CASE NO.:
Appeal (crl.) 966 of 2008
PETITIONER:
Vimal Chadha
RESPONDENT:
Vikas Choudhary and another
DATE OF JUDGMENT: 27/05/2008
BENCH:
S.B. SINHA & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (CRL) NO. 6832 of 2007)
REPORTABLE
S.B. SINHA, J.
1. Leave granted.
2. How to determine the age of a juvenile in delinquency within
the meaning of the Juvenile Justice (Care and Protection of Children)
Act, 2000 (for short the Act) is in question in this appeal which
arises out of a judgment and order dated 11th September, 2001 passed
by a learned Single Judge of the Delhi High Court in Criminal
Revision No. 156 of 2007 whereby and whereunder an order dated
20th January, 2007 passed by a learned Additional Session Judge,
Delhi, was set aside.
3. Appellant before us is the first informant, the father of a boy,
Parkash Chadha @ Sunny who was kidnapped for ransom and later on
murdered. He was aged about 20 years. He was found missing after
he had gone out with his friends on 18th January, 2003. A missing
report was lodged on the said date. On or about 19th January, 2003,
Respondent No.1 was suspected of involvement in the said crime by
the police. He, on the basis of the investigation carried out for the said
purpose charge-sheeted for commission of offence under Sections
302/364/34 of the Indian Penal Court by the Court. Although the first
information report was lodged on 19th January, 2003, the respondent
No.1 was arrested on 4th May, 2003. A charge sheet was filed on 22nd
July, 2003 wherein it was recorded that calls for payment of ransom
were being made from time to time and last of such call for payment
of ransom was received on 11th March, 2003. In regard to the finding
out of the dead body of Parakh Chadha DD No. 40 under Section
302/201 of the Indian Penal Code was separately registered.
4. Upon his production, the respondent No.1 did not claim himself
to be a juvenile. Charges were framed. The prosecution started
adduction of evidence on or about 3rd February, 2005. Only on 31st
May, 2005 respondent No.1 herein filed an application for transfer of
the case to the Juvenile Board on the plea that he was a juvenile on
the date of occurrence. A school leaving certificate was also
produced. The Learned Additional Sessions Judge, trying the case,
directed the Investigating Officer to submit a report. The report
pursuant thereto reads as under :-
Inquiry conducted into the matter revelas
that Vikas Choudhary was admitted to
Class-I in Lawrence School of Ashok Vihar
Phase-I, Delhi vide Admission NO.412. The
date of birth showed in the register
20.01.1985. There is no birth certificate or
other document available in support of date
of birth. The date of admission is
17.04.1989.
5. The learned Sessions Judge was not satisfied therewith. The
Investigating Officer was directed to get the respondent No.1
medically examined for getting his age determined. Pursuant thereto
or in furtherance thereof, the respondent was examined medically. A
report was submitted on 9th August, 2005. It reads as under :-
HRH Medical Report
Advise X-Ray as per dorsal spine, medial
ends of clavicles, V-C Scapulae in bony
feature upper ending element, lower ends
of radius iliac crusts have fixed. Interior
angle of scapula, acromina processes, iliac
crests, medial ends of clavicles are ischail
lubordsiles show fusion of their epiphysis.
Upper end lower surfaces of vertera show
no fusion of their end plates. Radiological
ages in between 22-25 yrs.
The learned Judge on the said report, opined :-
The report of Dr. P.K. Jain, Senior
Radiologist about the bone age X-Ray
determination of accused Vikas Choudhary
received today. As per the report, the age of
accused/applicant Vikas Choudhary on the
date of his examination was between 22-25
years. On calculation, the age of accused
Vikas Choudhary on the date of incident, i.e.
18.01.2003 come to be 19 years and 5
months. So far as the matriculation
certificate of accused/applicant Vikas
Choudhary is concerned, it is a common
practice that parents mention the age of their
children on the lesser side in the school in
order to avail the benefit in the services later
on. Hence, no weightage can be given to the
matriculation certificate in the presence of
medical evidence, which shows that the
applicant/accused Vikas Choudhary was
more than 19 years of age on the date of
incidents.
Considering the totality of the
circumstances, I prima facisely hold that the
present applicant/accused Vikas Choudhary
was major at the time of occurrence. The
application for sending him to the Juvenile
Court stands dismissed.
6. On a revision application filed thereagainst before the High
Court, it by an order dated 31st August, 2006 set aside the said order
and directed :-
Anyhow, these are the matters which
require a more detailed examination
particularly in view of the fact that there
exists a School Certificate wherein the date
of birth of the petitioner has been given.
The veracity of the School Certificate and
Transfer Certificate submitted by the
petitioner is not doubted. In these
circumstances, the impugned order is set
aside and the learned Additional Sessions
Judge is directed to consider the matter
afresh and if it appears to the learned
Additional Sessions Judge that the petitioner
is a Juvenile on the basis of the material on
records, he is required to be sent to the
Juvenile Justice Board for further
proceedings.
7. Again by reason of an order dated 20th January, 2007 the
learned Judge held :-
As per School Leaving Certificate, the date
of birth of the accused is 20.01.1985. The
only question before the Court is whether
the School Leaving Certificate of the
accused has to be relied upon or Bone Age
X-Ray record is to be relied upon. School
Leaving Certificate of the accused was
verified during the proceedings and report
was filed by IO wherein it has been
mentioned that no birth certificate or other
certificate is available in support of the date
of the accused in the School record.
Relying on the decision of this Court in Pratap Singh v. State
of Jharkhand and another, [ (2005) 3 SCC 551 ] it was held :-
From the judgments cited by the learned
APP, it is clear that to ascertain the age of
accused persons only School Leaving
Certificate cannot be relied upon alone and
the court has to see all the other facts and
circumstances along with the other material
placed on record. If assuming that the age
of the accused was 22 years on the date of
his examination as per Bone Age X-ray
Examination report, after giving margin of
two years from the age reported upto 25
years, even then n the date of alleged
offence, he was more than 18 years of age.
According to the conviction slip dated
04.05.2003, of the accused, which was filled
on the basis of the information given by the
accused, the age of the accused has been
mentioned as 19 years and even after
calculation, he was more than 18 years of
age on the date of alleged offence.
8. Respondent moved the High Court again in revision.
By reason of the impugned judgment dated 11th September,
2007, the High Court held :-
As far as the ossification test and the
medical evidence is concerned there too the
approach of the learned Additional Sessions
Judge is in my opinion, erroneous.
According to the expert the petitioner was
22-25 years on the date of his examination
i.e. 9.8.2005. The Learned Additional
Sessions Judge acknowledged that such
determination is a rough estimate and the
individual would have to be given benefit by
deducing some years but proceeded to do so
from the outer age indicated. This is an
incorrect approach as the juvenile is entitled
to beneficial interpretation in such case.
Therefore, the two years deduction made
would have be (sic) from the lower age
indicated namely, 22 years. That would
mean that as in August, 2005 the Petitioner
was probably 20 years; as on the date of
incident, (20.01.2003) in all probability he
was less than 18 years. This interpretation
is also in consonance with the claims based
on the Board Certificate relied upon by the
Petitioner.:
9. Mr. Sushil Kumar, learned senior counsel appearing on behalf
of the appellant would submit :-
1) That the High Court committed a serious error in passing
the impugned judgment in so far as it failed to take into
consideration that from the conduct of the respondent
No.1 it is evident that he did not claim to be a juvenile at
the first instance and only when the trial started, he filed a
purported school leaving certificate, which is suspect.
2) The approach of the High Court in analysing the medical
report is not correct as the starting point should not have
been taken to be 22 but should have been taken at 25.
3) In any event, having regard to the provisions contained in
Section 472 of the Code of Criminal Procedure the
offence must be held to have been a continuous one and
as ransom calls were being made till 11th May, 2003, the
said date should be considered to be the cut off date for
the purpose of determination of the age.
10. Mr. G.K. Kaushik, learned counsel appearing on behalf of
respondent No.1 on the other hand would submit:
1. That at all stages 18th January, 2003 has been taken to be
the date of occurrence, and even the charges have been
framed on the premise that the occurrence had taken
place on the said date.
2 The conclusion of the High Court that the appellant is, on
17th January, 2003, would be 17 years 5 months
corroborates with the medical report that if on the date of
examination his examination, respondent No.1 is taken to
be 22 years of age.
11. Determination of age of a juvenile in delinquency must be
determined as and when an application is filed. In view of the
decision of the Constitution Bench in Pratap Singh (supra) it is no
longer res integra that that the relevant date for determination is the
age of the accused would be the date on which the occurrence took
place.
12. What would be the date on which offence has been committed
in a given case has to be decided having regard to the fact situation
obtaining therein.
Indisputably our Criminal Laws contemplate a continuing
offence. Section 472 of the Code of Criminal Procedure reads as
under :-
472. Continuing offence.
In the case of a continuing offence, a fresh
period of limitation shall begin to run at
every moment of the time during which the
offence continues.
If an offence has been a continuing offence, then the age of the
juvenile in delinquency should be determined with reference to the
date on which the offence is said to have been committed by the
accused. It may be true that the prosecution proceeded on the basis
that the entire offence had taken place on 18th January, 2003. We
have, however, been taken through the charge-sheet, from a perusal
whereof it appears that the appellant had been getting calls for
payment of ransom despite the fact that the deceased had, in the
meanwhile, been killed.
It is one thing to say that a missing report has been filed on a
particular date but it is another thing to say that in a case of this nature
when the actual offence(s) had taken place would remain uncertain.
Giving calls for payment of ransom is an offence. In case of
murder coupled with abduction in a given case may be considered to
be a continuous offence.
13. This Court in a catena of decisions have laid down the criteria
for determining the age. We would notice some of them.
In Ravinder Singh Gorkhi v. State of U.P., [(2006) 5 SCC 584]
this Court opined :-
38. The age of a person as recorded in the
school register or otherwise may be used for
various purposes, namely, for obtaining
admission; for obtaining an appointment; for
contesting election; registration of marriage;
obtaining a separate unit under the ceiling
laws; and even for the purpose of litigating
before a civil forum e.g. necessity of being
represented in a court of law by a guardian
or where a suit is filed on the ground that the
plaintiff being a minor he was not
appropriately represented therein or any
transaction made on his behalf was void as
he was a minor. A court of law for the
purpose of determining the age of a party to
the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to
apply the same standard. No different
standard can be applied in case of an
accused as in a case of abduction or rape, or
similar offence where the victim or the
prosecutrix although might have consented
with the accused, if on the basis of the
entries made in the register maintained by
the school, a judgment of conviction is
recorded, the accused would be deprived of
his constitutional right under Article 21 of
the Constitution, as in that case the accused
may unjustly be convicted.
39. We are, therefore, of the opinion that
until the age of a person is required to be
determined in a manner laid down under a
statute, different standard of proof should
not be adopted. It is no doubt true that the
court must strike a balance. In case of a
dispute, the court may appreciate the
evidence having regard to the facts and
circumstances of the case. It would be a duty
of the court of law to accord the benefit to a
juvenile, provided he is one. To give the
same benefit to a person who in fact is not a
juvenile may cause injustice to the victim.
[Emphasis supplied]
14. This aspect of the matter has also been considered in Jitendra
Ram alias Jitu v. Stateof Jharkhand, [ (2006) 9 SCC 428 ] wherein it
was held :-
20. We are, however, not oblivious of the
decision of this Court in Bhola Bhagat v.
State of Bihar wherein an obligation has
been cast on the court that where such a plea
is raised having regard to the beneficial
nature of the socially oriented legislation, the
same should be examined with great care.
We are, however, of the opinion that the
same would not mean that a person who is
not entitled to the benefit of the said Act
would be dealt with leniently only because
such a plea is raised. Each plea must be
judged on its own merit. Each case has to be
considered on the basis of the materials
brought on records.
(emphasis supplied)
15. This Court in Jyoti Prakash Rai @ Jyoti Prakash v. State of
Bihar, [ JT 2008 (3) SC 397 ] held :-
It is in the aforementioned situation, we are
of the opinion that the test which may be
applied herein would be to take the average
of the age as opined by both the medical
boards. Even applying that test, the age of
the appellant as on 01.04.2001 would be
above 18 years.
We, however, hasten to add that we
have taken recourse to the said method only
for the purpose of this case and we do not
intend to lay down any general proposition
of law in this behalf As indicated
hereinbefore, in so doing, we have also
taken into consideration the fact that the
appellant had filed documents in support of
his claim that he was a juvenile but the same
were found to be forged and fabricated
which is itself a factor to show that he was
making attempts to obtain a benefit to which
he might not have been entitled to.
[ See also Balu @ Bakthvatchalu vs. State of Tamilnadu, [ JT
2008 (2) SC 321 ].
16. The question came up for consideration recently again in Jameel
v. State of Maharashtra, [2007 (2) SCALE 32] wherein it has been
held :-
9. It was furthermore submitted that
although the age of the appellant on the date
of the occurrence was more than sixteen
years but below eighteen years, having
regard to the provision of the Juvenile
Justice (Care and Protection of Children)
Act, 2000, (for short, the 2000) it was
imperative on the part of the court to follow
the procedures laid down therein.
13. So far as the submission of the
learned counsel in regard to the applicability
of the 2000 Act, is concerned, it is not in
dispute that the appellant on the date of
occurrence had completed sixteen years of
age. The offence having been committed on
16.12.1989, the 2000 Act has no application.
In terms of Juvenile Justice Act, 1986,
juvenile was defined to mean a body who
had not attained the age of sixteen years or a
girl who had attained the age of eighteen
years:.
17. We have, however, been informed that the effect of Model
Rules having come into force and, if so, the applicability thereof may
have to be considered in a given case but keeping in view the facts of
the case, we are of the opinion that the matter may be considered
afresh in the light of the provisions of Section 472 of the Code of
Criminal Procedure by the learned trial court.
The judgment of the trial court is set aside accordingly. The
appeal is allowed.
Applications for impleadment, modification/clarification of
order dated 2.11.2007 and bail have become infructuous and are
dismissed as such.
