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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 \021the Act\022) 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 \021juvenile\022 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 :- \023Inquiry 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

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of birth.  The date of admission is  17.04.1989\024.  

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 :-      \023               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.\024                                   

       The learned Judge on the said report, opined :-

\023The 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.\024

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 :- \023Anyhow, 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

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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.\024

7.      Again by reason of an order dated 20th January, 2007 the  learned Judge held :- \023As 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.\024                  Relying on the decision of this Court in Pratap Singh  v.  State  of Jharkhand and another,  [ (2005) 3 SCC 551 ] it was held :- \023From 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.\024   

8.      Respondent moved the High Court again in revision.        By reason of the impugned judgment dated 11th September,  2007, the High Court held :- \023As 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

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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 \021juvenile in delinquency\022 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 :- \023472. 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.\024               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

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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 :- \02338. 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 :- \02320. 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

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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.\024  (emphasis supplied)

15.     This Court in Jyoti Prakash Rai @ Jyoti Prakash  v.  State of  Bihar,  [ JT 2008 (3) SC 397 ] held :- \023It 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.\024            [ 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 :- \0239.  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, \021the 2000\022) 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,  \021juvenile\022 was defined to mean \023a 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

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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 High court is set aside accordingly. The  appeal is allowed.          Applications for modification/clarification of  order dated 2.11.2007 and bail have become infructuous and are  dismissed as such.