was noth¬ing to refute or rebut the factum of date of birth entered in the School Admission Register. We are of the view the above document produced by the principal of the school conclusively shows that the date of birth was 24.10.1990 hence sec¬tion 12(3)(a)(i)(ii) has been fully satis¬fied. xxxxxxxxxx 40. Legislature and the Rule making authority ire their wisdom have in cate¬gorical terms explained how to proceed with the age determination inquiry. Fur¬ther, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his/her age on lower side within the margin of one year. 42. In Shah Nawaz v. State of Uttar Pradesh and Anr. (2011) 13 SCC 751 , the Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate is¬sued by a corporation or a municipal au¬thority or a panchayat or municipal is not available. The court had held entry related to date of birth entered in the mark sheet is a valid evidence for deter¬mining the age of the accused person so also the school leaving certificate for de¬termining the age of the Appellant. 43. we are of the view that admission register in the school in which the candi¬date first attended is a relevant piece of evidence of the date of birth. The reason¬ing that the parents could have entered a wrong date of birth in the admission reg¬ister hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would com¬mit a crime in future and, in that situa¬tion, they could successfully raise a claim of juvenility." 17. Learned Additional Public Prose¬cutor for the State has relied upon Om Prakash vs. State of Rajasthan & Anr. Learned Additional Public Prose¬cutor for the State has relied upon Om Prakash vs. State of Rajasthan & Anr. 2012 (3) JCC 1747 : (2012) 5 SCC 201 and has submitted that we should direct ossification test in the present case. Secondly, it is sub¬mitted that the Rule 12(3) of J.J. Rules and Delhi J.J. Rules do not formulate as to what weightage or evidentiary value should be given by the court to a particular certificate and ultimately it is for the court to evaluate the credibility of such evidence and in case of multiple date of birth certificates, Court is not precluded from seeking corroboration from other documents lower in the order of preference. Ossification test should be relied upon. 18. Regarding the second contention, we have substantially dealt with the same while examining the merits or evidentiary value of the date of birth recorded in the panchayat records etc. and it has been ob¬served that there was guess work or approximation involved in the date of birth recorded in the school records in the year 1997 and in the Kutumb Register which was recorded in the year 2006. However, we have accepted the date of birth recorded in the school re¬cords in the year 1997 as it was first in point of time, near the date of actual birth and the same has to be taken into consideration in terms of Rule 12(3) of J.J. Rules or Delhi J.J. Rules. The judgment in Ashwani Kumar Saxena (supra) quoted above is contrary to and negates the submission made by the counsel for the State. 19. We have examined the decision in the case of Om Prakash (surpa) and do not think it is antithesis of the legal ratio in Ashwani Kumar Saxena (supra), in the said case, one Vijay Kumar @ Bhanwar Lal was being prosecuted. His death of birth a school records was 12.12.1988. The date of occur¬rence was 23.5.2007 and thus as per the state, the accused was major and not a juve¬nile on the date of occurrence. However, Vijay Kumar had pleaded that he had another Brother named Bhanwru who had died in the year 1995 and his date of birth was 12.12.1988 and in fact he (i.e. Vijay Kumar) was born in the year 1990 and was accord¬ingly minor on the date of the offence i.e.23.5.2007. However, Vijay Kumar had pleaded that he had another Brother named Bhanwru who had died in the year 1995 and his date of birth was 12.12.1988 and in fact he (i.e. Vijay Kumar) was born in the year 1990 and was accord¬ingly minor on the date of the offence i.e.23.5.2007. In view of the aforesaid fac¬tual position the Supreme Court referred to for ossification test report and concluded that the appellant was major on the date of offence. Judgments of the trial court and the High Court were set aside, for the following reasons: "20. We therefore cannot overlook that the trial court as well as the High Court while passing the impugned order could not arrive at any finding at all as to whether the accused was a major or mi¬nor on the date of the incident and yet gave the benefit of the principle of be¬nevolent legislation to an accused whose plea of minority that he was below the age of 1 8 years itself was in doubt, in such situation, the scales of justice is required to be put on an even keel by in¬sisting for a reliable and cogent proof in support of the plea of juvenility spe¬cially when the victim was also a minor. 20. It was further observed:- "24. While considering the relevance and value of the medical evidence, the doctor estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical test like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused, in the case of Ramdeo Chauhun Vs. State of Assam (supra), the learned judges have added an insight for deter¬mination of this issue when it recorded as follows: Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only, his opinion. But such opinion of an expert cannot be sidelined in the realm where the court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitu¬tional protection. In the absence of all other acceptable material, if such opinion points to a reasonable possibility regarding the range of his age, it has certainly to be considered. In the absence of all other acceptable material, if such opinion points to a reasonable possibility regarding the range of his age, it has certainly to be considered. The situation, however, would be dif¬ferent if the academic records are alleged to have been with held deliberately to hide the age of the alleged juvenile and the authentic¬ity of the medical evidence is under chal¬lenge at the instance of the prosecution, in that event, whether the medical evidence should be relied upon or not will obviously depend on the value of the evidence led by the contesting parties." 21. The aforesaid paragraphs illus¬trate that ossification tests are not absolutely foolproof but are opinionated. Age calculation is made on approximation relying on ra¬diological examination. The Supreme Court also recorded that ossification tests may be relied upon where academic records have been deliberately withheld or were not au¬thentic i.e. forged/manipulated. It was there¬fore held in Vijay Kumar (supra) that: "25. in view of the aforesaid discus¬sion and analysis based on the prevailing facts and circumstances of the case, we are of the view that the Respondent No. 2 vijay Kumar and his father have failed to prove that Respondent No. 2 was a minor at the time of commission of offence and hence could not have been granted the benefit of the Juvenile Justice Act which undoubtedly is a benevolent legislation but cannot be allowed to be availed of by an accused who has taken the plea of juvenility merely as an effort to hide his real age so as to create a doubt in the mind of the courts below who thought it appropriate to grant him the benefit of a juvenile merely by adopting the princi¬ple of benevolent legislation but missing its vital implication that although the Ju¬venile Justice Act by itself is a piece of benevolent legislation, the protection under the same cannot be made available to an accused who in fact is not a juve¬nile but seeks shelter merely by using it as a protective umbrella or statutory shield, we are under constraint to ob¬serve that this will have to be dispour-aged if the evidence and other materials on record fail to prove that the accused was a juvenile at the time of commission of the offence. Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity offer¬ing him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conduct¬ing trial and treatment of heinous of-fences. This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encour¬aged." 22. In view of the factual position in the present case, we are not inclined to direct ossification test of the appellant, after nearly five years of occurrence. Another estimation about his age, would not help in concluding the controversy but may create more ambi¬guity. 23. There is one aspect, however, which disturbs us. In our order dated 12th February, 2013 we have recorded that the ap¬pellant was produced before the Court and we had heard him on the question of age. He had stated that he had come to Delhi from the native village in the year 2004. He was al¬ready involved in criminal cases at Azamgarh. The enquiry report indicates that three FIRs were registered against the appel¬lant at Azamgarh. One FIR was registered in the year 2003 and two FIRs were registered in the year 2006. in addition another FIR was registered in the year 2007 under Sec¬tion 110 Cr.P.C. Criminal cases pursuant to the FIRs were not transferred to and dealt with by the Juvenile Justice Board, it is also recorded that in judicial proceeding before the Magistrates, the age of the appellant was not mentioned in the charge-sheets. 24. The appellant has been involved in FIR No. 252/2008, PS Ashok Vihar, FIR No. 553/2007 PS Adarsh Nagar, FIR No. 644/2007 P.S. Jahangirpuri and FIR No. 72/2005 P.S. Karol Bagh at Delhi. There is also dossier No. 64050 dated 19.9.2008 against the appellant. 25. It is brought, to our notice that the appellant has been convicted in two FIRs, FIR No. 644/2007, PS Jahangirpuri and FIR No. 252/2008 P.S. Ashok Vihar for rigorous imprisonment of three years and two years respectively in addition to fine. The allega¬tions in these cases were serious, robbery and use of fire arm. 26. Learned counsel for the State has submitted that the appellant did not take the plea that he was a juvenile in these proceed¬ings. The allega¬tions in these cases were serious, robbery and use of fire arm. 26. Learned counsel for the State has submitted that the appellant did not take the plea that he was a juvenile in these proceed¬ings. This apparently is factually correct but does not help them or compels us reject the application, in case the appellant was a juve¬nile on the date of occurrence, he is entitled to benefit and protection under the J.J. Act. The argument exposes and shows lapse on the part of the prosecuting agencies and the courts as this question was not examined and gone into. It can be argued that possibly if the appellant was suitably counseled and guided on the first occasion, he may have turned into a responsible and law abiding cit¬izen. The Act, a benevolent piece of legisla¬tion mandates and ensures that a juvenile in conflict with law is rehabilitated. J.J. Act is recuperative in nature and not punitive or re¬tributive in approach. 27. We have spoken to the appellant in Court and he states that he would like to be housed for six months in an After Care Home. We take it as a positive signal and a good sign. Counsel appearing for the appel¬lant has also submitted that the appellant re¬quires counseling and should be sent to an After Care Home. 28. As per the nominal roll and record the appellant has already undergone incar¬ceration for more than four years and eight months. He has earned remission of eleven months. His conduct in jail has been satisfac¬tory. 29. The appellant will be housed in After Care Home for boys for over the age of 18 at Alipur for a period of six months. He will be regularly Counseled there and he should also be taught professional skills as per his aptitude and ability. The status report will be filed .before this Court after five months. 30. The Child welfare Committee will send its representative/counselor to the After care Home and will oversee the rehabilita¬tion and counseling of the appellant in the said After care Home. 31. Accordingly we maintain the con¬viction of the appellant but set aside his sen¬tence. The status report will be filed .before this Court after five months. 30. The Child welfare Committee will send its representative/counselor to the After care Home and will oversee the rehabilita¬tion and counseling of the appellant in the said After care Home. 31. Accordingly we maintain the con¬viction of the appellant but set aside his sen¬tence. Looking at the facts, we deem it ap¬propriate to pass orders under Section 15(3) of the J.J. Act as we are of the opinion that it is in the interest of the appellant and the pub¬lic that he should remain in the supervision of a Probation Officer for a period of two years from today. Ms. Priti Pathak 8287708188, 9990298188, Room No. 1, Rohini Court Complex, Delhi is appointed as the Probation officer. The appellant shall re¬port to the probation officer every fifteen days and shall inform her about his activities etc. The day/date of meeting etc. will be de¬termined by the Probation Officer with con¬sultation and keeping in mind convenience of the appellant. Reports will be submitted to the Juvenile Justice Board and in case of an adverse report, appropriate action under Sec¬tion 15(3) can be taken by the Juvenile Justice Board. 32. With the aforesaid direction and observations the application is allowed, it is held that the appellant was a juvenile on the date of occurrence i.e. he was less than 18 years of age as on 3.9.2008, his date of birth being 6.5.1991. The appeal will be treated as disposed of.