MUKARRAB ETC.versusSTATE OF U.P.

                        (2016] 8 S.C.R. 557


                       MUKARRAB ETC.                                 A
                                 v.
                          STATE OF U.P.
              (Criminal Appeal Nos. 1119-1120 of2016)
                      NOVEMBER30, 2016                               B
           [A. K. SIKRI AND R. BANUMATHI, JJ.]
      Juvenile Justice (Care and Protection of Children) Act,
2000 - s. 7A - Claim of juvenility by the appellants - Admissibility
and reliability of medical opinion - Appellants involved in many
cases for various offences - Instant incident occurred in 1994 -
                                                                       c
Conviction of appellants along with others u/s. 3021149 ands. 148
and sentenced accordingly -·Claim of juvenility raised by the
appellants for the first time before Supreme Court - On direction of
Supreme Court, report submitted by the trial court that the appellants
were major on the date of the incident - On perusal thereof. issuance D
of direction to conduct ossification test - Report of mediciJl'board
that age of both the appellants between 35-40 years on the date of.
examination - Held: Age determination using ossification test does
not yield accurate and precise conclusions after the examinee crosses
the age of 30 years, as in the instant case - A blind and mechanical E
view regarding the age of a person cannot be adopted solely on the .
basis of the medical opinion by the radiological examination~ Thus,
the opinion of the medical board in determining the age of the
appellants cannot be relied upon, so as to give benefit under the
provisions of the Act -In the absence of other cogent evidence, the
plea ofjuveni/ity of the appellants, rejected-Juvenile Justice Rules, F
2007 - r. 12 - Penal Code, 1860 - ss. 3021149 ands. 148.
       Dismissing the appeals, the Court
        HELD: 1.1 Age determination is essential to find out
  whether or not the person claiming to be a child is below the cut- ·
  off age prescribed for application of the Juvenile Justice Act. G
  The issue of age determination is of utmost importance as very
  few children subjected to the provisions of the Juvenile Justice
  Act have a birth certificate. As juvenile in conflict with law usually
. do not have any documentary evidence, age determination, cannot
  be easily ascertained, specially in borderline cases. Medical H
                                    557
558            SUPREME COURT REPORTS                     [2016] 8 S.C.R.



A examination leaves a margin of about two years on either side
  even if ossification test of multiple joints is conducted. [Para 10)
  [563-A-B)
            1.2 From a reading of Section 49 of the Juvenile Justice
      (Care and Protection of Children) Act, 2000, it is clear that it
B     provides that when it appears to the competent authority namely,
      the Board that the person brought before it is a juvenile, the
      Board is obliged to make it clear as to the age of that person and
      for that purpose the Board shall take such evidence as may be
      necessary and then record a finding whether the person is a
C     juvenile or a child or not, stating his age as nearly as may be.
      [Para 13) (564-B-C]
             1.3 It is well accepted fact that age determination using
      ossification test does not yield accurate and precise conclusions
      after the examinee crosses the age of 30 years, which is true in
      the instant case. The appellants have certainly crossed the age
D     of thirty years which is an important factor to be taken into account
      as age cannot be determined·with precision. [Paras 22, 26] (571- ·
      H; 574-G]
         1.4 It is clear that the purpose of Juvenile Justice Act, 2000
  is not to give shelter to. the accused of grave and heinous offences.
E As regards, the medical opinion of the Medical Board determining
  the age of the appellants as between 35-40 years on the date of
  examination that is on 02.05.2016, this wide variation in the age,
  even as per medical opinion is because of the reason that it was
  now too late, because of the advanced age of the appellants to
F have precise determination of his age. Such a plea of juvenility is
  raised for the first time in this Court and the same has to be
  considered on the material brought on record before this Court.
  On the basis of the age of the appellants-M and A determined
  between 35-40 years in May, 2016, giving a variation oftwo year~
  in upper age limit i.e. age of the appellants would be 38 years.
G Giving additional benefit oflowering their age by one year in terms
  of Rule 12(3)(b) would bring their age as 37 years as on May,
  2016. That means the appellants are supposed to be born in 1979
  and at the time of occurrence in 1994, the appellants would have
  been of around 15 years of age. [Para 23, 24](573-F-H; 574-A-B]
H           1.5 Having regard to the circumstances of this case, a blind
              MUKARRAB ETC. v. STATE OF U.P.                           559



and mechanical view regarding the age of a person cannot be            A
adopted solely on the basis of the ntedical opinion by the
rndiological examination. It has been 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
                                                                       B
margin of error. Medical evidence as to the age of a person though
a very useful guiding factor is not conclusive and bas to be
considered along with other circumstances. [Para 25] [574-B-C,
E]
      1.6 The physical, dental and radiological examinations were
carried out. Radiological examination of Skull (AP and lateral         c
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.     D
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. [Para 28] [575-E-G]
      1.7 The chart produced by the State show that the appellants
were involved in at least twenty cases for various offences right       E
from the year 1988. The chart is referred only for the limited
purpose of arriving at a logical and definite conclusion as to the
age of the appellants. The appellants were born in 1979, in the
years 1988, 1989, 1990, the appellant-M would have been only
in the age of 9, 10, 11 years respectively. In the year 1993, (first
case in which appellant-A involved) the appellant-A would have          F
been only 14 years of age. Had it been so, when the appellants
were produced in those cases the appellants would have been
considered as 'children' by the very appearance. They would have
been dealt with accordingly by the concerned juvenile court and
the matters would not have been kept pending till this date. [Para      G
29, 30] [575-H; 576-D-F]
      1.8 In the facts and circumstances of the case, the opinion
of the medical board in determining the age of the appellants as
35-40 years in May 2016 cannot be relied· upon so as to give
benefit under the provisions of the Act. In the absence of other       H
560            SUPREME COURT REPORTS                       [20 I 6] 8 S.C.R.


A     cogent evidence, the plea of juvenility of the appellants is rejected.
      [Para 31) [576-G]
            Babloo Pasi v. State of Jharkhand and Am'. (2008) 13
            SCC 133; State of Madhya Pradesh v. Anoop Singh
            (2015) 7 SCC 773: 2015 (6) SCR 960 - relied on.
B           Arnit Das v. State of Bihar (2000) 5 SCC 488 : 2000
            (1) Suppl. SCR 69; Rajindra Chandra v. State of
            Chhatisgarh and Anr. (2002) 2 SCC 287; Abuzar
            Hossain alias Gu/am Hossain v. State of West Bengal
            (2012) 10 SCC 489 : 2012 (9) SCR 244; Darga Ram
c           alias Gunga v. State of Rajasthan (2015) 2 SCC
            775 : 2015 (1) SCR 350 - referred to.
            Modi's Text Book of Medical Jurisprudence and
            Toxicology, 20th Edn. - referred to.
                              Case Law Reference
 D
      2000 (1) Suppl. SCR 69          referred to             Para 12
      (200Z) 2 sec 287                referred to             Para 12
      2012 (9) SCR 244                referred to             Para 15
      2015 (U SCR 350                 referred to             Para 19
 E    (2008) 13 sec 133               relied on               Para26
      2015 (6) SCR 960                relied on               Para 26
           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      Nos.1119-1120of2016.
            From the Judgment and Order dated 27.05.2014 of the High Court
 F    ofJudicature at Allahabad in Criminal Appeal Nos. 1832, 1834 and 1534
      ofl995 ..
          A.K. Sanghi, Sr.Adv. ShakeelAhmed, Ms. Sadiya Shakeel,Ansar
      Ahmed Ansari, Advs. for the Appellant.
 G         Pawanshree Agrawal, Abhishek Chaudhary, Dinesh Kumar Garg,
      Abhishek Garg, Dhananjay Garg, Deepak Mishra, Ashok Kumar
      Bhardwaj, Advs. for the Respondent.
            The Judgment of the Court was delivered by
           R. BANUMATHI, J. I. The present ap-peals by special leave
 H    impugn the judgment dated 27.05.2014 passed by the High Court of
               MUKARRAB ETC. v. STATE OF U.P.                                  561
                    [R. BANUMATHI, J.]

Judicature at Allahabad, whereby the appeal filed by the appellants herein     A
was dismissed affirming their conviction under Section 302 IPC read
wit~ Section 149 and Section 148 IPC and also sentence of imprisonment
for life under Section 302 IPC and rigorous imprisonment for two years
under Section 148 IPC.
       2. Totally six accused including the appellants herein were             B
convicted. The Special Leave Petitions preferred by the other accused
namely Babban, Moazzam, Jahangir and Jamil were dismissed by this
Court at the admission stage itself on 12.09.2014. Since the appellants
Mukarrab andArshad had raised the claim ofjuvenility before this Court,
notice was issued qua these accused to examine their claim that they
are juveniles in conflict with law under Section 7A of the Juvenile Justice
                                                                                c
(Care and Protection of Children) Act, 2000.
       3. Case of the prosecution is that on 22.03.1994, present appellants,
Mukarrab and Arshad alongwith four others viz. Babban, Moazzam,
Jahangir and Jamil had a quarrel with the deceased, Azamul Haq while
he was coming back to his house from the market at around 5.30 p.m.,            D
the accused persons abused the deceased on the pretext that he was
causing obstruction in Mangal Bazam: Deceased tried to escape from
the clutches of the appellants and other accused; but he was caught and
attacked by ta111a11chas/guns and knives and killed. The occurrence was
witnessed by five eye witnesses who were coming behind the deceased.            E
        4. The accused Moazzam, Jahangir, Jamil, Mukarrab (appellant),
 Babban and Arshad (appellant), were charge-sheeted under Sections
 147, 148, 149, 302 lPC and the case was committed to the Court of.
 Session. Trial was conducted and a number of witnesses were examined
 on behalf of the prosecution as well as_ the defence. Vi de judgment and F
 order dated 16.09.1995 passed by the VIII•h Additional District and.
-Sessions Judge, Moradabad in Session Trial No. 484 of 1994, all the
 accused were convicted under Section 302 IPC read with Section 149
 IPC and Section 148 IPC and sentence of imprisonment for life under
 Section 3 02 IPC and rigorous imprisonment for two years under Section
 148 IPC was imposed. All the sentences were to run concurrently. The G
 accused challenged their conviction and sentence imposed on them by
 filing three separate appeals before the High Court. The High Court
 disposed ofa\I the three appeals vide common judgment and order dated
 27.05.2014, thereby affirming the conviction of the accused persons and
 sentence imposed thereof.                                                H
562            SUPREME COURT REPORTS                         [2016] 8 S.C.R.


A            5. The above judgment and order dated 27.05.2014 was challenged
      by filing special leave petition before this Court. Appellants Mukarrab
      and Arshad for the very first time raised the claim of juvenility before
      this Court. This Court vide order dated 12.09.2014 issued notice qua
      present appellants only viz. accused-Mukarrab and accused-Arshad, only
      with regard to their claim that they are minors under Section 7A of the
B
      Juvenile Justice (Care and Protection of Children) Act, 2000. The trial
      .:ourt which had conducted the trial was directed to examine the aspect
      of juvenility of the present appellants and submit a report. As noted
      earlier, the special leave petitions qua other accused were dismissed.
         6. VIII 1h Additional District and Sessions Judge, Moradabad
c conducted an inquiry and recorded his findings in a report dated
  28.10.2014. The learned Judge concluded that in all probabilities on the
  date of occurrence, accused-Mukarrab could not have been younger
  than 22 years 2 months 21 days and accused-Arshad, than 19 years 2
  months 21 days on the date of the incident, thereby negatived the claim
D ofjuvenility raised by the two accused-appellants. However, on perusal
  of the above report dated 28.10.2014 as well as the objections filed
  thereagainst, certain doubts were raised concerning the genuineness of
  the report. Accordingly, vide order dated 06.04.2016, this Court observing
  that there is no document from which date of birth of the appellants
  could be ascertained, directed ossification test to be conducted, so as to
E ascertain the age of the appellants.

             7. Accused-Mukarrab and accused-Arshad who were lodged in
      Mathura and Hardoijails respectively in U.P. were produced before the
      Medical Board constituted at the All India Institute of Medical Science
      (AIIMS), New Delhi on 02.05.2016 for medical examination (ossification
 F    test for ascertaining bone age). Medical Board constituted at AIIMS,
      New Delhi in its report dated 05.05.2016, opined thatthe age of both the
      accused ranges between 35-40 years on the date of the examination.
          8. The short question falling for consideration in these appeals is
   that whether the appellants Mukarrab and Arshad were juveniles on the
 G date of the occurrence and the question of admissibility and reliability of
   medical opinion in age detennination under the Juvt:nile Justice (Care
   and Protection of Children) Act, 2000 vis-a-visjuvenih,y of the accused
   at the time of committing the offences.
            9. We have heard the parties before us and have perused the
 H    materials and the medical rep011 available on record.
                MUKARRAB ETC. v. STATE OF U.P.                                  563
                     [R. BANUMATHI, J.]

       I 0. Age determination is essential to find out whether or not the A
person claiming to be a child is below the cut-off age prescribed for
application of the Juvenile Justice Act. The issue of age determination is
ofutmost importance as very few children subjected to the provisions of
the Juvenile Justice Act have a birth certificate. As juvenile in conflict
with law usually do not have any documentary evidence, age
                                                                             B
determination, cannot be easily ascertained, specially in borderline ca_ses.
Medical examination leaves a margin of about two years on either side
even if ossification test of multiple joints is conducted.
       11. Time and again, the questions arise: How to determine age in
the absence of birth certificate? Should documentary evidence be
preferred over medical evidence? How to use the medical evidence? Is
                                                                                c
the standard of proof, a proof beyond reasonable doubt or can the age
be determined by preponderance of evidence? Should the person whose
age cannot be determined exactly, be given the benefit of doubt and be
treated as a child? In the absence of a birth certificate issued soon after
birth by the_ concerned authority, determination of age becomes a very           D
difficult task providing a lot of discretion to the Judges to pick and choose
evidence. In different cases, different evidence has been used to
 determine the age of the accused.
       12. This Court in Amit Das v. State of Biltar (2000) 5 SCC 488,
clarified that the review of judicial opinion shows that the Court should        E
not take a hyper-technical approach while appreciating evidence for
determination of age of the accused. If two views are·possible, the
Court should lean in favour of holding the accused to be a jµvenile in
borderline cases. This approach was further reiterated by this Court in
Rajindra Chandra v. State of Cltltatisgarlz and Another (2002) 2
sec 287, in. which it laid down that the standard of proof for age               F
determination is the degree of probability and not proof beyond reasonable
doubt.
      13. It is noteworthy that the Juvenile Justice (Care and Protection
of Children) Act, 2000 does not lay down any fixed criteria for
determining the age of the person. Section 49( 1) of the Juvenile Justice        G
(Care and Protection of Children) Act, 2000 provides for presumption
and determination of age as under:-
       "49. Presumption and dete_nnination of age.-(1) Where it
       appears to a competent authority that person brought before
       it under any of the provisions of this Act (othenvise than for H
564            SUPREME COURT REPORTS                           [2016] 8 S.C.R.


A           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 necessmy (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. "
B
      From a reading of the above provision, it is clear that it provides that
      when it appears to the competent authority namely, the Board that the
      person brought before it is a juvenile, the Board is obliged to make it
      clear as to the age of that person and for that purpose the Board shall
      take such evidence as may be necessary and then record a finding
c     whether the person is a juvenile or a child or not, stating his age as
      nearly as may be.
            14. Under Rule 12, the Board is enjoined to take evidence for
      determination of age. Rule 12 is as under:-

D           "12. l'rocedure to be.followed i11 deter111i11atio11 ofAge: -
            {1) In every case concerning a child or a juvenile in conflict
            with law, the court or the Board or as the case may be the
            Committee referred to in rule 19 of these rules shall
            determine the age of such juvenile or child or a juvenile in
E           conflict with law within a period of thirty days ji-0111 the date
            of making of the application for that purpose.
            (2) The court or the Board or as the case may be the Committee
            shall decide the juvenility or otherwise of the juvenile or the
            child or as the case may be the juvenile in conflict with
F           law, prima facie on the basis of physical appearance or
            documents, if available, and send him to the observation
            home or in jail.
            (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 01; as the case may be, the Committee
G
            by seeking evidence by obtaining -
            (a) (i) the matriculation or equivalent certificates, if m1ailable;
            and in the absence whereof;
            (ii) the date of birth certificate from the school (other than a
H           play school) first attended; and in the absence whereof;
        MUKARRAB ETC. v. STATE OF U.P.                              565
             [R. BANUMATHI, J.]

(iii) the birth certificate given by a corporation or a municipal A
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 B
be done, the Court or the Board 01; as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessmy, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of
one year.
                                                                     c
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 spefified in any of the
calusees (a)(i), (ii), (iii) or in the absence whereof. clause (b)
shall be the conclusive proof of the age as regrds such child D
or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of offence,
on the basis of any of the conclusive proof specified in sub-
rule (3), the court or the Board or as the case may be the           E
Committee shall in writing pass an order stating the age and
declaring the status ofjuvenility or otherwise, for the purpose
of the Act and these rules and a copy of the order shall be
given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is           F
required, inter alia, in terms of section 7A, section 64 of the
Act and these rules, no fiirther inqui1y shall be conducted by
the court or the Board after examining and obtaining the
certificate or any other documentary proof referred to in sub-
rule (3) of this rule.                                               G
(6) The provisions contained in this rule shall also apply to
those disposed off cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation
                                                                     H
566             SUPREME COURT REPORTS                         [2016] 8 S.C.R.



A           of the sentence under the Act for passing appropriate order
            in the interest of the juvenile in conflict with law. "
             15. Summarizing the legal position as to the claim ofjuvenility and
      observing that such plea can be raised at any stage and after referring to
      various decisions, three-Judges Bench of this Court in Abuzar Hossain
B     alias Gu/am Hossain v. State of West Bengal (2012) I 0 SCC 489 held
      as under:-
             "39. Now, we summarise the position which is as under:
            39.J. A claim of juvenility may be raised at any stage even
            after the final disposal of the case. It may be raised for the
c           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 ofjuvenility
            can be raised in appeal even if not pressed before the trial
            court and can be raised for the first time before this Court
D           though not pressed before the trial court and in the appeal
            court.
            39.2. For making a claim with regard to juvenility after
            conviction, the claimant must produce some material which
            may prima facie satisfy the court that an inquiry into the claim
E           of juvenility is necessary. Initial burden has to be discharged
            by the person who claims juvenility.
            39.3. As to what materials would prima facie satisfy the- court
            and/or are sufficient for discharging the initial burden cannot
            be catalogued nor can it be laid down as to what weight
F           should be given to a specific piece of evidence which may be
            sufficient to raise presumption ofjuvenility but the documents
            referred to in Rules l 2(3)(a)(i) to (iii) shall definitely be
            sufficient for prima facie satisfaction of the court about the
            age of the delinquent necessitating further enquiry under Rule
            12. The statement recorded under Section 313 of the Code is
G           too tentative and may not by itself be sufficient ordinarily to
            ;ustify or reject the. claim ofjuvenility. The credibility and/or
            acceptability of the documents like the school leaving
            certificate or the voters' list, etc. obtained after conviction
            would depend on the facts and circumstances of each case
            and no hard-and-fast rule can be prescribed that they must
H
               MUKARRAB ETC. v. STATE OF U.P.                                567
                    [R. BANUMATHI, J.]

      be prima facie accepted or rejected. In Akbar Sheikh (2009)            A
      7 SCC 415 and Pawan (2009) 15 SCC 259 these documents
      were not found prima facie credible while in Jitendra Singh
      (2010) 13 sec 523 the documents viz. school leaving
      certificate, marksheet and the medical report were treated
      sufficient for directing an inquiry and verification of the
                                                                             B
      appellants age. If such documents prima facie inspire
      confidence of the court, the court may act upon such
      documents for the purposes of Section 7-A and order an
      enquiry for determination of the age of the delinquent.
      39.4. An affidavit of the claimant or any of the parents or a          C
      sibling or a relative in support of the claim ofjuvenility raised
      for the first time in appeal or revision or before this Court
      during the pendency of the matter or after disposal of the
      case shall not be sufficient justifying an enquiry to determine
      the age of such person unless the circumstances of the case
      are so glaring that satisfy the judicial conscience of the court        D
      to order an enquiry into determination of the age of the
      delinquent.
      39.5. The court where the plea of juvenility is raised for the
      first time should always be guided by the objectives of the
      2000 Act and be alive to the position that the beneficent and           E
      salutary provisions contained in the 2000 Act are not defeated
      by the hypertechnical approach and the persons who are
      entitled to get benefits of the 2000 Act get such benefits. The
      courts should not be unnecessarily influenced by any general
      impression that in schools the parents/guardians understate
      the age of their wards by one or two years for future benefits          F
      or that age determination by medical examination is not very
      precise. The matter should be considered prima facie on the
      touchstone of preponderance of probability.
      39.6. Claim of juvenility lacking in credibility or frivolous
      claim ofjuvenility or patently absurd or inherently improbable          G
      claim ofjuvenility must be rejected by the court at the threshold
      whenever raised. "
      16. In the present case, the appellants by filing applications under
Section 7A of the Juvenile Justice (Care and Protection of Children)
Act, 2000 read with Rule 12 of the Juvenile Justice Rules, 2007 have          H
568            SUPREME COURT REPORTS                          [2016] 8 S.C.R.


A     claimed that at the time of committing the offences they were juvenile
      i.e. below the age of 18 years. Appellant-Mukarrab has claimed that he
      was born on 01 .07 .1978 and thus, on the date of the incident i.e.
      22.03.1994, he was a child aged 15 years 8 months 22 days. Likewise,
      appellant-Arshad has claimed that he was born on 05.02.1979 and thus
      on the date of the incident i.e. 22.03.1994, he was a child aged 15 years
B
      I month 17 days. Appellants did not raise the plea of juvenility before
      any of the previous fora; it is only before this Court that they have
      raised the pleaofjuvenility.
             17. As already noted, by an order dated 18.02.2016, this Court
      had directed the concerned District and Sessions Judge to conduct an
c     inquiry and submit a report as to the age of the appellants (Mukarrab
      and Arshad). As per the report submitted by the VIIl'h Additional District
      and Sessions Judge, Moradabad both the appellants (Mukarrab and
      Arshad) were major on the date of the incident. After perusing the
      report of the District Judge, by order dated 06.04.2016, this Court has
D     directed medical examination of the appellants (Mukarrab and Arshad)
      to be conducted by a duly constituted Medical Board of the AJIMS,
      New Delhi. Accordingly, the doctors of AllMS have examined the
      appellants (Mukarrab and Arshad) and given their opinion as under:-
            "Alleged history in Brief: On perusal of the documents submitted
 E          to AIIMS, it was revealed that the year of commission of crime
            was 1994 i.e. 22 years before today i.e. 02.05.2016.
            The said accused Mukarrab alleged his date of birth to be 1"
            July, 1978.
            The said accused Arshad has submitted the documentary proof
 F          of his age stating date of Birth as 51h February, 1979.
            Examination Proceedings: Both the accused were examined
            after taking due informed consent along with signature and left
            thumb impression.

 G
             Their physical, dental and radiological examinations were carried
             out. X-ray examination of Skull (AP and lateral view), Sternum
             (AP and lateral view) and Sacrum (lateral view) were advised
             and performed. There was no indication for Dental X-rays since
             both accused were much beyond 25 years of age in any case.
 H
                MUKARRAB ETC. v. STATE OF U.P.                                 569
                     [R. BANUMATHI, J.]

      Physical and Dental Examination: In both cases, general                  A
      physical examination findings are consistent with findings of nonnal
      adult male. Dental examination shows presence of complete 8
      sets of permanent teeth in all 4 quadrants.
      Report of Radiological Examination- .
         (A)      Mukarrab                                                     B

               I. Medical end of clavicle fused-age>more than 22 years
            2. Xiphoid process not fused with sternal body-age<40
               years
             3. Manubrium not fused with sternal body-age<SO years             C
             4. Complete fusion of sacral bodies-age>32 years ·
             5. Saggital suture obliterated in posterior I /3rd and coronal
                suture obliterated in lower 1h-age<40 years.
         (B)      A rs had                                                      D
               I. Medical end of clavicle fused-age>more than 22 years
               2. Xiphoid process not fused with sternal body-age<40
                  years
               3. Manubrium not fused with sternal body-age<SO years            E
             4. Complete fusion of sacral bodies-age>32 years
               5. Saggital suture obliterated in posterior I/3rd and coronal
                  suture intact-age<40 years.
      Opinion: Both accused have been brought for examination at F
      AIIMS on 02.05.2016, 22 years after the alleged date of
      incidence. After going through the various findings of physical,
      dental and radiological examinations; medical board is of
      considered opinion that the age of accused viz. Mukarrab s/o
      Mr. Mulla Zafar as well as Arshad s/o Rashid is between 35-
      40 years on the date of examination i.e. 02.05.2016.             G
       18. The question falling for consideration is whether the opinion
of the Medical Board of AIIMS determining the age of the appellants
between 3 5-40 years, can be accepted or not.
      19. Learned Senior Counsel for the appellants contended thatthe
                                                                                H
570          SUPREME COURT REPORTS                         (2016] 8 S.C.R.


A general rule about age determination is that the age determined by the
  Medical Board vary plus or minus two years but the Medical Board in
  this case had fixed the age of the appellants at 35-40 years and going by
  the general rule, the age of the appellants is to be estimated as 38 years
  on the date of medical examination and giving additional benefit of one
B year in lowering the age in terms of Rule 12(3)(b), age of the appellants
   is to be determined as 37 years as on the date of medical examination on
  02.05.2016. It was, therefore, submitted that taking the age of the
  appellants as 3 7 years as on 02.05.2016 which means that at the time of
  commission of the offence in 1994, the appellants would have been only
  aged about I 5 years and, therefore, the benefit of Juvenile Justice Act to
C be extended to the appellants. Contending that the benefit of benevolent
 ~provisions of Juvenile Justice Act a~d the Rules must be extended to the
  appellants herein, learned Senior Counsel for the appellant relied upon
  Darga Ram alias Gunga v. State of Rajasthan (20 I 5) 2 SCC 775
   wherein it has been held as under:-
D          "16. The medical opinion given by the duly constituted Board
          comprising Professors of Anatomy, Radio diagnosis and
          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
 E         being so, in terms of Rule I 2(3)(b) the appellant may even be
           entitled to the benefit off1Xing 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
 F         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
 G         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
 H
               MUKARRAB ETC. v. STATE OF U.P.                                 571
                    [R. BANUMATHI, J.]

      has in the case at hand spread over a period of six years and A
      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 B
      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 C
      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 one year in terms of Rule 12(3)(b) (supra) which
                                                                      0
      would then bring him to be 17 years and 2 months old,
       therefore, a juvenile. "
       20. Per contra, learned counsel for the State submitted that the
ossification test is not the sole criteria for determining the age and that
the medical opinion has to be considered alongwith other cogent evidence.
In support of this contention, reliance was placed upon Bab/oo Pasi v.         E
State of Jlwrkhand and Anr. (2008) 13 SCC 133.
       21. A reading of the above decision in Darga Ram alias Guilga's
case shows that courts need .to be aware of the fact that age
detennination of the concerned persons cannot be certainly ascertained
in the absence of original and valid documentary proofand there would F
always lie a possibility that the age of the concerned person may vary
plus or rninus 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 alias Gunga 's
case was taken in the specific facts and cir:::umstances of that particular G
case and any attempt of generalising the said approach could not be
justifiably entertained.
       22. It is well-accepted fact that age determination using ossification
test does not yield accurate and precise conclusions after the examinee
crosses the age of 30 ·years, which is true in the present case. After H
572            SUPREME COURT REPORTS                         [2016] 8 S.C.R.


A     referring to Bhola Bhagat's case and other decisions, in Bab/o<i Pasi's
      case, this Court held as under:-
            "18. Nevertheless, in Jitendra Ram v. State of Jharkhand
            (2006) 9 SCC 428 the Court sounded a note of caution that
            the aforestated observations in Bhola Bhagat (1997) 8 SCC
B           720 would not mean that a person who is not entitled to the
            benefit of the said Act would be dealt with leniently only
            because such a plea is raised. Each plea must be judged on
            its own merit and each case has to be considered on the basis
            of the materials brought on record.
c          .22. It is well settled that it is neither feasible nor desirable to
            lay down an abstract formula to determine the age of a person.
            The date of birth is to be determined on the basis of material
            on record and on appreciation of evidence adduced by the
            parties. The medical evidence as to the age of a person, though
            a very useful guiding factor, is not conclusive and has to be
D           considered along with other cogent evidence.
            23. It is true that in Arnit Das v. State of Bihar (2000) 5 SCC
            428 this Court has, on a review of judicial opinion, observed
            that while dealing with a question of determination of the
            age of an accused, for the pwpose of finding out whether he
E           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 vielvs may be possible on the same evidence, the
            court should lean in favour of holding the accused to be a
F           juvenile in borderline cases. We are also not oblivious of the
            fact that being a welfare legislation, the courts should be
            zealous to see that a juvenile derives full benefits of the
            provisions of the Act but at the same time it is also imperative
            for the courts to ensure that the protection and privileges
            under the Act are not misused by unscrupulous persons to
G           escape punishments for having committed serious offences. "
             23. In Criminal Appeal No. 486 of2016 dated 12.05.2016, Parag
      Blmti (Juvenile) tltrough Legal Guardian-Motller-Smt. Rajni Bllati
      v. State of Uttar Pradesh and Anr., after referring to Abuzar Hossain
      case and other decisions of this Court, this Comi held as under:-
H
               MUKARRAB ETC. v. STATE OF U.P.                                573
                    [R. BANUMATHI, J.]

      "26. It is no doubt true that if there is a clear and unambiguous A
      case in favour of the juvenile accused that he was a minor
      below the age of 18 years on the date of the 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 whe11 an accused commits a grave and lteinous B
      offence and thereafter attempts to take statutory sltelter under
      tlle 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 tile confidence of
      common man ill the institution entrusted with tile C
      administration of justice.
      27. 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 D
      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 rejlecti11g his maturity of mind rather than innocence
      indicating that his plea ofjin1enility is more in the nature of a
      shield to dodge or dupe the arms of law, cannot be allowed E
      to come to his rescue. " [Emphasis added]
From the above decision, it is clear that the' purpose of Juvenile Justice
Act, 2000 is not to give shelter to the accused of grave and heinous
offences.
                                                                             F
       24. Keeping in view the above principles, let us consider the medical
opinion of the Medical Board detem1ining the age of the appellants as
between 35-40 years on the date of examination that is on 02.05.2016.
This wide variation in the age, even as per medical opinion is because of
the reason that it was now too late, because of the advanced age of the
appellants to have precise determination of his age. As noted earlier, G
such a plea ofjuvenility is raised for the first time in this Court and the
same has to be considered on the material brought on record before this
Court. On the basis of the age of the appellants (Mukarrab and Arshad)
determined between 35-40 years in May, 2016, giving a variation of two
years in upper age limit i.e. age of the appellants would be 38 years. H
574             SUPREME COURT REPORTS                          [2016] 8 S.C.R.


A     Giving additional benefit of lowering their age by one year in terms of
      Rule 12(3)(b) would bring their age as 37 years as on May, 2016. That
      means the appellants are supposed to be born in 1979 and at the time of
      occurrence in 1994, the appellants would have been of around 15 years
      of age.
B            25. Having regard to the circumstances of this case, a blind and
      mechanical view regardingthe age of a person cannot be adopted solely
      on the basis of the medical opinion by the radiological examination. At
      page 31 of Modi's Text Book of Medical Jurisprudence and
      Toxicology, 20'h Edn., it has been stated as follows:
c           "Jn 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
D           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
E     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.
              26. In a recent judgment, State of Madhya Pradesh v. Anoop
F     SingIi (2015) 7 SCC 773, it was held that the ossification test is not the
      sole criteria for age determination. Following Bab/oo Pasi and Anoop
      Sing/i's cases, 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
      i-s an important factor to be taken into account as age cannot be
G     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.
              27. At this juncture, we may usefully refer to an article "A study
      of wrist ossification for age estimation in pediatric group in central
H     Rajasthan ", which reads as under:-
               MUKARRAB ETC. v. STATE OF U.P.                              575
                    [R. BANUMATHI, J.]

      "There are various criteria for age determination of an              A
      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 alongwith epiphyseal fusion.
      [Ref: Gray H. Gray's Anatomy. 37'1' ed. Clwrclii/l Livingstone       B
      Edillburglt 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 CK. Parikh 's Textbook ofMedical Jurisprudence          c
      and Toxicology. 5'" ed11.: Mumbai Medico-Legal Centre
      Co/aha: 1990;44-45];

      Variations in the appearance of center of ossification at wrist
      ioint shows influence of race, climate, diet and regional
      factors. Ossification centres for the distal ends of radius and D
      ulna consistent with present study vide article "A study of
      Wrist Ossification for age estimation in pediatric group in
      Central Rajasthan" by Dr. Ashutosh Srivastav, Senior
      Demonstrator and a team of other doctors, Journal of Indian
      Academy of Forensic Medicine (JIAFM), 200./: 26(4). ISSN E
      0971-0973}.
       28. 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       F
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.
                                                                            G
       29. Let us consider the medical report in the facts and
circumstances of the present case. The learned counsel on behalf of the
respondent-State has brought to our notice that the appellant-Mukarrab
is involved in twenty four cases of various offences allegedly committed
between 1988 and 1995. He is alleged to have committed murder and
robbery in the year 1988. Likewise, appellant-Arshad is also allegedly      H
576                SUPREME COURT REPORTS                    [2016] 8 S.C.R.


A involved in commission of serious offences from 1993 to 2003.
  Proceedings in the context of such offences are stated to be still pending
  ~gainst the appellants before various courts. Learned Counsel for the
  State has produced a chart before us to show that the appellant-Mukarrab
  is involved in at least twenty cases for various offences right from the
  year 1988 in Case Nos. 160/1988, 327/1989, 96/1989, 184/1989 etc. and
B
  other cases under Sections 25AAct, 394 IPC, 323, 352, 504, 506 IPC,
  323, 352, 504, 506 IPC and other offences till 2006. Likewise, appellant-
  Arshad is involved in at least ten cases for various offences right from
  the year 1993 in case Nos. I 02/1993, 5011994, 8011994, 878/1994 etc.
  andothercasesunderSections393,363,376, 147, 148, 149,302, 147,
c 504, 506, 307 IPC respectively till 2003.
         30. We are referring to the chart produced by the State neither
  for taking into account the history sheet of the present appellants for the
  purpose of ascertaining criminal antecedents of the appellants nor casting
  any remarks on the nature of the offences for which the appellants are
D proceeded with. We are referring to the chart only forthe limited purpose
  of arriving at a logical and definite conclusion as to the age of the
  appellants. As discussed earlier, in para No. 24 had the appellants been
  born in 1979, in the years 1988, 1989, 1990, the appellant-Mukarrab
  would have been only in the age of9, I 0, 11 years respectively. In the
  year 1993, (first case in which appellant-Arshad involved) the appellant-
E Arshad would have been only 14 years of age. Had it been so, when the
  appellants were produced in those cases the appellants would have been
  considered as 'children' by the very appearance. They would have
  been dealt with accordingly by the concerned juvenile court and the
  matters would not have been kept pending till this date. This, in our
F view, is yet another reason that the opinion of the Medical Board
  determining the age of the appellants as 35-40 years in May, 2016 cannot
  be relied upon.
         31. In the facts and circumstances of the case, the c.;-1inion of the
  medical board in determining the age of the appellants cannot be relied
  upon so as to give benefit under the provisions of Juvenile Justice (Care
G and Protection of Children) Act, 2000. In the absence of other cogent
  evidence, the plea ofjuvenility of the appellants is liable to be rejected.
  The special leave petitions qua other accused were already dismissed
  vide order dated I 2.09.2014 as mentioned hereinbefore. Hence, the
  appeals of these appellants are also dismissed.
 H    Nidhi Jain                                             Appeals dismissed.