MUKARRAB ETC Vs. STATE OF U.P.
Section 302 - Punishment for murder
Section 148 - Rioting, armed with deadly weapon
Juvenile Justice (Care and Protection of Children) Act, 2000
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1119-1120 of 2016, Judgment Date: Nov 30, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1119-1120 OF 2016
[Arising out of SLP (Crl.) Nos. 6754-55 of 2014]
MUKARRAB ETC. APPELLANTS
Versus
STATE OF U.P. RESPONDENT
J U D G M E N T
R. BANUMATHI, J.
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 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 Examination: In both cases, general physical
examination findings are consistent with findings of normal adult male.
Dental examination shows presence of complete 8 sets of permanent teeth in
all 4 quadrants.
Report of Radiological Examination-
Mukarrab
Medical end of clavicle fused-age>more than 22 years
Xiphoid process not fused with sternal body-age<40 years
Manubrium not fused with sternal body-age<50 years
Complete fusion of sacral bodies-age>32 years
Saggital suture obliterated in posterior 1/3rd and coronal suture
obliterated in lower ½-age<40 years.
Arshad
Medical end of clavicle fused-age>more than 22 years
Xiphoid process not fused with sternal body-age<40 years
Manubrium not fused with sternal body-age<50 years
Complete fusion of sacral bodies-age>32 years
Saggital suture obliterated in posterior 1/3rd and coronal suture intact-
age<40 years.
Opinion: Both accused have been brought for examination at AIIMS on
02.05.2016, 22 years after the alleged date of incidence. After going
through the various findings of physical, dental and radiological
examinations; medical board is of considered opinion that the age of
accused viz. Mukarrab s/o Mr. Mulla Zafar as well as Arshad s/o Rashid is
between 35-40 years on the date of examination i.e. 02.05.2016.
18. The question falling for consideration is whether the opinion of the
Medical Board of AIIMS determining the age of the appellants between 35-40
years, can be accepted or not.
19. Learned Senior Counsel for the appellants contended that the general
rule about age determination is that the age determined by the Medical
Board vary plus or minus two years but the Medical Board in this case had
fixed the age of the appellants at 35-40 years and going by the general
rule, the age of the appellants is to be estimated as 38 years on the date
of medical examination and giving additional benefit of one year in
lowering the age in terms of Rule 12(3)(b), age of the appellants is to be
determined as 37 years as on the date of medical examination on 02.05.2016.
It was, therefore, submitted that taking the age of the appellants as 37
years as on 02.05.2016 which means that at the time of commission of the
offence in 1994, the appellants would have been only aged about 15 years
and, therefore, the benefit of Juvenile Justice Act to be extended to the
appellants. Contending that the benefit of benevolent provisions of
Juvenile Justice Act and the Rules must be extended to the appellants
herein, learned Senior Counsel for the appellant relied upon Darga Ram
alias Gunga v. State of Rajasthan (2015) 2 SCC 775 wherein it has been held
as under:-
“16. The medical opinion given by the duly constituted Board comprising
Professors of Anatomy, Radio diagnosis and Forensic Medicine has determined
his age to be “about” 33 years on the date of the examination. The Board
has not been able to give the exact age of the appellant on medical
examination, no matter the advances made in that field. That being so, in
terms of Rule 12(3)(b) the appellant may even be entitled to the benefit of
fixing his age on the lower side within a margin of one year in case the
Court considers it necessary to do so in the facts and circumstances of the
case. The need for any such statutory concession may not however arise
because even if the estimated age as determined by the Medical Board is
taken as the correct/true age of the appellant he was just about 17 years
and 2 months old on the date of the occurrence and thus a juvenile within
the meaning of that expression as used in the Act aforementioned. Having
said that we cannot help observing that we have not felt very comfortable
with the Medical Board estimating the age of the appellant in a range of 30
to 36 years as on the date of the medical examination.
17. The general rule about age determination is that the age as determined
can vary plus minus two years but the Board has in the case at hand spread
over a period of six years and taken a mean to fix the age of the appellant
at 33 years. We are not sure whether that is the correct way of estimating
the age of the appellant. What reassures us about the estimate of age is
the fact that the same is determined by a Medical Board comprising
Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion
must get the respect it deserves. That apart, even if the age of the
appellant was determined by the upper extremity limit i.e. 36 years the
same would have been subject to variation of plus minus 2 years meaning
thereby that he could as well be 34 years on the date of the examination.
Taking his age as 34 years on the date of the examination he would have
been 18 years, 2 months and 7 days on the date of the occurrence but such
an estimate would be only an estimate and the appellant may be entitled to
additional benefit of one year in terms of lowering his age by one year in
terms of Rule 12(3)(b) (supra) which would then bring him to be 17 years
and 2 months old, therefore, a juvenile.”
20. Per contra, learned counsel for the State submitted that the
ossification test is not the sole criteria for determining the age and that
the medical opinion has to be considered alongwith other cogent evidence.
In support of this contention, reliance was placed upon Babloo Pasi v.
State of Jharkhand and Anr. (2008) 13 SCC 133.
21. A reading of the above decision in Darga Ram alias Gunga’s case shows
that courts need to be aware of the fact that age determination of the
concerned persons cannot be certainly ascertained in the absence of
original and valid documentary proof and there would always lie a
possibility that the age of the concerned person may vary plus or minus two
years. Even in the presence of medical opinion, the Court showed a tilt
towards the juvenility of the accused. However, it is pertinent to note
that such an approach in Darga Ram alias Gunga’s case was taken in the
specific facts and circumstances of that particular case and any attempt of
generalising the said approach could not be justifiably entertained.
22. It is well-accepted fact that age determination using ossification
test does not yield accurate and precise conclusions after the examinee
crosses the age of 30 years, which is true in the present case. After
referring to Bhola Bhagat’s case and other decisions, in Babloo Pasi’s
case, this Court held as under:-
“18. Nevertheless, in Jitendra Ram v. State of Jharkhand (2006) 9 SCC 428
the Court sounded a note of caution that the aforestated observations in
Bhola Bhagat (1997) 8 SCC 720 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
and each case has to be considered on the basis of the materials brought on
record.
22. It is well settled that it is neither feasible nor desirable to lay
down an abstract formula to determine the age of a person. The date of
birth is to be determined on the basis of material on record and on
appreciation of evidence adduced by the parties. The medical evidence as to
the age of a person, though a very useful guiding factor, is not conclusive
and has to be considered along with other cogent evidence.
23. It is true that in Arnit Das v. State of Bihar (2000) 5 SCC 428 this
Court has, on a review of judicial opinion, observed that while dealing
with a question of determination of the age of an accused, for the purpose
of finding out whether he is a 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 was a juvenile and if two views
may be possible on the same evidence, the court should lean in favour of
holding the accused to be a juvenile in borderline cases. We are also not
oblivious of the fact that being a welfare legislation, the courts should
be zealous to see that a juvenile derives full benefits of the provisions
of the Act but at the same time it is also imperative for the courts to
ensure that the protection and privileges under the Act are not misused by
unscrupulous persons to escape punishments for having committed serious
offences.”
23. In Criminal Appeal No. 486 of 2016 dated 12.05.2016, Parag Bhati
(Juvenile) through Legal Guardian-Mother-Smt. Rajni Bhati v. State of Uttar
Pradesh and Anr., after referring to Abuzar Hossain case and other
decisions of this Court, this Court held as under:-
“26. It is no doubt true that if there is a clear and unambiguous case in
favour of the juvenile accused that he was a minor below the age of 18
years on the date of the incident and the documentary evidence at least
prima facie proves the same, he would be entitled to the special protection
under the JJ Act. But when an accused commits a grave and heinous offence
and thereafter attempts to take statutory shelter under the guise of being
a minor, a casual or cavalier approach while recording as to whether an
accused is a juvenile or not cannot be permitted as the courts are enjoined
upon to perform their duties with the object of protecting the confidence
of common man in the institution entrusted with the administration of
justice.
27. The benefit of the principle of benevolent legislation attached to the
JJ Act would thus apply to only such cases wherein the accused is held to
be a juvenile on the basis of at least prima facie evidence regarding his
minority as the benefit of the possibilities of two views in regard to the
age of the alleged accused who is involved in grave and serious offence
which he committed and gave effect to it in a well-planned manner
reflecting his maturity of mind rather than innocence indicating that his
plea of juvenility is more in the nature of a shield to dodge or dupe the
arms of law, cannot be allowed to come to his rescue.” [Emphasis added]
From the above decision, it is clear that the purpose of Juvenile Justice
Act, 2000 is not to give shelter to the accused of grave and heinous
offences.
24. Keeping in view the above principles, let us consider the medical
opinion of the Medical Board determining the age of the appellants as
between 35-40 years on the date of examination that is on 02.05.2016. This
wide variation in the age, even as per medical opinion is because of the
reason that it was now too late, because of the advanced age of the
appellants to have precise determination of his age. As noted earlier, such
a plea of juvenility is raised for the first time in this Court and the
same has to be considered on the material brought on record before this
Court. On the basis of the age of the appellants (Mukarrab and Arshad)
determined between 35-40 years in May, 2016, giving a variation of two
years in upper age limit i.e. age of the appellants would be 38 years.
Giving additional benefit of lowering their age by one year in terms of
Rule 12(3)(b) would bring their age as 37 years as on May, 2016. That means
the appellants are supposed to be born in 1979 and at the time of
occurrence in 1994, the appellants would have been of around 15 years of
age.
25. Having regard to the circumstances of this case, a blind and
mechanical view regarding the age of a person cannot be adopted solely on
the basis of the medical opinion by the radiological examination. At page
31 of Modi’s Text Book of Medical Jurisprudence and Toxicology, 20th Edn.,
it has been stated as follows:
“In ascertaining the age of young persons radiograms of any of the main
joints of the upper or the lower extremity of both sides of the body should
be taken, an opinion should be given according to the following table, but
it must be remembered that too much reliance should not be placed on this
table as it merely indicates an average and is likely to vary in individual
cases even of the same province owing to the eccentricities of
development.”
Courts have taken judicial notice of this fact and have always held that
the evidence afforded by radiological examination is no doubt a useful
guiding factor for determining the age of a person but the evidence is not
of a conclusive and incontrovertible nature and it is subject to a margin
of error. Medical evidence as to the age of a person though a very useful
guiding factor is not conclusive and has to be considered along with other
circumstances.
26. In a recent judgment, State of Madhya Pradesh v. Anoop Singh (2015) 7
SCC 773, it was held that the ossification test is not the sole criteria
for age determination. Following Babloo Pasi and Anoop Singh’s cases, we
hold that ossification test cannot be regarded as conclusive when it comes
to ascertaining the age of a person. More so, the appellants herein have
certainly crossed the age of thirty years which is an important factor to
be taken into account as age cannot be determined with precision. In fact
in the medical report of the appellants, it is stated that there was no
indication for dental x-rays since both the accused were beyond 25 years of
age.
27. At this juncture, we may usefully refer to an article “A study of
wrist ossification for age estimation in pediatric group in central
Rajasthan”, which reads as under:-
“There are various criteria for age determination of an individual, of
which eruption of teeth and ossification activities of bones are important.
Nevertheless age can usually be assessed more accurately in younger age
group by dentition and ossification alongwith epiphyseal fusion.
[Ref: Gray H. Gray’s Anatomy. 37th ed. Churchill Livingstone Edinburgh
London Melbourne and New York: 1996; 341-342];
A careful examination of teeth and ossification at wrist joint provide
valuable data for age estimation in children.
[Ref: Parikh CK. Parikh’s Textbook of Medical Jurisprudence and Toxicology.
5th edn.: Mumbai Medico-Legal Centre Colaba:1990;44-45];
……
Variations in the appearance of center of ossification at wrist joint shows
influence of race, climate, diet and regional factors. Ossification centres
for the distal ends of radius and ulna consistent with present study vide
article “A study of Wrist Ossification for age estimation in pediatric
group in Central Rajasthan” by Dr. Ashutosh Srivastav, Senior Demonstrator
and a team of other doctors, Journal of Indian Academy of Forensic Medicine
(JIAFM), 2004; 26(4). ISSN 0971-0973].
28. In the present case, their physical, dental and radiological
examinations were carried out. Radiological examination of Skull (AP and
lateral view), Sternum (AP and lateral view) and Sacrum (lateral view) was
advised and performed. As per the medical report, there was no indication
for dental x-rays since both the accused were much beyond 25 years of age.
Therefore, the age determination based on ossification test though may be
useful is not conclusive. An X-ray ossification test can by no means be so
infallible and accurate a test as to indicate the correct number of years
and days of a person’s life.
29. Let us consider the medical report in the facts and circumstances of
the present case. The learned counsel on behalf of the respondent-State has
brought to our notice that the appellant-Mukarrab is involved in twenty
four cases of various offences allegedly committed between 1988 and 1995.
He is alleged to have committed murder and robbery in the year 1988.
Likewise, appellant-Arshad is also allegedly involved in commission of
serious offences from 1993 to 2003. Proceedings in the context of such
offences are stated to be still pending against the appellants before
various courts. Learned Counsel for the State has produced a chart before
us to show that the appellant-Mukarrab is involved in at least twenty cases
for various offences right from the year 1988 in Case Nos. 160/1988,
327/1989, 96/1989, 184/1989 etc. and other cases under Sections 25A Act,
394 IPC, 323, 352, 504, 506 IPC, 323, 352, 504, 506 IPC and other offences
till 2006. Likewise, appellant-Arshad is involved in at least ten cases for
various offences right from the year 1993 in case Nos. 102/1993, 50/1994,
80/1994, 878/1994 etc. and other cases under Sections 393, 363, 376, 147,
148, 149, 302, 147, 504, 506, 307 IPC respectively till 2003.
30. We are referring to the chart produced by the State neither for
taking into account the history sheet of the present appellants for the
purpose of ascertaining criminal antecedents of the appellants nor casting
any remarks on the nature of the offences for which the appellants are
proceeded with. We are referring to the chart only for the limited purpose
of arriving at a logical and definite conclusion as to the age of the
appellants. As discussed earlier, in para No. 24 had the appellants been
born in 1979, in the years 1988, 1989, 1990, the appellant-Mukarrab would
have been only in the age of 9, 10, 11 years respectively. In the year
1993, (first case in which appellant-Arshad involved) the appellant-Arshad
would have been only 14 years of age. Had it been so, when the appellants
were produced in those cases the appellants would have been considered as
‘children’ by the very appearance. They would have been dealt with
accordingly by the concerned juvenile court and the matters would not have
been kept pending till this date. This, in our view, is yet another reason
that the opinion of the Medical Board determining the age of the appellants
as 35-40 years in May, 2016 cannot be relied upon.
31. In the facts and circumstances of the case, the opinion of the
medical board in determining the age of the appellants cannot be relied
upon so as to give benefit under the provisions of Juvenile Justice (Care
and Protection of Children) Act, 2000. In the absence of other cogent
evidence, the plea of juvenility of the appellants is liable to be
rejected. The special leave petitions qua other accused were already
dismissed vide order dated 12.09.2014 as mentioned hereinbefore. Hence, the
appeals of these appellants are also dismissed.
...……………………….J.
[A.K. SIKRI]
.………………………..J.
[R. BANUMATHI]
New Delhi;
November 30, 2016.