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CASE NO.: Appeal (crl.)  440 of 2008

PETITIONER: Jyoti Prakash Rai @ Jyoti Prakash

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 04/03/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO 440 OF 2008 [Arising out of SLP (Crl.) No. 4082 of 2007]

S.B. SINHA,  J :

1.      Leave granted.

2.      Appellant herein is said to be a delinquent juvenile.  He was accused  of commission of an offence under Section 302 of the Indian Penal Code for  killing one of his school mates.  He is said to have stabbed the deceased  several times.  The incident took place on 12.05.2000.  His age was  estimated at about 17 years as on the said date by the learned Magistrate  before whom he was produced.           At that point of time, the Juvenile Justice Act, 1986 (for short "the  1986 Act") was in force.  In terms of the provisions of the 1986 Act,  "juvenile" meant a boy who had not attained the age of sixteen years.   The Juvenile Justice (Care and Protection of Children) Act, 2000 (for  short "the 2000 Act") came into force with effect from 1.04.2001.   "Juvenile" has been defined in the 2000 Act to mean a person who has not  completed eighteen years of age.  Section 16 of the 2000 Act, as it stood  then, provides for a non-obstante clause prohibiting imposition of sentence  to death or life imprisonment or commitment to person in default of payment  of fine or in default of furnishing security, on a delinquent juvenile.   3.      Section 20 of the 2000 Act, as it stood then, reads as under:

"20. Special provision in respect of pending  cases .\027Notwithstanding anything contained in  this Act, all proceedings in respect of a juvenile  pending in any court in any area on the date on  which this Act comes into force in that area, shall  be continued in that court as if this Act had not  been passed and if the court finds that the  juvenile has committed an offence, it shall record  such finding and instead of passing any sentence  in respect of the juvenile, forward the juvenile to  the Board which shall pass orders in respect of  that juvenile in accordance with the provisions of  this Act as if it had been satisfied on inquiry  under this Act that a juvenile has committed the  offence."

4.      For examining the claim of the appellant that he was a juvenile as on  the date of commission of the offence, two medical boards were constituted.   The first medical board which examined him on 24.04.2001, opined his age

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to be between 18 to 19 years.  The second medical board which was  constituted on 29.06.2001 also opined similarly.   5.      Before the learned ACJM, Buxar, some documents were also  produced.  However, the same were not taken into consideration by the  courts below.   6.      By an order dated 21.04.2005, the learned Additional Sessions Judge  [FTC], Buxar held: "\005On 29.06.2001 the Medical Board was  constituted under the Chairmanship of the Civil  Surgeon, Buxar in which Jyoti Prakash was  adjudged to be between 18 and 19 years.  The  board conducted ossification test and found the  place of moustache to be black and also found the  ancillary and Public Hair to be developed and on  radiological findings the right wrist, right elbow  and the chest appeared to be developed.

       The medical board on 24.04.2001 has also  adjudged the age of the accused Jyoti Prakash Rai  to be between 18 and 19 years of age.  The  incident is dated 12.05.2000 and the medical board  was constituted on 24.04.2001, which was after 11  months and 12 days from the date of occurrence.   If by the date of occurrence and also the finding of  the medical board of 19 years when 11 months and  12 days are subtracted then the age of the accused  is more than 18 years.  The New Act of 2000 and  also the judgment of the Hon’ble Supreme Court  would be applicable only in the condition when on  01.04.2001 the age of the petitioner has not  crossed 18 years.

       As per the findings of the medical board the  petitioner on 01.04.2001 was around 18 years 10  months and 19 days old.  The Counsel for the  petitioner has prayed that the case be sent to the  Special Court.  In respect of this there is a clear  direction of the Hon’ble Supreme Court that under  Section 25 that if there is a clear direction of the  court that a juvenile offender has committed a  crime then only the child offender will be sent  before the Board.  In light of the above mentioned  facts there is no occasion to abide by the directions  of the Hon’ble Supreme Court, which is not  applicable in the present case."

7.      Before the High Court, it was inter alia rightly contended that the  decision of this Court in Arnit Das  v.  State of Bihar [(2000) 5 SCC 488]  which had laid down the law that the age of the juvenile should be  determined as on the date of his production before the Court and not on the  date of commission of offence has been overruled by a Constitution Bench  of this Court in Pratap Singh  v. State of Jharkhand [(2005) 3 SCC 551].           In the impugned judgment, the High Court held: "7.     According to the submission of learned  Advocate of the petitioner, the first medical board  was constituted on 24.4.2001 and on that date and  board was of the opinion that the petitioner was  aged between 18-19 years.  He submitted that if  the age of the petitioner is taken as 18 years on  24.4.2001 then on 1.4.2001, he was definitely  below 18 years [i.e. 23 days less in 18 years].   Likewise, the second medical board was  constituted on 29.6.2001 and on that date also the  board assessed his age as 18-19 years and,  therefore, if the minimum age of the petitioner is

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taken as 18 years on 29.6.2001, the net result will  be that the petitioner was less than 18 years on  1.4.2001 i.e. [two months twenty eight days less in  attaining eighteen years].

8.      I am of the view that this will not be the  proper way of computing the age of petitioner and  the proper way to assess the age of the petitioner  will be that his age should be fixed in between 18- 19 years on the date of examination, according to  which the age of the petitioner comes to 18 years 5  months 8 days on 1.4.2001 when he for the first  time appeared before the medical board on  29.6.2001.  Thus, the net result is that on 1.4.2001  the petitioner was definitely above 18 years of age  and not below 18 years of age."

8.      Mr. Nagendra Rai, learned senior counsel appearing on behalf of the  appellant, would submit that the courts below committed a serious illegality  insofar as they failed to take into consideration that on 12.05.2000, the age  of the appellant having been determined to be 17 years, inevitably his age as  on 1.04.2001 would be less than 18 years.  It was furthermore submitted that  Arnit Das (supra) being no longer a good law, the learned Trial Judge should  have proceeded to determine the issue keeping in view the minimum age  determined by the Medical Board.  Reliance in this behalf has been placed  on an unreported decision of this Court in Bihar State Electricity Board v.  Bihar Power Workers Union & Ors [Civil Appeal No. 420 of 2001 decided  on 6.03.2002] wherein it has been held: "The High Court is of the view that age  determined by the Medical Board cannot be  accurate and, therefore, it finds that it would be  appropriate to extend the benefit of the lesser age  determined by the Medical Board.  We do not  think that that view of the High Court should be  upset.  The view of the appellant \026 Board that it  should be only average of the maximum and  minimum age, cannot be quite accurate, if in fact,  the employee is of the lesser age as determined by  the Medical Board.  In that view, the policy  adopted by the appellant \026 Board cannot be stated  to be without any fault.  In that view of the matter,  the interference by the High Court is justified, in  the circumstances of the case.  The appeal is  therefore dismissed."          9.      The 2000 Act is indisputably a beneficial legislation.  Principles of  beneficial legislation, however, are to be applied only for the purpose of  interpretation of the statute and not for arriving at a conclusion as to whether  a person is juvenile or not.  Whether an offender was a juvenile on the date  of commission of the offence or not is essentially a question of fact which is  required to be determined on the basis of the materials brought on records by  the parties.  In absence of any evidence which is relevant for the said  purpose as envisaged under Section 35 of the Indian Evidence Act, the same  must be determined keeping in view the factual matrix involved in each  case.  For the said purpose, not only relevant materials are required to be  considered, the orders passed by the court on earlier occasions would also be  relevant. 10.     A medical report determining the age of a person has never been  considered by the courts of law as also by the medical scientists to be  conclusive in nature.  After certain age it is difficult to determine the exact  age of the person concerned on the basis of ossification test or other tests.

       This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283],  opined: "20. It is urged before us by Mr Lalit that the

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determination of the age of the prosecutrix by  conducting ossification test is scientifically proved  and, therefore, the opinion of the doctor that the  girl was of 18-19 years of age should be accepted.  We are unable to accept this contention for the  reasons that the expert medical evidence is not  binding on the ocular evidence. The opinion of the  Medical Officer is to assist the court as he is not a  witness of fact and the evidence given by the  Medical Officer is really of an advisory character  and not binding on the witness of fact.   21..."  11.     In the aforementioned situation, this Court in a number of judgments  has held that the age determined by the doctors should be given flexibility of  two years on either side.           In a case of this nature, thus, where the delinquent was examined by  two different medical boards, who on two different dates have reached the  identical opinion, viz, the age of the appellant between 18 and 19 years, and,  thus, resulting in two different conclusions, a greater difficulty arises for the  court to arrive at a correct decision.  For the said purpose, the court may  resort to some sort of hypothesis, as no premise is available on the basis  whereof a definitive conclusion can be arrived at.  12.     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. 13.     Applicability of the 2000 Act in relation to a juvenile who has  committed an offence prior to coming into force of the 2000 Act came up for  consideration before a Constitution Bench of this Court in Pratap Singh   (supra).  It was opined: "31. Section 20 of the Act as quoted above deals  with the special provision in respect of pending  cases and begins with a non obstante clause. The  sentence "notwithstanding anything contained in  this Act, all proceedings in respect of a juvenile  pending in any court in any area on the date on  which this Act came into force" has great  significance. The proceedings in respect of a  juvenile pending in any court referred to in Section  20 of the Act are relatable to proceedings initiated  before the 2000 Act came into force and which are  pending when the 2000 Act came into force. The  term "any court" would include even ordinary  criminal courts. If the person was a "juvenile"  under the 1986 Act the proceedings would not be  pending in criminal courts. They would be pending  in criminal courts only if the boy had crossed 16  years or the girl had crossed 18 years. This shows  that Section 20 refers to cases where a person had  ceased to be a juvenile under the 1986 Act but had  not yet crossed the age of 18 years then the  pending case shall continue in that court as if the  2000 Act has not been passed and if the court finds  that the juvenile has committed an offence, it shall  record such finding and instead of passing any  sentence in respect of the juvenile, shall forward  the juvenile to the Board which shall pass orders in

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respect of that juvenile."

       It was furthermore observed: "36 . We, therefore, hold that the provisions of the  2000 Act would be applicable to those cases  initiated and pending trial/inquiry for the offences  committed under the 1986 Act provided that the  person had not completed 18 years of age as on 1- 4-2001."          It was concluded: "37.  The net result is:          \005.                   \005..                  \005..  ( b ) The 2000 Act would be applicable in a  pending proceeding in any court/authority initiated  under the 1986 Act and is pending when the 2000  Act came into force and the person had not  completed 18 years of age as on 1-4-2001."  

14.     Reliance placed by Mr. Rai on the unreported decision in Bihar State  Electricity Board (supra) is misplaced.  Therein a policy decision had been  taken.  The correctness of the said policy decision was in question having  regard to the determination of the age by a medical board.  The High Court  was of the view that the age determined by the medical board cannot be  accurate.  It was, therefore, not a case where any law was laid down.   15.     The court has to determine the age keeping in view a large number of  factors.  It is in that context it was opined in Birad Mal Singhvi v. Anand  Purohit [1988 Supp SCC 604]: "To render a document admissible under Section  35, three conditions must be satisfied, firstly, entry  that is relied on must be one in a public or other  official book, register or record; secondly, it must  be an entry stating a fact in issue or relevant fact;  and thirdly, it must be made by a public servant in  discharge of his official duty, or any other person  in performance of a duty specially enjoined by  law. An entry relating to date of birth made in the  school register is relevant and admissible under  Section 35 of the Act but the entry regarding the  age of a person in a school register is of not much  evidentiary value to prove the age of the person in  the absence of the material on which the age was  recorded."  

16.     In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], this Court  observed:  "32 . The age of a person in an election petition  has to be determined not only on the basis of the  materials placed on record but also upon taking  into consideration the circumstances attending  thereto. The initial burden to prove the allegations  made in the election petition although was upon  the election petitioner but for proving the facts  which were within the special knowledge of the  respondent, the burden was upon him in terms of  ..."  17.     In Ravinder Singh Gorkhi  vs. State of U.P  [(2006) 5 SCC 584], it  was held :-  "21. Determination of the date of birth of a person  before a court of law, whether in a civil proceeding  or a criminal proceeding, would depend upon the  facts and circumstances of each case. Such a date  of birth has to be determined on the basis of the  materials on records. It will be a matter of  appreciation of evidence adduced by the parties.  Different standards having regard to the provision

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of Section 35 of the Evidence Act cannot be  applied in a civil case or a criminal case."           It was furthermore held :-  

"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. In this case, the appellant  had never been serious in projecting his plea that  he on the date of commission of the offence was a  minor. He made such statement for the first time  while he was examined under Section 313 of the  Code of Criminal Procedure.  40. The family background of the appellant is also  a relevant fact. His father was a "Pradhan" of the  village. He was found to be in possession of an  unlicensed firearm. He was all along represented  by a lawyer. The court estimated his age to be 18  years. He was tried jointly with the other accused.  He had been treated alike with the other accused.  On merit of the matter also the appellant stands on  the same footing as the other accused. The  prosecution has proved its case. In fact no such  plea could be raised as the special leave petition of  the persons similarly situated was dismissed when  the Court issued notice having regard to the  contention raised by him for the first time that he  was a minor on the date of occurrence."

18.     In Jitendra Ram  v. State of Jharkhand [(2006) 9 SCC 428], this Court  stated :

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"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."          It was held : "22. We, therefore, are of the opinion that the  determination of the age of the appellant as on the  date of the commission of the offence should be  done afresh by the learned Sessions Judge."

19.     Appellant herein had produced a large number of documents to prove  his age purported to be as on the date of commission of the crime.  The  genuineness of the school certificate and the horoscope had been questioned.   The school certificate produced by the appellant was found to be forged and  fabricated and as a matter of fact a criminal case was directed to be instituted  against the Head of the Institution.   

20.     The court, therefore, had no other option but to determine the age on  the basis of the Medical Reports.  Both the medical reports dated 24.04.2001  and 29.06.2001 opined the age of the appellant between 18 and 19 years.  In  terms of first medical report, the age of the appellant came to be 18 years 5  months 8 days and in terms of the second medical report, it came to be  between 18 and 19 years.  The High Court opined that the appellant on  1.04.2001 was definitely above 18 years of age and not below 18 years of  age.

21.     The courts have considered this aspect of the matter on earlier  occasions also.  If, thus, on the basis of several factors including the fact that  school leaving certificate and the horoscope produced by the appellant were  found to be forged and fabricated and having regard to two medical reports  the courts below have found the age of the appellant as on 1.04.2001 to be  above 18 years, we are of the opinion that no exception thereto can be taken.

22.     For the reasons aforementioned, there is no merit in this appeal which  is dismissed accordingly.