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Allahabad High Court · body

2024 DIGILAW 1029 (ALL)

Juvenile X v. State of U. P.

2024-04-10

JYOTSNA SHARMA

body2024
JUDGMENT : Jyotsna Sharma, J. 1. Heard Sri Nafees Ahmad, learned counsel for the revisionist and Sri Rishabh Kumar Pandey, holding brief of Sri Santosh Kumar Pandey, learned counsel for the opposite party no. 2 and learned A.G.A. for the State and perused the record. 2. By means of this criminal revision, the revisionist has challenged an order dated 01.10.2022, passed by learned Sessions Judge/Special Judge (POCSO Act)/Children Court, District Meerut in Criminal Appeal No. 128 of 2022 arising out of case crime no. 55 of 2022 under sections 147, 148, 149, 323/34, 302, 504, 395 and 412 IPC, whereby the order dated 27.08.2022 passed by the Juvenile Justice Board, holding him as adult has been confirmed and the Criminal Appeal No. 118 of 2022, preferred by the juvenile has been dismissed. 3. The relevant facts are as below:- The instant revisionist has been found involved in case crime no. 55 of 2022 under sections 147, 148, 149, 323/34, 302, 504, 395, 412 IPC and produced before the Juvenile Justice Board. In the age determination inquiry conducted by the Juvenile Justice Board, the evidence has been led and further the medical opinion has also been obtained. After conclusion of inquiry, two members of the Board passed an order on 27.08.2022 holding the juvenile as aged about 16 years and 6 months on the date of the incident. The same day, on the basis of the same material, the Principal Magistrate passed a separate order holding him to be above 18 years and further directed that his case may be transferred to the court concerned for further proceeding. Both the orders, one passed by the Principal Magistrate and the other passed by the rest of two members of the Juvenile Justice Board, were separately challenged respectively on behalf of the juvenile (Criminal Appeal No. 128 of 2022) and on behalf of the victim (Criminal Appeal No. 118 of 2022). Both the appeals have been decided by a common order passed by the appellate court, on 01.10.2022 in which the Criminal Appeal No. 118 of 2022 filed by the victim was allowed and the Criminal Appeal No. 128 of 2022 filed on behalf of the juvenile was dismissed. Consequentially, he has been held as an ‘adult’. Now the juvenile is before this Court in revision filed on his behalf. 4. Consequentially, he has been held as an ‘adult’. Now the juvenile is before this Court in revision filed on his behalf. 4. The submission in brief are that his school leaving certificate showing his date of birth as 12.09.2005, has not been considered. His date of birth is 12.09.2005 and the same has been proved by the testimony of his father. Though the school leaving certificate was available but he was wrongly sent for medical examination. In the medical examination, his age has been found 19 years and therefore even on the basis of medical examination, taking into account probability of two years margin, he should have been held as below 18 years. Further the medical opinion said that he was not exactly 19 years but below 19 years, but his aspect has not been considered by the Principal Magistrate. Further submission is that the two members of the Board gave a different opinion, and that the majority opinion shall prevail, over the opinion of the Principal Magistrate. The appellate court gave a contrary finding which is against the law. 5. As per the admitted case of the revisionist, he did not obtain any formal education from class 1 to 4 and directly took admission in class 5th in certain school at Mawana, Meerut and thereafter in class 6th at his bua’s place at Daraula, Meerut and that he did not study any further. His date of birth is 12. 09.2005 and the same has been shown in his T.C. of class 5th, a copy thereto is on record. 6. I perused the papers on record, the perusal of the T.C. shows that in that school he got admitted on 6.7.2015 and left that school next year in the month of March, 2016 i.e. he studied there only for 8 months. Two diverse orders have been passed by the J.J. Board, one by the Principal Magistrate alone and the other by rest of the two members. However, in both the orders it has been clearly observed that the T.C. of class 5th was a doubtful paper and that date of birth mentioned in T.C. could not be relied upon. Interestingly, the Principal Magistrate as well as the rest of the two members of the J.J. Board both have relied upon the medical opinion but with two different approach. Interestingly, the Principal Magistrate as well as the rest of the two members of the J.J. Board both have relied upon the medical opinion but with two different approach. The members expressed an opinion that the medical opinion as regard age is not conclusive and that there is probability of margin of two years on both the sides and therefore, giving benefit of such a margin, held him to be 16 and half on the date on the incident. On the other hand, the Principal Magistrate observed as below: 7. I perused the order of the appellate court, the learned appellate court referred to a judgment of Supreme Court in State of U.P. Vs. Chote Lal AIR 2011 SC 697 , Jitendra Ram Vs. State of Jharkhand 2006 (9) SCC 428 and Mukarrab Vs. State of U.P. 2017 (2) SCC 2010, and observed that the two members of the J.J. Board while determining his age, reduced two years in the medical age without any basis or material before it for reduction of the same. Further, the appellate court referred to judgments of the Supreme Court in Jyoti Prakash Rai Vs. State of Bihar 2008 (3) SCALE 348 , Manoj Kumar @ Monu @ Vishal Chaudhary Vs. State of Haryana and Others AIR 2022 SC 1060 , Parag Bhati Vs. State of U.P. 2016 (12) SCC 744 , Ashwani Kumar Saxena Vs. State of M.P. 2012 (9) SCC 750 , Sanjeev Gupta Vs. State of U.P. 2019 (12) SCC 370 , Om Prakash Vs. State of Rajasthan 2012 (5) SCC 201 and observed that the offender had claimed juvenility on the basis of fabricated documents. It may be noted at this point of time that the Principal of the concerned school who had issued the T.C., in his on oath statement first stated that the juvenile never studied in his school and that the T.C. is a fabricated paper however, subsequently he resiled from his earlier statement and said that the juvenile had studied in his school. Several discrepancies were found in papers produced by the juvenile and also in the oral testimony and therfore the papers produced on behalf of the juvenile were rightly not relied upon. Several discrepancies were found in papers produced by the juvenile and also in the oral testimony and therfore the papers produced on behalf of the juvenile were rightly not relied upon. The appellate court too found the evidence given on behalf of juvenile on this issue very suspicious and agreed with the findings of the Principal Magistrate as well as by two members of the J.J. Board as regard non-reliability of papers filed on behalf of juvenile. The appellate court agreed with such findings after its own assessment of the material produced on behalf of the juvenile. But as far as the determination of age on the basis of medical examination is concerned, the appellate court expressed an opinion that there was no question of reducing the age by one year or two years, from the medical age. 8. It appears that the appellate court has treated the medical evidence as conclusive proof of age. It may be noted that though the oral and documentary evidence produced on behalf of juvenile was rightly found unreliable and inadequate to be read in evidence and to form basis of age, however, in my opinion in such circumstances it was expected from the J.J. Board that it shall obtain further evidence by calling papers like copy of pariwar register, academic records of his siblings and other evidence of like nature besides medical opinion. 9. In Criminal Revision No. 5477 of 2023 (Juvenile X Vs. State of U.P and Another) Neutral Citation No. 2024:AHC:14440 decided on 30.01.2024, the Allahabad High Court has observed in paragraph no. 9 as below: “9. There is no strict law as regard lowering the age by two years from the medical age. Undoubtedly, the age determined on the basis of medical tests is merely an opinion. In view of probability of error, a general rule has evolved that there may be error of 2 year on either side. This is not to say that in all the cases, 2 year have to be deducted or added. A mechanical adherence to such law may entail failure of interest of justice. The courts ought to apply the judicial mind when it decides to lower the age by certain margin. This is not to say that in all the cases, 2 year have to be deducted or added. A mechanical adherence to such law may entail failure of interest of justice. The courts ought to apply the judicial mind when it decides to lower the age by certain margin. The law on probable error in determining age on the basis of medical evidence has evolved and has a general application but the question is whether the Court is expected to go mathematically? or is it mandatory to consider the age of accused 2 years less than the medical age? The answer is 'No'. Possibility of error cannot be equated with actual error. Definitely in certain cases evidence might be available which may show the margin of error on the higher side rather than on lower side. This is well established that the medical age can act as a guideline only and not as a conclusive proof. This is an accepted fact that radiological age may not give precise or exact age. Other relevant facts and circumstances may assist the Court in arriving at the right conclusion.” 10. The Apex Court in Rishipal Singh Solanki vs. State of U.P. and Others; 2021 (11) ADJ 489 decided on 18.11.2021 has, after traversing through a number of judgments on the issue of determination of age, summed up the conclusions in Para 29 of the judgment which is as below: "29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows: (i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court. (ii) An application claiming juvenility could be made either before the Court or the JJ Board. (ii-a) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. (ii-a) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies. (ii-b) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be. (ii-c) When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015). (iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised. (iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side. (v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance. (vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case. (vii) This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile. (viii) If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences. (ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. (x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions. (xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015." It appears that the Supreme Court has not put any fetters on the powers of the court to seek evidence of any other kind, if the evidence as mentioned in section 94 of the J.J. Act, 2015 is found inadequate, false, fabricated and unreliable. In several cases the Supreme Court has found the entries in pariwar register and other documentary evidence as relevant and having some value as far as the date of birth is concerned. 11. The court concerned may be impelled to determine the age considering the margin of error, in the background of other material available. There is no absolute law that in all the cases, two years or even one year is to be mandatorily reduced from the medical age, ignoring all other material whether that tended to rebut or tended to corroborate the medical age. 12. As far as the instant case is concerned, it appears that there was no good material before the court concerned to corroborate or to calculate the age by reducing it or increasing it with certain margins. 12. As far as the instant case is concerned, it appears that there was no good material before the court concerned to corroborate or to calculate the age by reducing it or increasing it with certain margins. In such circumstances, the proper course, which ought to have been adopted by the J.J. Board, is to probe further in the matter and to obtain other evidence as may be available. In my opinion, the J.J. Board should have sought evidence on its own initiative rather than depending upon the parties, as the ultimate responsibility lies on it only. The appellate court failed to notice the lack of material and treated the medical evidence as conclusive proof of age. 13. In the peculiar circumstances of the case, I am of the view that J.J. Board should be directed to obtain further evidence as regard age by recalling the witness for further examination or cross-examination and also call for documentary evidence as might be available in other records which may include the pariwar register, or any other document which may assist the court/the J.J. Board in arriving at the right conclusion. The J.J. Board can call for additional witnesses as per its discretion. In such cases, where attempts are made to mislead the court by producing suspicious and doubtful documents, the court ought to be more cautious and careful. No law bars the court to adopt a proactive approach and to look for truth. 14. In view of the above this revision is allowed. The impugned order dated 1. 10.2022, passed by learned Sessions Judge/Special Judge (POCSO Act)/Children Court, District Meerut, is hereby set aside. 15. The matter is remanded back to the J.J. Board to hold further inquiry and determine the age, in accordance with law.