Lucky @ Melvin S/O George Johnson ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 3223 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                        BEFORE
                                            HON'BLE SHRI JUSTICE ANIL VERMA
                                              ON THE 22 nd OF FEBRUARY, 2023
                                            CRIMINAL REVISION No. 3203 of 2021

                           BETWEEN:-
                           LUCKY @ MELVIN S/O GEORGE JOHNSON THR. LEGAL
                           GUARDIAN GEORGE JOHNSON AGED ABOUT 51 YEARS,
                           R/O: 16, NEAR NEELGANGA KABRISTAN, DIST. UJJAIN
                           (M.P.) PERMANENT ADDRESS - TERAKAKUJHIL HOUSE,
                           KOTANAD PIYO, P.O KOTNAD, DIST. PATTNAMMITTA
                           KERELA (MADHYA PRADESH)

                                                                                            .....PETITIONER
                           (BY SHRI MANU MAHESHWARI - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THR. P. S. KOTWALI, UJJAIN (MADHYA
                           PRADESH)

                                                                                          .....RESPONDENT
                           (BY SHRI RAJENDRA SURYAVANSHI - GOVERNMENT ADVOCATE)

                                 This revision coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

This criminal revision under section 397 read with Section 401 of Cr.P.C. has been preferred by petitioner against the impugned order dated 12.10.2021 passed by Special Judge (POCSO Act) Ujjain in Crime Appeal No.85/2021 whereby an order dated 20.09.2021 passed by the Juvenile Justice Board has been upheld wherein it has been held that petitioner is an adult person.

T he facts giving rise to this revision petition are that offence under Sections 363, 376, 376(2)(n), 376(3), 368 read with Section 34 of IPC, 1860 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

and Section 3/4 and 5/6 of POCSO Act, 2012 has been registered against the present petitioner and Juvenile Justice Board given the observation on 20.09.2021 that the present petitioner is an adult person aged about 19 years. The said order dated 20.09.2021 was challenged before the first Appellate Court in Criminal Appeal No.85/2021 where the said appeal was dismissed. Being aggrieved by the impugned order dated 12.10.2021, the petitioner has preferred this Criminal Revision before this Court.

Learned counsel for the petitioner submits that order of both the Courts

below are contrary to law and facts. In the mark-sheet of 5th class, the date of birth is shown as 01.01.2004, which is also matching with the Aadhar card of

the petitioner and without considering the aforesaid fact the Board has merely passed the order that the date of birth of the petitioner is 01.01.2003 on the basis of the play school admission form of the petitioner, but there is no document available on record on the basis of which the play school admission form was made. Principal of the Chaitanya School, Warangal, Telangana stated that in the scholar register, the date of birth of the petitioner is 01.01.2004 same was also found in admission form and the mark-sheet. As per the ossification test conducted by the Dr. Anil Bharghav, who came for four different observations and has held his age as 17 years, 19 years, 19 years and 20 years. Trial Court has failed to observe that the medical expert can only give opinion, which cannot be relied upon while documents state the exact facts in respect of petitioner. Hence, he prays that impugned order dated 12.10.2021 and 20.09.2021 be set aside and decide the age of the petitioner as a minor.

Per contra, as per the ossification test and as per the first scholar register of the petitioner, his date of birth is 01.01.2003, hence, both the Courts below have rightly held that petitioner was major at the time of incident. Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

Learned counsel for both the parties heard at length and perused the entire record.

Hon'ble the Apex Court in the case of Rishi Pal Singh Solanki Vs. State of U.P. & Others [2021 SCC Online SC 1079] held that it is apparent that a claim of juvenility can be raised at any stage of a criminal proceeding, even after the final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of the such claim and if an application is filed before the Court claiming juvenility, the provision of sub-section 2 of Sec 94 of the JJ Act, 2015 would have to be applied or read alongwith sub-section 2 of Section 9, so as to seek evidence for the purpose of recording of finding stating the age of the person as nearly as may be. Relevant para of the aforesaid judgment passed in the case of Rishi Pal Singh Solanki Vs. State of U.P. & Others (Supra) is as under:

''32. 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 the final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for the rejection of such a 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.

(iia) 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.

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

(iib) 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.

(iic) 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

Signature Not Verified facie satisfaction of the Court. On the basis of the aforesaid documents a Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

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 94 of 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 Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

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.

(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.

( x i ) 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.'' T he degree of proof required in a proceeding before the JJ Board is higher than when an inquiry was made by a Court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015). 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 94 of the JJ Act, 2015, a declaration is made on the basis of evidence. Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

In the instant case, an application has been moved before the Juvenile Justice Board, Ujjain for determination of the age of the petitioner. Therefore, Juvenile Justice Board was required to make a query about the juvenility of the petitioner and during the inquiry witnesses George Johnson (father of the petitioner) (AW-1), Lilly George (mother of the petitioner) (AW-2), Yoga Ramki (principal of the Chaitanya School, Warangal) (AW-3), Sushma Trivedi (principal of the New Tiny Tots Pre-School, Kanpur) (AW-4), Dr. Neena Bhawsar (AW-5), Dr. Dwarkadheesh Bhawsar (AW-6) and Dr. Anil Bhargav (AW-7) have been examined.

George Johnson (AW-1) and Lilly George (AW-2) both of them have deposed in their statement that they enrolled the petitioner in New Tiny Tots School, Kanpur and they have written petitioner's date of birth as 01.01.2003 due to the pressure of School because School was not ready to give admission to petitioner as he was below four years of age, but actual date of birth of the petitioner is 01.01.2004. Sushma Driwedi (AW-4) has also stated in her statement that as per the School record (Ex.P-8), date of birth of the petitioner i.e. 01.01.2003 was informed by his father and mother, but at that time no relevant document/certificate regarding the date of birth of the petitioner was obtained from his parents.

Shri Yoga Ramki (AW-3), who is the Principal of Chaitanya School, District Warangal, Andhra Pradesh has deposed in his statement that petitioner

Melvin George enrolled in his school on 26.02.2014 in 4th Standard and as per the scholar register (Ex.B-4) his date of birth is 01.01.2004, he was again

enrolled in 6th Standard and again as per the scholar register (Ex.B-5) his date of birth is mentioned as 01.01.2004. In Transfer Certificate (Ex.P-6) and

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

Admission Form (Ex.B-7) the date of birth of the petitioner is mentioned as 01.01.2004.

Hon'ble the Apex Court in the case of Ashwini Kumar Saxena Vs. State of Madhya Pradesh (2012) 9 SCC 750, it has been held that "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. In the instant case, it is noteworthy that petitioner's first time enrolled in the Tiny Tots School, Kanpur, as per the scholar register (Ex.B-4) and his mark-sheet was (Ex.B-1, B-2 and B-3) but that was the play school, therefore, date of birth mentioned in the scholar register and mark-sheet of the play school is not admissible for the determination of date of birth of the petitioner.

For the purpose of determination of age of petitioner Shri Yoga Ramki (AW-3) has been examined before the JJ Board and as per his statement and entry the date of birth of petitioner in scholar register (Ex.B-4 and B-6), admission form (Ex.B-7) and scholar register (Ex.B-5) is 01.01.2004. According to the law laid down by Hon'ble the Apex Court in the case of Rishi Pal Singh Solanki (supra), first time entry of date of birth of the petitioner in the Warangal School as per Ex.B-4 to Ex.B-7, the date of birth of the petitioner as 01.01.2004 appears to genuine and authentic. Petitioner's earlier entry regarding his date of birth in the scholar register of play school cannot be made base of determination of his date of birth.

Dr. Anil Bhargav, who has conducted the ossification test of the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

petitioner has given his test report (Ex.B-13) and he has finally opined that as per his opinion he has found that radiological age of the petitioner is more than 20 years and as per his opinion on 06.06.2021 the petitioner's age was at least 19 and half years, but on the contrary he also opined that as per the fusion of radius bone petitioner age came 17 years, but in their examination in Para 9 he admits that his opinion regarding the age of the petitioner is based on conjecture. Dr. Anil Bhargav has given four different observations and as per his first observation petitioner was 17 years, as per second and third observation his age was 19 years, and as per fourth observation his age was observed as 20 years, therefore, the observation given by the Dr. Anil Bhargav appears to be suspicious and his evidence cannot be considered as conclusive evidence.

Hon'ble the Apex Court in the case of Babloo Pasi Vs. State of Jharkhand and Another (2008) 13 SCC 133, has observed that it is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered alongwith other cogent evidence.

It is true that in Arnit Das Vs. State of Bihar (2000) 5 SCC 488, this Court has on a review of age of an 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

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the Courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the Courts to ensure that the protection and privilege under the Act are not misused by unscrupulous persons to escape punishments for having committed serious offences.

Hon'ble the Apex Court in the case of Mukarrab Etc. Vs. State of Uttar Pradesh Judgment dated 30.11.2016 passed in Criminal Appeal Nos.1119-1120 of 2016 has held that in a recent judgment, State of Madhya Pradesh Vs. Anoop Singh (2015) 7 SCC 773, it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi and Anoop Singh's cases, we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

On the basis of documents, produced by the petitioner, evidence during the inquiry conducted by the JJ, Board, Ujjain, presumption of juvenility may be applied in the case as rightly held in the case of Rishi Pal Singh Solanki (supra). Although the said presumption is not conclusive proof of the petitioner's juvenility and the same may be rebutted. But nothing has been produced on record which negates the case of the petitioner. As observed by Hon'ble the Apex Court in the case of Rishi Pal Singh Solanki (Supra), a hyper-technical Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02

approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile and 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.

In view of the aforesaid discussion and also in the absence of any rebuttal evidence, in the considered opinion of this Court, the petitioner has discharged his initial burden about his juvenility as there was no reasonable ground to doubt the said document the date of birth of the petitioner is 01.01.2004 and he was juvenile at the time of incident produced by him. The learned trial Court has committed an error in rejecting the application filed by the petitioner in this regard.

Consequently, the petition is allowed. The impugned order dated 12.10.2021 passed by Juvenile Justice Board, Ujjain is hereby set aside and it is held that the petitioner had not attained the age of 18 years on the date of the incident; as such, he is a child in conflict with the law. Therefore, the trial Court is directed to produced further in the matter, accordingly.

With the aforesaid, revision stands disposed off.

(ANIL VERMA) JUDGE Anushree

Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 24-02-2023 18:18:02