Mukarrab Etc. Vs. State of U.P. [November 30, 2016]
2016 Latest Caselaw 861 SC

Mukarrab etc. Vs. State of Uttar Pradesh (Respondent)

[Criminal Appeal Nos. 1119-1120 of 2016 arising out of SLP (CRL.) Nos. 6754-55 of 2014]

R. BANUMATHI, J.

1. The present appeals by special leave impugn the judgment dated 27.05.2014 passed by the High Court of Judicature at Allahabad, whereby the appeal filed by the appellants herein was dismissed affirming their conviction under Section 302 IPC (Indian Penal code, 1860) read with Section 149 and Section 148 IPC and also sentence of imprisonment for life under Section 302 IPC and rigorous imprisonment for two years under Section 148 IPC .

2. Totally six accused including the appellants herein were convicted. The Special Leave Petitions preferred by the other accused namely Babban, Moazzam, Jahangir and Jamil were dismissed by this Court at the admission stage itself on 12.09.2014. Since the appellants Mukarrab and Arshad had raised the claim of juvenility before this Court, notice was issued qua these accused to examine their claim that they are juveniles in conflict with law under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000.

3. Case of the prosecution is that on 22.03.1994, present appellants, Mukarrab and Arshad alongwith four others viz. Babban, Moazzam, Jahangir and Jamil had a quarrel with the deceased, Azamul Haq while he was coming back to his house from the market at around 5.30 p.m., the accused persons abused the deceased on the pretext that he was causing obstruction in Mangal Bazaar. Deceased tried to escape from the clutches of the appellants and other accused; but he was caught and attacked by tamanchas/guns and knives and killed. The occurrence was witnessed by five eye witnesses who were coming behind the deceased.

4. The accused Moazzam, Jahangir, Jamil, Mukarrab (appellant), Babban and Arshad (appellant), were charge-sheeted under Sections 147, 148, 149, 302 IPC and the case was committed to the Court of Session. Trial was conducted and a number of witnesses were examined on behalf of the prosecution as well as the defence. Vide judgment and order dated 16.09.1995 passed by the VIIIth Additional District and Sessions Judge, Moradabad in Session Trial No. 484 of 1994, all the accused were convicted under Section 302 IPC read with Section 149 IPC and Section 148 IPC and sentence of imprisonment for life under Section 302 IPC and rigorous imprisonment for two years under Section 148 IPC was imposed. All the sentences were to run concurrently. The accused challenged their conviction and sentence imposed on them by filing three separate appeals before the High Court. The High Court disposed of all the three appeals vide common judgment and order dated 27.05.2014, thereby affirming the conviction of the accused persons and sentence imposed thereof.

5. The above judgment and order dated 27.05.2014 was challenged by filing special leave petition before this Court. Appellants Mukarrab and Arshad for the very first time raised the claim of juvenility before this Court. This Court vide order dated 12.09.2014 issued notice qua present appellants only viz. accused-Mukarrab and accused-Arshad, only with regard to their claim that they are minors under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000. The trial court which had conducted the trial was directed to examine the aspect of juvenility of the present appellants and submit a report. As noted earlier, the special leave petitions qua other accused were dismissed.

6. VIIIth Additional District and Sessions Judge, Moradabad conducted an inquiry and recorded his findings in a report dated 28.10.2014. The learned Judge concluded that in all probabilities on the date of occurrence, accused-Mukarrab could not have been younger than 22 years 2 months 21 days and accused-Arshad, than 19 years 2 months 21 days on the date of the incident, thereby negatived the claim of juvenility raised by the two accused-appellants. However, on perusal of the above report dated 28.10.2014 as well as the objections filed thereagainst, certain doubts were raised concerning the genuineness of the report. Accordingly, vide order dated 06.04.2016, this Court observing that there is no document from which date of birth of the appellants could be ascertained, directed ossification test to be conducted, so as to ascertain the age of the appellants.

7. Accused-Mukarrab and accused-Arshad who were lodged in Mathura and Hardoi jails respectively in U.P. were produced before the Medical Board constituted at the All India Institute of Medical Science (AIIMS), New Delhi on 02.05.2016 for medical examination (ossification test for ascertaining bone age). Medical Board constituted at AIIMS, New Delhi in its report dated 05.05.2016, opined that the age of both the accused ranges between 35-40 years on the date of the examination.

8. The short question falling for consideration in these appeals is that whether the appellants Mukarrab and Arshad were juveniles on the date of the occurrence and the question of admissibility and reliability of medical opinion in age determination under the Juvenile Justice (Care and Protection of Children) Act, 2000 vis-à-vis juvenility of the accused at the time of committing the offences.

9. We have heard the parties before us and have perused the materials and the medical report available on record.

10. Age determination is essential to find out whether or not the person claiming to be a child is below the cut-off age prescribed for application of the Juvenile Justice Act. The issue of age determination is of utmost importance as very few children subjected to the provisions of the Juvenile Justice Act have a birth certificate. As juvenile in conflict with law usually do not have any documentary evidence, age determination, cannot be easily ascertained, specially in borderline cases. Medical examination leaves a margin of about two years on either side even if ossification test of multiple joints is conducted.

11. Time and again, the questions arise: How to determine age in the absence of birth certificate? Should documentary evidence be preferred over medical evidence? How to use the medical evidence? Is the standard of proof, a proof beyond reasonable doubt or can the age be determined by preponderance of evidence? Should the person whose age cannot be determined exactly, be given the benefit of doubt and be treated as a child? In the absence of a birth certificate issued soon after birth by the concerned authority, determination of age becomes a very difficult task providing a lot of discretion to the Judges to pick and choose evidence. In different cases, different evidence has been used to determine the age of the accused.

12. This Court in Arnit Das v. State of Bihar (2000) 5 SCC 488, clarified that the review of judicial opinion shows that the Court should not take a hyper-technical approach while appreciating evidence for determination of age of the accused. If two views are possible, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This approach was further reiterated by this Court in Rajindra Chandra v. State of Chhatisgarh and Another (2002) 2 SCC 287, in which it laid down that the standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt.

13. It is noteworthy that the Juvenile Justice (Care and Protection of Children) Act, 2000 does not lay down any fixed criteria for determining the age of the person. Section 49(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for presumption and determination of age as under:-

"49. Presumption and determination of age.-

(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be."

From a reading of the above provision, it is clear that it provides that when it appears to the competent authority namely, the Board that the person brought before it is a juvenile, the Board is obliged to make it clear as to the age of that person and for that purpose the Board shall take such evidence as may be necessary and then record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be.

14. Under Rule 12, the Board is enjoined to take evidence for determination of age. Rule 12 is as under:-

"12. Procedure to be followed in determination of Age: ?

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(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 certificate 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. 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.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

15. Summarizing the legal position as to the claim of juvenility and observing that such plea can be raised at any stage and after referring to various decisions, three-Judges Bench of this Court in Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 held as under:- "39. Now, we summarise the position which is as under:

39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.

39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12.

The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh (2009) 7 SCC 415 and Pawan (2009) 15 SCC 259 these documents were not found prima facie credible while in Jitendra Singh (2010) 13 SCC 523 the documents viz. school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent.

39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent.

39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised."

16. In the present case, the appellants by filing applications under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 12 of the Juvenile Justice Rules, 2007 have claimed that at the time of committing the offences they were juvenile i.e. below the age of 18 years. Appellant-Mukarrab has claimed that he was born on 01.07.1978 and thus, on the date of the incident i.e. 22.03.1994, he was a child aged 15 years 8 months 22 days. Likewise, appellant-Arshad has claimed that he was born on 05.02.1979 and thus on the date of the incident i.e. 22.03.1994, he was a child aged 15 years 1 month 17 days. Appellants did not raise the plea of juvenility before any of the previous fora; it is only before this Court that they have raised the plea of juvenility.

17. As already noted, by an order dated 18.02.2016, this Court had directed the concerned District and Sessions Judge to conduct an inquiry and submit a report as to the age of the appellants (Mukarrab and Arshad). As per the report submitted by the VIIIth Additional District and Sessions Judge, Moradabad both the appellants (Mukarrab and Arshad) were major on the date of the incident. After perusing the report of the District Judge, by order dated 06.04.2016, this Court has directed medical examination of the appellants (Mukarrab and Arshad) to be conducted by a duly constituted Medical Board of the AIIMS, New Delhi. Accordingly, the doctors of AIIMS have examined the appellants (Mukarrab and Arshad) and given their opinion as under:-

"Alleged history in Brief: On perusal of the documents submitted to AIIMS, it was revealed that the year of commission of crime was 1994 i.e. 22 years before today i.e. 02.05.2016. The said accused Mukarrab alleged his date of birth to be 1st July, 1978. The said accused Arshad has submitted the documentary proof of his age stating date of Birth as 5th February, 1979. Examination Proceedings: Both the accused were examined after taking due informed consent along with signature and left thumb impression......

Their physical, dental and radiological examinations were carried out. X- ray examination of Skull (AP and lateral view), Sternum (AP and lateral view) and Sacrum (lateral view) were advised and performed. There was no indication for Dental X-rays since both accused were much beyond 25 years of age in any case.

Physical and Dental Examinatio