Criminal Misc. No. M-6807 of 2009 v. State of Punjab

Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent – State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the impugned order dated 12.02.09, passed by the Additional Sessions Judge, Ferozepur, whereby the application of the petitioner, for sending his case, to the Juvenile Justice Board, Ferozepur, was declined, has been filed by him (petitioner).

2. FIR No. 82 dated 09.06.08, Police Station Mamdot, under Sections 376, 342, 325, and, 506 read with Section 34 IPC, was registered, against the petitioner and his co-petitioners, on the allegations that, on 03.06.08, they committed rape with the prosecutrix. Criminal Misc. No. M-6807 of 2009 2

3. An application, was moved, by the petitioner, to the effect, that, at the time of the alleged occurrence, he was juvenile in conflict with law, as he had not completed 18th year of age, and, as such, his case, be sent, to the Juvenile Justice Board for inquiry.

4. The trial Court, after hearing the Counsel for the parties, dismissed the application, holding that, the petitioner, had already completed 18th year of age, on the date of the alleged commission of crime.

5. Feeling aggrieved, the instant petition, has been filed, by the petitioner.

6. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

7. The Counsel for the petitioner, submitted that, as per the birth certificate, placed on record, issued by the Chowkidar, the petitioner, was born, on 05.01.91, whereas, the alleged occurrence, took place, on 03.06.08, and, certainly he had not completed 18th year of age, on that date. He further submitted that, even his ossification test, was conducted, by the Board of Doctors, as far back, as on 13.01.09, and, as per radiological parameters, his approximate age was given, as 20 years. He further submitted that, as per Modi Medical Jurisprudence, there was variation of two years, on either side, as per the age, determined in the ossification test. He further submitted that, the view, which leans, in favour of the petitioner, was required, to be taken, by the trial Court, regarding the determination of his age. He further submitted that, if two years Criminal Misc. No. M-6807 of 2009 3 variation, is taken into consideration, then, on 03.06.08, the petitioner, was certainly below 18 years of age. He further submitted that the order of the trial Court, dated 12.02.09, holding that, the petitioner, was not the juvenile in conflict with law, being illegal and perverse, is liable to be set aside.

8. On the other hand, the Counsel for the respondent, submitted that, the birth certificate, issued by the Chowkidar, which was produced, by the petitioner, showing that, he was born, on

05.01.91, was not found to be genuine, as no entry, with regard to the same, in the birth and death register of the Registrar, Birth and Death, was found. He further submitted that, the ossification test, could not be said to be conclusive, with regard to the determination of age. He further submitted that, the trial Court, was right, in holding, that the petitioner, was not juvenile in conflict with law, on the date of occurrence, and, as such, the order impugned, being legal and valid, is liable to be upheld.

9. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. The alleged occurrence, took place, on

03.06.08. According to Section 2(i) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be called as the 'Act' only), 'Juvenile in conflict with law' means a juvenile, who is alleged to have committed an offence, and, has not completed 18th year of age, as on the date of commission of such offence. Even Criminal Misc. No. M-6807 of 2009 4 if, it is assumed, that the certificate, issued, by the Chowkidar, regarding the date of birth of the petitioner, mention whereof, was not found, in the birth and death register, maintained by the Registrar, Birth and Death, was not correct, in the absence of any other evidence, the ossification test, regarding the determination of age of the petitioner, conducted by a Board of Doctors, was required to be taken into consideration. The ossification test, in this case, was conducted, on 13.01.09, according to which, the petitioner, was found to be 20 years of age. According to Modi Medical Jurisprudence, the variation of 2-3 years, on either side, is permissible, in the result of ossification test. It is also settled principle of law, that the view, which leans, in favour of the accused, is required, to be adopted. Keeping in view Modi Medical Jurisprudence, if permissible variation of 2-3 years, is given i.e. 2-3 years, are deducted, from 20 years, then on 13.01.09, the age of the petitioner, was either 18 or 17 years. It means that, on 03.06.08, the age of the petitioner, was certainly below 18 years. In Rajinder Chandra Vs. State of Chhattisgarh, 2002(1), RCR (Criminal), 586 (SC), the principle of law, laid down, was to the effect, that while dealing with the question of determination of the age of the accused, for the purpose of finding out, whether, he is a juvenile or not, a hyper-technical approach, should not be adopted, while appreciating the evidence, adduced on behalf of the accused, in support of the plea, that he was a juvenile, and, if two views, may be possible, on the said evidence, the Court, should lean, in favour of holding the Criminal Misc. No. M-6807 of 2009 5 accused, to be a juvenile. In Ram Deo Chauhan @ Raj Nath Vs. State of Assam, 2001(2), RCR (Criminal), 702 (SC), the principle of law, laid down, was to the effect, that an ossification test, may provide a surer basis, for determining the age of an individual, than the opinion of a medical expert, but, it can by no means be so infallible and accurate a test, as to indicate the exact date of birth of the person concerned. In Paramjit Singh Vs. State of Punjab, 2006 (3), RCR (Criminal), 202, as per ossification test, the age of the accused, was between 18-1/2 and 21 years, however, as per birth certificate, the age was below 18 years. In these circumstances, it was held, that the petitioner, was juvenile in conflict with law. In Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, 2008(2), RCR (Criminal), 193 (SC), it was held, that the age, determined by the doctors, in the ossification test, should be given flexibility of two years, on either side. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the instant case. The Court below, without taking into consideration, the facts and circumstances of the case, as also the evidence, on record, was wrong, in coming to the conclusion, that the petitioner, was not juvenile in conflict with law,at the time of the alleged commission of crime. The order of the Court below, being illegal and perverse, is liable to be set aside.

10. For the reasons recorded above, Criminal Misc. No. M- 6807 of 2009, is accepted. The order dated 12.02.09, is set aside. The petitioner, is held, to be juvenile in conflict with law. An inquiry/trial, shall be held, against him, in accordance with the Criminal Misc. No. M-6807 of 2009 6 provisions of the Act by the Juvenile Justice Board. The trial Court, shall comply with the order immediately.

11. The Registry, is directed, to send copies of the order, to the quarters concerned, immediately, for compliance.

06.05.2010 Amodh (SHAM SUNDER) JUDGE