Vinod Katara vs State of Uttar Pradesh

Issuing directions, the Court

HELD: 1.1 It is well settled that in terms of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, in all cases where the accused was above 16 years but below 18 years of age on the date of occurrence, the proceedings pending in the Court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the Court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. From a reading of Section 7A what becomes very obvious is that whenever a claim of juvenility is raised, an inquiry has to be made and such inquiry would take place by receiving evidence which would be necessary but not an affidavit so as to determine the age of such person. [Paras 25, 28][856-FG; 857-D-E]

1.2 Sub-clause (3) of the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 clearly mandates that while conducting an inquiry about the juvenility of an accused, the Juvenile Justice Board would seek evidence by obtaining the matriculation or equivalent certificates and in the absence whereof the date of birth certificate from the school first attended and in absence whereof the birth certificate given by a corporation or a Municipal authority or a Panchayat. It is made clear by subclause (b) that only in the absence of the said three documents, medical information would be sought from a duly constituted Medical Board which will declare the age of the juvenile or child. Thus, it is only in the absence of the aforesaid documents that the Juvenile Justice Board could have asked for medical information/ossification test. The 2000 Act stands repealed by the 2015 Act. The procedure for determining the age is now part of Section 94 of the 2015 Act which was earlier provided under the Rule 12 of the Rules. [Para 32, 33][861-C-F]

1.3 Section 7A(1) of the 2000 Act and the proviso thereto provided that a claim of juvenility might be raised before any court and it shall be recognized at any stage, even after the final disposal of the case, and such claim shall be determined in terms of the provisions contained in the 2000 Act and the Rules made thereunder, even if the juvenile has ceased to be so, on or before the date of commencement of the 2000 Act. Sub-section (2) of Section 7A mandates that if the Court finds a person to be a juvenile on the date of the commission of offence under subsection (1), it shall forward the juvenile to the Juvenile Justice Board for passing an appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect. [Paras 39, 40][871-A-C]

1.4 The maximum period of detention in respect of a juvenile is three years as provided in Section 15(1)(g). The said Section provides that where the Juvenile Justice Board is, on inquiry, satisfied that the juvenile has committed an offence, then notwithstanding anything to the contrary contained in any other law for the time being in force, the Juvenile Justice Board may, if it thinks fit, make an order directing the juvenile to be sent to a special home for a period of three years. [Para 42][872-B-C]

1.5 In view of Section 7A of the 2000 Act, applicable to the writ applicant, the plea of juvenility could be raised in any court, at any stage even after the final disposal of the Special Leave Petition under Article 136 of the Constitution. In the case of the writ applicant, his Special Leave Petition had also been dismissed by this Court. However, this Court is still obliged to consider the plea of juvenility taken by the writ applicant and grant him appropriate relief. The fact that the 2000 Act has later been replaced by the 2015 Act would make no difference. [Para 43][872C-D]

1.6 In deciding whether an accused is 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 is a juvenile, if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases. The inquiry contemplated is not a roving inquiry. The Court can accept as evidence something more than an affidavit i.e. documents, certificates etc. as evidence in proof of age. It is the documentary evidence placed on record that plays a major role in determining the age of a juvenile in conflict of law. And, it is only in the cases where the documents or certificates placed on record by the accused in support of his claim of juvenility are found to be fabricated or manipulated, that the Court, the Juvenile Justice Board or the Committee need to go for medical test for age determination. [Para 45][876-D-G]

Ashwani Kumar Saxena v. State of Mahya Pradesh, AIR 2013 SC 553 : [2012] 10 SCR 540 – relied on.

1.7 In the instant case, the accused has not produced any matriculation certificate or equivalent certificate to prove his age. What is produced by him is only the Family Register issued under the U.P. Panchayat Raj Act, 1947. The document cannot be accepted as equivalent to matriculation certificate to prove the age of the accused. However, the evidentiary value of the Family Register will have to be looked into in the course of the inquiry that this Court may order. [Para 48][877-D-E]

1.8 Ideally, there should not be any dispute as to the age of a person if the birth is registered in accordance with law and date of birth is entered in the school records on the basis of genuine record of birth. However, in India, the factors like poverty, illiteracy, ignorance, indifference and inadequacy of the system often lead to there being no documentary proof of a person’s age. Therefore, in those cases where the plea of juvenility is raised at a belated stage, often certain medical tests are resorted to forage determination in absence of the documents enumerated in Section 94 of the Act 2015. The rule allowing plea of juvenility to be raised at a considerably belated stage has its rationale in the contemporary child rights jurisprudence which requires the stakeholders to act in the best interest of the child. [Para 49][877F-G]

1.9 The bone ossification test is a test that determines age based on the “degree of fusion of bone” by taking the x-ray of a few bones. In simple words, the ossification test or osteogenesis is the process of the bone formation based on the fusion of joints between the birth and age of twenty-five years in an individual. Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age. The most common method used for the calculation of the bone age is radiography of the hand and wrist until the age of 18 years beyond which the medial age of clavicle is used for bone age calculation till the age of 22 years as the hand and wrist bone radiographs cannot be computed beyond 18 years of age as the elongation of the bone is complete after adolescence. However, it must be noted that the ossification test varies slightly based on individual characteristics, therefore the ossification test though is relevant however it cannot be called solely conclusive. [Para 55][879-BD]

1.10 The 2015 Act under Section 94(2)(iii) read with Rule 12(3) of the 2007 Rules provides the legislative sanction for the conduct of ossification test or other medical age determination test available in the absence of other documentary proof of age i.e. matriculation certificate or birth certificate, which has to be given within 15 days from the date of such order. The test is to be conducted by the Child Welfare Committee (CWC). The provision mentioned is the basis for determining the age of a child under the 2000 Act which even includes a child who is a victim of crime in addition to a child in conflict with the law. [Para 56][879-D-F]

1.11 The bone ossification test is not an exact science that can provide with the exact age of the person. The individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. [Para 58][880A-B]

1.12 In the case on hand the convict was subjected to medical examination after being referred to the Medical Board. However, the report on record does not inspire much confidence. Over and above the same, the decision in the case of Ram Vijay Singh’s case makes it very clear that in the absence of a reliable and trustworthy medical evidence to find out the age of the appellant, the ossification test conducted in the year 2021 when the appellant was above 50 years of age cannot be conclusive to declare him as a juvenile on the date of the incident. This Court observed that 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. In such circumstances, it will be a matter of debate as to what extent the new ossification test report that may come on record can be relied upon and to what extent the same would be helpful to the appellant herein. Despite all the odds against the writ applicant, this Court would still like to look into the matter in the larger interest of justice. It will be in fitness of things if the writ applicant convict is once again subjected to the ossification test at the Civil Hospital or any other latest medical age determination test and such test shall be carried out by a team of three doctors, one of whom should be the head of the Department of Radiology. [Paras 63, 64][882-D-H; 883-A]

1.13 In view thereof, the Sessions Court is directed to examine the claim of the writ applicant to juvenility in regard with law within one month from the date of communication of this order; the concerned Sessions Court shall also examine the authenticity and genuineness of the Family Register sought to be relied upon by writ applicant convict considering that the document does not appear to be contemporaneous. This document assumes importance, more particularly in the light of the fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of incident. If the Family Register on record is ultimately found to be authentic and genuine, then this Court may not have to fall upon the ossification test report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain the authenticity and genuineness of the same. If need be, the statements of the persons concerned i.e. from the concerned government department may also be recorded; the Sessions Court shall ensure that the writ applicant convict is medically examined by taking an ossification test or any other modern recognized method of age determination; and the Sessions Court concerned shall submit its report as regards the aforesaid to this Court within the stipulated period. [Para 65][883-B-F]

Abuzar Hossain ALIAS Gulam Hossain v. State of West Bengal reported in (2012) 10 SCC 489 : [2012] 9 SCR 244; Ashok v. State of Madhya Pradesh; Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 : [2005] 1 SCR 1019; Shah Nawaz v. State of Uttar Pradesh, (2011) 13 SCC 751 : [2011] 9 SCR 859; Arnit Das v. State of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; Bijender Singh v. State of Haryana (2005) 3 SCC 685; Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 : [2010] 5 SCR 137; Kalu v. State of Haryana, (2012) 8 SCC 34 : 2012 (7) JT 417; Manoj v. State of Haryana, reported in (2022) 6 SCC 187 : 2022 (6) JT 547; Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : [2005] 5 Suppl. SCR 474; Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 : [1992] 2 SCR 921; Ram Suresh Singh v. Prabhat Singh, (2009) 6 SCC 681 : (2010) 2 SCC (Cri) 1194; Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 : (2009) 3 SCC (Cri) 796; Mukarrab v. State of Uttar Pradesh, reported in (2017)

2 SCC 210 : [2016] 8 SCR 557; Rajendra Chandra v. State of Chhattisgarh, (2002) 2 SCC 287 : 2002 (1) JT 265; Rishipal Singh Solanki v. State of Uttar Pradesh, (2021) SCC OnLine SC 1079; Court On Its Own

Motion v. Dept. of Women and Child Development, reported in 2012 SCC OnLine Del 2774; Ram Vijay Singh v. State of U.P., (2021) SCC Online SC 142referred to.