Ram Vijay Singh vs State of Uttar Pradesh Criminal Appeal No. 175 of 2021

Juvenile Justice (Care and Protection of Children) Act, 2015: Conviction of appellant under s.302 r/w s.34 IPC – Appellant raised plea of juvenility – In support thereof, he relied on an order passed by High Court in 1982 granting bail to him on the basis of report of radiologist that the age of appellant at the time of incident was between 15-1/2-17-1/2 years – Plea of juvenility raised before this court on the basis of said order of High Court – Held: The medical report in support of the bail order is not available – Such order granting bail cannot be conclusive determination of age of the appellant – It was an interim order of bail pending trial but in the absence of a medical report, it cannot be conclusively held that the appellant was juvenile on the date of the incident – Apart from that an application was submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident – In such application, he had given his date of birth as 30.12.1961 which made him 21 years of age on the date of the incident i.e. 20.7.1982 – The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of s.94 of the Act are either not available or are not found to be reliable and trustworthy – Since there was such document signed by the appellant much before the date of occurrence, therefore, he cannot be treated to be juvenile on the date of incident.

Juvenile Justice: Plea of juvenility – Held: Can be raised at any stage even after finality of the proceedings before Supreme Court.

Penal Code, 1860: s.302 r/w s.34 – The oral evidence along with the statement of the doctor (PW-4) suggested that the injuries on the head of the deceased were caused by a blunt weapon – The blunt weapon as deposed by the eyewitness was the lathi in the hands of the appellant – Lathi may be common article with the villagers but the use of lathi as a weapon of offence is a finding of fact recorded by the Courts below – As per the postmortem report, the deceased suffered multiple injuries which showed attack by more than one person – The nature of injuries also showed that hard and blunt object as well as sharp edged weapons were used to inflict injuries – It was the appellant who was armed with Lathi whereas the other convicted accused was armed with Axe – The incised wound suffered by the deceased was possible with an Axe – As per the report, there were sufficient number of injuries caused by an Axe and Lathi on the person of the deceased – Trial court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant – No interference with the order of conviction.

Witness: A part statement of a witness can be believed even though some part of the statement may not be relied upon by the court – The maxim Falsus in Uno, Falsus in Omnibus is not the rule applied by the courts in India.

Witness: Number of witnesses, relevance – It is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence – It is the quality of evidence which is relevant in criminal trial and not the quantity. Dismissing the appeal, the Court

HELD: 1.1 There is no dispute that the plea of juvenility can be raised at any stage even after finality of the proceedings before this Court. Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 contemplated that whenever a claim of juvenility is raised before any Court, the Court shall make an inquiry and take such evidence as may be necessary. In terms of the provisions of the 2000 Act, the Juvenile Justice (Care and Protection of Children) Rules, 2007 have been framed. Rule 12 of the Rules contemplates a procedure to be followed for determination of age. The 2000 Act has been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015. Section 9(2) of the Act is the analogous provision to Section 7-A of the 2000 Act. The procedure for determining the age is now part of Section 94 of the Act which was earlier part of Rule 12 of the Rules.[Paras 7, 8][573-G-H; 574-C-E]

1.2 A perusal of Rule 12(3)(b) of the Rules shows that in the absence of documents as mentioned in clause (i), (ii) or (iii), the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. It was further provided that in case wherein the exact assessment of the age cannot be done, the Court or the Juvenile Justice Board, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. However, Section 94 of the Act does not have any corresponding provision of giving benefit of margin of age. [Para 9][575-E-G]

1.3 Admittedly, in the present case, there is no Date of Birth Certificate from the school or matriculation or equivalent certificate or a Birth Certificate given by a Corporation or Municipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board comes into play. [Para 10][575-G-H; 576-A]

2.1 The medical report in support of the bail order passed by High Court in 1982 is not available. Such order granting bail cannot be conclusive determination of age of the appellant. It was an interim order of bail pending trial but in the absence of a medical report, it cannot be conclusively held that the appellant was juvenile on the date of the incident. [Para 13][578-F]

2.2 As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. [Para 15][579-A-C]

2.3 When the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident. Apart from the said fact, there is an application submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident. In such application, he has given his date of birth as 30.12.1961 which would make him of 21 years of age on the date of the incident i.e. 20.7.1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy. Since there is a document signed by the appellant much before the date of occurrence, therefore, the appellant cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence. [Paras 15, 16][579-D-H]

3.1 A part statement of a witness can be believed even though some part of the statement may not be relied upon by the court. The maxim Falsus in Uno, Falsus in Omnibus is not the rule applied by the courts in India. Therefore, merely because a prosecution witness was not believed in respect of another accused, the testimony of the said witness cannot be disregarded qua the present appellant. Still further, it is not necessary for the prosecution to examine all the witnesses who might have witnessed the occurrence. It is the quality of evidence which is relevant in criminal trial and not the quantity. Therefore, nonexamination of brother of the deceased cannot be said to be of any consequence. [Paras 18, 19][580-C; 581-D-E]

3.2 The oral evidence along with the statement of the doctor (PW-4) suggest that the injuries on the head of the deceased were caused by a blunt weapon. The blunt weapon as deposed by the eyewitness is the lathi in the hands of the present appellant. Lathi may be common article with the villagers but the use of lathi as a weapon of offence is a finding of fact recorded by the Courts below. As per the postmortem report, the deceased suffered multiple injuries which shows attack by more than one person. The nature of injuries also shows that hard and blunt object as well as sharp edged weapons were used to inflict injuries. It is the appellant who was armed with Lathi whereas the other convicted accused was armed with Axe. The incised wound suffered by the deceased was possible with an Axe. As per the report, there are sufficient number of injuries caused by an Axe and Lathi on the person of the deceased. However, the trial court as well as the High Court had appreciated the entire evidence to return a finding of guilt against the appellant. [Paras 21-23][582D-G] Abuzar Hossain alias Gulam Hossain v. State of West Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1; Ilangovan v. State of T.N. (2020)10 SCC 533 – relied on.