In paragraph 13 Hon’ble
Apex Court points out that if two views are possible on the age
of the juvenile, the court should lean in favour of holding the
accused to be juvenile in the border line cases.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION (APPCO) NO. 3 OF 2019
IN
CRIMINAL CONFIRMATION CASE NO. 1 OF 2017
Sandip Samadhan Shirsat @ Raghu Rokda Vs State of Maharashtra
CORAM : B.P. DHARMADHIKARI &
SANDEEP K. SHINDE, JJ.
PRONOUNCED ON : 22/10/2019
This application is taken out by the convicted accused no.2
contending that on the date of the incident i.e. on 09/05/2012,
he was 16 years and 9 months old and therefore, a juvenile.
2. It is to be noted that the Additional Sessions Judge, Thane
has vide judgment and order dated 11/05/2017 delivered in
Sessions Case No. 599 of 2012 found the accused no.1 and the
present applicant guilty of the offence punishable under section
302, 376(2)(g), 326 read with section 34 of Indian Penal Code.
For the offence under section 302 read with section 34 IPC, they
have been sentenced to death while for the offence under
section 376(2)(g) IPC, they have been sentenced to
imprisonment for life for the remainder of life and for the offence
under section 326 read with section 34 IPC, they are sentenced
to RI for 10 years. In either case they have been sentenced to
pay fine of Rs.5,000/- each and in default to suffer simple
imprisonment for 5 years.
3. This court on 02/05/2019 after noticing that though an
opportunity was given to State to look into the plea of juvenility,
no specific stand was being taken, has made over the case to the
convicting court to hold an enquiry into the plea.
4. Accordingly the Ad hoc District Judge-I and Additional
Sessions Judge, Thane has by a confidential report dated
16/08/2019 pointed out that as per school leaving certificate, the
date of birth of the applicant was 29/08/1995 and as per report of
Government Hospital, Vashi the radio graphic bone age of the
accused is more than 18 years at the time of committing of the
offence and his present age on 01/08/2019 as per ossification
test is more than 25 years. It is this report which is being looked
into by this court today.
5. We have accordingly heard learned APP Smt Pai for the
State and Advocate Ragini Ahuja for respondent no. 2 applicant.
6. Learned counsel for the applicant/accused no.2 has
advanced arguments in the backdrop of the judgment of the
Hon’ble Apex Court in the case of Ashwani Kumar Saxena Versus
State of Madhya Pradesh reported at (2012) 9 SCC 750. She
contends that the trial court has not recorded any definite finding
on the question of date of birth or then about the juvenility of the
said accused. She submits that the entry in the school records is
not found to be tampered with and the date of birth reported on
27/06/2003 therefore ought to have been accepted. It is
submitted that the opinion expressed by the radiologist of Navi
Mumbai Municipal Council Hospital on 15/5/2012 is on the basis
of x-ray reports and it is therefore, not determinative. The report
of the Assistant Professor, Department of Forensic Medicine &
Toxicology dated 1/8/2019 is again not a reliable document. She
states that there can be error of two years on either side in these
documents. Our attention is invited to section 94 of the Juvenile
Justice (Care and Protection of Children) Act, 2015 to submit that
the date of the birth certificate from the school needs to be given
primacy. In the absence thereof, birth certificate from the local
body can be relied upon. When only these two options are not
open, the determination by ossification test or any other medical
age determination test can be looked into. She further points out
that such age is deemed to be the age for the purpose of 2015
Act.
7. Learned APP on the other hand invited our attention to the
grave nature of the crime. She submits that in such matters,
when there is no other option left, belatedly, defence of
juvenility is taken. Such defence should not be entertained. The
age was determined before commencement of the trial in the
year 2012 itself and that determination was not questioned by
the applicant. She points out that even on 01/08/2019 by
applying the ossification test and looking into the other factors,
the age has been worked out to be 25 years. It therefore, follows
that in the year 2012, the applicant was above 18 years.
8. She submits that the date of birth recorded in the school
leaving certificate is not available since it is recorded at the
instance of the person who is not a real father of the applicant
and that too on the strength of the affidavit given by him. She
submits that even the local authority does not possess that
record. In this situation in the absence of that record, the
medical test relied upon on 15/05/2012 deserves to be given
importance. It gets authenticated by the ossification test
conducted on 1/8/2019.
9. She has placed strong reliance upon the judgment of the
Hon’ble Aepx Court in the case of Om Prakash Versus State of
Rajasthan and another reported at 2012 (5) SCC 201 to buttress
her submission & to explain perspective the courts must adopt.
10. There is no dispute between the parties in so far as legal
provisions are concerned. The opinion by the radiologist dated
15/05/2012 is based upon x-ray report which shows that all the
visualized Epiphysical centres have fused. Because of this
finding, opinion given is radiographic bone age is above 18
years.
11. The opinion of Assistant Professor of Department of Forensic
Medicine & Toxicology dated 1/8/2019 looks into five x-ray
reports between the dates 29/07/2019 to 01/08/2019 and after
recording the finding, the conclusion reached is from clinical and
radiological examination, age as on 01/08/2019 is more than 25
years.
11. We have already mentioned supra the provisions of section
94 of the 2015 Act. The judgment of the Hon’ble Apex Court in
the case of Ashwanikumar Saxena Vs. State of MP (supra) shows
that the CJM court there felt that school records including
marksheets could not be relied upon in support of the date of
birth. That court had obtained report of ossification test and
accepting that report, the application of juvenile was dismissed.
12. In criminal appeal, Additional Sessions Judge found that the
best possible evidence was withheld by the appellant before it
and the person who made entries in the school record was not
examined. It therefore, dismissed the appeal. This order was
confirmed by the High Court. It is in this backdrop that in
paragraph 12, the Hon’ble Apex Court expressed its unhappiness
with the mode and manner in which the issue was dealt with.
Section 7A of Juvenile Justice Act, 2000 and Rule 12 of the 2007
Rules were not properly considered. In paragraph 13 Hon’ble
Apex Court points out that if two views are possible on the age
of the juvenile, the court should lean in favour of holding the
accused to be juvenile in the border line cases. In paragraph 25
Hon’ble Apex Court explains that section 7A necessitates enquiry
and not investigation or trial. In paragraph 26 Rule 12 has been
considered. It is pointed out that such enquiry to determine the
age needed to be completed within thirty days. In paragraph
31, Hon’ble Apex Court has observed as under :
“We also remind all Courts/J.J. Board and the Committees
functioning under the Act that a duty is cast on them to
seek evidence by obtaining the certificate etc. mentioned in
Rule 12 (3) (a) (i) to (iii). The courts in such situations act as
a parens patriae because they have a kind of guardianship
over minors who from their legal disability stand in need of
protection.”
13. In paragraph 32, it is pointed out that while seeking seeking
evidence the court can obtain the matriculation or equivalent
certificate, if available. Only in the absence thereof, the court can
obtain the date of birth certificate from the school first attended
other than a play school. Only in the absence of school record,
the court can look for the birth certificate given by the
Corporation or the municipal authority. The question of obtaining
the medical opinion arises only if these documents are not
available. It is further emphasized in paragraph 34 where it has
again explained that the enquiry under the JJ Act and the 2007
Rules has got nothing to do with the enquiry under other
legislations like entry in service, retirement etc. The Hon’ble Apex
Court points out that there may be a situation where the entry
made in the matriculation or equivalent certificate, the date of
birth certificate from the school first attended or in the birth
certificate issued by the local authority may not be correct. But
court, Juvenile Justice Board or a committee functioning under
the JJ Act, 2000 is not expected to conduct such a roving enquiry
and to go behind such certificates to examine the correctness of
the documents. We find that this observations hold good even
qua section 94 of 2015 Act.
14. In Omprakash Vs. State of Rajasthan and Others (supra),
the Hon’ble Apex court has taken a note of the difference in the
name of accused and the name mentioned in the certificate
relied upon by him. Though accused Vijaykumar there contended
that in the school records his date of birth was 30/6/1990, there
was no dispute raised by him that his name was only Vijaykumar
and not alias Bhanwar Lal. He did not urge that name of accused
Vijakumar was wrongly mentioned in police papers as Vijaykumar
alias Bhanwar Lal. Thus without raising this dispute, the
academic record of Vijaykumar @ Bhanwar Lal was produced.
The complainant there had stated that the name of accused was
Bhanwar Lal which was recorded in the Government Secondary
school on 18/12/1993 and on 22/4/2996 where his date of birth
was recorded as 12/12/1988.
15. It is in this backdrop that the observations of the Hon’ble
Apex Court need to be appreciated. In paragraph 13, Hon’ble
Apex Court has pointed out specific case of complainant that
Bhanwar Lal and Vijaykumar in fact are one and same person and
Jogaram has cooked up a story that he had another son named
Bhanwar Lal whose date of birth was 12/12/1988 and who
expired in 1995. This story is found false since Bhanwar Lal
continued in the school upto 24/2/1996. The approach of the
courts below in accepting the plea of juvenility in these facts is
found unsustainable. The observations of the Hon’ble Apex Court
in paragraphs 22 and 23 of the judgment show obligation on the
courts not to lightly accept such plea.
16. In the present facts, report submitted by the Ad hoc District
Judge I and Additional Sessions Judge, Thane does not state that
29/8/1995 is not the date of birth of the accused no. 2. Rajendra
s/o. Janardan Dhanuka headmaster of Zilla Parishad primary
school, Kupta, Panchayat Samiti, Balapur, District Akola has
stated that accused no. 2 was studying in his school in 4th
standard and left it on 1/5/2007 after attaining majority. As per
school records his father Samadhan gave affidavit and got him
admitted in first standard. In that affidavit he has mentioned
29/8/1995 as the date of birth of his son.
17. The mother of accused no.2 stated that the accused was
born to her from first husband in Saibai Mote Hospital, Shegaon.
Her husband did not come to fetch her thereafter and she was
staying with her parents. As her husband Sahebrao did not come
back for 4/5 years, her parents got her married with Samadhan.
She and accused no. 2 then started staying with Samadhan. In
the year 2003, Samadhan got her son admitted in Zilla Parishad
school. She was not in a position to give exact date of birth.
18. Saibai Mote Hospital at Shegaon is under the health
department which gave certificate that the old records with it
were lying scattered and could not be traced out. As per law
Municipal employee used to visit and collect the birth information
every week and hence, the information should be obtained from
the municipal hospital. The Registrar of Deaths and Births,
Shegaon Municipal Council has on 31/7/2019 issued non
availability certificate as that entry was not found in the records.
19. The admission record of Zilla Parishad school shows that the
accused no.2 was admitted on 27/6/2003 and at that time his
date of birth has been recorded as 29/08/1995.
20. The State Government or the police machinery could not
bring on record any material to show that the accused no.2 was
born prior to 29/08/1995. It could have attempted to find out the
real father i.e. the first husband of the mother of accused no. 2.
21. The medical papers show that on the strength of
ossification test or radiological test, the age on the date of
offence is shown to be above 18 years. The exact age has not
been worked out. If possibility of error on either side is kept in
mind, it cannot be said that those medical papers established the
age of accused no. 2 to be above 18 years on the said date. It
cannot be concluded on the basis of these medical test reports
that 29/8/1995 is not the date of birth of accused no. 2 .
22. In this situation, we find that the date 29/08/1995 as
mentioned in the school records on 27/6/2003 needs to be
accepted and acted upon. Accordingly we find accused no. 2 to
be a juvenile.
23. With the result, we discharge him from Sessions Case No.
599 of 2012 and quash and set aside the findings recorded
against him in the judgment dated 11/5/2017 therein.
24. We direct the respondent State to produce him before the
concerned Juvenile Justice Board for further process in
accordance with 2015 Act.
25. Needless to mention that the proceedings before this High
Court in Criminal Case No. 1 of 2017 shall continue as against
accused no. 1.
26. Criminal Application No. 3 of 2019 is accordingly allowed
and disposed of.
(SANDEEP K. SHINDE, J.) (B.P. DHARMADHIKARI, J.)
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