As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2021
RAM VIJAY SINGH Vs STATE OF UTTAR PRADESH
Author: HEMANT GUPTA, J.
Leave granted.
1. The present appeal has been preferred against the order dated
22.4.2020 passed by the High Court of Judicature at Allahabad.
Vide the said order, the appeal filed by the appellant against his
conviction for an offence under Section 302 read with Section 34
of the Indian Penal Code, 18601 was dismissed.
2. Before this Court, the appellant filed an application for bail, inter
alia, on the ground that he was juvenile on the date of incident i.e.
1 For short, the ‘IPC’
20.7.1982. In support of plea of juvenility, the appellant relied
upon family register maintained by the Panchayat, Aadhaar Card
and an order passed by the High Court in the year 1982. In the
said order, the High Court had granted bail on the basis of the
report of the Radiologist that the age of the appellant at that time
was between 15½ - 17½ years. The appellant has further stated
that he had moved criminal miscellaneous application raising a
claim of him being a juvenile at the time of commission of offence
before the High Court but the said application was not decided and
the appeal has been dismissed on merits.
3. Keeping in view the said assertion raised by the appellant, this
Court passed the following order on 20.7.2020:
“Having heard Shri Pranav Sachdeva, learned counsel
for the petitioner, for some time, we are of the view
that the miscellaneous application that was filed in
2015 raising the claim of the petitioner’s juvenility at
the time of the office which has still not been decided,
be decided within a period of four weeks from today by
the High Court and if possible, judgment on the same
be delivered within two weeks thereafter.
Adjourned.
Liberty to mention.”
4. It is thereafter, the High Court had sought the report of the Medical
Board. Such Medical Board consisting of five doctors comprised
of (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M.
and Associated Hospitals, Lucknow, (2) Dr. Mausami Singh, Addi-
tional Professor, Forensic Medicine & Texicology, (3) Dr. Garima Sehgal,
Associate Professor, Department of Anatomy, (4) Prof. Pavitra
Rastogi, Department of Periodontology, King George’s Medical University
and (5) Dr. Sukriti Kumar, Assistant Professor, Department
of Radiodiagnosis, KGMU, UP, Lucknow. The Medical Board, in its
report submitted on 8.9.2020 to the High Court opined that the
age of the appellant is between 40-55 years. The State and the informant
objected to the report. Further, there was also a mention
of a single barrel gun granted to the appellant on 24.7.1982, a
couple of days after the occurrence of the incident. However, the
High Court on the basis of the medical report submitted its order
to this Court stating that the appellant was juvenile on the date of
commission of the offence. The conclusions drawn by the High
Court reads thus:
“43. We were impressed by aforesaid submission at the
first flush particularly in the light of observations made in
Mukarrab & Ors. v. State of Uttar Pradesh2 wherein the
Court rejected the age determination report prepared by All
India Institute of Medical Sciences (AIIMS) New Delhi, but
upon deeper scrutiny, we do not find any force in this
submission. The facts in Mukarrab's case were very
clinching which is not the case here. In the present case,
except for the fact that accused-appellant was issued a gun
license on 24.7.1982 which is after the date of occurrence
i.e. 20.7.1982, nothing else has been brought on record.
The same may create a suspicion. But suspicion howsoever
strong cannot take the place of proof. Perusal of the
objections filed by informant does not indicate the grounds
on which the member of the Medical Board is sought to be
examined and secondly, no such material has been
2 (2017) 2 SCC 210
appended along with the objections filed by informant on
the basis of which prima facie we could feel satisfied to
summon a member of Medical Board. We accordingly,
negate the submission urged by learned counsel for
informant to summon a member of Medical Board for crossexamination.
44. Having dealt with the conflicting claims of the parties,
the swinging circumstances of the case and the law as laid
down Mukarrab and Others (Supra), we find that the
medical report dated 18.9.2020 is worthy of acceptance,
wherein the age of accused-appellant-2 Ram Vijai Singh has
been determined as 40-55 years on date. The occurrence
took place on 20.7.1982 i.e. 38 years ago. When age of
accused-appellant-2 Ram Vijai Singh is determined on all
hypothetical calculations i.e. (55-38=17 years) (40-38= 2
years) and taking the average of difference between
maximum and minimum age i.e. 48-38 = 10 years, then the
age of accused-appellant-2 Ram Vijai Singh falls below 17
years.”
5. This Court on 13.1.2021 directed the learned Advocate appearing
for the State to produce all original documents with regard to the
Gun Licence in question. In pursuance of the said direction, the
State filed an application submitted on behalf of the appellant to
seek the Arms Licence. In Column 2 of the application, the appellant
has provided his date of birth as 30.12.1961. Such application
was filed on or around 21.12.1981 wherein a police report was
submitted on 28.3.1982 stating that no criminal case was registered
against the appellant. It is on that basis, the application for
Arms Licence was processed and the Area Magistrate approved
the grant of Licence. The Arms Licence was hence granted on
24.7.1982, that is after the date of incident.
6. With this factual background, the question of juvenility of the appellant
as on the date of incident, i.e., 20.7.1982 is required to be
examined.
7. There is no dispute that the plea of juvenility can be raised at any
stage even after finality of the proceedings before this Court. In
the present case, the appellant has raised the plea of juvenility before
the High Court vide Criminal Miscellaneous Application No.
382916 of 2015. This Court in a judgment reported as Abuzar
Hossain alias Gulam Hossain v. State of West Bengal3 held
as under:
“39.1. A claim of juvenility may be raised at any stage
even after the final disposal of the case. It may be
raised for the first time before this Court as well after
the final disposal of the case. The delay in raising the
claim of juvenility cannot be a ground for rejection of
such claim. The claim of juvenility can be raised in
appeal even if not pressed before the trial court and
can be raised for the first time before this Court though
not pressed before the trial court and in the appeal
court.”
8. Section 7-A of the Juvenile Justice (Care and Protection of Children)
Act, 20004 contemplated that whenever a claim of juvenility is
raised before any Court, the Court shall make an inquiry and take
such evidence as may be necessary. In terms of the provisions of
the 2000 Act, the Juvenile Justice (Care and Protection of Children)
3 (2012) 10 SCC 489
4 For short, the ‘2000 Act’
Rules, 20075 have been framed. Rule 12 of the Rules contemplates
a procedure to be followed for determination of age. The
2000 Act has been repealed by the Juvenile Justice (Care and Protection
of Children) Act, 20156. Section 9(2) of the Act is the analogous
provision to Section 7-A of the 2000 Act. The procedure for
determining the age is now part of Section 94 of the Act which was
earlier part of Rule 12 of the Rules. Section 94 of the Act reads
thus:
“Section 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
5 For short, the ‘Rules’
6 For short, the ‘Act’
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
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 true age of that person.”
9. The judgment in Abuzar Hossain considered Section 7-A of the
Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the
Rules shows that in the absence of documents as mentioned in
clause (i), (ii) or (iii), the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the juvenile
or child. It was further provided that in case wherein the exact
assessment of the age cannot be done, the Court or the Juvenile
Justice Board, if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within the margin
of one year. However, it is to be noted that Section 94 of the Act
does not have any corresponding provision of giving benefit of
margin of age.
10. Admittedly, in the present case, there is no Date of Birth Certificate
from the school or matriculation or equivalent certificate or a
Birth Certificate given by a Corporation or Municipal Authority or
Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine
the age by an ossification test or any other latest medical
age determination test conducted on the orders of the Committee
or the Board comes into play.
11. Mr. Gopal Sankaranarayanan, learned senior counsel appeared on
behalf of the appellant, argued that the accused was given bail by
the High Court keeping in view his age as 15½ - 17½ years in the
year 1982. Therefore, the appellant has to be treated as a juvenile
in the light of the said order. It was contended that even considering
the maximum age as 55 years as per the Medical Report now
submitted, the appellant would still be less than 18 years on the
date of incident. It was also argued that procedure as contained in
Rule 12(3)(b) of the Rules is now part of Section 94 of the Act.
Therefore, once the statute has provided ossification test as the
basis of determining juvenility, the findings of such ossification
test cannot be ignored.
12. Mr. Goel, on the contrary, argued that procedure as provided under
Rule 12(3)(b) of the Rules is not materially different from that
contained in the Statute. In fact, the discretion given to the Court
to lower the age by one year in the Rules has been omitted. He
further relied upon a judgment of this Court in Mukarrab wherein
it has been held that the Courts have observed that the evidence
afforded by radiological examination is a useful guiding factor for
determining the age of a person but the evidence is not of a
conclusive and incontrovertible nature and is subject to a margin
of error. Medical evidence as to the age of a person though a very
useful guiding factor is not conclusive and has to be considered
along with other circumstances. It was further held that the ossification
test cannot be regarded as conclusive when the appellants
have crossed the age of thirty years which is an important factor
to be taken into account as age cannot be determined with precision.
It was held as under:
“26. Having regard to the circumstances of this case, a
blind and mechanical view regarding the age of a
person cannot be adopted solely on the basis of the
medical opinion by the radiological examination. At p.
31 of Modi's Textbook of Medical Jurisprudence and
Toxicology, 20th Edn., it has been stated as follows:
“In ascertaining the age of young persons radiograms
of any of the main joints of the upper or the lower
extremity of both sides of the body should be taken, an
opinion should be given according to the following
Table, but it must be remembered that too much
reliance should not be placed on this Table as it merely
indicates an average and is likely to vary in individual
cases even of the same province owing to the
eccentricities of development.”
Courts have taken judicial notice of this fact and have
always held that the evidence afforded by radiological
examination is no doubt a useful guiding factor for
determining the age of a person but the evidence is not
of a conclusive and incontrovertible nature and it is
subject to a margin of error. Medical evidence as to the
age of a person though a very useful guiding factor is
not conclusive and has to be considered along with
other circumstances.
27. In a recent judgment, State of M.P. v. Anoop
Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], it
was held that the ossification test is not the sole criteria
for age determination. Following Babloo Pasi [Babloo
Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3
SCC (Cri) 266] and Anoop Singh cases [State of
M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC
(Cri) 208], we hold that ossification test cannot be
regarded as conclusive when it comes to ascertaining
the age of a person. More so, the appellants herein
have certainly crossed the age of thirty years which is
an important factor to be taken into account as age
cannot be determined with precision. In fact in the
medical report of the appellants, it is stated that there
was no indication for dental x-rays since both the
accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article
“A study of wrist ossification for age estimation in
paediatric group in Central Rajasthan”, which reads as
under:
“There are various criteria for age determination of an
individual, of which eruption of teeth and ossification
activities of bones are important. Nevertheless age can
usually be assessed more accurately in younger age
group by dentition and ossification along with
epiphyseal fusion.
[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill
Livingstone Edinburgh London Melbourne and New York:
1996; 341-342];
A careful examination of teeth and ossification at wrist
joint provide valuable data for age estimation in
children.
[Ref.: Parikh C.K. Parikh's Textbook of Medical
Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-
Legal Centre Colaba: 1990; 44-45];
Variations in the appearance of centre of ossification at
wrist joint shows influence of race, climate, diet and
regional factors. Ossification centres for the distal ends
of radius and ulna consistent with present study vide
article “A study of wrist ossification for age estimation
in paediatric group in Central Rajasthan” by Dr
Ashutosh Srivastav, Senior Demonstrator and a team of
other doctors, Journal of Indian Academy of Forensic
Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].
29. In the present case, their physical, dental and
radiological examinations were carried out. Radiological
examination of skull (AP and lateral view), sternum (AP
and lateral view) and sacrum (lateral view) was advised
and performed. As per the medical report, there was no
indication for dental x-rays since both the accused were
much beyond 25 years of age. Therefore, the age
determination based on ossification test though may be
useful is not conclusive. An x-ray ossification test can
by no means be so infallible and accurate a test as to
indicate the correct number of years and days of a
person's life.”
13. We do not find any merit in the arguments advanced by the appellant.
The medical report in support of the bail order is not available.
Such order granting bail cannot be conclusive determination
of age of the appellant. It was an interim order of bail pending
trial but in the absence of a medical report, it cannot be conclusively
held that the appellant was juvenile on the date of the incident.
14. We find that the procedure prescribed in Rule 12 is not materially
different than the provisions of Section 94 of the Act to determine
the age of the person. There are minor variations as the Rule 12(3)
(a)(i) and (ii) have been clubbed together with slight change in the
language. Section 94 of the Act does not contain the provisions regarding
benefit of margin of age to be given to the child or juvenile
as was provided in Rule 12(3)(b) of the Rules. The importance
of ossification test has not undergone change with the enactment
of Section 94 of the Act. The reliability of the ossification test remains
vulnerable as was under Rule 12 of the Rules.
15. As per the Scheme of the Act, when it is obvious to the Committee
or the Board, based on the appearance of the person, that the said
person is a child, the Board or Committee shall record
observations stating the age of the Child as nearly as may be
without waiting for further confirmation of the age. Therefore, the
first attempt to determine the age is by assessing the physical
appearance of the person when brought before the Board or the
Committee. It is only in case of doubt, the process of age
determination by seeking evidence becomes necessary. At that
stage, when a person is around 18 years of age, the ossification
test can be said to be relevant for determining the approximate
age of a person in conflict with law. However, when the person is
around 40-55 years of age, the structure of bones cannot be helpful
in determining the age. This Court in Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020) 7 SCC 1 held, in
the context of certificate required under Section 65B of the Evidence
Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia,
law does not demand the impossible. Thus, when the
ossification test cannot yield trustworthy and reliable results, such
test cannot be made a basis to determine the age of the person
concerned on the date of incident. Therefore, in the absence of
any reliable trustworthy medical evidence to find out age of the
appellant, the ossification test conducted in year 2020 when the
appellant was 55 years of age cannot be conclusive to declare him
as a juvenile on the date of the incident.
16. Apart from the said fact, there is an application submitted by the
appellant himself for obtaining an Arms Licence prior to the date
of the incident. In such application, he has given his date of birth
as 30.12.1961 which would make him of 21 years of age on the
date of the incident i.e. 20.7.1982. The Court is not precluded
from taking into consideration any other relevant and trustworthy
material to determine the age as all the three eventualities mentioned
in sub-section (2) of Section 94 of the Act are either not
available or are not found to be reliable and trustworthy. Since
there is a document signed by the appellant much before the date
of occurrence, therefore, we are of the opinion that the appellant
cannot be treated to be juvenile on the date of incident as he was
more than 21 years of age as per his application submitted to obtain
the Arms Licence.
17. On merits, the argument of the appellant was that Girendra Singh,
the brother of the deceased, was not examined by prosecution
though as per Ram Naresh Singh (PW-1), he was walking few steps
behind the deceased. It was further argued that as per PW-1 Ram
Naresh Singh, Dhruv Singh had used Barchhi as lathi, though the
first version was that Dhruv had used Barchhi. The argument was
that Ram Naresh Singh (PW-1) has been disbelieved qua the role
of Dhruv Singh and hence cannot be relied upon in determining
the role of the appellant.
18. We do not find any merit in the arguments raised by the learned
counsel for the appellant. A part statement of a witness can be believed
even though some part of the statement may not be relied
upon by the court. The maxim Falsus in Uno, Falsus in Omnibus is
not the rule applied by the courts in India. This Court recently in a
judgment reported as Ilangovan v. State of T.N.8 held that
Indian courts have always been reluctant to apply the principle as
it is only a rule of caution. It was held as under:-
“11. The counsel for the appellant lastly argued that once
the witnesses had been disbelieved with respect to the coaccused,
their testimonies with respect to the present
8 (2020)10 SCC 533
accused must also be discarded. The counsel is, in effect,
relying on the legal maxim “falsus in uno, falsus in
omnibus”, which Indian courts have always been reluctant
to apply. A three-Judge Bench of this Court, as far back as in
1957, in Nisar Ali v. State of U.P. [Nisar Ali v. State of U.P. ,
AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point as
follows: (AIR p. 368, paras 9-10)
“9. It was next contended that the witnesses had falsely
implicated Qudrat Ullah and because of that the court
should have rejected the testimony of these witnesses as
against the appellant also. The well-known maxim falsus in
uno, falsus in omnibus was relied upon by the appellant.
The argument raised was that because the witnesses who
had also deposed against Qudrat Ullah by saying that he
had handed over the knife to the appellant had not been
believed by the courts below as against him, the High Court
should not have accepted the evidence of these witnesses
to convict the appellant. This maxim has not received
general acceptance in different jurisdictions in India nor has
this maxim come to occupy the status of a rule of law. It is
merely a rule of caution. All that it amounts to is that in
such cases the testimony may be disregarded and not that
it must be disregarded. One American author has stated:
‘… the maxim is in itself worthless; first in point of validity
… and secondly, in point of utility because it merely tells
the jury what they may do in any event, not what they must
do or must not do, and therefore, it is a superfluous form of
words. It is also in practice pernicious….’ [Wigmore on
Evidence, Vol. III, Para 1008]
10. The doctrine merely involves the question of weight of
evidence which a court may apply in a given set of
circumstances but it is not what may be called “a
mandatory rule of evidence”.”
(emphasis supplied)
This principle has been consistently followed by this Court,
most recently in Rohtas v. State of Haryana [Rohtas v. State
of Haryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] and
needs no reiteration.”
19. Therefore, merely because a prosecution witness was not believed
in respect of another accused, the testimony of the said witness
cannot be disregarded qua the present appellant. Still further, it is
not necessary for the prosecution to examine all the witnesses
who might have witnessed the occurrence. It is the quality of evidence
which is relevant in criminal trial and not the quantity.
Therefore, non-examination of Girendra Singh cannot be said to be
of any consequence.
20. The other accused, who was convicted apart from the appellant is
Shiv Vijay Singh, was armed with an axe. Dr. Shyam Mohan
Krishna (PW-4) has conducted the postmortem examination and
reported the following injuries:
“1. Contusion 4 cm. x 2 cm. on back of left ear on
temporal region.
2. Contusion 4 cm. x 1 cm. on left side below Inj. no. 1
oblique.
3. Lacerated wound 3 cm. x 1 cm. x bone deep placed on
back near occipital region on back of left ear.
4. Contusion 2 cm. x 1 cm. on left side of frontal region of
scalp above left Eye brow.
5. Contusion 2 cm. x 2 cm. on middle of left Eye brow.
6. Contusion 4 cm. x 2 cm. at chin.
7. Contusion 6 cm. x 2 cm. on left side of neck, oblique in
middle.
8. Contusion 5 cm. x 2 cm. on apex of left shoulder.
9. Incised wound 6 cm. x 2 cm. bone deep on left cheek
upper part oblique.
10. Incised wound 4 cm. x 2 cm. bone deep placed on left
cheek below Inj. no. 9.
11. Abrasion left side of chest lower part ant. aspect 5 cm.
x 4 cm.
12. Contusion 3 cm. x 1 cm. on left axilla on anterior
axillary fold.
13. Contusion 8 cm. x 2 cm. on left upper arm on lateral
aspect oblique.
14. Incised wound 5 cm. x 2 cm. on dorsum of left wrist in
middle.
15. Abrasion 10 cm. x 8 cm. on back left side upper part.
16. Contusion 6 cm. x 2 cm. oblique on left side of chest
lower part near Inj. no. 11.”
21. The oral evidence along with the statement of Dr. Shyam Mohan
Krishna (PW-4) suggest that the injuries on the head of the deceased
were caused by a blunt weapon. The blunt weapon as deposed
by the eyewitness is the lathi in the hands of the present
appellant. Lathi may be common article with the villagers but the
use of lathi as a weapon of offence is a finding of fact recorded by
the Courts below.
22. As per the postmortem report, the deceased suffered multiple injuries
which shows attack by more than one person. The nature of
injuries also shows that hard and blunt object as well as sharp
edged weapons were used to inflict injuries. It is the appellant
who was armed with Lathi whereas the other convicted accused
Shiv Vijay Singh was armed with Axe. The incised wound suffered
by the deceased was possible with an Axe. As per the report,
there are sufficient number of injuries caused by an Axe and Lathi
on the person of the deceased.
23. However, the learned trial court as well as the High Court had
appreciated the entire evidence to return a finding of guilt against
the appellant.
24. Therefore, we do not find any merit in the present appeal. The
same is hereby dismissed.
.............................................J.
(ROHINTON FALI NARIMAN)
.............................................J.
(HEMANT GUPTA)
.............................................J.
(B.R. GAVAI)
NEW DELHI;
FEBRUARY 25, 2021.
No comments:
Post a Comment