1. The present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the applicant-original complainant to quash and set aside the impugned order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar dated 08/12/2003 below Exh. 5 in Sessions Case No. 72/2003 by which an application submitted by the respondent-original accused, who was pressing the charge for the offence under Section 302 of the Indian Penal Code to declare him as juvenile under Section 49 of the Juvenile Justice Act (hereinafter referred to as "the Act"), is allowed declaring the respondent- original accused to be juvenile at the time when the alleged offence under Section 302 of the Indian Penal Code was committed.
2. For the offence under Section 302 of the Indian Penal Code alleged to have happened on 05/01/2003, the respondent-original accused was chargesheeted. It appears that the case was committed to the Court of Sessions, which was numbered as Sessions Case No. 72/2003. In the said Sessions Case, respondent-original accused submitted an application, Exh. 5 to declare him as juvenile under Section 49 of the Act. The learned Sessions Court held the inquiry as provided under Section 7 of the Act. Both the sides led the evidence, documentary as well as oral. One Prabhubhai Makwana, Headmaster of Kaniyad Primary School where the respondent-original accused had studied came to be examined at Exh. 7. He produced the documentary evidence, i.e. general register of the school as regards when he was admitted in the school and as per the general register maintained by the school the date of birth of the respondent-original accused was mentioned as 03/04/1984. The said witness was cross examined on behalf of the respondent-original accused.
3. On behalf of the respondent-original accused his father, Nakabhai Bhanjibhai was examined at Exh. 11. As it was not possible to come to a conclusion definitely and arrive at the age of the respondent-original accused, scientific medical test of ossification was conducted by the Medical Officer, Sir T Hospital, Bhavnagar and on the basis of the ossification test and the reports given by radiological department it was opined that the age of the respondent-original accused can be said to be between 18 to 20 years. However, relying upon the Mody's medical jurisprudence and considering the fact that there can be variation of 2 to 3 years (+ and -) the learned Additional Sessions Judge presumed the age of the accused between 16 to 18 years and thereafter considering the decision of Rajinder Chandra Vs. State of Chhattisgarh and Anr. reported in AIR 2002 SC 748 has held the respondent-original accused as juvenile at the time when the alleged offence was committed by the respondent-original accused. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar dated 08/12/2003 below Exh. 5 in Sessions Case No. 72/2003 in declaring the respondent- accused as juvenile at the time when the alleged offence had taken place, the applicant-original complainant has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure.
4. Shri Sunil Patel, learned advocate appearing on behalf of the applicant-original complainant has vehemently submitted that the learned trial Court has materially erred in allowing the application, Exh. 5 submitted by the respondent-original accused and has materially erred in declaring the respondent-
original accused as juvenile. It is submitted that in view of the school leaving certificate issued by the concerned school, which was proved by examining the principal and considering the medical report of ossification test and the radiological examination when it was found that the respondent-original accused was aged between 18 to 20 years, the learned trial Court has materially erred in treating and considering the age of the respondent-original accused between 16 to 18 years. It is submitted that as such the learned trial Court has not properly appreciated the decision of the Hon'ble Supreme Court in the case of Rajinder Chandra (Supra). Shri Patel, learned advocate appearing on behalf of the applicant-original complainant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Om Prakash Vs. State of Rajasthan and Anr reported in (2012) 5 SCC 201. It is submitted that as held by the Hon'ble Supreme Court in the case of Om Prakash (Supra) while considering the medical estimate of age, though doctor's examination of age is only an opinion, but where such an opinion is based on scientific medical tests like ossification test and radiological examination, it should be treated as strong evidence having corroborative value while determining the age of the alleged accused. It is further submitted that in the said decision it is also observed and held by the Hon'ble Supreme Court that when the trial Court fails to arrive at a conclusive finding regarding the age of the accused, opinion of medical experts based on x-ray and ossification test would be given precedence over shaky evidence based on the school records and plea of circumstantial interference based on concocted story set up by the father of the accused. Making the above submission and relying upon the above decision, it is requested to allow the present Criminal Revision Application.
5. Shri Jigar Raval, learned advocate appearing on behalf of the respondent-original accused has opposed the present Criminal Revision Application. It is submitted that when it was found that the father of the accused did not register the birth of the accused at the time of his birth and even the date of birth given at the time of admission in the primary school was without proper verification of the age and in the medical report on ossification test it was opined that the age of the respondent-original accused is between 18 to 20 years and considering the decision of the Hon'ble Supreme Court in the case of Rajinder Chandra (Supra) relying upon Mody's medical jurisprudence there can be variation of 2 to 3 years, when the learned trial Court has considered the age of the respondent-original accused between 16 to 18 years and consequently when the learned trial Court has considered and treated the respondent-original accused as juvenile at the time when the alleged offence was committed by the respondent- original accused, no illegality has been committed by the learned trial Court, which calls for the interference of this Court in exercise of revisional jurisdiction. Shri Raval, learned advocate appearing on behalf of the respondent-original accused has relied upon the decision of the Hon'ble Supreme Court in the case of Rajinder Chandra (Supra) as well as another decision of the Hon'ble Supreme Court in the case of Hari Ram Vs. State of Rajasthan and Anr. reported in (2009) 13 SCC 211 (paragraph 62). Making the above submissions and relying upon the above decisions, it is requested to dismiss the present Criminal Revision Application.
6. Ms. C.M. Shah, learned APP appearing on behalf of the respondent-State has supported the applicant-original complainant and has requested to allow the present Criminal Revision Application.
7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that the respondent-original accused is being tried for the offence of committing murder i.e. Section 302 of the Indian Penal Code. In the said proceedings, the respondent-original accused submitted an application, Exh. 5 to declare him as juvenile. It is an admitted position that as such the respondent-original accused did not produce any documentary evidence to prove his date of birth. The respondent-original accused only examined his father to prove that he was juvenile at the time of committing the offence. On the other hand the prosecution has produced the school leaving certificate issued by the primary school Kaniyad in which the date of birth of the respondent-original accused is mentioned as 03/04/1984. To prove the said certificate and the contents therein, the prosecution also examined the principal of the Primary School Kaniyad at Exh. 7, who has also produced the general register of the school alongwith the xerox copy of the application of the father of the respondent-original accused in which also the date of birth of the respondent-original accused is mentioned as 03/04/1984. If 03/04/1984 is considered to be the date of birth of the respondent-original accused, in that case, the respondent-original accused was 18 years of age at the time of commission of the offence. On appreciation of evidence, the learned trial Court had not believed the date of birth as 03/04/1984 as mentioned in the school leaving certificate as the correct date and, therefore, the ossification test of the respondent-original accused was conducted alongwith the radiological examination and as per the medical certificate on ossification test and radiological examination the date of birth of the respondent-original accused is stated to be between 18 to 20 years. Considering the same, the observations of the Hon'ble Supreme Court in the case of Rajinder Chandra (Supra) referring to Mody's medical jurisprudence that variation of 2 to 3 years on either side is permissible, the learned trial Court has considered the age of the respondent- original accused between 16 to 18 years and has consequently declared the respondent-original accused to be juvenile. However, it appears that the learned trial Court has not properly appreciated the aforesaid decision of the Hon'ble Supreme Court. On considering the aforesaid decision of the Hon'ble Supreme Court, it appears to the Court that there is no absolute proposition of law laid down in the said decision that in each and every case where on ossification test 2 to 3 years (-) age should be considered while considering the claim of the respondent-original accused as juvenile. It is to be noted that in the present case as such there is a school leaving certificate issued by the concerned primary school, which has been on the basis of the application given by the father of the respondent- original accused submitting the age of the respondent-original accused to be 03/04/1984. Identical case came to be considered by the Hon'ble Supreme Court in the case of Om Prakash (Supra) in which it is held by the Hon'ble Supreme Court that where the school record is ambiguous and does not conclusively prove minority of the accused, medical opinion assumes importance. It is further held by the Hon'ble Supreme Court in the said decision that in absence of reliable documentary evidence in support of the age of the respondent- original accused, medical evidence which indicates that the accused was major should be given primacy and the accused is thus not entitled to protection of Juvenile Justice Act. It is further observed by the Hon'ble Supreme Court in the said decision that though doctor's examination of age is only an opinion, but where such an opinion is based on scientific medical tests like ossification test and radiological examination, it will be treated as strong evidence having corroborative value while determining the age of the alleged juvenile accused. In the aforesaid decision, the Hon'ble Supreme Court has also considered the object of Juvenile Justice Act, 2000 in paragraph nos. 3, 22, 23, 26, 27, 34 and 35 and has observed and held as under;
“3. The Juvenile Justice Act was enacted with a laudable object of providing a separate forum or a Special Court for holding trial of children/juveniles by the Juvenile Court as it was felt that children become delinquent by force of circumstance and not by choice and hence they need to be treated with care and sensitivity while dealing and trying cases involving criminal offence. But when an accused is alleged to have committed a henious offence like rape and murder or any other grave offence when he ceased to be a child on attaining the age of 18 years, but seeks protection of the Juvenile Justice Act under the ostensible plea of being a minor, should such an accused be allowed to be tried by a Juvenile Court or should he be referred to a competent Court of criminal jurisdiction where the trial of other adult persons are held?
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22. 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 for this special protection under the Juvenile Justice 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.
23. Hence, while Courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are alleged to have been withheld deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.
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26. We therefore cannot overlook that the trail Court as well as the High Court while passing the impugned order could not arrive at any finding at all as to whether the accused was a major or minor on the date of the incident and yet gave the benefit of the principle of benevolent legislation to an accused whose plea of minority that he was below the age of 18 years itself was in doubt. In such a situation, the scales of justice are required to be put on an even keel by insisting for a reliable and cogent proof in support of the plea of juvenility specially when the victim was also a minor.
27. The benefit of the principle of benevolent legislation attached to the Juvenile Justice 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. Hence, if the plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the even tit is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused.
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34. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused.
35. While considering the relevance and value of the medical evidence, the doctor's estimation of age although is not a sturdy substance for proof as it is only an opinion based on scientific medical tests like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused.”
8. Now so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of Hariram (Supra) relied upon by the learned advocate appearing on behalf of the respondent-original accused is concerned, considering the facts of the case on hand, the said decision, more particularly, paragraph 62 of the said decision, which has been relied upon would not be of any assistance to the respondent-original accused at all.
9. In view of the above and for the reasons stated herein above, the impugned order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar dated 08/12/2003 below Exh. 5 in Sessions Case No. 72/2003 deserves to be quashed and set aside and is hereby quashed and set aside and consequently the respondent-original accused shall be tried by the concerned Sessions Court and not by the Juvenile Court as pleaded by him.
10. With this, the present Criminal Revision Application is allowed. Rule is made absolute accordingly.
11. Registry is directed to send the writ of this Court to the learned Sessions Court immediately.
12. At this stage, Shri Jigar Raval, learned advocate appearing on behalf of the respondent-original accused has requested to stay the impugned judgment and order so as the enable respondent no. 2-original accused to approach higher forum. However, it is required to be noted that as such the learned Single Judge while admitting the present Criminal Revision Application in the year 2004 the learned Single Judge has as such stayed/suspended the order passed by the learned Sessions Court below Exh. 5 and the said interim relief was in force till final disposal. Meaning thereby, the impugned order, which is now set aside by this Court was already suspended by this Court. Hence, the prayer of the learned advocate appearing of the respondent-original accused to stay the present order is rejected.
(M.R. SHAH, J.) siji