Vidhi Viruddh Balika vs State Of M.P.
2025 Latest Caselaw 6496 MP

Madhya Pradesh High Court

Vidhi Viruddh Balika vs State Of M.P. on 22 May, 2025

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                                                1




                                         IN THE HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                            BEFORE
                                    HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                          CRIMINAL REVISION No.444 of 2023
                                                   VIDHI VIRUDH BALIKA
                                                              Versus
                                     THE STATE OF MADHYA PRADESH & ANOTHER
                           Appearance:
                           (Shri Vineet Mishra - Advocate for the applicant)
                           (Smt. Nalini Gurung - Panel lawyer for the respondent No.1/State)
                           (Shri Sushil Giri Goswami - Advocate for respondent No.2)
                           .........................................................................................................................................................

                           Reserved on   : 07.05.2025
                           Pronounced on : 22.05.2025
                           .........................................................................................................................................................

                                                             ORDER

This revision petition has been preferred under Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as "J.J. Act, 2015") assailing the appeal judgment dated 14.12.2022 passed by the 18th Additional Sessions Judge, Bhopal (MP) in Criminal Appeal No.478/2022 (Pawan Kumar Jain Vs. State of M.P. & Others), whereby the appeal preferred by father of the deceased against the order dated 21.11.2019, passed by the Principal Magistrate Juvenile Justice Board has been allowed by setting aside the order dated 21.11.2019 whereby the juvenile in conflict with law was found to be below 18 years of age on the date of commission of offence. By the impugned order, she has been declared as major on the date of commission of offence.

2. As per the allegations, in the intervening night of 27-28/07/2019 juvenile in conflict with law alongwith two others committed murder of Piyush Jain who was her lover. Charge sheet was filed against applicant juvenile in conflict with law before the Juvenile Justice Board, Bhopal. The application was filed by the father of the deceased Piyush Jain before the Juvenile Justice Board, Bhopal stating that on the date of commission of offence, she was a major and was not a juvenile. Enquiry was conducted and statements of three witnesses were recorded. Juvenile Justice Board after examining the documents and evidence on record, came to the conclusion that on the date of commission of offence i.e. on 27.07.2019 applicant was a juvenile and was below 18 years of age. The said order was challenged before the Court of Sessions by filing an appeal under Section 101 of the J.J. Act, 2015 and by impugned order dated 14.12.2022, on the basis of birth certificate issued by Municipal Corporation, Sagar & on the basis of entry made in the register of Manokamna Nursing Home, Sagar learned ASJ came to the conclusion that on the date of commission of offence applicant was not a juvenile as her date of birth is 23.09.1999 and she was 18 years and 10 months old and set aside the order passed by the Juvenile Justice Board and directed that applicant be tried for commission of offence along with other co-accused persons in Sessions Court for commission of murder.

3. Learned counsel for the applicant has contended that on the date of commission of offence, she was a minor and on the basis of date of birth mentioned in the school certificate, charge sheet was filed against her in the Juvenile Justice Board and Juvenile Justice Board by its order dated

21.11.2019 assessed her age below 18 years on the date of commission of offence, but learned appellate Court on the basis of so called birth certificate issued after the date of commission of offence and only on the basis of entries made in the register of Manokamna Nursing Home has wrongly come to the conclusion that on the date of commission of offence, she was above 18 years of age. It is submitted that applicant was a juvenile, on the date of commission of offence and same is apparent from her matriculation certificate. The Juvenile Justice Board vide order dated 21.11.2019 rightly declared her to be 17 years and 11 months old on the date of commission of offence. It is contended that on the basis of birth certificate and register of the nursing home which was not proved by doctor Saini who runs the nursing home, it was not justified on the part of the appellate Court to accept them as true and set aside the order passed by the Juvenile Justice Board and to declare her above 18 years of age on the date of commission of offence.

4. It is submitted that on the date of alleged commission of offence i.e. on 27.07.2019, she was a juvenile and in this regard findings given by the Juvenile Justice Board after enquiry were in accordance with the provisions of Section 94(2) of the Juvenile Justice Board, 2015. Appellate Court has not properly considered her juvenility in the true letter and spirit of law. Therefore, it is prayed that impugned appellate order be set aside.

5. On the other hand, learned counsel for the State has opposed the submissions put forth by learned counsel for the applicant and has submitted that on the basis of birth certificate issued by the Municipal Corporation, Sagar appellate Court has rightly held that on the date of

commission of offence, applicant was above 18 years of age. Therefore, appellate Court has not committed any error in declaring the applicant to be above 18 years of age on the date of commission of offence.

6. I have heard learned counsel for the applicant as well as learned counsel for the State.

7. Before I deal with the submissions put forth by both the sides, it would be just and proper to examine some of the relevant statutory provisions. The age of a juvenile has to be determined on the basis of date of alleged commission of crime. In the case in hand, crime under Section 302 of IPC is allegedly committed on 27.07.2019.

8. Section 2 (12) and 2 (13) of the J.J.Act, 2015 defines the "Child" and "Child in Conflict with law" as under:

2(12) "child" means a person who has not completed eighteen years of age;

2(13) "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence.

9. Section 94 (1) and (2) of the J.J. Act, 2015 reads as under:

"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"

10. The aforesaid Section 94(2) of the J.J. Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal. In the case in hand, juvenile was referred to ossification test by J.J. Board. In ossification test, her age has been determined between 17 to 19 years. A perusal of Section 94(2) makes it clear that when birth certificate from the school is available, ossification test is not required to be taken into consideration. Ossification test can be considered only in absence or non-availability of date of birth certificate from the school or the matriculation certificate or equivalent certificate from the concerned examination board. Therefore, ossification test cannot be considered.

11. When the age is determined as per sub clause (2) of Section 94 of J.J. Act declaration made on the basis of evidence before the Juvenile Justice Board and the age recorded by the Juvenile Justice Board shall have

to be taken as true age of the person brought before it. The age of a person has to be determined on the basis of material on record and on appreciation of evidence adduced by the parties in the case and hyper technical approach is not required to be adopted when evidence is adduced on behalf of the juvenile and accused in support of the pleadings. It is also a trite law that if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in border line cases. This is in order to ensure that the benefit of the J.J. Act, 2015 is made applicable to the juvenile in conflict with law.

12. 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 Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility then private documents. Matriculation certificate can be accepted by the J.J. Board if same is credible and authentic as per the provisions of Section 35 of the Indian Evidence Act.

13. In the case in hand, before Juvenile Justice Board, three witnesses were examined. Witness Narendra Prasad Sen, the driver of the Manokamna Nursing Home was examined as AW1. According to him as per the entry made in Exhibit D-1 register the date of birth of the Juvenile in conflict with law is 20.09.1999. In register it was mentioned that mother of child delivered child through scissor operation on 20.09.1999, while as per the evidence of Teacher Maya Kelkar AW2, in school register her date of birth is mentioned as 27.08.2001. As there were contradictory dates of birth in two documents, juvenile Justice Board directed for ossification test

of the juvenile and in ossification test her age has been determined between 17-19 years. The juvenile justice board after enquiry has opined that on the date of commission of offence i.e. 27.07.2019 applicant was below 18 years of age.

14. On the basis of birth certificate, appellate Court has come to the conclusion that her date of birth is 20.09.1999 and at the time of commission of offence she was 18 years and 10 months old. On perusal of Exhibit P-2 document, it is revealed that same has been issued on 04.10.2019 by Dr. Usha Saini and in it, it is mentioned that mother of the applicant delivered a girl child through scissor operation on 23.09.1999. To prove this document Dr. Usha Saini of Manokamna Nursing Home did not turn up before the Juvenile Justice Board for examination and cross- examination and the aforesaid document has been exhibited on the basis of evidence of the driver Narendra Prasad Sen. Therefore, it was not justified on the part of learned ASJ/appellate Court to place reliance on the said document which has been issued almost after 20 years of the so called date of birth of the applicant. Likewise, Exhibit P/1 entry has not been proved by Dr. Usha Saini. Therefore, it was not justified on the part of the appellate Court to reverse the findings given by the Juvenile Justice Board on the basis of documents which were not proved by appearing in witness box by the doctor who issued these documents.

15. Maya Kelkar AW2 is the Teacher and she in her evidence has deposed that in school register, applicant's date of birth is mentioned as 27.08.2001. Even in matriculation, certificate the date of birth of the applicant is mentioned as 27.08.2001. As per Section 94 sub clause (2) the

first document which has to be considered for determination of a person's juvenility is the date of birth certificate issued from the school or matriculation or equivalent certificate from the concerned examination board if available and only in absence thereof, birth certificate given by the corporation or municipal authority or a Panchayat can be considered. Thus, it is apparent that only in absence of aforesaid document, other documents can be looked into. If document which is date of birth certificate from the school or the matriculation or equivalent certificate is available, no other document can be seen. Therefore, I am of the considered view that appellate Court has committed error in placing reliance on Exhibit P/1 and P/2 documents which are not proved by Dr. Usha Saini by appearing in witness box.

16. It is worth mentioning that in all school certificates applicant's age is mentioned as 27.08.2001. Thus, there was no reason for the appellate Court to reverse the findings with regard to the age given by the J.J.Board. When birth certificate from the school or the matriculation or equivalent certificate is available only those documents are liable to be considered and same are valid proof of evidence for determination of age of the applicant. Reliance can be placed on the case of Shah Nawaz Vs. State of Uttar Pradesh and Another, reported in (2011) 13 SCC 751.

17. When school certificate with regard to date of birth was available, it was not desirable on the part of the Juvenile Justice Board to sent the applicant for ossification test. Only in absence of school birth certificate or matriculation or equivalent certificate any birth certificate issued by the corporation or municipal authority can be seen. The medical opinion from

a duly constituted Medical Board can be obtained only if the above mentioned documents are not available.

18. In the case of Ashwani Kumar Saxena Vs. State of M.P. reported in (2012) 9 SCC 750 while interpreting Rule 12, Section 7-A of the Act read with Section rule 12 of the Rules, 2007 the Supreme Court has held that only in absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended the question of obtaining the medical opinion from the duly constituted medical board arises. Para 32 is reproduced below:

"32. "Age determination inquiry" contemplated under section 7A of the Act r/w 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 need 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 need 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 above mentioned 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."

19. As far ossification report is concerned, Dr. Nitin Patel AW3 is examined and according to him Board has assessed her age to be between 17-19 years. In cross-examination, he has admitted that he had conducted only ossification test and assessment was made by the Medical Board. It is settled position of law that bone ossification test, which is primarily done to determine the age does not give the precise age but it is at the best in

approximation and it is not entirely accurate. Hon'ble Apex Court in the case of Vinod Katara Vs. State of M.P., reported in 2022 SCC Online SC 1204 has held as under:

"60. The bone ossification test is not an exact science that can provide us with the exact age of the person. As discussed above, the individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. This Court has observed in Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681: (2010) 2 SCC (Cri) 1194, and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223: (2009) 3 SCC (Cri) 796, that the 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. The courts in India have accepted the fact that after the age of thirty years the ossification test cannot be relied upon for age determination. It is trite that the standard of proof for the determination of age is the degree of probability and not proof beyond reasonable doubt."

20. It is settled position of law that in a case of juvenilty where two views are possible liberal approach has to be taken. Hon'ble Apex Court in the case of Arnit Das Vs. State of Bihar, 2005, 5 SCC 488 has held as under:

"19.......

(ii) a hypertechnical 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 same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases; and"

21. Hon'ble Apex Court in number of cases has held that proposition of taking a liberal view and about extending the benefit of juvenility where two views are available has been reiterated in number of decisions. Please See: Ashwani Kumar Saxena (supra). In Rishipal Singh Solanki vs. State of U.P., (2022) 8 SCC 602 Hon'ble Apex Court observed as under:

"33.8 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 J.J. Act, 2015 is made applicable to the Juvenile in conflict with law. At the same time, the Court should ensure that the J.J. Act, 2015 is not misused by persons to escape punishment after having committed serious offences"

22. Even if the ossification report which shows the age of the applicant between 17 - 19 years is taken to be correct even then in a case where exact assessment of age was not possible considering the date of birth certificate from the school and matriculation certificate of the examination board, the preference has to be given to the documents as per the priorities in Section 94(2) of the J.J. Act and benefit has to be extended to the applicant/accused.

23. In view of the above analysis, I am of the considered view that as per the mandate of Section 94(2) of the J.J. Act, priority has to be given to the date of birth certificate from the school and matriculation certificate which stand at the highest pedestal and when such a certificate is available, no other certificate or test report has to be seen. Only in the absence of certificate of the school and matriculation certificate with regard to date of birth and birth certificate issued from the Municipal Corporation and

Panchayat or Municipal authority can be seen and only in absence of these certificates, ossification test can be taken into consideration.

24. In the wake of above discussion, I am of the considered view that order passed by the learned appellate Court being erroneous is not worth uphold and requires interference. Consequently, appellate Court judgment/order dated 14.12.2022, passed in Criminal Appeal No.478/2022 (Pawan Kumar Jain Vs. State of M.P. and Another) is set aside and order passed by the J.J. Board is restored and it is held that at the time of commission of offence i.e. 27.07.2019 applicant/juvenile in conflict with law was below 18 years of age. Revision is accordingly allowed.

25. Record of the Juvenile Justice Board, Bhopal and the appellate Court along with copy of this order be sent down to them through Sessions Judge Bhopal.

(DINESH KUMAR PALIWAL) JUDGE Jasleen