Mukesh @ Jurra vs State (Govt. Of Nct Of Delhi)
2013 Latest Caselaw 1705 Del

            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Judgment delivered on: 16.04.2013

                    CRIMINAL APPEAL NO.202/2012

MUKESH @ JURRA                                               ..... Appellant
                             Through:   Mr. Rajender Yadav, Advocate.

                    versus

STATE (GOVT. OF NCT OF DELHI)                 ..... Respondent
                  Through: Ms. Richa Kapoor, APP

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

                                JUDGMENT

SANJIV KHANNA, J. (ORAL)

CRL.M.A. 18964/2012

1. This is an application under Section 7A of the Juvenile Justice (Care

and Protection of Children) Act, 2000. The appellant Mukesh @ Jurra claims

that he was a juvenile, i.e., below 18 years of age on 30.11.2009, the date of

the commission of the offence.

2. The appellant has been convicted by the impugned judgment dated

14.11.2011 under Section 392 read with Sections 397, Section 302 of the

Indian Penal Code, 1860 (IPC) and Sections 25/27/54/59 of the Arms Act,

1959. By the order of sentence dated 30.11.2011, the appellant has been

sentenced to rigorous imprisonment for life and fine of Rs.2000/- for the

offence under Section 302 IPC. In default of payment of fine, the appellant is

to undergo simple imprisonment for one month. For offence under Section

392/397 IPC, the appellant has been sentenced to Rigorous imprisonment for

seven years and fine of Rs.2000/-. In default of payment of fine, the

appellant is to undergo simple imprisonment for fifteen days. For the

offences under Sections 25/27/54/59 of the Arms Act the appellant has been

sentence to rigorous imprisonment for three years and fine of Rs.2000/-. In

default of payment of fine, the appellant is to undergo simple imprisonment

for fifteen days.

3. It appears that before the trial court the appellant did not take up the

plea that he was a juvenile on the date of the offence and this plea has been

raised for the first time in the appellate proceeding before us.

4. The appellant during the period 05.02.2008 till 12.01.2010 got

involved and was prosecuted in six different FIRs including FIR

No.76/2009, PS Mahindra Park registered in the present case. The details of

FIRs against the appellant are as under:-

 FIR     Sections              Date
                                Police                  Status
No.                             Station
40/2008 S. 326 IPC   05.02.2008 Adarsh                  Referred to Juvenile
                                Nagar                   Justice Board
42/2008 S457/380/511 07.02.2008 Adarsh                  Referred to Juvenile
        IPC                     Nagar                   Justice Board
79/2008 324 IPC      06.02.2008 Shalimar                Referred to Juvenile
                                Bagh                    Justice Board
76/2009 392/397/302  01.12.2009 Mahindra                Present case.
        IPC                     Park
5/2010 392/397 IPC   12.01.2010 Mahindra                Acquitted by trial
                                Park                    court
88/2009 392/397/307 392/397/307 Mahindra                Convicted. Appeal
        IPC             IPC     Park                    pending
                                                        (Crl.A.1407/2011)

5. At this stage, we record that in FIR No.5/2010 under Sections 392/397

IPC the appellant was acquitted by the trial court. In FIR Nos.40/2008,

42/2008 and 79/2008, the appellant had pleaded before the trial court that he

was a juvenile on the date of commission of the offence. The plea was

accepted and the cases were accordingly, transferred/referred to Juvenile

Justice Board. However, in the proceedings arising out of FIR No.88/2009,

the contention of the appellant herein that he was a juvenile on the date of

commission of the offence was rejected. The appellant stands convicted

under Section 392/397/307 IPC. Appeal against conviction has been

preferred and is pending adjudication before a Single Judge of this court.

One of the contention/issue raised in the said appeal is that the appellant

Mukesh @ Jurra was a juvenile on the date of the commission of the offence

in the said case.

6. Thus we are faced with two conflicting set of orders of the trial court.

In criminal proceedings under FIR Nos.40/2008, 42/2008 and 79/2008, the

appellant has been declared as juvenile. However, in criminal proceeding

arising out of FIR No.88/2009 he has been treated as an adult, i.e., a person

more than 18 years of age on the date of the offence. We note that in FIR

Nos.40/2008, 42/2008 and 79/2008, while deciding the plea of juvenility, the

trial court had relied upon the school leaving certificate issued by the school

first attended by the appellant, i.e., Nigam Prathmik Bal Vidyalaya, Sant

Ravidas Nagar, Jahangirpuri, Delhi- 110033. As per the said certificate, the

appellant was admitted to study in said school on 18.07.1998 vide admission

No.4314 and the date of birth as recorded in the admission register was/is

15.04.1993. The State has verified the said certificate and the admission

register. It has been ascertained that the said certificate is genuine and as per

the school records.

7. The contention of the State, however, is that the date of birth recorded

in the admission register of the school is based on mere oral statement is a

guess and it is not based upon any reliable document or material in the form

of a date of birth certificate etc. It is, accordingly, submitted that the

ossification test report dated 09.02.2010 which was relied upon by the trial

court in FIR No.88/2009 should be the foundation and the basis for

determining the age of the appellant on the date of commission of the

offence. Team of doctors at Babu Jagjeevan Ram Memorial Hospital,

Jahangirpuri have opined that the estimate age of the appellant on the date of

examination, i.e., 09.02.2010, was between 20 to 22 years. Thus, if we

accept the ossification test report Dated 09.02.2010, then on the date of the

commission of the offence in the present case, i.e., 30.11.2009, the appellant

would be more than 18 years of age and not a juvenile.

8. In order to enable us to form a judicious opinion we have called for

the original trial court records relating to FIR No.88/2009 as it was noticed

that the photocopy of the ossification test report was illegible and

unreadable. We have perused and examined the ossification test report and

the reasons given by the medical board, which read as under:-

"Teeth- Total:- 32

Whether space formed behind IInd Molar:- Yes

Status of Third Molar Teeth: erupted and X-ray by

lateral oblique veins of mouth show that the root

formation of third molar is complete

Radiological Examination: 353 X-ray. Both elbow AP

and both wrist AP and both shoulder with medical ends

of clavicle AP and Pelvis AP.

Epiphysis of elbow joints, lower ends of Radius & Ulna,-

?---- process, iliac crest have appeared and fused.

Epiphysis of medical ends of clavicle have appeared but

not fused.

Opinion: Estimated age is between 20 to 22 years."

9. Rule 12(3) of the Delhi Juvenile Justice (Care and Protection of

Children) Rules, 2009 reads as under:-

"(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 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 corporation 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 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."

The said Rule in clear and categorical terms stipulates that the date of birth

certificate from the school first attended, other than a play school, should be

taken into consideration at the time of inquiry for determining the age. In the

absence of birth certificate from the school first attended, the birth certificate

issued by a corporation or municipal authority or panchayat and in the

absence of said certificate, matriculation or equivalent certificate, if

available, should be taken into consideration. Ossification report is to be

taken into consideration only in the absence of any of the three certificates

mentioned in clause (a). It further stipulates that in case the ossification

report is ambiguous and exact age cannot be determined, benefit of margin

of one year on lower side can be given to the person concerned.

10. In the present case, it is the accepted position that in FIR

Nos.40/2008, 42/2008 and 79/2008 relying upon the date of birth

recorded in the school first attended, other than the play school, the

appellant was treated as a juvenile and he was thereafter, referred to

the Juvenile Justice Board. We find this view taken by the trial Court

in consonance and as per the ratio in the decision of the Supreme

Court in Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC

750,wherein it was held:-

"32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered 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 sub-rule (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and

obtaining the certificate or any other documentary proof after referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ Act also draws a presumption of the age of the juvenility on its determination.

35. We have come across several cases in which the trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, 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 express doubts over certificates produced and carry on detailed probe which is totally unwarranted.

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38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the Principal of school and having noticed the fact that the appellant was born on 24-10-1990, what prompted the court not to accept that admission register produced by the Principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11-2- 2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the school admission register. We are of the view that the above document produced by the Principal of the school conclusively shows that the date of birth was 24-10-1990, hence, Rules 12(3)(a)(i) and (ii) of the 2007 Rules have been fully satisfied.

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40. The legislature and the rule-making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time-limit of thirty days to determine the age of the juvenile 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.

11. The learned counsel for the State, on the other hand, has relied upon

another decision of the Supreme Court in Om Prakash v. State of Rajasthan

(2012) 5 SCC 201 , wherein the following observations have been made:-

"3. The Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a Special Court for holding trial of children/juveniles by the Juvenile Court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a heinous offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a Juvenile Court or should he be referred to a competent court of criminal jurisdiction where the trial of other adult persons are held?

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22. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of

common man in the institution entrusted with the administration of justice.

23. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are alleged to have been withheld deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.

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32. Drawing a parallel between the plea of minority and the plea of alibi, it may be worthwhile to state that it is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi.

33. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well-planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of

the Juvenile Justice Act is meant for minors who are innocent law- breakers and not the accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.

34. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused.

12. We have considered the contention of the learned Additional Public

Prosecutor, but regret the same cannot be accepted in the present case. We

noticed that the date of birth in the school records has been accepted by the

State in three FIRs. It will lead to a big anomaly if we accept the date of birth

as mentioned in the school records in these cases but reject the same when it

comes to the present case. Secondly, we find that the appellant was admitted

to the said school in July 1998 at the age of about five years. The date of

birth given at that time and as recorded in the school record was 15.04.1993.

This appears to be reasonable and plausible as children are generally

admitted to a school at the age of about 4 to 5 years. The ossification test

report dated 09.02.2010 is also an estimate/opinion given by the doctors on

the basis of dental and bone/radiological examinations. Ossification test is

not foolproof. Exact age determination by ossification test/medical test may

not be possible especially after the age of 16/18 years. As noticed above, the

ossification test report itself gives a margin of two years, i.e., it states that the

age ranges between 20 to 22 years. Rule 12(3) of the applicable Juvenile

Justice Rules, 2009 stipulate that reliance upon medical opinion is the last

resort, if and when certificates mentioned in clause (a) are not available.

13. With regard to the molar teeths and its eruption, Modi's Medical

Jurisprudence and Toxicology- 23rd Edition at page 281-282 has observed

that in various studies, it is noted that 3rd molar teeth was observed in boys at

the age of 14-15 years. Thus, 3rd molar teeth exist even in younger children

below the age of 18 years. The ossification report also states that there was

gap after molar teeth. Similarly with regard to the observations vis-a-vis the

fusion of bones there is an element of flexibility and debate in medical

steam. Fusion can take place at difference ages depending upon diet,

environmental variations and other physical characteristics etc. In fact, there

is variation in the age of fusions of bones depending upon the area/location

to which the boy or girl belongs. As observed in the case of Ashwani Kumar

(supra) in case of any genuine doubt or ambiguity or in border line cases,

benefit has to be given to the accused on the question whether he should be

treated as juvenile or not.

14. In Rajindra Chandra v. State of Chhatisgarh, (2002) 2 SCC 287, it

has been held that while dealing with the question of determination of 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. In Bhoop Ram v. State of U.P., 1989 (3) SCC 1, the Supreme Court

has held that in absence of any material to throw doubt on the date of birth

recorded in school records, the trial court cannot brush aside the same in a

light manner. In fact, medical opinion is based only on an estimate and the

possibility of an error of estimate creeping into the opinion cannot be ruled

out.

15. We accordingly accept the date of birth 15.04.93 mentioned in the

school certificate issued by the school first attended. The appellant was

therefore a juvenile on the date of the offence, i.e., in the night intervening

30.11.2009/1.12.2009

16. We have spoken to Mukesh @ Jurra in the court and he states that he

disputes his conviction and wants to contest the same. In these

circumstances, we deem it appropriate and proper that the matter should be

transferred to the Juvenile Justice Board. The appellant will appear before

the Juvenile Justice Board on 23.04.2013. We record that Mukesh @ Jurra

has also expressed desire to be counseled. He has stated that he wants to

develop and learn skills so that in future he will be able to earn his

livelihood. Raju, brother of Mukesh @ Jurra is present in court and he has

also spoken to Mukesh @ Jurra in this regard. The said aspect will be kept in

mind by the Juvenile Justice Board. The appellant will be shifted from

Rohini Jail and kept in the Special Home, provided he is not required to be

kept in the adult prison pursuant to an order/direction in any other case.

17. The application is accordingly allowed. The conviction and sentence

are set aside. The appeal will be treated as disposed of. Electronic

compilation of the trial court record along with the Trial court record will be

sent to the Juvenile Justice Board.

SANJIV KHANNA, J

SIDDHARTH MRIDUL, J APRIL 16, 2013/mk