Uttarakhand High Court
8 May vs State Of Uttarakhand on 8 May, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
2025:UHC:3627
REPORTABLE
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Criminal No. 1083 of 2020
08 May, 2025
Parvez --Petitioner
Versus
State Of Uttarakhand
--Respondent
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Presence:-
Mr. Sandeep Tiwari, learned counsel for the petitioner.
Mr. S.C. Dumka, learned AGA for the State.
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Hon'ble Pankaj Purohit, J.
The petition was forwarded by the petitioner-
Parvez, S/o Ramzani, a convict from District Jail, Haridwar
through Superintendent of District Jail, Haridwar to
Assistant Registrar of High Court of Uttarakhand at
Nainital stating therein that the petitioner was implicated
falsely in a criminal case; on the date of commission of
offence, petitioner was 15 years of age and accordingly, the
benefit of juvenility be extended to him as per law. The said
petition of the petitioner was registered as WPCRL No.1083
of 2020 vide order dated 22.07.2020.
2. The facts shorn-off unnecessary details in short
are that an incident took place on 06.07.2003 alleging
offence of dacoity with murder at Kankhal, Haridwar. The
first information report of the incident was lodged on
07.07.2003 against the petitioner-Parvez and two others,
namely, Rafi & Sonu under Sections 396 & 412 IPC at
Police Station Kotwali Roorkee, District Haridwar.
3. After investigation, a charge-sheet was
submitted by the police against the petitioner-Parvez and
two other persons, namely, Rafi @ Furkan and Sonu on
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17.10.2003 under Sections 396 & 412 IPC. The trial
proceeded and ultimately, all accused persons including
petitioner were convicted vide judgment and order dated
01.09.2006 under Section 396 IPC and sentenced to life
imprisonment along with fine of Rs.5 lakhs each with
default stipulation. However, the accused-Rafi @ Furkan
was also convicted under Section 412 IPC and sentenced to
seven years' R.I. with fine of Rs.1 lakh with default
stipulation in Sessions Trial No.39 of 2004, State vs. Rafi &
others, passed by learned Additional Sessions Judge/1st
Fast Track Court, Roorkee, District Haridwar. The
petitioner-Parvez was arrested on 10.07.2003 by the police
in connection with the aforesaid first information report.
The conviction and sentence recorded by learned Additional
Sessions Judge/1st F.T.C., Roorkee, District Haridwar was
affirmed by this Court, by its judgment and order dated
13.06.2012 passed in Criminal Appeal No.220 of 2006,
whereby criminal appeal preferred by the petitioner and
other co-accused was dismissed.
4. It transpires from the record that petitioner has
not challenged the said judgment and order dated
13.06.2012 passed by High Court, whereby his conviction
and sentence passed by the trial court was affirmed any
further. Thereafter, petitioner moved the instant petition
from jail referred hereinabove claiming the benefit of
juvenility on the ground that on the date of commission of
offence i.e. on 06.07.2003, he was 15 years of age.
5. The Co-ordinate Bench of this Court vide order
dated 06.12.2023, passed an order, which is as under:-
"The Court requests Sessions Judge, Haridwar to
conduct an inquiry with regard to the date of birth of the
petitioner. He may like to take into consideration school
leaving certificate Annexure 1 to the writ petition, all the
document that are submitted by the petitioner while
writing examination conducted by the National Institute
of Open School, family register, any ossification test
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ever done etc. and after scrutinizing and evaluating the
material the Court expects the report is placed before
the Court with regard to the date of birth of the
petitioner.
List on 12.01.2024.
The copy of the petition may be forwarded to the
Sessions Judge, Haridwar immediately."
6. Pursuant to the order dated 06.12.2023 passed
by the Co-ordinate Bench of this Court, the inquiry was
conducted by the District & Sessions Judge, Haridwar and
a report dated 15.02.2024 was forwarded to this Court. The
report sent by District & Sessions Judge, Haridwar dated
15.02.2024 is on record. As per the report, the ossification
test of the petitioner was conducted by CMO, Haridwar and
panel of two other doctors. The ossification test report is of
dated 19.12.2023. According to the said report, the
radiological age of petitioner-Parvez was found to be 35
years on the date of his examination i.e. on 19.12.2023.
During inquiry, the doctors who conducted ossification test
of the petitioner were examined. Dr. Sanjay Tyagi was
examined as DW3, who on oath stated as under:-
"On 19.12.2023 in the medical panel constituted as
per instructions of the CMO, Haridwar for the age
determination test of Parvez s/o Ramjani. Parvez's
head and sternum bone's X-Ray were done. It was
found in the X-Ray that the frontal and sagittal
sutures in the skull had fused. The coronal and
lambdoid sutures were not fused. The middle bodies
were fused into sternum bones. The manubrium
sternum and xephoid process were not fused. The
radiological estimated age of aforesaid Parvez
was found to be approximately 35 years. The
Paper no.15A/3 on file is the X-Ray report, in his
hand writing, bearing his signature at X-places."
7. Another Dr. Manish Dutt was also examined as
DW4, who on oath stated as under:-
"under the direction of the Court a medical panel
was prepared by him to examine accused Parvez
s/o Ramjani to determine the age. The aforesaid
was comprised of Radiologist Dr. Sanjay Tyagi
and Dr. Usha Bisht, Dental Surgeon. He, in the
capacity of Chief Medical Officer, Haridwar
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determined the age, the related certificate Paper
No.15A/2 which has been issued by him in which
there is his signatures which he recognizes, on
which exhibit D-2 is marked. According to the
certificate, Parvez's age has been stated to be
around 35 years."
8. Both the Doctors were put to cross-examination
and were cross-examined by the DGC.
9. The District & Sessions Judge, Haridwar in
compliance of order dated 06.12.2023 instead of sending
the report to the Court, expressed his own opinion on the
said report, which cannot be a mandate of this Court while
directing the Sessions Judge to conduct the inquiry and
forwarded his inquiry report/order dated 15.02.2024 to
this Court. From perusal of the statement of Dr. Sanjay
Tyagi and Dr. Manish Dutt, who conducted radiological test
of the petitioner, it is quite certain that on the date of
examination of the petitioner-Parvez i.e. on 19.12.2023, his
date of birth was found 35 years of age.
10. Admittedly, the incident happened on
06.07.2003, on which date, the accused-Parvez would be
15 years of age.
11. Learned counsel for the petitioner submitted
that although the date of birth of the petitioner comes 15
years at the date of incident, as per the radiological test, if
20 years' period is reduced from the year 2023, benefit of
juvenility can be extended to the petitioner. Thus, it can
safely be inferred that on the date of incident, he was 15
years of age. He further placed reliance on the judgment of
Apex Court in the case of Om Prakash @ Israel @ Raju @
Raju Das vs. Union of India & another; reported in 2025
SC OnLine SC 47. The Apex Court in para 24 has
expressed that the age of the accused/juvenile would be
construed liberally and benefit of one year can be extended
while computing the age. Para 24 of the aforesaid judgment
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is quoted hereinbelow:-
"24. Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter
referred to as the "2007 Rules") must be understood
and appreciated in tune with the principal Act.
Rule 12 of the 2007 Rules
"12. Procedure to be followed in determination of
age.
XXX XXX XXX
(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 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."
12. Per contra, learned State Counsel submitted that
the age of petitioner has not been proved to be 15 years as
per the report of Sessions Judge, Haridwar. He placed
reliance upon the finding recorded by learned Sessions
Judge in para 38 of the said report dated 15.02.2024,
which is quoted hereinbelow:-
"Therefore, having regard to the material
available on file and above discussion, it reveals
that accused Parvez's date of birth cannot be
confirmed and a definite age of accused Parvez at
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a definite time cannot be ascertained merely on
the basis of the medical opinion."
13. Having considered the rival submissions of
learned counsel for the parties and having gone through
the material available on record, I do not find any force in
the submissions made by learned State Counsel simply for
the reason that the learned Sessions Judge was directed to
submit report of ossification test etc. before this Court but
instead of simply giving the report to the Court, he has
expressed his opinion about the ossification test, which
appears to be contrary from the statement recorded by Dr.
Sanjay Tyagi and Dr. Manish Dutt during inquiry. (which
are quoted in this judgment in para 6 & 7).
14. Since both the Doctors of the Panel who
conducted the radiological examination of the petitioner
under the orders of this Court through Sessions Judge,
Haridwar, on oath stated during inquiry conducted by
learned Sessions Judge, Haridwar that the age of the
petitioner comes to 35 years of age on the date of his
radiological examination, therefore, from that point of view,
petitioner appears to be 15 years of age on the date of
incident i.e. 06.07.2003.
15. Since offence allegedly committed by the
petitioner on 06.07.2003, the provision of Juvenile Justice
(Care and Protection of Children) Act, 2000 (for Short "the
Act, 2000) would be attracted in case of petitioner. A
"Juvenile" is defined in Section 2(k) of the Act, 2000 as
under:-
"2(k) "juvenile" or "child" means a person who
has not completed eighteenth year of age;"
Same in the position in the Juvenile Justice
(Care and Protection of Children) Act, 2015 in Section 2(35)
which is quoted as under:-
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"Section 2(35) "juvenile" means a child below the
age of eighteen years;"
16. Section 94 of the Act of 2015 provides as to how
the age of a person can be determined in case of doubt.
Section 94 is quoted below:-
"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. From perusal of the aforesaid provisions it is
obvious that in the absence of certificate under Sections
94(2)(i) and 94(2)(ii), the age shall be determined by
ossification test or any other latest medical age
determination test conducted on the orders of the
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Committee or the Board.
18. Here in the case in hand test/inquiry was
conducted by District and Sessions Judge, Haridwar on the
orders of this Court and the report of ossification test is in
favour of the petitioner as discussed above, there could be
no reason to not to extend benefit of that report to the
petitioner.
19. I find force in the submissions made by learned
counsel for the petitioner that in view of the judgment of
the Apex Court in the case of Om Prakash (Supra), benefit
of one year juvenility can be extended to petitioner and it
should be construed liberally.
20. In this view of the matter, this Court is of the
firm opinion that the petitioner was juvenile at the time of
commission of the offence i.e. on 06.07.2003. Since once
the Court has come to the conclusion that on the date of
incident, petitioner was juvenile i.e. 15 years of age and he
has been extended benefit of juvenility, therefore, there is
no hesitation in the mind of this Court that the petitioner is
entitled to be released forthwith from the custody in view of
the fact that he has already spent about 22 years of his life
in jail.
21. Accordingly, the present writ petition is allowed.
Respondent-State is directed to immediately release the
petitioner from jail in connection with the judgment and
order dated 01.09.2006, passed by learned Additional
Sessions Judge/1st Fast Track Court, Roorkee, District
Haridwar in Sessions Trial No.39 of 2004, State vs. Rafi &
others, which was further affirmed in Criminal Appeal
No.220 of 2006, Rafi @ Furkan & others vs. State, by this
Court, if he is not wanted in any other case. Needless to say
that the petitioner shall carry the conviction as recorded by
the learned trial court.
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22. Pending application, if any, stands disposed of
accordingly.
(Pankaj Purohit, J.)
08.05.2025
AK
