Jharkhand High Court

Mukesh Kumar Singh @ Mukesh Singh vs The State Of Jharkhand ..... .... ... on 18 January, 2024

Author: Subhash Chand

Bench: Subhash Chand

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Criminal Revision No.991 of 2023
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Mukesh Kumar Singh @ Mukesh Singh, son of Late Kishor Singh, resident of Village Baijnath Tata, P.O. & P.S. Angara, District Ranchi, Jharkhand; Presently resident of Gari Gaon, P.O. Hotwar, P.S. Khelgaon, District Ranchi, Jharkhand ...... ...... Petitioner Versus

The State of Jharkhand ..... .... Opposite Party

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner    : Mr. Karan Kaushik, Advocate
                        Mrs. Kanu Priya, Advocate
For the State         : Ms. Snehlika Bhagat, APP
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C.A.V. on: 18/12/2023                       Pronounced on:18/01/2024

1. This Criminal Revision has been preferred against the impugned order

dated 09.02.2023 passed by the learned A.J.C.-IV-cum-Special Judge

POCSO, Ranchi in POCSO Case No.59 of 2022 in connection with Angara

P.S. Case No.84 of 2021, whereby the prayer for declaring the petitioner

juvenile, had been rejected.

2. The brief facts leading to this Criminal Revision are that the FIR was

lodged by the victim herself with these allegations that about five months

ago she came in contact with Mukesh Singh at the time of grazing the goats.

Thereafter, love affairs developed between them and several times petitioner

established physical relation with the victim. He also took her at several

places and also took her to his house Baijnath Tata. On 19.09.2021, after

pouring kerosene over her body set her ablaze, whereby she was burnt

Mukesh Singh and his mother Leela Devi had set her ablaze. On hearing her

screaming, the persons of the locality attracted there. Her mother also came

there and she was taken to RIMS hospital by her mother with the help of

people of village and admitted in RIMS Hospital, after being recovered, she

gave the written information with the police station concerned. On this

written information, Case Crime No.84 of 2021 was registered with Angara

Police Station, Sub Division, Sadar, District Ranchi for the offence under

Sections 376, 307, 326 read with Section 34 of the Indian Penal Code and

under Section 4 and 6 of the POCSO Act against the Mukesh Kumar Singh

and Leela Devi.

3. The Investigating Officer after having concluded the investigation,

exonerated Leela Devi from the charge and filed charge sheet against the

accused Mukesh Kumar Singh for the offence under Sections 376, 307, 324

of the Indian Penal Code and under Sections 4 and 6 of the POCSO Act.

4. The learned A.J.C.-IV-cum-Special Judge, POCSO, Ranchi took

cognizance on the charge sheet and framed charge against the accused

Mukesh Kumar Singh for the offence under Sections 376(2)(n), 376(3), 307

and 326 of the Indian Penal Code and under Sections 4 and 6 of the POCSO

Act.

5. During trial, an application was moved on behalf of the accused

Mukesh Kumar Singh before the trial Court claiming himself to be juvenile

at the time of commission of alleged offence.

6. The learned trial Court itself concluded the inquiry and after recording

the evidence, rejected the application of the petitioner-accused to declare

him juvenile vide order dated 09.02.2023.

7. Aggrieved from the impugned order dated 09.02.2023, this Criminal

Revision has been directed on behalf of the petitioner on the ground that the

impugned order passed by the learned Court below is bad in the eyes of law.

The learned lower Court has not appreciated the evidence on record in

proper perspective while rejecting the application of the petitioner to declare

him juvenile. The learned lower Court ignored the age of the petitioner

shown in the school certificate and Aadhar Card as well and relied upon the

medical evidence, in which, the estimated age of the juvenal was relied by

the learned lower Court without considering the margin of error principle in

case of ossification test to determine the age of the petitioner. In view of the

above, prayed to allow this Criminal Revision and set aside the impugned

order.

8. I have heard the learned counsel for the petitioner and learned APP for

the State and perused the materials available on record.

9. From the record, it transpired that the application was moved on

behalf of the petitioner-accused before the learned lower Court with prayer

to declare him juvenile on the ground that the date of occurrence is

19.09.2021 while as per school certificate issued by the Government Middle

School, Gari, Ranchi the date of birth of the petitioner is shown 17.05.2004.

On the date of occurrence, the age of the petitioner was 17 years 4 months 2

days. He has been in judicial custody since 08.11.2021, accordingly, prayed

to declare the petitioner juvenile.

10. In support of this application on behalf of the petitioner-accused filed

the photocopy of certificate issued by the Government Middle School, Gari,

Ranchi and also filed photocopy of Aadhar Card and in oral evidence

examined E.W.-1, Achla Kujur.

11. The certificate issued by the Government Middle School, Gari, Ranchi

is dated 09.05.2017. In this certificate, the age of Mukesh Kumar Singh, son

of Late Raj Kishor Singh, date of birth shown is 17.05.2004. This certificate

is issued by the Head Mistress of Government Middle School, Gari Ranchi.

The photocopy of Aadhar card is also on record, in which, date of birth of

Mukesh Kumar Singh is shown of the year of 2004.

12. In oral evidence on behalf of the petitioner examined E.W.-1, Achla

Kujur as Enquiry Witness. This witness, in her examination-in-chief, says

that she had received summon from the Court. She is a science teacher in

Government Middle School, Gari, Ranchi. She is also in-charge Principal of

the said School. She had brought the register in regard to registering the

names of the student studying in the school. She is also custodian of the

been posted in the said school from 31.12.2016. His name was registered in

the said school on 20.04.2017. His date of birth is mentioned as

17.05.2004. This entry was made by the Principal of the said School and

she identified her signature marked as Exhibit-1. The entry from serial

No.1 to 34, all are in handwriting and signature of the Principal Sushila

Dungdung. Leela Devi came to the school on 24.04.2017 to get the

admission of her son Mukesh Kumar Singh. Mukesh Kumar Singh was

admitted in Class-VI, prior to that, where he was studying, she has no

knowledge. No certificate in regard to his age was given. His date of

birth 17.05.2004 was recorded on the basis of entry made in his Aadhar

Card. This witness also filed the photocopy of the admission register of the

school during her examination and the same is also on record, in which, at

serial No.26, the name of Mukesh Singh is mentioned and his date of birth is

mentioned as 17.05.2004.

13. The learned Court below was not satisfied with the School Certificate

and the testimony of the E.W.-1, Achla Kujur and directed the Civil

Surgeon-cum-CMO, Ranchi for determination of the age of Mukesh Kumar

Singh after constituting the Board for the same. The report was received to

the learned trial Court through the letter No.898 dated 23.01.2023 from the

Jail Superintendent, B.M.C. Jail, Hotwar, Ranchi along with a copy of letter

No.283 dated 21.01.2023 of the Civil Surgeon-cum-C.M.O., Ranchi, in

which, it was reported that the age of accused Mukesh Kumar Singh has

been shown 20-21 years by the Medical Board.

14. The letter No.283 dated 21.01.2023 issued by the Civil Surgeon-cum-

Medical Chief Officer, which was sent to the learned A.J.C.-IV-cum-Special

Judge, POCSO, Ranchi, from perusal of the same, it is found that Mukesh

Singh was examined on 18.01.2023 and on 18.01.2023 his age was

determined 20-21 years. The date of occurrence is 19.09.2021.

15. The learned counsel for the petitioner has raised this plea that the

learned Court below did not give the benefit of principle of error margin of

two years to the accused, according to which, on the date of occurrence, the

age of the petitioner was 16 years 8 months.

16. From perusal of the impugned order, it is found that the learned lower

Court did not rely the oral as well as documentary evidence adduced on

behalf of the petitioner and ultimately directed the Medical Board to

determine the age of the petitioner. As per the Medical Board, the age of

the petitioner Mukesh Kumar Singh was opined 20 to 21 years on the

date of examination i.e. 18.01.2023. The date of occurrence is 19.09.2021.

The time period between the date of occurrence and the date of

examination is 1 year 4 months, therefore, on the date of occurrence as

per the opinion of Medical Board, age of the petitioner-accused was 18

years 8 months. Since there is no cogent evidence of the school certificate

in this case, the only basis of the evidence for age determination is

ossification test of the petitioner and the ossification test cannot be the

accurate. Therefore, the benefit of margin of 2 years should be given to the

accused in view of the settled propositions of law.

17. Herein, it would be pertinent to give the statutory provisions and legal

propositions of law as laid down by the Hon'ble Apex Court.

17.1 Section 94 of the J.J. Act, 2015 reads as under:

Section 94. Presumption and determination of age.

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

17.2 The Hon'ble Supreme Court in the case of Kulai Ibrahim @ Ibrahim

Vs. State reported in AIR 2014 SC 2726 has held that in determination of

the age of a juvenile by the Board, if relevant document on record found to

be fabricated, Medical report for determination of the age should be called.

Para 12 reads as under:

"12. Though in this paragraph, this Court observed that the question of obtaining medical opinion from a duly constituted Medical Board arises only if the above-mentioned documents are unavailable, this Court went on to further observe that only in those cases, where documents mentioned in Rules 12(a) (i) to (iii) of the J.J. Rules, 2000 are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Committee need to go for medical report for age determination. Thus in cases where documents mentioned in Rules 12(a)(i) to (iii) of the J.J. Rules, 2000 are unavailable or where they are found to be fabricated or manipulated, it is necessary to obtain medical report for age determination of the accused. In this case the documents are available but they are, according to the police, fabricated or manipulated and therefore as per the above observations of this Court if the fabrication is confirmed, it is necessary to go for medical report for age determination of the appellant. Delay cannot act as an impediment in seeking medical report as Section 7-A of the J.J. Act, 2000 gives right to an accused to raise the question of juvenility at any point of time even after disposal of the case. This has been confirmed in Ashwani Kumar (AIR 2013 SC

553). Moreover, J.J. Act, 2000 is a beneficient legislation. If two views are possible scales must tilt in favour of the view that supports the claim of juvenility. While we acknowledge this position in law there is a disquieting feature of this case which cannot be ignored. We have already alluded to the counter affidavit of Shri R. Srinivasalu, Inspector of Police. If what is stated in that affidavit is true then the appellant and his father are guilty of fraud of great magnitude. A case is registered against the appellant's father at the Ukkadam Police Station under Sections 467, 471 and 420 of the IPC. Law will take its own course and the guilty will be adequately punished if the case is proved against them. Since the case is being investigated, we do not want to express any opinion on this aspect.

Till the allegations are finally adjudicated upon and proved, we cannot take registration of the offence against the appellant.". 17.3 The Hon'ble Supreme Court in the case of Vinod Katara Vs. State of

Uttar Pradesh reported in 2022 Live Law SC 757 and in the case of Pawan

Kumar Vs. State of Uttar Pradesh and Ors. reported in 2023 Live Law SC

1003 held that when the exact assessment of the age not possible, reduction

of one year can be giving benefit to the accused. Bone ossification test is not

conclusive for age determination because it does not reveal the exact age of

the person, but the radiological examination leaves a margin of two years on

either side of the age range as prescribed by the test irrespective of whether

the ossification test of multiple joints is conducted.

17.4 The Hon'ble Supreme Court in the case of Manoj @ Monu @ Vishal

Choudhary v. State of Haryana reported in AIR 2022 SC (Criminal) 558

has held at paragraph Nos.15, 17 and 18 as under:

"(iii) Ossification test report

15.The Medical Board has opined the age of the appellant between 23 to 24 years, when the appellant was examined on 13.05.2016.

This report has been relied upon by the learned Additional Sessions Judge to allow the plea of juvenility raised by the appellant. However, it is to be noted that ossification test varies based on individual characteristics and hence its reliability has to be examined in each case.

17.Hence, it cannot be reasonably expected to formulate a uniform standard for determination of the age of the union of epiphysis on account of variations in climatic, dietetic, hereditary and other factors affecting the people of the different States of India.

18.Furthermore, this Court in a judgment reported as Jyoti Prakash Rai v. State of Bihar held that the medical report determining the age of a person has never been considered by courts of law as also by the medical scientist to be conclusive in nature. It was also found that though the Act is a beneficial legislation but principles of beneficial legislation are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. The Court held as under:

"12. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on record by the parties. In the absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant.

13. A medical report determining the age of a person has never been considered by the courts of law as also by the medical scientists to be conclusive in nature. After a certain age it is difficult to determine the exact age of the person concerned on the basis of ossification test or other tests. This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 : (AIR 2006 SC 508)] opined : (SCC p. 290, para 20) "20. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."

In the aforementioned situation, this Court in a number of judgments has held that the age determined by the doctors should be given flexibility of two years on either side."

17.5 The Hon'ble Supreme Court in the case of Rajak Mohammad Vs.

State of HP reported in (2018) 9 SCC 248 has held at paragraph No.9 as

under:

" 9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused."

18. In the case in hand, the school certificate, which was produced on

behalf of the petitioner was of Class-VI, this school certificate was not of

school of first attendance. E.W.-1, Achal Kujur has stated that while

entering into the school register in the year 2017, no certificate in regard

to the age of Mukesh Kumar Singh was given to her. The age was

mentioned in the register on the basis of Aadhar Card. Herein, the

school certificate being neither of first attendance nor of matriculation

certification, the certificate, which was issued on behalf of the petitioner

is not found to be trustworthy because the entry in the register while

admitting him in Class-VI was made in regard to the age of Mukesh

Kumar without any prior age certificate issued by any school, from

where, he had passed Class-V. In such a case, the only basis to determine