REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1928 OF 2022

(ARISING OUT OF S.L.P. (CRIMINAL) NO. 11220 OF 2019)

THE STATE OF JAMMU & KASHMIR

(NOW U.T. OF JAMMU & KASHMIR) & Ors. …APPELLANTS

VERSUS

SHUBAM SANGRA …RESPONDENT

J U D G M E N T

J.B. PARDIWALA, J. :

“Rape is one of the most terrible crimes on earth and it happens

every few minutes. The problem with groups who deal with rape is

that they try to educate women about how to defend themselves.

What really needs to be done is teaching men not to rape. Go to

the source and start there.”

-Kurt Cobain

1.This appeal is at the instance of the State of Jammu & Kashmir (now

U.T. of Jammu & Kashmir) and is directed against the order passed by the

High Court of Jammu & Kashmir at Jammu dated 11.10.2019 by which the

High Court rejected the Criminal Revision Application No. 27 of 2018 filed

by the appellant State herein, thereby affirming the order passed by the

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Chief Judicial Magistrate, Kathua dated 27.03.2018 holding the respondent

accused herein to be a juvenile on the date of the commission of the

alleged offence.

2.This litigation originates from the most unfortunate Kathua rape case.

The Kathua rape case involved the abduction, gang rape and murder of an

eight year-old Muslim girl by name ‘X’ by six Hindu men and the respondent

herein (claiming to be a juvenile) in January, 2018 in the Rasana village

near Kathua in Jammu & Kashmir. The victim belonged to the nomadic

Bakarwal community. She disappeared for a week before her body was

recovered by the villagers a kilometer away from the village. In all eight

individuals were arrested in connection with the ghastly crime which

includes the respondent herein. Since the respondent herein claimed to be

a juvenile, his trial was separated. The other six co-accused were put to

trial and vide the Judgment and Order dated 10.06.2019 passed by the trial

court, six of the seven accused stood convicted and one accused was

acquitted. Three of those convicted were sentenced to life imprisonment

and remaining three to five years rigorous imprisonment. The Special

Investigation Team (SIT) was constituted to probe into the entire matter and

ultimately chargesheet came to be filed against all the accused persons.

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The father of the victim namely ‘Y’ lodged a complaint in the Hira Nagar

Police Station stating that his daughter had gone missing.

3.On 17.01.2018, the body of the victim was found and taken into

custody by the police. The body was sent for autopsy. The post-mortem

was conducted by a team of doctors at the District Hospital, Kathua on the

same day. On 22.01.2018, investigation of the case was transferred to the

Crime Branch and Crime Headquarters.

4.The post-mortem revealed the presence of clonazepam in the body of

the deceased girl. The examination by the doctors found that the deceased

had been drugged which was sedative, before she was raped and

murdered. The forensic evidence suggested that she had been held on

several dates by Sanji Ram, one of the accused persons of the crime. The

strands of hair recovered from the temple matched those taken from the

deceased. The forensic examination stated that the deceased had been

raped multiple times by different men and that she had been strangulated

to death as well as hit on the head by a heavy stone.

5.The Delhi Forensic Science Laboratory analysed fourteen packets of

evidence containing vaginal swabs, hair strands, blood samples of four

accused, viscera of the deceased girl, the girl’s frock and salwar, simple

clay and blood-stained clay. The vaginal swabs matched with the DNA of

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the accused as did some other samples. The hair strands found in the

temple, where the deceased was raped, matched that of the girl and the

accused.

6.One of the accused persons namely Sanji Ram along with the

respondent herein was found to be the main accused in the case. He at the

relevant point of time was the priest of the family temple where the incident

allegedly took place. The respondent herein happens to be the nephew of

the Sanji Ram.

7.On 10.06.2019, six of the seven accused persons were found to be

guilty and one was acquitted. Sanji Ram, Deepak Khajuria and Parvesh

Kumar were sentenced to life imprisonment for 25 years with a fine of Rs.

One lakh each. The other three accused persons namely Tilak Raj, Anand

Dutta and Surinder Kumar were sentenced to five years in jail for

destroying crucial evidence in the case. Vishal Jangotra S/o Sanji Ram

came to be acquitted due to lack of evidence. The eighth accused, who is

yet to be tried claiming to be a juvenile at the time of commission of the

offence, is the respondent herein.

8.The specific case put up by the prosecution against the respondent

herein is contained in the chargesheet reads thus:

" ... He immediately rushed down stairs, took 3 Manars and

keys to Devisthan and told 'X ' that he had seen her horses.

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He led her to jungle and also called accused Mannu who was

already waiting for his signal. Sensing some trouble the victim

tried to flee away. The JD stopped her by catching hold of her

neck and covered her mouth with one of his hands and

pushed her and she fell on the ground. Accused Mannu held

her legs and the JCL (respondent) administered Manars one

by one forcibly to the victim. The victim fell unconscious and

was raped by JCL...Later on, they took the girl and kept her

inside Devisthan under the table over two Chatayees (plastic

mats) and then covered her two Darees (cotton thread

Mats) ...

At about 8.30 a.m. the JCL again went to Devisthan and

administered 3 sedatives tablets to the girl while she was

unconscious with empty stomach ....

... The accused Vishal Jangotra @Shamma raped 'X'.

Thereafter, JCL also raped the girl in presence of the accused

Mannu. The investigation also revealed that after committing

the rape, JCL directed accused Vishal Jangotra @ Shmma

and accused Mannu to leave Devisthan. JCL again took out

03 tablets out of the strip which he had kept under a heap of

garbage near an electric pole outside the Devisthan and gave

the same to the girl and again covered here with mats and

dropped the utensil container in front of her in order to hide

her ...

During investigation it has been found that after distributing

Lohri to relatives in the evening JCL informed accused Sanji

Ram that he and accused Vishal Jangotra had committed

gang rape with 'X' inside Dev!sthan .... On the spot accused

Deepak Khajuria @Deepu told JCL to wait as he wanted to

rape the girl before she is killed. As such once again the little

girl 'X' was gang raped firstly by accused Deepal Khajuria

@Deepu and then by JCL. After committing the barbaric act

of rape on his left thigh and started applying force with his

hands on her neck in order to kill her. As accused Deepak

Khajuria @Deepu was unsuccessful in killing her another

accused JCK killed her by pressing his knees against her

back and strangulated the girl by applying force on both the

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ends of Chunni. Thereafter, accused JCL, in order to make

sure that the victim is dead, hit her twice on head with

stone ...

... As per plan JCL along with accused Vishal Jangotra

@Shamma went to Devisthan. Accused Vishal Jangotra

@Shamma opened the door while JCL lifted the dead body

on his shoulder. The accused Vishal Jangotra @Shamma

locked the door and JCL disposed the dead body by throwing

it inside the jungle while accused Vishal Jangotra @Sham ma

was guarding outside bushes ... "

Further, in the Supplementary Charge Sheet dated 09-08-

2018 it has been observed as under:-

... "During the course of investigation, it has already been

established that victim was administered sedatives by

accused during her captivity. Two tablets recovered on

the disclosure of Juvenile in conflict with law near

Devsthan Rasana were sent to forensic lab for analysis.

The chemical analysis report obtained thereof, revealed

the present of Clonazepam salt in the said tablets. To

ascertain the effect of sedatives 'Mannar' as well as

Clonazepam on the victim with empty stomach, the

concerned expert (Professor and Head, Pharmacology,

GMC Jammu) has opined that the sedative Clonazepam

(Epitril 0.Smg) has the following effects:- (1) Drowsiness,

(2) Confusion, (3) Impaired, ( 4) Coordination, (5) Slow

reflexes, (6) Slowed or stopped breathing, (7) Coma (loss

of consciousness) and Death. As per the final opinion of

the expert "the peak concentration of Clonazepam is

achieved in the blood after one hour to 1.5. hours of oral

administration. Clonazepam absorption from the enteral

route is complete irrespective of administered either with

or without food". ...”

9.The crime that the respondent accused herein has been charged with

is heinous; its execution was vicious and cruel, by any stretch of

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imagination. The entire crime was calculated and ruthless. This case

captured the attention and indignation of the society across the country,

more particularly, in the State of Jammu and Kashmir, as a cruel crime that

raised alarm regarding safety within the community.

10.Our adjudication in the present litigation is restricted to the question

whether the respondent was a juvenile on the date of commission of the

offence? It all started with the order dated 21.02.2018 passed by the High

Court of Jammu & Kashmir in the OWP No. 259 of 2018 with M.P. No. 1 of

2018. The order reads thus:

“In compliance of the order dated 09.02.2018, Mr. W S Nargal,

learned Senior Additional Advocate General has produced the

copy of the status report. After hearing learned counsel for the

parties and from perusal of the status report, I deem it

appropriate to issue the following directions to the SIT:

1. That the SIT shall take steps for ascertaining the age of

Shubam Sangra within a period of 10 days from today by

Medical Board which shall be constituted by Principal,

Government Medical College, Jammu;

2. That the SIT shall also ascertain the whereabouts of Mannu

whose name is mentioned in paragraph 6 of the status report

and shall take steps for apprehending the aforesaid Mannu;

3. That the SIT shall also obtain the copy of the post mortem

report along with detailed questionnaire which has been

supplied by it to the doctors of the Boards conducting the post

mortem.

Let a fresh status report with regard to the aforesaid points be

filed within a period of two weeks from today.

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Taking into account the fact that the part of the status report

dated 19.02.2018 has been published in daily newspaper,

namely, Greater Kashmir, in extensor and taking into account

the sensitivity of the matter as well as to ensure free and fair

trial, I deem it appropriate to direct that the proceeding of the

instant writ petition shall not be published in any newspaper.

List on 09.03.2018 at the bottom of the list.

11.In due compliance with the directions issued by the High Court in its

order referred to above, the Special Investigation Team vide its letter dated

26.02.2018 requested the Principal, Government Medical College, Jammu

to constitute a medical board for the determination of age of the respondent

herein.

12.The Principal and Dean of the Government Medical College, Jammu

constituted a Special Medical Board comprising the following doctors:

S.

No.

Name Designation

1 Dr. Mritunjay Professor., Department of Physiology

2 Dr. Ashwani Assistant Professor, Department

of Anatomy

3 Dr. Satvinder

Singh

Lecturer, Department of Oral

Diagnostic Department, IGGDC,

Jammu

4 Dr. Shivani

Mehta

Lecturer, Department of Forensic

Medicine

5 Dr. Jeevitesh

Khuda

Registrar, Department of Radio-

Diagnosis

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13.The Special Medical Board constituted, as above, undertook the

medical examination of the respondent herein and gave its report dated

03.3.2018 which reads thus:

AGE ESTIMATION REPORT

Name SHUBHAM SANGRA @ SHUBOO Sex: MALE

S/o. Sh. Om Parkash Sangra

Address Hiranagar, Ward No. 10, NP Rasana

Age as alleged by person/miscellaneous data 15 years

Brought by/Authority Dy SP Shwetamber Sharma

Standing Medical Board, No. GMC/2018/SMBd KPS -

125747

Court Case 12176 Dated 26/02/2016 Crime Branch

Jammu.

Purpose of examination Assessment of age of Subham

Sangra Sd/-

(Signature/Thumb Impression of Individual)

Marks of Identification: 1. Black mole above left angle of

mouth

2. Scar mark on right eyebrow

1. PHYSICAL EXAMINATION

(i) Height 5'3" (ii) Weight 48 Kg

(ii) Built Average (ii) Voice Masculine

(v) Secondary Sex Characters Well developed

II. DENTAL EXAMINATION

(U. Right)

8765432

1

(U. Left)

1234567

8

9

8765432

1

(L. Right)

1234567

8 (L.

Right)

Referred to Deptt of Oral Diagnosis IGGDC Jammu for

dental age estimation by Dr Satvinder Singh.

03/03/2018 -On Clinical examination, all permanent teeth

erupted except 18, 28, 38 & 48 on OPG (radiographic)

examination; 18 & 28 show V2 root formation

approximately 38 & 48 show near complete root formation

with open (illegible). On the cavity this findings, the dental

of patient is of 19+ years.

III. RADIOLOGICAL EXAMINATION: Referred to

Department of Radio diagnose for X-rays for age

estimation. Advised (1) X-ray (Rt.) Humerus (Shoulder Jt)

AP (2) X-ray Hip (Pelvis) - AP (3) X-ray (RF) Knee Jt-AP (4)

X-ray (Rt) Elbow Joint AP Lat (5) X-ray (Rt) Hand & wrist-

AP.

OPINION - reserved till the receipt of reports from IGGDC

Jammu and the Deptt of Radio diagnosis.

Sd/- Sd/-

Dr. Mrityunjay Shivani Mehta

(Deptt of Physiology) (Deptt of Forensic Medicine)

Sd/- Sd/- Sd/-

Dr. Jeevitesh Khuda Dr. Ashwani Dr. Satvinder

(Deptt of Radio (Deptt of Anatomy) (IGDDC Jammu)

Diagnosis)

3/03/2018 FINAL OPINION – Received R/8" x 10" x four (4)

films reported by Dr. Jeevitesh Khoda with the opinion-

keeping in view the above findings the age of the patient in

my opinion is between Nineteen to Twenty Three (19-23)

years of age.

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FINAL OPINION - On the basis of Physical Dental &

Radiological Examination the approximate age of above

individual is above nineteen years (19 +)

Sd/- Sd/- Sd/-

Dr. Mrityunjay Dr. Ashwani Dr. Satvinder

(Deptt of Physiology) (Deptt of Anatomy) (Deptt of Oral

Diagnosis)

Sd/- Sd/-

Dr. Shivani Mehta Dr. Jeevitesh Khuda

(Deptt of Forensic Medicine) (Deptt of Radio Diagnosis)”

14.The High Court thereafter passed an order dated 14.03.2018 in the

OWP No. 259 of 2018 with M.P. No. 1 of 2018 which reads thus:

“When the matter was taken up today, learned Senior

Additional Advocate General submitted that despite request

being made to the Medical Superintendent, District Hospital

Kathua, till today, the post-mortem report has not been

handed over to the Investigating Officer. In view of the

aforesaid submission, the Medical Superintendent, District

Hospital, Kathua is directed to hand over the copy of the

post-mortem report as well as reply to the questionnaire to

the officer heading the Special Investigating Team within a

period of three days from the date of receipt of certified copy

of the order passed today.

With regard to the averments in para 7 of the status report

which has been filed on behalf of respondents 1 to 3, it is

submitted that the Special Investigating Team shall obtain

the warrant of arrest in respect of absconding accused,

namely, Sanjhi Ram and shall take all effective steps to

arrest him and shall interrogate him as well as other persons

who are related to the offences in question whose names

have been mentioned in para 7 of the status report. Let the

aforesaid exercise be carried out with three weeks from

today.

Mr. Nargal, learned Sr. AAG further submitted that since the

matter is pending before this Court, the Chief Judicial

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Magistrate, Kathua is not ascertaining the age of the

accused, namely, Shubam Sangra. In view of the aforesaid

submissions and taking into account the provisions

contained under Section 8 of the J and K Juvenile Justice

(Care and Protection of Children) Act, 2013 as well as Rule

74 of the Rules framed under the Act, the Chief Judicial

Magistrate, Kathua is directed to ascertain the age of the

accused, namely, Shubam Sangra within a period of ten

days from the date of receipt of certified copy of the order

passed today, without being influenced by the report

submitted to the District Medical Board.

List on 09.04.2018.

Let a copy of this Order be supplied to learned counsel for

the parties under the seal and signatures of the bench

secretary of this Court.”

15.The Tehsildar of Hira Nagar vide his communication dated

14.03.2018 informed the Superintendent of Police, In-charge SIT Crime

Branch that the original record in respect of date of birth of the respondent

herein was not traceable. The letter of the Tehsildar dated 14.03.2018

reads thus:

"Government of Jammu & Kashmir Revenue Department

“OFFICE OF THE TEHSILDAR, EXECLJTIVE

MAGISTRATE

1st CLASS, HIRANAGAR (Kathua)

The Dy. Superintendent of Police

SIT Member Crime Branch, J&K,

Jammu.

No. JC/232 Dated: 14.03.2018

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Sub:- Investigation of Case Fir No. 10/2018 u/s

363/302/343/376/201/120- B RPC of P/S

Hiranagar.

Ref:- CB/FIR/10-2018/127 dated 13.03.2018

R/Sir,

In reference to your office letter No.CB/FIR/10-2018/127

dated 13.03.2018 regarding the subject cited above.

In this context if is hereby submitted that original, record

pertaining to the order No. 22/JC dated 15.04.2004 issued

from this office in respect of date of birth of Shubam Sangra

S/o Om Parkash R/o Hiranagar is not traceable in this office.

Moreover, the old miscellaneous record has been

dilapidated for which undersigned is not in position to submit

the original record of the same.

Yours faithfully,

Sd/-

Gourav Sharma,

Tehsildar, Hiranagar”

16.The Block Medical Officer, Health & Family Welfare, Hira Nagar by

his communication dated 15.03.2018 informed the Superintendent of

Police, In-Charge SIT Crime Branch, Jammu & Kashmir that the verification

of the records available in the institution reveals that no delivery in the

name of Smt. Tripta Devi W/o Om Prakash, mother of the respondent

herein, had taken place on 23.10.2002. The date of 23.02.2002 assumes

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significance as it is the case of the respondent that he was born on

23.10.2002.

17.On 20.03.2018, the respondent herein preferred an application in the

Court of the CJM, Kathua under Section 8 of the Jammu and Kashmir

Juvenile Justice (Care and Protection of Children) Act, 2013 (for short, ‘the

Act, 2013’) for determination of his claim as a juvenile.

18.The appellant State filed detailed objections to the aforesaid

application filed by the respondent herein under Section 8. The objections

read thus:

“a.On 12.01.2018 one Mohd. Yousuf S/o Sahib Din caste

Bakarwal R/o Rasana Mohara Plakh Phawara Tehsil

Hiranagar produced an application in Urdu before the P/S

Hiranagar stating therein that his daughter Miss Asifa Age 8

years had gone for grazing horses in the nearby forest on

10.01.2018. She was seen with the horses at about 14:00

hrs. At about 16:00 hrs, the horses returned back in the dera

but Asifa did not return. On this Mohd. Yousuf along with

others started search in the forest but Asifa could not be

traced out. He has the suspicion that some miscreants have

kidnapped his daughter. Consequently, Case FIR No.

10/2018 u/s 363 RPC was registered in P/S Hiranagar and

section 302 and 343 RPC were added after recovery of the

dead body of the prosecutrix. The investigating officer of P/s

Hiranagar, on the basis of a secret information had

apprehended a Juvenile delinquent namely Shubam Sangra

@ Chuboo on 19.01.2018 and was produced before the Ld.

Chief Judicial Magistrate Kathua on 20.01.2018 for seeking

remand. The investigation of the case was subsequently

transferred to Crime Branch Jammu vide PHQ order No.

374/2018 dated 22.01.2018 for further investigation. The case

was formally handed over to Crime Branch on 27.01.2018.

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During the course of the investigation the offences u/s, 376,

201· and 120-B RPC came to be included.

b. The Ld. Chief Judicial Magistrate, Kathua has granted

remand for lodgment of Shubam Sangra @ Chuboo in

observation home R.S Pura, the details of which is as under:-

i. 20.01.2018 to 29.01.2018 = 10 days

11. 29.01.2018 to 03.02.2018 = 6 days

ill. 03.02.2018 tol2.03.2018= 10 days

iv. 12.02.2018 to 26.02.2018 = 15 days

v. 26.02.2018 to 12.03.2018 = 15 days

vi. 12.03.2018 to 22.03.2018 = 11 days

Total - 67 days, (62 days as per the calendar entries)

Apart from this, the Ld. Court of Chief Judicial Magistrate

Kathua vide order dated 30.01.2018, 05.02.2018, 19.02.2018

and 26.02.2018 has granted the custody of juvenile

delinquent Shubam Sangra for 3 days + 3 days + 3 days +

1day respectively. This way, the juvenile was granted a total

of 10 days police custody for the purpose of investigation.

The juvenile delinquent during the course of sustained

questioning also admitted to have committed the offences of

kidnapping, rape and murder of deceased Asifa. Even as in

the chain of events, on the basis of statement of witnesses

u/s 161 and 164-A Cr. PC and circumstantial evidence the

offences u/s 363, 343, 302, 376, 120-B/RPC have been prima

facie made out against Shubam Sangra@ chuboo.

c. Moreover, during investigation it also transpired that the

Date of Birth Certificate of the Juvenile obtained from

Municipal Committee Hiranagar and the one obtained from

Modem Public Higher Secondary School Hiranagar were at

variance. In the mean time. the Hon'ble High Court on

21.02.2018 in OHP No. 259 of 2018 titled Mohd. Akhter Vs.

State had interallia passed the following direction:-

"SIT shall take steps for ascertaining the age of Shubam

Sangra within a period of 10 days from today by a

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Medical Board to be which shall be constituted by

Principal GMC Jammu".

In compliance to the above direction of Hon'ble High Court

J&K Jammu, the Principal GMC Jammu was requested vide

this office letter No. CBJ/FIR/l0 2018/56 dated 26.02.2018 to

constitute a Medical Board for determination of age in respect

of juvenile delinquent Shubam Sangra @ Chuboo. In

response to which, the Principal GMC Jammu constituted

board of doctors comprising of (i). Dr. Mrityinjay, department

of physiology (ii). Dr. Shivani Mehta, department of Forensic

Medicine (iii). Dr. Jeevitesh Khtida, department of Radio

Diagnosis (iv). Dr. Ashawani, department of Anatamy and (v).

Dr. Satvinder Singh, department of Indira Gandhi Govt.

Dental College Jammu (IGGDC). The board of doctors so

constituted examined the juvenile delinquent Shubam Sangra

on 28.02.2018 and accordingly Principal GMC Jammu

submitted the opinion of the board vide letter No.

GMC/2017 /SMVC/court case/2209 dated 05.03.2018.

Final Opinion :-

On the basis of Physical, Dental and Radiological

examination the approximate age of above mentioned

individual is above Nineteen years (19+). (The copy of the

Medical report is appended as Annexure A for reference).

d. On the basis of questioning from Juvenile delinquent

Shubam Sangra, statement of witnesses u/s 161 and 164-A

CrPC and circumstantial evidence accused persons namely

(i). Deepak Khajuria @ Deepu S/o Updesh Khajuria (ii).

Surinder Kumar S/o Sain Dass R/o Dhamiyal Hiranagar and

(iii). Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Rasana

Hiranagar, (iv). VishalJangotra@ Shamma and (v). Sanji Ram

were arrested and put to sustained interrogation. The

investigation conducted so far reveals that the accused

De'epak Kumar Khajuria and the juvenile delinquent hatched

a criminal conspiracy with Sanji Ram S/o Des Raj R/o

Rasana for kidnapping, rape and murder of deceased Asifa,

d/o Mohd. Yousuf of village Rasana and in furtherance of this

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criminal conspiracy the accused persons namely Surinder

Kumar S/o Sain Dass R/o Dhamiyal Hiranagar, Parvesh

Kumar @ Mannu S/o Ashok Kumar R/o Rasana Hiranagar

and Vishal jangotra @ Shamma became a part of the

conspiracy as well as the execution plan.

e. Further, during investigation it has also transpired that

the officers and officials of P/s Hiranagar were a part of the

criminal conspiracy as the clothes of deceased Asifa were

washed up in the premises of Police Station Hiranagar on

17.01.2018 before being sent to FSL for forensic examination.

On the basis confessional statements of accused persons,

and statement of witnesses uls 161 Cr. PC as well as other

circumstances HC Tilak Raj of P/S Hiranagar and S.I Anand

Dutta, the erstwhile I/O of instant case of P/s Hiranagar have

been arrested for disappearance of evidence, done with the

intention of screening out the offender from legal punishment.

Both the police officials are on police remand and lodged in

P/s Crime Branch Jammu.

f. That as per the opinion of Board of Doctors Shubam

Sangra @ Chuboo is above nineteen years of age and thus

he is an adult. Further it is submitted that in the writ petition

titled Mohd. Akhter Vs. State OWP No. 259 of 2018, pending

adjudication before the Hon'ble High Court of J&K, Jammu a

detail status report reflecting the opinion of board of doctors

of GMC Jammu was filed before the Hon'ble court on

09.03.2018 in sealed cover for the perusal of the Hon'ble

High Court.

2. It is also relevant to submit before this Hon'ble Court that,

Tehsildar Hiranagar was requested vide office letter no.

CB/FIR/10-20181127 dated 13.03.2018 to provide the file

regarding issuance of order to executive officer Municipal

Committee Hiranagar for making the entry of date of birth in

respect of said Shubam Sangra in the record of Municipal

Committee. In response to the above communication,

Tehsildar Hiranagar vide letter no. JC/232 dated 14.03.2018

has intimated that the file in question is not traceable in his

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office. (The reply of Tehsildar is annexed for reference and

marked as Annexure -B).

3. Further it is also submitted that Executive officer of

Municipal Committee Hiranagar has made an entry in the

date of birth register of Municipal Committee in respect of

juvenile Shubam Sangra mentioning there in that the said

individual was born in Hiranagar Hospital. However, contrary

to this, in response to this office letter no. CB/FIR/10-

2018/135 dated 14.03.2018 the Block Medical Officer Health

and Family Welfare Hiranagar vide office letter No.

BMO/CHC/HGR/ Acctts/2214 dated 15.03.2018 has intimated

that on verification of records available in the institution it is

found that no delivery in the name of Smt. Tripata Devi w/o

Sh. Om Parkash R/o Hiranagar has taken place on

23.10.2002, which clearly indicates that the entry made by

Executing officer Municipal Committee Hiranagar is not based

on facts and even the order of the Tehsildar Hiranagar for

making the said entry has become doubtful. (Photocopy of

letter of BMO Hiranagar is annexed for reference and marked

as Annexure-C}.

4. That it is also relevant to place on record that the aforesaid

mentioned writ petition was listed before the Hon'ble court of

14.03.2018 wherein the Hon'ble court after going through the

status report filed in the sealed cover was please to issue the

3 directives, out of which the one pertaining to the issue in

hand was for the sake of reference is reproduced here in

under:-

"Taking into account the provisions contained under

Section 8 of the J&K ]uvenile]ustice (Care and

Protection of Children) Act; 2013 as well as Rule 74 of

the Rules framed under the Act; the Chief Judicial

Magistrate Kathua is directed to ascertain the age of the

accused, namely, Shubam Sangra with in a period of

ten days from the date of receipt of certified copy of the

order passed today, without being influenced by the

report submitted by the District Medical Board".

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The certified copy of court order has already been sent to the

Ld. Court through CPO, vide letter no. CB/FIR/10-2018/154

dated 16.03.2018. However, another photocopy of the of the

court order is again annexed for reference, marked as

Annexure-D.

5. That in view of the aforementioned reply of the Tehsildar

Hiranagar as well as the Block Medical officer Health and

Family Welfare Hiranagar and coupled with the report of the

Medical Board, it is submitted that the applicant Shubam

Sangra @ Chuboo may not be declared as juvenile and

rather in view of the role played by him in the gruesome and

dastardly act as well as his conduct and behavior,

forthcoming from the investigation conducted so far, he is

rather mature and not a juvenile. Further it is also placed on

record that the date of arrest of the Shubam Sangra as per

the CD file is 19.01.2018 and not 12.01.2018 as reflected in

the application.

In the light of the aforesaid submission it is humbly prayed

that the aforesaid application may kindly be rejected and the

applicant Shubam Sangra @ Chuboo S/o Om Parkash R/o

Ward No. 10 Hiranagar Np Village Rasana, Tehsil- Hiranagar

may kindly be declared as an adult or alternatively not a

juvenile, so that the investigation of instant case is finalized

on merits.

Superintendent of Police,

I/GSIT Crime Branch, J&K,

Jammu”

19.For the purpose of adjudicating the application filed by the

respondent herein under Section 8 of the Act, 2013 referred to above, the

CJM, Kathua recorded the deposition of the Executive Officer, Municipal

19

Committee, Hira Nagar and of the father of the respondent herein namely

Om Prakash.

20.Ultimately the CJM, Kathua passed the final order dated 27.03.2018

holding the respondent herein to be a juvenile. The relevant part of the

order passed by the CJM, Kathua reads thus:

“Having discussed legal position qua determination of

juvenility in terms of rule 74 supra and section 8 of Juvenile

Justice Act, let focus now be shifted to the facts of the case at

hand.

Executive Officer, Municipal Committee Hiranagar appeared

on 23-03-2018 along with record pertaining to date of birth of

petitioner. He was examined on the same day. According to

him date of birth of petitioner is recorded as 23-10-2002 in the

Birth and Death Register maintained by his office; that

parentage of petitioner is : son of Om Parkash and Smt.

Tripta. Further, according to this witness, date of birth entry of

petitioner has been recorded on 15-04-2004 in the records of

Municipal Committee; that said entry has been made by then

Executive Officer whose signatures and seal is at serial no. 80

of register concerned; that this entry was recorded pursuant to

order of Executive Magistrate 1st Class Hiranagar bearing no.

22/JC dated 15-04-2004; that father of petitioner had moved

an application before then Executive Magistrate (Tehsildar)

Hiranagar seeking direction for making entry of date of birth of

petitioner; that in-terms of order no. 22/JC dated 15-04-2004

entry of three children of Om Parkash (father of petitioner) was

directed to be made by Executive Magistrate 1st Class

Hiranagar; that date of birth of petitioner was entered in

compliance with this order of Executive Magistrate 1st Class

only; that signature father of petitioner exists at serial no. 80 of

register concerned; that date of birth certificate the photocopy

of which is on the file of this court has been issued from his

office in which date of birth of petitioner is recorded as 23-10-

20

2002 and this entry is correct and true according to original

record etc. etc.

In cross examination, witness deposed that incumbent

Executive Officer ensures signatures of any application on the

birth register in his presence; that with regard to place of birth

of new born, entry is made on the basis of information given

by an applicant and no verification is made in this regard

because entry is made on the basis of order of Magistrate;

that order no. 22/JC does not mention place of birth of

petitioner and that after year 2012 orders pertaining to entry in

date of birth are issued by courts and not by Executive

Magistrate etc. etc.

Another witness namely Om Parkash who is father of

petitioner was examined on 24-03-2018.

According to this witness, petitioner is his real son; that date of

birth of petitioner is 23-10-2002; that this date of birth of

petitioner is also entered in the record of Municipal Committee

Hiranagar and same was made on 15-04-2004; that prior to

this he moved an application for making entry of date of birth

of petitioner before Executive Magistrate 1st Class Hiranagar

and also led evidence and finally Tehsildar Hiranagar issued

order in the name of Municipal Committee Hiranagar pursuant

to which date of birth of petitioner was recorded as 23-10-

2002; that name of his wife is Tripta Devi. Petitioner was

admitted in Modern Public Higher Secondary School

Hiranagar in the first class; that there also he disclosed date of

birth of petitioner as 23-102-2002; that petitioner was admitted

in said school 10 years back; that however a wrong entry of

date of birth of petitioner has been made in school records;

that date of birth of petitioner shown in school is 23-10-2003;

that he came to know about this wrong entry of date of birth of

petitioner in school only when FIR was registered against him

(petitioner) pursuant to which he went to school to get date of

birth certificate of petitioner etc. etc.

On cross examination, witness deposed that he has three

children; that the youngest one is petitioner. Because of

21

ignorance he moved application for making entry of date of

birth of his children as late as in year 2004 even though his

eldest issue was born in the year 1996; that he cannot say the

age at which Shubam Sangra was admitted in the school and

that he is 4th class employee in the education department etc

etc.

Be it noted that evidence of Executive Officer, Municipal

Committee Hiranagar puts in perspective the process which

ultimately culminated in recording date of birth of petitioner in

the record of Municipal Committee Hiranagar way back in the

year 2004. As a matter of record, it stands established that

date of birth of petitioner was recorded in the birth register of

Municipal Committee Hiranagar vide registration no.80 on 15-

04-2004 right in line with the order no.22/JC dated 15-04-2004

passed by then Executive Magistrate 1st Class (Tehisildar)

Hiranagar. The fact that birth certificate issued by Municipal

committee supra on 17-03-2018 is in accord with and

conforms to original record, have been vividly demonstrated,

both, by records of Municipal Committee supra as also by the

testimony of its Executive Officer. Date of birth certificate

issued by Municipal Committee Hiranagar in favour of

petitioner on 17-03-2018 depicting his date of birth as 23-10-

2002, in the obtaining circumstances as outlined here-in-

above - therefore cannot be said to have been manufactured,

engineered or fabricated. Also, once it (Date of birth

certificates of petitioner) does not give a prima facie sense of

concoction or trickery, then to mull over an idea of over

scrutiny of same, if I say so, would indeed be a fallacy directed

at the very ambit and scope of section 8 of Juvenile Justice

(Care and protection of Children) Act and rule 74 framed

thereunder. Notably also, the narrative un-wound by father of

petitioner is in sync with account given by Executive Officer,

Municipal Committee Hiranagar and relevant official record.

There is another crucial aspect of the matter which cannot be

afforded to be over looked or side tracked. That is this: Date of

birth of petitioner was recorded in the birth register maintained

in the course of official business by Municipal Committee

Hiranagar way back on 15-04-2004. Committee did not record

22

this entry suomoto but in compliance with order issued in that

end by Executive Magistrate 1st Class Hiranagar. Occurrence

in which involvement of petitioner is alleged is of January

2018. To insinuate therefore that date of birth entry was so

caused to be made in favour of petitioner as if he knew that

after more than thirteen years later he would seek to derive

benefit in a criminal indictment would not only be an over-

statement but also an erroneous and in-substantial

assumption to say the least.

No sooner as birth certificate issued by Municipal Committee

concerned in favour of petitioner is found to be prima facie

legitimate than recourse to other modes of age determination

is not allowable. This essentially is the mandate of rule 74

framed under Juvenile Justice (Care and Protection of

Children) Act.

For all what is discussed hereinabove, and in deference to the

standard of proof required for the purpose of section 8 of the

Act supra and Rule 74 and in light of proof offered, it is held

that birth certificate issued by Municipal Committee Hiranagar

in favour of petitioner Shubam Sangra depicting his date of

birth as 23-10-2002 is legitimate, un-tainted and fair and

therefore credence needs to be given to it for the purpose of

Juvenile Justice Act supra. Reckoning date of birth of

petitioner as 23- 10-2002, it is held that age of petitioner as on

date of passing of this order is less than sixteen years. Age of

petitioner is accordingly ascertained in compliance with

directive of Hon'ble High Court dated 14-03-2018 in OWP no.

259/2018.”

21.The appellant State being dissatisfied and aggrieved with the

aforesaid order passed by the CJM, Kathua dated 27.03.2018 challenged

the same by filing the Criminal Revision Application before the High Court.

The High Court rejected the Revision Application affirming the order passed

by the CJM, Kathua holding the respondent herein to be a juvenile on date

23

of the commission of the offence. The impugned order of the High Court

reads thus:

“26. Admittedly, the date of birth of the respondent in the

Municipal record as well as school record is shown as

23.10.2002, meaning thereby on the date of registration of the

FIR, he was below the age of 18 years. Moreso, the petitioners

have not denied the authenticity of the aforesaid record. Once

there is clear proof of the respondent in the shape of birth

certificate of the Municipal Committee and certificate issued by

the school authority, the medical examination regarding the age

of the respondent automatically loses its significance.

27. Next question raised by Mr. Pant is with regard to the

maintainability of the Revision Petition. As held by the Apex

Court in Jabar Singh Vs. Dinesh and another 2010(3) SCC

757, the scope of Revision is very limited. The relevant

paragraph of the judgment is reproduced as under:

"29. A plain reading of Section 52 of the Act shows that no

statutory appeal is available against any finding of the court

that a person was not a juvenile at the time of commission

of the offence. Section 53 of the Act which is titled

"Revision", however, provides that the High Court may at

any time, either of its own motion or on an application

received on that behalf, call for the record of any

proceeding in which any competent authority or court of

session has passed an order for the purpose of satisfying

itself as to the legality or propriety of any such order, and

may pass such order in relation thereto as it thinks fit. While

exercising such revisional powers, the High Court cannot

convert itself to an appellate court and reverse the findings

of fact arrived at by the trial Court on the basis of evidence

or material on record, except where the High Court is not

satisfied as to the legality or propriety of the order passed

by the trial Court."

28. It is admitted by the petitioners that the scope of Revision is

the same as the scope of Revision under Code of Criminal

24

Procedure. Section 52 of Juvenile Justice Act, 2013 referred to

by the petitioners also refers to the facts that Court has to

satisfy itself as to the legality and propriety of any such order, as

such, the factual findings of fact cannot be upset by the Court

unless and until it is found to be perverse. In the present case

where, factual finding has been given by the Court below,

therefore, there is no illegality or impropriety in the order, as

such, there is no question of interference with the findings of the

Court below.

29. In the instant case, the trial Court has given finding of fact

relying upon the evidence and has acted in conformity with Rule

74 of the Rules of 2014 and that there is no perversion in the

findings of fact, as such, the trial Court has not committed any

illegality or impropriety which warrants interference in this

Revision Petition. Accordingly, this Revision Petition is

dismissed along with connected CrlM(s).

Record, if any, be sent down. Interim direction, if any, shall

stand vacated.

Jammu Tashi Rabstan)

11.10.2019 Judge”

22.In view the aforesaid the appellant State is here before this Court with

the present appeal.

Submissions on behalf of the Appellant State:

23.Mr. P.S. Patwalia, the learned senior counsel appearing for the

appellant State vehemently submitted that the orders passed by the CJM,

Kathua and the High Court could be termed as palpably erroneous and

thereby rendering the dispensation of justice to a mockery. The learned

25

senior counsel came down very heavily while criticizing both the orders

submitting that the two courts have conveniently ignored about the

statutory rules governing the determination of age of a juvenile. He

submitted that there is no cogent, clear and convincing documentary

evidence on record to suggest or indicate that the respondent was born on

23.10.2002. He invited the attention of this Court to an order passed by the

Executive Officer Municipal Committee, Hira Nagar dated 15.04.2004

specifying the date and place of birth of three children of Om Prakash

Sangra. This order dated 15.04.2004 came to be passed pursuant to an

application said to have been filed by the father of the respondent herein

namely Om Prakash under Section 19 (3) of the Registration of Births and

Deaths Act, 1956 r/w Rule 19(3) of the Rules. The order reads thus:

“Application U/S 19(3) of Registration of Birth and Deaths Act,

1956 (illegible) with Rule 19(3) of the J&K Registration of Births

and Deaths (illegible) of birth certificate of the (illegible) Son

Rahul Sangra Riya Sangra Shubam Sangra District Hiranagar,

Tehsil Hiranagar.

ORDER

The applicant has moved an application for the issuance of

date of birth certificate. The applicant Om Parkash Sangra has

stated that he/she was born on 23-11-97, 21-2-98, 23-10-02

Village Hiranagar Tehsil Hiranagar and submitted that the of

birth has not been recorded by the M.C. Hiranagar. The

applicant has filed an application in this Court supported by duly

sworn affidavit avering therein that due to ignorance of the

concerned his/her date of birth could not be recorded.

26

The applicant has examined (illegible) S/o Ram Krishan of

Tehsil Hiranagar besides himself as his own witnesses in

support of the averments made in the application. The applicant

has supported the contents of the application and Hiranagar,

Ward No. 7 Distt Kathua witnesses appearing for the applicant

have corborated the material averments of the applicant.

I have gone through the application, affidavit and the

statements of witnesses from the above it has been established

that the (illegible) of the applicant's son Rahul Sangra has

taken place at village Tehsil Hiranagar on 23-11-97, 21-2-98,

23-10-02 keeping in view the material placed before this Court,

it is ordered that entry of the above named applicant's. ____ be

made in the Register of __ as mentioned above in terms of

Rule 19(3) of the Registration of birth and __ Rules.

The child particulars are stated as under :-

S.No. Name Father Date & Place of birth

1. Rahul Sangra Om Parkash 23-11-97

2. Riya Sangra R/o Hiranagar 21-02-98

3. Shubam Sangra 23-10-02

No: 22/JC Sd/-

Date 15-4-04 ............ Hiranagar

Copy of this order shall be forwarded to the M.C. Hiranagar for

information and necessary action.

Sd/-

Executive Officer

Municipal Committee

Hiranagar”

27

24.The learned senior counsel submits that no reliance could have been

placed on the aforesaid order for the purpose of coming to the conclusion

that the date of birth of the respondent herein is 23.10.2002.

25.Our attention was drawn to the fact that the first child of Om Prakash

namely Rahul Sangra is shown to have been born on 23.11.1997 whereas

the second child i.e. the daughter namely Riya Sangra is shown to have

been born on 23.01.1998 i.e. just within three months from the date of birth

of the eldest child. The date of birth of the respondent herein is shown to

have been 23.10.2002.

26.As against the aforesaid, the learned senior counsel invited the

attention of this Court to a birth certificate said to have been issued by

Modern Public Higher Secondary School dated 06.09.2017. The same

reads thus:

“Modern Public Higher Secondary School

(10+2)

Ward. N .. 10-11 Hiranagar (Kathua) J&K

Recognised by J&K Govt. and Affiliated to J&K State Board of

School

Education

No. Dated 06/09/2017

28

DATE OF BIRTH CERTIFICATE

Certified that the Date of Birth of Shubam Sangra Son of

Sh Om Parkash / Tripta Devi is (In Figures) 23/10/2003 (In

Words) Twenty Third Oct. Two Thousand Three as per School

Records.

His Admission No. is 1435. He was reading in Class 10th.

Address

W/ No. 10, P.O Hiranagar, Teh Hiranagar,

Distt Kathua, Pin 184142

Sd/-

Principal

Modern Public Higher Sec. School

Hiranagar”

27.Thus, in the aforesaid certificate the date of birth is shown to be

23.10.2003. Our attention was thereafter drawn to an extract of the

admission withdrawal register of the primary department school, Modern

Public Higher Secondary School, which is at page 58 of the paper book

Annexure-P-3, wherein the name of the respondent is at S. No. 1757 and

the date of birth is shown to be 23.10.2003.

28.After highlighting the contradictions in the date of birth as above, the

learned senior counsel invited our attention to the Jammu & Kashmir

Juvenile Justice (Care and Protection of Children) Rules, 2014, (for short,

‘the Rules, 2014’) more particularly Rule 74. Rule 74 is with respect to the

29

determination of age. Although what is relevant for our purpose is sub-rule

(3) of Rule 74 of the Rules, 2014, yet we deem it appropriate to reproduce

the entire Rule 74, which reads thus:

“74. Determination of age.—(1) Whenever an alleged offender

who appears to be below the age of 21 years is produced

before a Court not being the Board, it shall on the very first date

of production question the alleged offender about his age,

satisfy itself that he is not a juvenile, make a note of its findings

and order immediate transfer of the matter to the Board where

necessary.

(2) When a juvenile or child or a juvenile in conflict with the law

is produced before the Board or the Committee as the case

may be, it shall determine and declare his age within a period of

thirty days from the date of such production.

(3) The Board or the Committee, as the case may be shall, as

far as possible, decide the juvenility or otherwise, on the basis

of physical appearance or documents available, if any. Where

an inquiry is instituted by the Board or the Committee for

determination of age, such inquiry shall be conducted on the

basis of following evidence: —

(i) the birth certificate issued by a Corporation or a

Municipal Committee or any other notified authority; or

(ii) the matriculation or equivalent certificate; or

(iii) in absence of the certificates mentioned in sub-clauses

(i) and (ii) or in case of any contradiction arising therefrom,

the authority deciding the age issue may refer the matter to

a duly constituted Medical Board, which shall record its

findings and submit to the Juvenile Justice Board.

(4) All Government Hospitals shall constitute Medical Boards for

medical age examination, consisting of a Physiologist, a Dental

Examiner and a Radiologist or Forensic Expert, of whom one

shall be notified as the Chairperson.

30

(5) All the Members of the Medical Board shall give their

individual findings on age, which shall then be forwarded to the

Chairperson of the Board to give the final opinion on the age

within a margin of one year.

(6) The duly constituted Medical Boards shall give their report

with the findings on age within 15 days of request being made

in this regard.”

29.The learned senior counsel submitted that sub-rule (3) of the Rule 74

makes it abundantly clear that in case of any contradiction between the

certificates mentioned in sub clause (i) and (ii) of the sub-rule (3), the

authority deciding age may refer the matter to a duly constituted medical

board which, in turn, shall record its findings and submit it to the Juvenile

Justice Board.

30.The learned senior counsel submits that there is an apparent

contradiction in the documentary evidence on record in the form of various

certificates and in such circumstances the matter had to be referred to a

duly constituted medical board and the age has now to be determined on

the basis of the report of the medical board which is on record.

31.The learned senior counsel submitted that the certificate issued by

the medical board makes it abundantly clear that the age of the respondent

herein at the time of commission of the offence could be between 19 and

23 years.

31

32.In the last, the learned senior counsel submitted that the case on

hand is one of a very heinous crime committed on a minor girl aged 08

years. He would submit that if the plea of juvenility or the fact that the

accused had not attained the age of discretion so as to understand the

consequences of his heinous act is not free from ambiguity or doubt, such

plea cannot be allowed to be raised merely on doubtful certificates

evidencing age and in such circumstances the medical evidence will have

to be given due weightage while determining the age of the accused. In the

aforesaid context, the learned senior counsel placed strong reliance on the

decision of this Court in Ramdeo Chauhan alias Raj Nath v. State of

Assam, (2001) 5 SCC 714.

33.In such circumstances referred to above, Mr. Patwalia, the learned

senior counsel prayed that there being merit in his appeal, the same be

allowed and the impugned order passed by the High Court be set aside

and it be held that the respondent was not a juvenile on the date of the

commission of the offence.

Submissions on behalf of the Respondent accused:

34.On the other hand, the learned counsel appearing for the respondent

vehemently opposed the present appeal submitting that no error, not to

speak of any error of law could be said to have been committed by the

32

courts below in determining the age of the respondent. According to him,

sub-rule (3) of Rule 74 has no application in the present case as there is no

contradiction in the certificates evidencing the age of the respondent

accused. He would submit that the respondent accused was born on

23.10.2002 is crystal clear and the same is evident from the admission

form of the respondent duly filled while seeking admission in the Modern

Public Higher Secondary School, Hira Nagar in the year 2008. He

submitted that howsoever the heinous crime may be but on the date of

commission of the alleged offence if the accused is a juvenile then he has

to be tried as a juvenile in accordance with law and not like any other

accused. He would submit that heinousness or brutality of the crime has

nothing to do with the object of the Juvenile Justice Act. He further argued

that no reliance could be placed on the opinion of the medical board

because ultimately it is an expert opinion and cannot be said to be

conclusive as regards the age. The learned counsel vehemently submitted

that the court may take notice of the relevant fact that there is no

certificate / document in the case on hand which indicates that the

respondent was not a minor or a major as on the date of the alleged

offence. He argued that in the event the school record (Admission Form)

indicating the date of birth is not be treated as falling in the category

33

mentioned in sub-rule (3) (ii) of Rule 74, then in view of the Order No.

22/JC/certificate issued by the Municipal Committee being available,

recourse to Rule 74(3)(ii) is not at all warranted.

35.The learned counsel in support of his aforesaid submissions placed

reliance on the following decisions of this Court:

(i)Ashwani Kumar Saxena v. State of Madhya Pradesh,

(2012) 9 SCC 750

(ii)Darga Ram alias Gunga v. State of Rajasthan,

(2015) 2 SCC 775

36.In such circumstances referred to above, the learned counsel

appearing for the respondent accused prayed that there being no merit in

the present appeal, the same may be dismissed.

Analysis

37.Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the only question that falls for

our consideration is whether the High Court committed any error in passing

the impugned order?

38.Sub-rule (3) of Rule 74 referred to by us in Para 28 above, makes it

abundantly clear that in the absence of the certificates mentioned in sub-

clause (i) to (iii) or in the event of any contradiction arising therefrom, the

34

authority deciding the issue of age may refer the matter to a duly

constituted medical board which, in turn, would record its findings and

submit to the Juvenile Justice Board. The materials on record as looked

into by us above reveal no manner of doubt that there are discrepancies in

the certificates on record disclosing the date of birth of the respondent. We

fail to understand as to why the Courts below were not able to take

cognizance of such discrepancies or contradictions. We are not at all

impressed with the submission canvassed on behalf of the respondent that

even if there are contradictions or discrepancies in the documentary

evidence of record there is not a single date emerging on record on the

basis of which it could be said that the respondent was major on the date of

the alleged offence. It is a very unreasonable argument. That is not the

correct way of looking at the core issue. The correct way of looking at the

core issue is to closely examine whether there is any cogent or convincing

evidence as regards the correct date of birth of the respondent accused

and after ascertaining the same, reach to an appropriate conclusion. If,

there is any doubt in this regard, there is no good reason why the matter

should not be referred to a duly constituted medical board which shall, in

turn, record its findings and submit to the Juvenile Justice Board. The word

35

“may” should be read as “shall” having regard to the very object of sub-rule

(3) of Rule 74.

39.It is a well settled principle of interpretation that the word ‘may’ when

used in a legislation by itself does not connote a directory meaning. If in a

particular case, in the interests of equity and justice it appears to the court

that the intent of the legislature is to convey a statutory duty, then the use

of the word ‘may’ will not prevent the court from giving it a mandatory

colour. This Court in Bachahan Devi v. Nagar Nigam, Gorakhpur

reported in (2008) 12 SCC 372, held as under:

“18. It is well settled that the use of the word “may” in a statutory

provision would not by itself show that the provision is directory in

nature. In some cases, the legislature may use the word “may” as

a matter of pure conventional courtesy and yet intend a mandatory

force. In order, therefore, to interpret the legal import of the word

“may”, the court has to consider various factors, namely, the object

and the scheme of the Act, the context and the background

against which the words have been used, the purpose and the

advantages sought to be achieved by the use of this word, and the

like. It is equally well settled that where the word “may” involves a

discretion coupled with an obligation or where it confers a positive

benefit to a general class of subjects in a utility Act, or where the

court advances a remedy and suppresses the mischief, or where

giving the words directory significance would defeat the very

object of the Act, the word “may” should be interpreted to convey a

mandatory force. As a general rule, the word “may” is permissive

and operative to confer discretion and especially so, where it is

used in juxtaposition to the word “shall”, which ordinarily is

imperative as it imposes a duty. Cases, however, are not wanting

where the words “may”, “shall” and “must” are used

36

interchangeably. In order to find out whether these words are

being used in a directory or in a mandatory sense, the intent of the

legislature should be looked into along with the pertinent

circumstances.”

40.Similarly, this Court in Dhampur Sugar Mills Ltd. v. State of U.P.

reported in (2007) 8 SCC 338, held:

“36. ….In our judgment, mere use of word “may” or “shall” is not

conclusive. The question whether a particular provision of a

statute is directory or mandatory cannot be resolved by laying

down any general rule of universal application. Such controversy

has to be decided by ascertaining the intention of the legislature

and not by looking at the language in which the provision is

clothed. And for finding out the legislative intent, the court must

examine the scheme of the Act, purpose and object underlying the

provision, consequences likely to ensue or inconvenience likely to

result if the provision is read one way or the other and many more

considerations relevant to the issue.”

41.We may also refer to Section 8 of the Act, 2013. Section 8 provides

for the procedure to be followed, when the claim of juvenility is raised

before any court. Section 8 reads thus:

“8. Procedure to be followed when claim of juvenility is

raised before any court.—(1) Whenever a claim of juvenility is

raised before any court or a court is of the opinion that an

accused person was a juvenile on the date of commission of

the offence, the court shall make an inquiry, take such evidence

as may be necessary (but not an affidavit) so as to determine

the age of such person, and shall record a finding whether the

person is a juvenile or not, stating his age as nearly as may be :

37

Provided that a claim of juvenility may be raised before any

court and it shall be recognised at any stage, even after final

disposal of the case, and such claim shall be determined in

terms of the provisions contained in the Act and the rules made

thereunder, even if the juvenile has ceased to be so on or

before the date of commencement of the Act.

(2) If the court finds a person to be a juvenile on the date of

commission of the offence under sub-section (1), it shall

forward the juvenile to the Board for passing appropriate order

and the sentence, if any, passed by a court shall be deemed to

have no effect.”

42.The plain reading of Section 8 referred to above indicates that

whenever a claim of juvenility is raised before any court or the court is of

the opinion that the accused person was a juvenile on the date of the

commission of the offence, then it is mandatory for the court to make an

inquiry and in the course of such inquiry, the court may take such evidence

as may be necessary, however, not an affidavit, so as to determine the age

of such person. At the end of the inquiry, if the court finds a person to be a

juvenile on the date of commission of the offence under sub-section (1) of

Section 8, then in such circumstance, the court is obliged in law to forward

the juvenile to the Juvenile Justice Board for passing appropriate order and

the sentence.

38

43.We may also look into Section 48 of the Act, 2013. Section 48 is in

regard to the presumption and determination of age. Section 48 reads thus:

“48. Presumption and determination of age.—(1) Where it

appears to a competent authority that person brought before it

under any of the provisions of the 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.

(2) No order of a competent authority shall be deemed to have

become invalid merely by any subsequent proof that the person

in respect of whom the order has been made is not a juvenile or

the child, and the age recorded by the competent authority to be

the age of person so brought before it, shall for the purpose of

the Act, be deemed to be the true age of that person.”

44.Section 48 referred to above talks about a competent authority,

whereas, Section 8 of the Act 2013 referred to above, is in respect to the

court. However, what is relevant to note is that in both the Sections i.e.,

Section 8 as well as Section 48 the word ‘shall’ has been used.

45.There is one another aspect of this matter. It is the High Court who

thought fit to pass the order dated 21.02.2018 referred to by us in para 9 as

above, directing the Special Investigation Team (SIT) to take steps for

ascertaining the age of the respondent herein. It is pursuant to such

39

directions issued by the High Court that a Special Medical Board

comprising of five medical experts on different subjects was constituted and

it is this medical board comprising of five medical experts whose report we

are looking into so far as the approximate age of the respondent is

concerned. When we have reached to the conclusion that there is no

cogent and convincing documentary evidence on record as regards the

date of birth or age of the respondent accused on the date of the alleged

crime then there is no good reason for us not to look into or ignore the

medical report prepared by the Special Medical Board which is on record.

In such circumstances, the argument canvassed on behalf of the

respondent in regard to the applicability of sub-rule (3)(iii) of Rule 74 pales

into insignificance. In other words, the argument that the Special Medical

Board should not have been constituted pales into insignificance because

the Special Board was constituted under the directions issued by the High

Court.

46.Let us see what this Court has to say in the case of Darga Ram @

Gunga (supra) upon which strong reliance has been placed on behalf of

the learned counsel appearing for the respondent accused. In Darga Ram

@ Gunga (supra), this Court held as under:

“16. The medical opinion given by the duly constituted Board

comprising Professors of Anatomy, Radiodiagnosis and

40

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

41

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.”

47.On the other hand, the learned senior counsel appearing for the

appellant State submitted that Darga Ram @ Gunga (supra) came to be

considered by this Court in the case of Mukarrab v. State of Uttar

Pradesh (2017) 2 SCC 210, and this Court in Mukarrab (supra) observed

as under:

“22. A reading of the above decision in Darga Ram case

(supra) shows that courts need to be aware of the fact that

age determination of the persons concerned 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 person concerned 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

case (supra) 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.”

48.Thus, in Mukarrab (supra), this Court made itself clear that Darga

Ram @ Gunga (supra) was rendered in the peculiar facts & circumstances

of that case & any attempt of generalizing the said approach could not be

justifiably entertained.

49.Before we proceed further, we may clarify that Darga Ram @ Gunga

(supra), was under the Juvenile Justice (Care and Protection of Children)

42

Act, 2000 (for short, ‘the Act, 2000’). We may give a fair idea in regard to

the scheme of procedure to be followed, when claim of juvenility is raised

under the Act, 2000.

50.Section 7A of the Act, 2000 reads as under:

“7A. Procedure to be followed when claim of juvenility is

raised before any Court-

(1) Whenever a claim of juvenility is raised before any court or a

court is of the opinion that an accused person was a juvenile on

the date of commission of the offence, the court shall make an

inquiry, take such evidence as may be necessary (but not an

affidavit) so as to determine the age of such person, and shall

record a finding whether the person is a juvenile or a child or

not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any

Court and it shall be recognised at any stage, even after final

disposal of the case, and such claim shall be determined in

terms of the provisions contained in this Act and the rules made

thereunder, even if the juvenile has ceased to be so on or

before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of

commission of the offence under sub-section (1), it shall

forward the juvenile to the Board for passing appropriate orders

and the sentence, if any, passed by a court shall be deemed to

have no effect.”

51.From a reading of Section 7A, what becomes very obvious is that

whenever a claim of juvenility is raised, an inquiry has to be made and such

inquiry would take place by receiving evidence which would be necessary

but not an affidavit so as to determine the age of such person.

43

52.The procedure to be followed for the determination of age is provided

under Rule 12(3)(b) of the 2007 Rules, which reads as:

“12. Procedure to be followed in determination of age.—(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.”

53.Sub-clause (3) of the aforesaid Rule clearly mandates that while

conducting an inquiry about the juvenility of an accused, the Juvenile

44

Justice Board would seek evidence by obtaining the matriculation or

equivalent certificates and in the absence whereof the date of birth

certificate from the school first attended and in absence whereof the birth

certificate given by a corporation or a Municipal authority or a Panchayat. It

is made clear by sub-clause (b) that only in the absence of the aforesaid

three documents, medical information would be sought from a duly

constituted Medical Board which will declare the age of the juvenile or child.

Thus, it is only in the absence of the aforesaid documents that the Juvenile

Justice Board can ask for medical information/ossification test.

54.Mukarrab (supra), referred to above was also under the Act, 2000.

55.We shall now look into the decision of this Court in the case of

Ashwani Kumar Saxena (supra) wherein this Court observed in para 34

as under:

“34. … There may be situations where the entry made in the

matriculation or equivalent certificates, date of birth certificate from

the school first attended and even the birth certificate given by a

corporation or a municipal authority or a panchayat may not be

correct. But court, Juvenile Justice Board or a committee

functioning under the JJ Act is not expected to conduct such a

roving enquiry and to go behind those certificates to examine the

correctness of those documents, kept during the normal course of

business. Only in cases where those documents or certificates are

found to be fabricated or manipulated, the court, the Juvenile

Justice Board or the committee need to go for medical report for

age determination.”

45

56.Ashwani Kumar Saxena (supra), referred to above, also deals with

the Act, 2000.

57.After observing the aforesaid this Court in Ashwani Kumar Saxena

(supra) proceeded to examine the essential differences between the words

“inquiry, investigation and trial” as we find in the Criminal Procedure Code

(for short “CrPC”). Thereafter the Court proceeded to hold that the

procedure to be followed under the Juvenile Justice Act in conducting the

inquiry is the procedure as laid down in that statute itself i.e. Rule 12 of

2007 Rules and held that the age determination inquiry contemplated under

the Juvenile Justice Act and the Rules had nothing to do with the inquiry

under other legislations like entry in service, retirement and promotion. The

Court observed that where the entry made in the school certificates is

available, the Court or the Juvenile Justice Board is not expected to

conduct a roving inquiry and go beyond those certificates to examine their

correctness when those documents have been kept during the normal

course of business. The Court held that the credibility and acceptability of

the documents, including the school leaving certificate, would depend on

the facts and circumstances of each case and no hard and fast rule as

such could be laid down in that regard. This Court also held that the

certificates should not be viewed as doubtful on a notion that the parents

46

usually get wrong date of birth entered in the admission registers. The

decision of Ashwani Kumar Saxena (supra) has been pressed hard in

service by the learned counsel appearing for the respondent to make good

his submission that the Court should not conduct a roving inquiry and go

beyond the documentary evidence on record.

58.This Court in Rishipal Singh Solanki v. State of U.P., (2022) 8 SCC

602, after due consideration of its following earlier decisions,:

(i)Parag Bhati v. State of U.P.,

(2016) 12 SCC 744,

(ii)Sanjeev Kumar Gupta v. State of Uttar Pradesh,

(2019) 12 SCC 370,

(iii)Abuzar Hossain @ Gulam Hossain v. State of West Bengal,

(2012) 10 SCC 489,

(iv)Ashwani Kumar Saxena v. State of Madhya Pradesh,

(2012) 9 SCC 750,

(v)Babloo Pasi v. State of Jharkhand,

(2008) 13 SCC 133,

(vi)Arnit Das v. State of Bihar,

(2000) 5 SCC 488,

(vii)Jitendra Ram alias Jitu v. State of Jharkhand,

47

(2006) 9 SCC 428.

pointed out the difference in the procedure under the two enactments, i.e.,

the Act, 2000 and the Juvenile Justice (Care and Protection of Children)

Act, 2015 (for short, ‘the Act, 2015’), as to the inquiry into determination of

age of the juvenile and also the power to seek evidence, how and when to

exercise that power and when to go for the ossification test. This Court

held that each case may be dealt with in the light of its own peculiar facts

and circumstances while keeping certain principles as the guiding factor in

mind as described in the concluding para of the judgment of this Court. We

shall reproduce the concluding para a little later.

59.In Rishipal Singh Solanki (supra), this Court pointed out the

similarity between the Rule 12 of the JJ Rules, 2007 and sub-section (2) of

Section 94 of the Act, 2015, as substantive provisions. This Court referred

to its decisions in Ashwani Kumar Saxena (supra) and Abuzar Hossain

@ Gulam Hossain (supra) highlighting the fact that only in the cases

where certificates are found to be fabricated and manipulated, the Juvenile

Justice Board need to go for medical report and also highlighted the fact

that the yardstick for relying on the school certificates may be a bit different

48

where the school leaving certificate or voter list etc. is obtained after

conviction.

60.Thus, this Court kept in mind the facts and circumstances attached to

the production of documents/certificates, as required by the provisions of

the Juvenile Justice Act before those documents could be relied upon. In

other words, even if the documents are found to be prima facie correct,

there may be facts and circumstances to alert the Court to go into the

inquiry to satisfy itself as to correctness of the claim. In the same breath,

this Court referred to an opinion given in the judgment of Abuzar Hossain

@ Gulam Hossain (supra) that when any claimant or any of the parents or

siblings in support of the claim of the juvenility raised for the first time in

appeal or revision depends on mere affidavits, it shall not be sufficient to

justify the inquiry for determination of age unless there exist circumstances

which cannot be ignored.

61.In Sanjeev Kumar Gupta (supra), the credibility and authenticity of

the matriculation certificate for the purpose of determination of age under

Section 7(A) of the Act, 2000 came up for consideration. In the said case,

the Juvenile Justice Board had rejected the claim of the juvenility and that

decision of the Juvenile Justice Board was restored by this Court by

rejecting the order of the High Court. It was observed therein that the

49

records maintained by the C.B.S.E. were purely on the basis of final list of

the students forwarded by the Senior Secondary School where the juvenile

had studied from Class 5 to 10 and not on the basis of any other underlying

documents. On the other hand, there was clear and unimpeachable

evidence of date of birth which had been recorded in the records of another

school, which the second respondent therein had attended till class 4 and

which was supported by voluntary disclosure made by the accused while

obtaining both, the Aadhaar Card and driving license. It was observed that

the date of birth reflected in the matriculation certification could not be

accepted as authentic or credible. In the said case, it was held that the

date of birth of the second respondent there was 17.12.1995 and that he

was not entitled to claim juvenility as the date of the alleged incident was

18.08.2015.

62.This Court in Sanjeev Kumar Gupta (supra) considered the

judgments in Ashwani Kumar Saxena (supra) and Abuzar Hossain @

Gulam Hossain (supra), and observed that the credibility and acceptability

of the documents including the school leaving certificate would depend on

the facts and circumstances of each case and no hard and fast rule as

such could be laid down in that regard. This Court reproduced the

50

observation of itself in Abuzar Hossain @ Gulam Hossain (supra) which

is below:

“48. … directing an enquiry is not the same thing as declaring the

accused to be a juvenile. The standard of proof required is

different for both. In the former, the court simply records a prima

facie conclusion. In the latter, the court makes a declaration on

evidence, that it scrutinises and accepts only if it is worthy of

such acceptance. …”

63.Abuzar Hossain (supra) is also under the Act, 2000.

64.In Rishipal Singh Solanki (supra), after due consideration of all its

earlier decisions, this Court held as below:

“33. What emerges on a cumulative consideration of the

aforesaid catena of judgments is as follows:

33.1. A claim of juvenility may be raised at any stage of a

criminal proceeding, even after a final disposal of the case. A

delay in raising the claim of juvenility cannot be a ground for

rejection of such claim. It can also be raised for the first time

before this Court.

33.2. An application claiming juvenility could be made either

before the Court or the JJ Board.

33.2.1. When the issue of juvenility arises before a Court, it

would be under sub-section (2) and (3) of section 9 of the JJ Act,

2015 but when a person is brought before a Committee or JJ

Board, section 94 of the JJ Act, 2015 applies.

33.2.2. If an application is filed before the Court claiming

juvenility, the provision of sub-section (2) of section 94 of the JJ

Act, 2015 would have to be applied or read along with sub-

section (2) of section 9 so as to seek evidence for the purpose of

51

recording a finding stating the age of the person as nearly as

may be.

33.2.3. When an application claiming juvenility is made under

section 94 of the JJ Act, 2015 before the JJ Board when the

matter regarding the alleged commission of offence is pending

before a Court, then the procedure contemplated under section

94 of the JJ Act, 2015 would apply. Under the said provision if

the JJ Board has reasonable grounds for doubt regarding

whether the person brought before it is a child or not, the Board

shall undertake the process of age determination by seeking

evidence and the age recorded by the JJ Board to be the age of

the person so brought before it shall, for the purpose of the JJ

Act, 2015, be deemed to be true age of that person. Hence the

degree of proof required in such a proceeding before the JJ

Board, when an application is filed seeking a claim of juvenility

when the trial is before the concerned criminal court, is higher

than when an inquiry is made by a court before which the case

regarding the commission of the offence is pending (vide section

9 of the JJ Act, 2015).

33.3. That when a claim for juvenility is raised, the burden is on

the person raising the claim to satisfy the Court to discharge the

initial burden. However, the documents mentioned in Rule 12(3)

(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act,

2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be

sufficient for prima facie satisfaction of the Court. On the basis of

the aforesaid documents a presumption of juvenility may be

raised.

33.4. The said presumption is however not conclusive proof of

the age of juvenility and the same may be rebutted by contra

evidence let in by the opposite side.

33.5. That the procedure of an inquiry by a Court is not the same

thing as declaring the age of the person as a juvenile sought

before the JJ Board when the case is pending for trial before the

concerned criminal court. In case of an inquiry, the Court records

a prima facie conclusion but when there is a determination of

age as per sub-section (2) of section 94 of 2015 Act, a

52

declaration is made on the basis of evidence. Also the age

recorded by the JJ Board shall be deemed to be the true age of

the person brought before it. Thus, the standard of proof in an

inquiry is different from that required in a proceeding where the

determination and declaration of the age of a person has to be

made on the basis of evidence scrutinised and accepted only if

worthy of such acceptance.

33.6. That it is neither feasible nor desirable to lay down an

abstract formula to determine the age of a person. It has to be

on the basis of the material on record and on appreciation of

evidence adduced by the parties in each case.

33.7. This Court has observed that a hyper- technical approach

should not be adopted when evidence is adduced on behalf of

the accused in support of the plea that he was a juvenile.

33.8. If two views are possible on the same evidence, the court

should lean in favour of holding the accused to be a juvenile in

borderline cases. This is in order to ensure that the benefit of the

JJ Act, 2015 is made applicable to the juvenile in conflict with

law. At the same time, the Court should ensure that the JJ Act,

2015 is not misused by persons to escape punishment after

having committed serious offences.

33.9. That when the determination of age is on the basis of

evidence such as school records, it is necessary that the same

would have to be considered as per Section 35 of the Indian

Evidence Act, inasmuch as any public or official document

maintained in the discharge of official duty would have greater

credibility than private documents.

33.10. Any document which is in consonance with public

documents, such as matriculation certificate, could be accepted

by the Court or the JJ Board provided such public document is

credible and authentic as per the provisions of the Indian

Evidence Act viz., section 35 and other provisions.

33.11. Ossification Test cannot be the sole criterion for age

determination and a mechanical view regarding the age of a

person cannot be adopted solely on the basis of medical opinion

53

by radiological examination. Such evidence is not conclusive

evidence but only a very useful guiding factor to be considered in

the absence of documents mentioned in Section 94(2) of the JJ

Act, 2015.”

65.Rishipal Singh Solanki (supra) is under the Act, 2015.

66.With a view to compare Section 48 of the Act, 2013 with Section 94 of

the Act, 2015, we may also reproduce hereinbelow Section 94 of the Act,

2015:

“94. Presumption and determination of age.—(1) Where, it is

obvious to the Committee or the Board, based on the appearance

of the person brought before it under any of the provisions of this

Act (other than for the purpose of giving evidence) that the said

person is a child, the Committee or the Board shall record such

observation stating the age of the child as nearly as may be and

proceed with the inquiry under section 14 or section 36, as the

case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable

grounds for doubt regarding whether the person brought before it

is a child or not, the Committee or the Board, as the case may be,

shall undertake the process of age determination, by seeking

evidence by obtaining —

(i) the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a

municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall

be determined by an ossification test or any other latest

medical age determination test conducted on the orders of

the Committee or the Board:

54

Provided such age determination test conducted on the order

of the Committee or the Board shall be completed within fifteen

days from the date of such order.

(3) The age recorded by the Committee or the Board to be

the age of person so brought before it shall, for the purpose of this

Act, be deemed to be the true age of that person.”

67.This Court after referring to the fact that there was no other document

contradicting the date of birth as shown in the matriculation certificate, held

that the medical evidence was not required and thereby upheld the order of

the High Court affirming the judgment of the Sessions Court as well as the

Juvenile Justice Board. Thus, the decisions relied upon by the learned

counsel appearing for the respondent accused should be looked into and

appreciated as aforesaid. The decisions do not help the respondent

accused in any manner. On the contrary, the ratio discernable from all the

decisions discussed above, is that the credibility and acceptability of the

documents including the school leaving certificate etc. would depend on the

facts and circumstances of each case and no hard and fast rule as such

could be laid in that regard.

68. In Parag Bhati (supra), after referring to Abuzar Hossain case

(supra) and other decisions, this Court held as under:

“34. 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

55

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.

35. 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)

The dictum of the aforesaid is that the purpose of the Act, 2000 is not

to give shelter to the accused of grave and heinous offences.

69.This Court in several of its decisions including Ramdeo Chauhan

alias Raj Nath (supra) dealing with a similar situation which fortifies what

we have stated, observed as follows:

56

“…….. it is clear that the petitioner neither was a child nor near

about the age of being a child within the meaning of the

Juvenile Justice Act or the Children Act. He is proved to be a

major at the time of the commission of the offence. No doubt,

much less a reasonable doubt is created in the mind of the

Court, for the accused entitling him to the benefit of a lesser

punishment. It is true that the accused tried to create a

smokescreen with respect to his age but such efforts appear to

have been made only to hide his real age and not to create any

doubt in our mind. The judicial system cannot be allowed to be

taken to ransom by having resort to imaginative and concocted

grounds by taking advantage of loose sentences appearing in

the evidence of some of the witnesses, particularly at the stage

of special leave petition. The law insists on finality of judgments

and is more concerned with the strengthening of the judicial

system. The courts are enjoined upon to perform their duties

with the object of strengthening the confidence of the common

man in the institution entrusted with the administration of

justice. Any effort which weakens the system and shakes the

faith of the common man in the justice dispensation system has

to be discouraged.”

(Emphasis supplied)

70.The above-noted observations in Ramdeo Chauhan alias Raj Nath

(supra) no doubt were recorded by the learned Judges of this Court while

considering the imposition of death sentence on the accused who claimed

to be a juvenile, nevertheless the views expressed therein clearly lend

weight for resolving an issue where the court is not in a position to clearly

draw an inference wherein an attempt is made by the accused or his

guardian claiming benefit available to a juvenile which may be an effort to

57

extract sympathy and impress upon the court for a lenient treatment

towards the so-called juvenile accused who, in fact was a major on the date

of incident. (See Om Prakash v. State of Rajasthan (2012) 5 SCC 201).

71.In Om Prakash (supra), this Court in paras 33, 34, 35, 36, 37 and 38

resply observed as under:

“33. Similarly, if the conduct of an accused or the method and

manner of commission of the offence indicates an evil and a

well-planned design of the accused committing the offence

which indicates more towards the matured skill of an accused

than that of an innocent child, then in the absence of reliable

documentary evidence in support of the age of the accused,

medical evidence indicating that the accused was a major

cannot be allowed to be ignored taking shelter of the principle

of benevolent legislation like the Juvenile Justice Act,

subverting the course of justice as statutory protection of the

Juvenile Justice Act is meant for minors who are innocent

law-breakers and not the accused of matured mind who use

the plea of minority as a ploy or shield to protect himself from

the sentence of the offence committed by him.

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, such

opinion based on scientific medical tests like ossification and

58

radiological examination will have to be treated as strong

evidence having corroborative value while determining the

age of the alleged juvenile accused.

36. In Ramdeo Chauhan alias Raj Nath v. State of

Assam [(2001) 5 SCC 714 : 2001 SCC (Cri) 915] , the

learned Judges have added an insight for determination of

this issue when they recorded as follows: (SCC p. 720 d-e)

“Of course the doctor's estimate of age is not a sturdy

substitute for proof as it is only his opinion. But such

opinion of an expert cannot be sidelined in the realm

where the court gropes in the dark to find out what

would possibly have been the age of a citizen for the

purpose of affording him a constitutional protection. In

the absence of all other acceptable materials, if such

opinion points to a reasonable possibility regarding the

range of his age it has certainly to be considered.”

(emphasis supplied)

The situation, however, would be different if the academic

records are alleged to have been withheld deliberately to hide

the age of the alleged juvenile and the authenticity of the

medical evidence is under challenge at the instance of the

prosecution. In that event, whether the medical evidence

should be relied upon or not will obviously depend on the

value of the evidence led by the contesting parties.

37. In view of the aforesaid discussion and analysis based on

the prevailing facts and circumstances of the case, we are of

the view that Respondent 2 Vijay Kumar and his father have

failed to prove that Respondent 2 was a minor at the time of

commission of offence and hence could not have been

granted the benefit of the Juvenile Justice Act which

undoubtedly is a benevolent legislation but cannot be allowed

to be availed of by an accused who has taken the plea of

juvenility merely as an effort to hide his real age so as to

create a doubt in the mind of the courts below who thought it

appropriate to grant him the benefit of a juvenile merely by

adopting the principle of benevolent legislation but missing its

vital implication that although the Juvenile Justice Act by itself

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is a piece of benevolent legislation, the protection under the

same cannot be made available to an accused who in fact is

not a juvenile but seeks shelter merely by using it as a

protective umbrella or statutory shield. We are under

constraint to observe that this will have to be discouraged if

the evidence and other materials on record fail to prove that

the accused was a juvenile at the time of commission of the

offence.

38. The Juvenile Justice Act which is certainly meant to treat

a child accused with care and sensitivity offering him a

chance to reform and settle into the mainstream of society,

the same cannot be allowed to be used as a ploy to dupe the

course of justice while conducting the trial and treatment of

heinous offences. This would clearly be treated as an effort to

weaken the justice dispensation system and hence cannot be

encouraged.”

72.Thus, 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 on the date of the

incident and the documentary evidence at least prima facie establishes the

same, he would be entitled to the special protection under the Juvenile

Justice Act. However, when an accused commits a heinous and grave

crime like the one on hand and thereafter attempts to take the 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 a common man in the institution

entrusted with the administration of justice. As observed by this Court in

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Parag Bhati (supra), the benefit of the principle of benevolent legislation

attached to the Juvenile Justice Act would thus be extended to only such

cases wherein the accused is held to be a juvenile on the basis of at least

prima facie evidence inspiring confidence 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 is alleged

to have 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.

73.It appears from the material on record that the father of the

respondent at the time of preferring the application under Section 19(3) of

the Registration of Birth and Deaths Act, 1956 r/w 19(3) of the Rules

declared before the Executive Officer Municipal Committee, Hira Nagar that

the medical committee, Hira Nagar had failed to record the birth of his three

children including the respondent herein and in such circumstances he

sought an order from the authority concerned as regards the date and

place of birth under Section 19(3) of the Act, 1956. However, the letter

dated 15.03.2018 addressed by the Block Medical Officer of the Health and

Family Welfare, Hira Nagar to the Superintendent of Police, Jammu stating

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that no delivery in the name of Smt. Tripta Devi, W/o Om Prakash had

taken place on 23.10.2002 at the municipal hospital makes the picture

abundantly clear.

74.There is no good reason why we should overlook or ignore or doubt

the credibility of the final opinion given by a team of five qualified doctors,

one from the Department of Physiology, one from the Department of

Anatomy, one from the Department of Oral Diagnosis, one from the

Department of Forensic Medicine and one from the Department of Radio

Diagnosis, all saying in one word that on the basis of the physical, dental

and radiological examination, the approximate age of the respondent could

be fixed between 19 and 23 years.

75.We may only add that there are better techniques available and are

used for determination of age across the world. For example, the United

States Immigration Department uses ‘wisdom teeth’ technique for

determination of age. Under this technique, the doctors examine the third

molar which usually erupts between 17 to 25 years of age. The average

error, in this technique is also significantly lower than the ossification of

any other bone. Another technique is ‘epigenetic clock’ technique. The

Epigenetic clock is DNA clock which measures DNA methylation levels to

estimate the age of a tissue or an organ. The median error in this

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technique can be reduced to less than four weeks. What we are trying to

convey is that such techniques should be introduced in our country as

well. (Reference : Shamin T, Age Estimation: A Dental Approach, Journal

of Punjab Academy of Forensic Medicine & Toxicology, Vol. 6 Issue 1.

ISSN-0972-5687)

76.As observed by this Court in Ramdeo Chauhan alias Raj Nath

(supra), the medical expert’s estimate of age may not be a statutory

substitute for proof and is only an opinion but such opinion of an expert

should not be brushed aside or ignored when the Court itself is in doubt in

regard to the age of a citizen claiming constitutional protection. In the

absence of all other acceptable materials, if such opinion of the experts

points to a reasonable possibility regarding range of his age, the Court

must consider the same in the interest of justice. This is not a case

wherein the appellant State has been accused of deliberately withholding

the necessary records only with a view to hide or conceal the age of the

alleged juvenile and the authenticity of the medical evidence is challenged

at the instance of the prosecution. If such would have been the case then

whether the medical evidence should be relied upon or not would

obviously depend on the value of the evidence that may led by the

contesting parties.

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77.It is pertinent to note that nothing much has been said on behalf of

the respondent accused in regard to the credibility of the medical report

prepared by the Special Medical Board constituting of five medical experts.

At the cost of repetition, the only argument is that ignore the medical report

as there is proof of the date of birth to be found in the various documents

on record. We have made ourselves very clear that the documents

evidencing date of birth does not inspire any confidence and there is no

other option but to fall back on the report of the Special Medical Board in

the interest of justice.

78.In the overall view of the matter, we are convinced that the order

passed by the High Court affirming the CJM’s order is not sustainable in

law.

79.Before we close this matter, we would like to observe that the rising

rate of juvenile delinquency in India is a matter of concern and requires

immediate attention. There is a school of thought, existing in our country

that firmly believes that howsoever heinous the crime may be, be it single

rape, gangrape, drug peddling or murder but if the accused is a juvenile, he

should be dealt with keeping in mind only one thing i.e., the goal of

reformation. The school of thought, we are taking about believes that the

goal of reformation is ideal. The manner, in which brutal and heinous

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crimes have been committed over a period of time by the juveniles and still

continue to be committed, makes us wonder whether the Act, 2015 has

subserved its object. We have started gathering an impression that the

leniency with which the juveniles are dealt with in the name of goal of

reformation is making them more and more emboldened in indulging in

such heinous crimes. It is for the Government to consider whether its

enactment of 2015 has proved to be effective or something still needs to be

done in the matter before it is too late in the day.

80.In the result, this appeal succeeds and is hereby allowed. The

impugned order passed by the CJM, Kathua and the High Court is set

aside. It is held that the respondent accused was not a juvenile at the time

of commission of the offence and should be tried the way other co-accused

were tried in accordance with the law. Law to take its own course.

81.It is needless to clarify that the guilt or the innocence of the

respondent accused shall be determined strictly on the basis of the

evidence that may be led by the prosecution and the defence at the time of

the trial. All observations made in this judgment are meant only for the

purpose of deciding the issue of juvenility.

82. Pending application, if any, also stands disposed of.

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....…......………….………….J.

(AJAY RASTOGI)

...……...…………….………..J.

(J.B. PARDIWALA)

NEW DELHI;

NOVEMBER 16, 2022

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