Delhi High Court

Jitender @ Jitu vs State on 3 June, 2011

Author: Badar Durrez Ahmed

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Judgment delivered on 03.06.2011

+      CRL. M. A. 15749/2010 & CRL.A. 438/2010

JITENDER @ JITU                                         ...     Appellant

                                       - versus -

STATE                                                   ...     Respondent

Advocates who appeared in this case:

For the Appellant         : Mr Ravindra Narayan
For the Respondent        : Mr Sanjay Lao

CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

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 Digest? Yes

BADAR DURREZ AHMED

1. The present application under Section 7-A of the Juvenile Justice (Care

and Protection of Children) Act, 2000 (hereinafter referred to as „the said Act‟)

has been filed on behalf of the appellant Jitender @ Jitu claiming that he was a

juvenile in conflict with law as defined in Section 2(l) of the said Act on the

date of commission of the alleged offence, which was 19.08.2004. In short, the

appellant contends that he was below the age of 18 years on the date of the

incident and that he should be given the benefit of the provisions of the said

Act.

2. By an order passed by the predecessor Bench on 26.11.2010, the

Registrar Appellate (Judicial) was directed to conduct an enquiry as to whether

the appellant was a juvenile on the date of the alleged commission of offence.

This direction was given after the said Bench had noted that the date of birth of

the appellant, as given in the family register of the appellant maintained by the

Gram Panchayat, Manikpur, Block Achhaldha, Tehsil Vidhuna, District

Auraiya, UP, was 09.10.1987. If that were to be correct, then the age of the

appellant on the date of the incident would have been approximately 16 years

and 10 months.

3. Although the predecessor Bench had directed that the enquiry be

conducted and the report be furnished before the next date of hearing, which

was 03.03.2011, we found that the said Registrar had not been able to achieve

much progress in the matter and had fixed the next date of hearing on

05.05.2011, which was beyond the date on which the Court had directed the

matter to be listed, that is, 03.03.2011. Consequently, we had directed that the

concerned Block Development Officer should produce, through a duly

authorized officer/ official, the original record pertaining to the family details of

Jitender @ Jitu. We had directed issuance of notice to the appellant‟s father Sh.

Raj Kumar, son of Sh. Pati Ram, resident of 1844, Phase-3, JJ Cluster,

Madanpur Khadar, Delhi-110076 to appear in person and produce whatever

evidence and documents including any school certificate showing the date of

birth of his son Jitender @ Jitu.

4. On 21.03.2011, one Mr Sravan Lal, the Village Development Officer of

Village Naunik Pur, falling in Block Achhaldha, Tehsil Vidhuna, District

Auraiya, UP appeared before us and he produced the original family register. A

photocopy of page No. 46 of register No. II was taken on record and the original

Development Officer. We found that insofar as the entry of the appellant

Jitender @ Jitu in the said family register is concerned, there was some

interpolation in the date of birth, although the same did reflect his date of birth

as 09.10.1987. On that date, that is, on 21.03.2011, the appellant‟s father

Sh. Raj Kumar was also present in Court, as directed. He had stated that he was

unable to produce any other evidence with regard to the age of his son. In these

circumstances, we felt that it would be appropriate that an ossification test of the

appellant Jitender @ Jitu be conducted. For this purpose, the Superintendent of

the concerned jail was directed to take the appellant Jitender @ Jitu to All India

Institute of Medical Sciences on 25.03.2011 in the first instance for the purposes

of conduct of the ossification test and we had required that the report be

submitted before the next date of hearing.

5. In compliance with our direction, the following Medical Board was

constituted:-

1. Dr Sanjeev Lalwani Assoc. Professor of Forensic Medicine - Chairperson

2. Dr Ajay Logani Assoc. Professor of CDER - Member

3. Dr Devasenathipathy Senior Resident of Radiodiagnosis - Member

4. Dr Sudhin Kurien Department of Hospital Administration - Member Secy.

The radiological examination of the appellant, as indicated in the report, was as

under:-

"X-Rays advised for age estimation:-

X-Ray Wrist with hand, Elbow, Plevis, Sternum, Knee, Medial end of Clavicle was done in Radiology Deptt. and OPG in Dental OPD.

Report of Radiological Examination -

1. B/L lilac Crests have fused, suggestive of age more than 20 years ± 1 Years;

2. All the four ossification centres of body of sternum are fused suggestive of bone age > 25 years. (According to the reference article: Gautam, RS etal. The human Sternum - as An index of age & sex, J. Anat. Soc. India 52(1) 20-23 (2003);

3. Coccyx not fused with sacrum suggestive of Bone Age < 28 years. (Bromme DR etal, Postnatal Maturation of the Sacrum and Coccyx : MR Imaging, Helical CT and Conventional Radiography, AJR : 170, April 1998).

Imp.: - Bone age 25-28 years."

The final report and opinion of the said Medical Board was as under:-

"REPORT Considering the findings of physical, dental and radiological examination we are of the considered opinion that BONE AGE of appellant Jitender @ Jitu, S/o Sh. Raj Kumar bearing identification marks 1. Scar on Rt. Side forehead. 2. Tatoo mark ॐ on Rt. Dorsum of hand, is between 25 years to 28 years."

6. Thus, in the opinion of the Medical Board, the age of the appellant

Jitender @ Jitu on the date of his examination, i.e, 25.03.2011, was between 25

years to 28 years. This would mean that if his age is regarded to be 25 years as

on 25.03.2011, he would be 18 years and 4 months old on the date of the

incident, that is, 19.08.2004. However, it is the contention of the learned

counsel for the appellant that a further benefit of one year is to be given in terms

of Rule 12 (3) (b) of the Juvenile Justice (Care and Protection of Children)

Rules, 2007 (hereinafter referred to as „the said Rules‟). It was contended that if

the said benefit of one year is given, then the age of the appellant, based upon

the ossification test, would be about 17 years and 4 months on the date of the

incident and, therefore, he would have to be regarded as a juvenile in conflict

with law and would have to be given the benefit under the said Act.

7. On the other hand, the learned counsel for the State submitted that since

the Medical Board has already given a range, that is, 25 years to 28 years,

therefore, there cannot be a further reduction in the age of the appellant. It was

contended that had the Medical Board given only one age, then perhaps the

further benefit of margin of one year on the lower side could have been given in

view of the provisions of Rule 12 (3)(b) of the said Rules.

8. In order to consider these contentions, it would be necessary to set out the

relevant provisions of Rule 12 (3)(b) of the said Rules, which read as under:-

12. Procedure to be followed in determination of age. -

       (1)     xxxx            xxxx          xxxx    xxxx

       (2)     xxxx            xxxx          xxxx    xxxx

(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."

9. A plain reading of the said Rule 12(3) makes it clear that in determining

the age of a juvenile in conflict of law, the first thing that has to be looked at is

the matriculation or equivalent certificate. If that is not available, then the date

of birth certificate from the school (other than a play school) first attended is to

be considered. If that is also not available, then the birth certificate given by a

corporation or a municipal authority or a panchayat is to be taken into account.

In the present case, we find that there is no matriculation or equivalent

certificate, there is no date of birth certificate from any school but, a certified

copy of the family register (Annexure -A to the application) had been produced,

which did indicate the appellant‟s date of birth to be 09.10.1987. However, as

pointed out above, when the original register was produced before us, we had

noted that there was some interpolation in the year of birth, although it appeared

to be 1987. Because of this, a doubt had arisen and, therefore, we sought

corroboration in the form of requiring a medical opinion from a duly constituted

Medical Board as prescribed in Rule 12 (3)(b) of the said Rules. In the present

case, we find that the Medical Board has given its opinion that the age of the

appellant on the date of the examination was between 25 and 28 years. It is

clear that an exact assessment of the age could not be done. It is in this

backdrop that the contention has been raised on behalf of the appellant that the

Court ought to give the benefit to the appellant by considering his age on the

lower side within the margin of one year.

10. We are not in agreement with the submission made by the learned

counsel for the State that when the Medical Board gives a range of ages, then

the benefit of the one year margin on the lower side ought not to be given. A

plain reading of Rule 12 (3)(b) indicates that the Court may give that benefit of

one year margin on the lower side in case the exact assessment of the age cannot

be done. It is clear that when the Medical Board itself has given a range of

ages between 25 and 28 years, the exact assessment of the age was not possible.

Therefore, the benefit of the one year margin on the lower side can be given

even where the Medical Board has given a range of ages.

11. This leaves us with the question as to whether we should exercise this

discretion in giving the benefit of the margin of one year on the lower side to

the appellant in the present case or not. We feel that we should. This is because

the age, as per the family register, although there is some doubt because of the

overwriting, appears to be in consonance with the age as per the Medical Board

if the margin of one year on the lower side is given. We have also noted that as

per the family register, the appellant would have been approximately 16 years

and 10 months old on the date of the incident and if we consider the opinion of

the Medical Board, after giving the benefit of the one year margin on the lower

side, the age of the appellant on the date of the incident, would be

approximately 17 years and 4 months. Considering the closeness in the two

ages, one as per the family register and the other as per the Medical Board‟s

opinion, after given a margin of one year on the lower side, we feel that the

benefit ought to be given to the appellant. This is all the more so because the

medical determination of age is not an exact science. In the report of the

Radiological Examination referred to above, it has been stated that as all the

four ossification centres of the body of the sternum are fused, it is suggestive of

a bone age of greater than 25 years (> 25 years). The Medical Board has cited

the reference article - Gautam, RS et al: The Human Sternum - as An Index of

Age & Sex: Journal of the Anatomical Society of India: Vol. 52, No.1 (2003-

01-2003-12) - in support of this conclusion. However, when we examine the

said reference article, we find that its conclusion, inter alia, is:-

"The fusion of the third and fourth sternebrae is complete at puberty. The fusion of the first and second and second and third sternebrae occurs by the age of 25 years."

(underlining added)

This means that the four sternebrae are fused by 25 years. It does not mean that

they cannot be fused when, say, the person in question is 24 years of age. Thus,

the floor of 25 years in the age range of 25-28 years cannot be taken as

sacrosanct. This fact has been recognized by the Supreme Court in Babloo Pasi

v. State of Jharkhand & Anr.: (2008) 13 SCC 133, when it observed that 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, if

available.

12. Furthermore, the said Act is a beneficial legislation which is for the

benefit of juveniles. At this juncture, we may note the observations of the

Supreme Court in the case of Hari Ram v. State of Rajasthan : (2009) 13 SCC

211:-

"35. Sub-Clause (b) of Rule 12(3) provides that only in the absence of any such document, would a medical opinion be sought for from a duly constituted Medical Board, which would declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the Court or the Board or as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/ her age on the lower side within a margin of one year.

36. As will, therefore, be clear from the provisions of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006 and the Juvenile Justice Rules, 2007, the scheme of the Act is to give children, who have, for some reason or the other, gone astray, to realize their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of society, instead of degenerating into hardened criminals."

13. It is in the light of the foregoing that we find that the appellant, as on the

date of the incident, was below the age of 18 years and was, therefore, covered

by the definition of juvenile in conflict with law as given in Section 2(l) of the

said Act.

14. Having concluded that the appellant Jitender @ Jitu was a juvenile in

conflict with law on the date of commission of the offence, it is to be seen as to

what is to be done with him. The learned counsel for the appellant had

submitted that he had taken instructions from the appellant that he does not

want to challenge the conviction and that it is only with regard to sentencing

that he is seeking the benefit under the said Act. The appellant has been in

custody for about 6 years and 7 months. This means that he has been in custody

far in excess of three years, which is the maximum period of detention