Sunday, 28 February 2021

Whether court can declare accused juvenile if his ossification test was conducted when he was aged 40-55 years?

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.

Dated: FEBRUARY 25, 2021.

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.


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