OM PRAKASHversusSTATE OF RAJASTHAN AND ANR.

                     [2012] 5 S.CR. 237


                       OM PRAKASH                                   A
                             v.
            STATE OF RAJASTHAN AND ANR.
             (Criminal Appeal No.651 of 2012)
                       APRIL 13, 2012
                                                                    B
     [G.S. SINGHVI AND GYAN SUDHA MISRA, JJ.]

     Juvenile Justice (Care and Protection of Children) Act,
2000 - Offence of rape - Plea of juvenility by accused -
Determination of age of the accused - Medical evidence -            C
Appreciation of- 13~ year old girl allegedly subjected to rape
by accused-respondent no.2 and a co-accused- Respondent
no. 2 claimed to be a juvenile - Both trial court and High Court
could not record a conclusive finding of fact that respondent
no.2 was a juvenile on the date of the incident, yet granted        0
him benefit of the Juvenile Justice Act to refer him for trial to
a juvenile court - On appeal by father of the victim, held: The
age of accused-respondent no.2 could not be proved merely
on the basis of school record as the courts below inspite of
its scrutiny could not record a finding of fact that the accused,   E
in fact, was a minor on the date of the incident - In such a
situation when the school record itself is riot free from
ambiguity, medical opinion cannot be allowed to be
overlooked or treated to be of no consequence - Opinion of
medical experts based on x-ray and ossification test of the         F
accused will have to be given precedence over the shaky
evidence based on school records and a plea of
circumstantial inference based on a story set up by the father
of the accused - While the medical expert who conducted the
ossification test opined that accused was 19 years of age on        G
the date of commission of the offence, another medical expert
opined on the basis of x-ray films that age of the accused was
above 18 years and below 20 years - The doctor's estimation
of age although is not a sturdy substance for proof as it is only
                              237                                   H
    238      SUPREME COURT REPORTS               [2012] 5 S.C.R.


A an opinion, such opinion based on scientific medical test like
   ossification and radiological examination will have to be
   treated as a strong evidence having corroborative value while
  determining the age of the alleged juvenile accused - The
  situation, however, would be different if the academic records
B are alleged to have been withheld deliberately to hide the age
  of the alleged juvenile and the authenticity of the medical
  evidence is under challenge at the instance of the prosecution
  - In that event, whether the medical evidence should be relied
  upon or not will depend on the value of the evidence led by
c the contesting parties - Respondent no. 2 and his father failed
  to prove that respondent no. 2 was a minor at the time of
  commission of offence - Although the Juvenile Justice Act
  by itself is a piece of benevolent legislation, protection under
  the same cannot be made available to an accused who in fact
0 is not a juvenile but seeks shelter merely by using it as a
  protective umbrella or statutory shield - Consequently,
  accused-respondent no. 2 directed to be sent for trial before
  the court of competent jurisdiction wherein the trial is pending
  and not to the Juvenile Court as pleaded by him - Medical
E Jurisprudence.

       Appellant is the father of a 131h year old girl who was
  allegedly subjected to rape by the accused-Respondent
  No.2. Respondent no.2 was allowed to avail the benefit
  of protection under Juvenile Justice (Care and Protection
F of Children) Act 2000, although the courts below could
  not record a finding that he, in fact, was a juvenile on the
  date of incident.

       The questions inter alia which arose for
G consideration in the instant appeal were:- (i) Whether the
  respondent/accused herein who is alleged to have
  committed an offence of rape under Section 376 IPC and
  other allied sections along with a co-accused who
  already stands convicted for the offence under Section
H 376 IPC, can be allowed to avail the benefit of protection
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 239


to a juvenile in order to refer him for trial to a juvenile    A
court under the Juvenile Justice (Care and Protection of
Children) Act, 2000 although the trial court and the High
Court could not record a conclusive finding of fact that
the respondent-accused was below the age of 18 years
on the date of the incident; (ii) Whether the principle and    B
benefit of 'benevolent legislation' relating to Juvenile
Justice Act could be applied in cases where two views
regarding determination of the age of child/accused was
possible and the so-called child could not be held to be
a juvenile on the basis of evidence adduced; (iii) Whether     c
medical evidence and other attending circumstances
would be of any value and assistance while determining
the age of a juvenile, if the academic record certificates
do not conclusively prove the age of the accused and (iv)
Whether reliance should be placed on medical evidence
                                                               0
if the certificates relating to academic records is
deliberately withheld in order to conceal the age of the
accused and authenticity of the medical evidence
regarding the age is under challenge.

    Allowing the appeal, the Court                             E

     HELD:1. In the instant case, the age of the accused-
respondent no.2 could not be proved merely on the basis
of school record as the courts below inspite of its
scrutiny could not record a finding of fact that the           F
accused, in fact, was a minor on the date of the incident.
In a situation when the school record itself is not free
from ambiguity and conclusively prove the minority of the
accused-respondent no.2, medical opinion cannot be
allowed to be overlooked or treated to be of no                G
consequence. In this context the statement of NAW-3, the
medical jurist who conducted the ossification test of the
accused and opined before the court that the accused
was 19 years of age is of significance since it specifically
states that the accused was not a juvenile on the date of      H
    240     SUPREME COURT REPORTS            [2012] 5 S.C.R.

A commission of the offence. The statement of NAW-1,
  Asstt. Professor in Radiology also cannot be overlooked
  since he opined that on the basis of x-ray films, the age
  of the accused is above 18 years and below 20 years.
  Thus, in a circumstance where the trial court itself could
8 not arrive at a conclusive finding regarding the age of the
  accused, the opinion of the medical experts based on x-
  ray and ossification test will have to be given precedence
  over the shaky evidence based on school records and a
  plea of circumstantial inference based on a story set up
C by the father of the accused which prima facie is a cock
  and bull story. (Para 17] (253-F-H; 254-A-D]

       2. It is no doubt true that if there is a clear and
  unambiguous case in favour of the juvenile accused that
  he was a minor below the age of 18 years on the date of
D the incident and the documentary evidence at least prima
  facie proves the same, he would be entitled for this
  special protection under the Juvenile Justice Act. But
  when an accused commits a grave and heinous offence
  and thereafter attempts to take statutory shelter under the
E 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
  the confidence of common man in the institution
F entrusted with the administration of justice. Hence, while
  the courts must be sensitive in dealing with the juvenile
  who is involved in cases of serious nature like sexual
  molestation, rape, gang rape, murder and host of other
  offences, the accused cannot be allowed to abuse the
G statutory protection by attempting to prove himself as a
  minor when the documentary evidence to prove his
  minority gives rise to a reasonable doubt about his
  assertion of minority. Under such circumstance, the
  medical evidence based on scientific investigation will
H have to be given due weight and precedence over the
   OM PRAKASH       v. STATE OF RAJASTHAN AND            241
                          ANR.
evidence based on school administration records which          A
give rise to hypothesis and speculation about the age of
the accused. (Para 18] (254-D-H; 255-A]

      3. In the instant matter, the accused-respondent no.2
 is alleged to have committed a crime which repels against 8
 moral conscience as he chose a girl of 13 and a half years
 to satisfy his lust by hatching a plot with the assistance
 of his accomplice who already stands convicted and
 thereafter the accused has attempted to seek protection
 under the plea that he committed such an act due to his C
 innocence without understanding its implication in which
 his father is clearly assisting by attempting to rope in a
 story that he was a minor on the date of the incident
 which is not based on conclusive evidence worthy of
 credence but is based on a confused story as also shaky
and fragile nature of evidence which hardly inspires D
 confidence. It is hard to ignore that when the Additional
Sessions Judge in spite of meticulous scrutiny of oral
and documentary evidence could not arrive at a
conclusive finding that he was clearly a juvenile below
the age of 18 years on the date of incident, then by what E
logic and reasoning he should get the benefit of the
theory of benevolent legislation on the foothold of
Juvenile Justice Act is difficult to comprehend as it clearly .
results in erroneous application of this principle and thus
there is sufficient force in the contention of the appellant F
that the benefit of the principle of benevolent legislation
can be made applicable in favour of only those
delinquents who undoubtedly have been held to be a
juvenile which leaves no scope for speculation about the
age of the alleged accused. [Para 19] [255-C-G]                 G

    4. One cannot overlook that the trial court as well as
the High Court while passing the impugned order could
not arrive at any finding at all as to whether the accused
was a major or minor on the date of the incident and yet       H
   242      SUPREME COURT REPORTS             [2012] 5 S.C.R.


A gave the benefit of the principle of benevolent legislation
  to an accused whose plea of minority that he was below
  the age of 18 years itself was in doubt. In such situation,
  the scales of justice is required to be put on an even keel
  by insisting for a reliable and cogent proof in support of
B the plea of juvenility specially when the victim was also
  a minor. [Para 20] [255-H; 256-A-B]

        5. The benefit of the principle of benevolent
   legislation attached to Juvenile Justice Act would thus
   apply to only such cases wherein the accused is held to
C be a juvenile on the basis of at least prima facie evidence
   regarding his minority as the benefit 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
D reflecting his maturity of mind rather than innocence
   indicating that his plea of juvenility is more in the nature
   of a shield to dodge or dupe the arms of law, cannot be
   allowed to come to his rescue. Hence if the plea of
   juvenility or the fact that he had not attained the age of
E discretion so as to understand the consequence of his
   heinous act is not free from ambiguity or doubt, the said
   plea cannot be allowed to be raised merely on doubtful
   school admission record and in the event it is doubtful,
 · the medical evidence will have to be given due weightage
F while determining the age of the accused. [Para 21] [256-
   C-E]

       6. In the facts of this case, the trial court inspite of
  the evidence led on behalf of the accused, was itself not
G satisfied that the accused was a juvenile as none of the
  school records relied upon by the respondent-accused
  could be held to be free from doubt so as to form a logical
  and legal basis for the purpose of deciding the correct
  date of birth of the accused indicating that the accused
  was a minor/juvenile on the date of the incident. Where
H
   OM PRAKASH      v. STATE OF RAJASTHAN AND            243
                         ANR.
 the courts cannot clearly infer in spite of available A
 evidence on record that the accused is a juvenile or the
 said plea appear to have been raised merely to create a
 mist or a smokescreen so as to hide his real age in order
 to shield the accused on the plea of his minority, the
 attempt cannot be allowed to succeed so as to subvert B
 or dupe the cause of justice. Drawing parallel between
 the plea of minority and the plea of alibi, it may be
 worthwhile to state that it is not uncommon to come
 across criminal cases wherein an accused makes an
 effort to take shelter under the plea of alibi which has to c
 be raised at the first instance but has to be subjected to
 strict proof of evidence by the court trying the offence
 and cannot be allowed lightly in spite of lack of evidence
 merely with the aid of salutary principle that an innocent
 man may not have to suffer injustice by recording an
                                                               0
 order of conviction in spite of his plea of alibi. Similarly,
 if the conduct of an accused or the method and manner
 of commission of the offence indicates an evil and a well
 planned design of the accused committing the offence
 which indicates more towards the matured skill of an
accused than that of an innocent child, then in the E
 absence of reliable documentary evidence in support of
 the age of the accused, medical evidence indicating that
the accused was a major cannot be allowed to be ignored
taking shelter of the principle of benevolent legislation
like the Juvenile Justice Act, subverting the course of F
justice as statutory protection of the Juve.nile Justice Act
is meant for minors who are innocent law breakers and
not accused of matured mind who uses the plea of
minority as a ploy or shield to protect himself from the
sentence of the offence committed by him. The benefit of G
benevolent legislation under the Juvenile Justice Act
obviously will offer protection to a genuine child accused/
juvenile who does not put the court into any dilemma as
to whether he is a juvenile or not by adducing evidence
in support of his plea of minority but in absence of the H
    244     SUPREME COURT REPORTS             [2012] 5 S.C.R.

A same, reliance placed merely on shaky evidence like the
  school admission register which is not proved or oral
  evidence based on conjectures leading to further
  ambiguity, cannot ~e relied upon in preference to the
  medical evidence for assessing the age of the accused.
                     '
B [Paras 22, 23) [256~F-G; 258-B-H; 259-A-B]

       7. While considering the relevance and value of the
  medical evidence, the doctor's estimation of age although
  is not a sturdy substance for proof as it is only an
  opinion, such opinion based on scientific medical test like
C ossification and radiological examination will have to be
  treated as a strong evidence having corroborative value
  while determining the age of the alleged juvenile accused.
  The situation, however, would be different if the academic
  records are alleged to have been withheld deliberately to
D hide the age of the alleged juvenile and the authenticity
  of the medical evidence is under challenge at the
  instance of the prosecution. In that event, whether the
  medical evidence should be relied upon or not will
  obviously depend on the value of the evidence led by the
E contesting parties. [Para 24) [259-C-D-F-H]

       Ramdeo Chauhan @ Raj Nath v. State of Assam (2001)
   5 sec 714: 2001 (3) SCR 669 - relied on.

       8. Respondent No.2 and his father have failed to
F prove that Respondent No.2 was a minor at the time of
  commission of ·offence and hence could not have been
  granted the benefit of the Juvenile Justice Act which
  undoubtedly is a benevolent legislation but cannot be
  allowed to be availed of by an accused who has taken
G the plea of juvenility merely as an effort to hide his real
  age so as to create a doubt in the mind of the courts
  below who thought it appropriate to grant him the benefit
  of a juvenile merely by adopting the principle of
  benevolent legislation but missing its vital implication that
H
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 245


although the Juvenile Justice Act by itself is a piece of      A
benevolent legislation, the protection under the same
cannot be made available to an accused who in fact is
not a juvenile but seeks shelter merely by using it as a
protective umbrella or statutory shield. This will have to
be discouraged if the evidence and other materials on          B
record fail to prove that the accused was a juvenile at the
time of commission of the offence. Juvenile Justice Act
which is certainly meant to treat a child accused with care
and sensitivity offering him a chance to reform and settle
into the mainstream of society, the same cannot be             c
allowed to be used as a ploy to dupe the course of justice
while conducting trial and treatment of heinous offences.
This would clearly be treated as an effort to weaken the
justice dispensation system and hence cannot be
encouraged. [Para 25] [260-A-F]                                D

    10. This Court therefore deems it just and appropriate
to set aside the judgment and order passed by the High
Court as also the courts below. Consequently, the
accused-respondent no.2 shall be sent for trial before the
court of competent jurisdiction wherein the trial is           E
pending and not to the Juvenile Court as pleaded by him.
[Para 26] [260-F-G]

                     Case Law Reference:
    2001 (3) SCR 669         relied on        Para 22,24       F

    CRIMINAL APPELATE JURISDICTION: Criminal Appeal
No. 651 of 2012.
    From the Judgment & Order dated 19.08.2010 of the High
Court of Judicature for Rajasthan, at Jodhpur in S.B. Crl.     G
Revision Petition No. 597 of 2009.
    M.R. Calla, Shivani M. Lal, Amit Kumar Singh, Uday
Gupta, M.K. Tripathy, Pratiksha Sharma, R.C. Kaushik for the
Appellant.
                                                               H
    246        SUPREME COURT REPORTS                   (2012] 5 S.C.R.


A       P.S. Narasimha, Sriram Parabhat, Vishnu Shankar Jain
    Sushil Kr. Dubey, Pragati Nikhar, R. Gopalakrishnan for the
    Respondents.
          The Judgment of the Court was delivered by
B      GYAN SUDHA MISRA, J. 1. The Judgment and order
  dated 19.08.2010 passed by the High Court of Rajasthan at
  Jodhpur in SBCRR No.597 of 2009 is under challenge in this
  appeal at the instance of the appellant Om Prakash who is a
  hapless father of an innocent girl of 13 Yi years who was
c subjected to rape by the alleged accused-Respondent No.2
  Vijay Kumar @ Bhanwroo who has been allowed to avail the
  benefit of protection under Juvenile Justice (Care and
  Protection of Children) Act 2000, although the courts below
  could not record a finding that he, in fact, was a juvenile since
  he had not attained the age of 18 years on the date of incident.
0
  Hence this Special Leave Petition in which leave has been
  granted after condoning the delay.                     •
          2. Thus the questions inter alia which require consideration
    in this appeal are:-
E               (i) whether the respondent/accused herein who is
          alleged to have committed an offence of rape under
          Section 376 IPC and other allied sections along with a co-
          accused who already stands convicted for the offence
          under Section 376 IPC, can be allowed to avail the benefit
F         of protection to a juvenile in order to refer him for trial to a
          juvenile court under the Juvenile Justice (Care and
          Protection of Children) Act, 2000 (shortly referred to as the
          'Juvenile Justice Act') although the trial court and the High
          Court could not record a conclusive finding of fact that the
G         respondent-accused was below the age of 18 years on the
          date of the incident?
                 (ii) whether the principle and benefit of 'benevolent
          legislation' relating to Juvenile Justice Act could be applied
          in cases where two views regarding determination of the
H         age of child/accused was possible and the so-called child
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 247
          [GYAN SUDHA MISRA, J.]
     could not be held to be a juvenile on the basis of evidence     A
     adduced?
            (iii) whether medical evidence and other attending
     circumstances would be of any value and assistance while
     determining the age of a juvenile, if the academic record
     certificates do not conclusively prove the age of the           B
     accused?

            (iv) whether reliance should be placed on medical
     evidence if the certificates relating to academic records
     is deliberately with held in order to conceal the age of the    C
     accused and authenticity of the medical evidence
     regarding the age is under challenge?
      3. Juvenile Justice Act was enacted with a laudable object
of providing a separate forum or a special court for holding trial
of children/juvenile by the juvenile court as it was felt that       D
children become delinquent by force of circumstance and not
by choice and hence they need to be treated with care and
sensitivity while dealing and trying cases involving criminal
offence. But when an accused is alleged to have committed a
heinous offence like rape and murder or any other grave              E
offence when he ceased to be a child on attaining_ the age of
18 years, but seeks protection of the Juvenile Justice Act, under
the ostensible plea of being a minor, should such an accused
be allowed to be tried by a juvenile court or should he be
referred to a competent court of criminal jurisdiction where the     F
trial of other adult persons are held.
     4. The questions referred to hereinbefore arise in this
appeal under the facts and circumstances emerging from the
materials on record which disclose that the appellant/
complainant lodged a written report on 23.5.2007 at about 1.00       G
p.m. that his daughter Sandhya aged about 13 1/2 years a
student of class IX at Secondary School Ghewada was called
from the school by the accused Bhanwaru @ Vijay Kumar, son
of Joga Ram through her friend named Neetu on 23.2.2007 at
about 1.00 p.m. in the afternoon. Neetu told Sandhya that            H
    248      SUPREME COURT REPORTS                [2012] 5 S.C.R.


A    Bhanwroo was in the Bolero vehicle near the bus stand.
     Sandhya left the school after taking permission from the school
    authorities and when she reached near the bus stand she did
     not find the Bolero vehicle. She therefore, made a telephonic
    call to Bhanwru who told her that he was standing at Tiwri Road
B   ahead of bus stand. She then noticed the Bolero vehicle on Tiwri
    Road, but she did not find Neetu and when she enquired about
     Neetu, the accused Bhanwroo @ Vijay Kumar son of Joga Ram
    misguided her and told her that Neetu had got down to go to
    the toilet after which she was made to sit in the vehicle which
C   was forcibly driven towards Tiwri and after a distance of 3-4
    Km., a person named Subhash Bishnoi was also made to sit
    in the vehicle. The vehicle was then taken to a lonely place off
    the road where heinous physical assault of rape was committed
    on her by Bhanwroo @ Vijay Kumar and Subhash Bishnoi.
D   Since the victim girl/the petitioner's daughter resisted and
    opposed, she was beaten as a result of which she sustained
    injuries on her thigh, hand and back. She was then taken
    towards the village Chandaliya and she was again subjected
    to rape. Bhanwru then received a phone call after which
    Bhanwru and Subhash dropped her near the village Ghewada
E   but threatened her that in case she disclosed about this event
    to anyone, she will be killed. Sandhya, therefore, did not
    mention about this incident to anyone in the school but on
    reaching home, she disclosed it to her mother i.e. the
    appellant's/complainant's wife who in turn narrated it to the
F   appellant when he came back to village from Jodhpur on
    24.2.2007. The appellant could not take an immediate decision
    keeping in view the consequences of the incident and called
    his brother Piyush from Jodhpur and then lodged a report with
    the P.S. Osian on the basis of which a case was registered
G   under Section 365, 323 and 376 IPC bearing C.R. No. 40/2007
    dated 25.2.2007. In course of the investigation, the accused
    Bhanwru @ Vijay Kumar was arrested and in the arrest memo
    his name was mentioned as Vijay Kumar @ Bhanwar Lal son
    of Joga Ram and his age has been mentioned as 19 years.
H   After completion of the investigation, it was found that the
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 249
          [GYAN SUDHA MISRA, J.]
offences under Sections 363, 366, 323 and 376 (2)(g) IPC were       A
made out against the accused Vijay Kumar @ Bhanwar Lal,
son of Joga Ram Jat aged 19 years, Subhash son of Bagaram
Bishnoi aged 20 years and against Smt. Mukesh Kanwar @
Mugli @ Neetu aged 27 years and hence charge sheet was
submitted before the Judicial Magistrate, Osian. Vijay Kumar        B
@ Bhanwar Lal and Subhash were taken in judicial custody.
     5. An application thereafter was moved on behalf of the
accused Vijay Kumar @ Bhanwar Lal before the Judicial
Magistrate, Osian stating that he was a juvenile offender and,
therefore, he may be sent to the Juvenile Court for trial.          C
     6. Arguments were heard on the aforesaid application by
the concerned learned magistrate on 29.3.2007 and the learned
magistrate allowed the application by his order dated
29.3.2007, although the Public Prosecutor contested this            0
application relying upon the poJise investigation and the medical
report wherein the age of the accused was recorded as 19
years. In the application, the stand taken on behalf of Vijay
Kumar was that in the school records, his date of birth was
30.6.1990.
                                                                    E
     7. However, contents of this application clearly reveal that
no dispute was raised in the application on behalf of Vijay
Kumar that the name of the accused Vijay Kumar was only Vijay
Kumar and not @ Bhanwar Lal. It was also not urged that the
name of accused Vijay Kumar has been wrongly mentioned in           F
the police papers as Vijay Kumar @ Bhanwar Lal nor in course
of investigation it was evaer stated that the case was wrongly
registered in the name of accused Vijay Kumar @ Bhanwar Lal.
Without even raising this dispute, the academic record of Vijay
Kumar @ Bhanwar Lal was produced whereas according to               G
the complainant the factual position is that the name of the
accused was Bhanwar Lal which was recorded in the
Government Secondary School Jeloo Gagadi (Osian) when he
entered the school on 18.12.1993 and again on 22.4.1996 his
name was entered in the school register wherein his date of         H
    250       SUPREME COURT REPORTS                [2012] 5 S.C.R.


A   birth was recorded as 12.12.1988.
         8. The complainant contested the age of the accused Vijay
    Kumar and it was submitted that the accused Vijay Kumar had
    been admitted in the 2nd Standard in some private school
    known as Hari Om Shiksham Sansthan in Jeloo Gagadi (Osian)
8   with a changed name as Vijay Kumar and there the date of birth
    was mentioned as 30.6.1990 which was reflected in the
    subsequent academic records and on that basis the admission
    card in the name of Vijay Kumar with date of birth as 30.6.1990
    was mentioned in the application for treating him as a juvenile.
c
          9. The case then came up before the Additional Sessions
    Judge (Fast Tract No.I) Jodhpur as Sessions Case No. 151/
    2007 on 3.10.2007. Shri Joga Ram, the father of the accused
    moved an application under Section 49 of the Juvenile Justice
    (Care and Protection of Children) Act, 2000 stating that the date
0
    of birth of his son was 30.6.1990 in his school administration
    record and, therefore, on the date of incident i.e. 23.02.2007,
    he was less than 18 years. In this application form dated
    3.10.2007, Joga Ram, father of the accused Vijay Kumar had
E   himself stated at three places i.e. title, para in the beginning
    and in the first part describing the name of his son (accused)
    as Vijay Kumar @ Bhanwar Lal stating that his son was born
    on 30.6.1990 at his house and he was first admitted in the
    school named Hari Om Shikshan Sansthan, Jeloo Gagadi,
    Osian on 1.9.1997 in 2nd standard and his son studied in this
F   school from 1.9.1997 to 15.7.2007 from 2nd standard and the
    transfer certificate dated 4.7.2007 was enclosed. The said
    application form had been signed by Joga Ram as father of
    the accused Vijay Kumar on which the signature of the
    headmaster along with the seal was also there. In transfer
G   certificate the date of birth of the accused was also stated along
    with some other facts in order to assert that Vijay Kumar was
    less than 18 years of age on the date of the incident. But he
    had nowhere stated that he had another son named Bhanwru
    who had died in 1995 and whose date of birth was 12.12.1988.
H   He attempted to establish that the accused Vijay Kumar is the
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 251
          [GYAN SUDHA MISRA, J.]
younger son of Joga Ram and the elder son Bhanwru had died A
in the year 1995 and it was he whose date of birth was 1988.
He thus asserted that Vijay Kumar in fact was born in the year
1990 and his name was not Bhanwru but only Vijay Kumar. This
part of the story was set up by the father of the accused Joga ·
Ram at a later stage when the evidence was adduced.              B
     10. The application filed on behalf of the accused Vijay
Kumar was contested by the complainant and both the parties
led evidence in support of their respective plea. The specific
case of the complainant was that Bhanwru Lal and Vijay Kumar
in fact are one and the same person and Joga Ram has              C
cooked up a story that he had another son named Bhanwar Lal
whose date of birth was 12.12.1988 and who later expired in
1995. The complainant stated that as per the version of the
father of the accused if the deceased's son Bhanwar Lal
continued in the school up to 24.2.1996, the same was             D
impossible as he is stated to have expired in 1995 itself.
According to the complainant Vijay Kumar and Bhanwar Lal are
the names of the same person who committed the offence of
rape in the year 2007 and the defence taken by the accused
was a concocted story merely to take undue advantage of the       E
Juvenile Justice Act.
     11. After taking into consideration the oral and
documentary evidence, the Sessions Court categorically
concluded that in this case no definite clear and conclusive
view is possible keeping in view the evidence which has come      F
on record with regard to the age of the accused and both the
views are clearly established and, therefore, the view which is
in favour of the accused is taken and the accused is held to
be a juvenile. The accused Vijay Kumar was accordingly
declared to be a juvenile and was directed to be sent to the      G
Juvenile Justice Board for trial. This order was passed by the
Additional Sessions Judge (Fast Tract No.1) Jodhpur on
16.5.2009 in Sessions Case No. 151/2007.
    12. The complainant-appellant thereafter assailed the order   H
    252      SUPREME COURT REPORTS               [2012] 5 S.C.R.


A of the Additional Sessions Judge holding the respondent Vijay
  Kumar as a juvenile by filing a revision petition before the High
  Court. The learned Judge hearing the revision observed that a
  lot of contradictory evidence with regard to the age and identity
  of Vijay Kumar @ Bhanwru has emerged and a lot of confusion
B has been created with regard to the date of birth of accused
  Vijay Kumar @ Bhanwroo. But the learned single Judge was
  pleased to hold that the Additional Sessions Judge had
  appreciated the evidence in the right perspective and he is not
  found to have erred in declaring respondent No.2 Vijay Kumar
c @ Bhanwru to be a juvenile offender. He has, therefore, rightly
  been referred to the Juvenile Justice Board for trial which
  warrants no interference. The learned single Judge
  consequently dismissed the revision petition against which the
  complainant filed this special leave petition (Crl.) No. 2411/
  2011 which after grant of leave has given rise to this appeal.
0
       13. Assailing the orders of the courts below, learned
  counsel for the appellant has essentially advanced twofold
  submissions in course of the hearing. He had initially submitted
  that Vijay Kumar alias Bhanwar Lal, son of Joga Ram is the
E same person and Vijay Kumar is the changed name of
  Bhanwar Lal whose correct date of birth is 12.12.1988 and not
  30.6.1990 as stated by Joga Ram, father of the accused.
  Hence, Vijay Kumar @ Bhanwar Lal was not a juvenile on the
  date of commission of the offence.
F      14. In order to substantiate this plea, learned counsel for
  the appellant submitted that in the application which was moved
  by Joga Ram, father of the accused, before the Additional
  Sessions Judge under Section 49 of the Juvenile Justice Act,
  he has nowhere mentioned that he had two sons named Vijay
G Kumar and Bhanwar Lal and that Bhanwar Lal had died in 1995
  whose date of birth was 12.12.1988 and his other son Vijay
  Kumar's date of birth was 30.6.1990. In fact, he himself had
  mentioned his son's name as Vijay Kumar@ Bhanwru at more
  than one place in the application and later has planted a story
H that he had two sonce viz., Bhanwar Lal and Vijay Kumar, and
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 253
          [GYAN SUDHA MISRA, J.]
Bhanwar Lal whose date of birth was 12.12.1988 had already             A
died in the year 1995.
     15. Learned counsel for the appellant further contended
that the benefit of the principle of benevolent legislation
conferred on the Juvenile Justice Act, cannot be applied in the
                                                                       8
present case as the courts below -specially the court of fact
which is the Additional Sessions Judge (Fast Track No.1)
Jodhpur did not record a categorical finding with regard to the
date of birth of the respondent-accused and the aforesaid
principle can be applied only to a case where the accused is
clearly held to be a juvenile so as to be sent for trial by the        C
juvenile court or to claim any other benefit by the alleged juvenile
accused. Counsel for the Appellant has relied upon the
evidence of NAW-3 -Medical Jurist, who conducted ossification
test of the accused and opined before the court that the
accused was 19 years of age and statement of NAW-1                     D
Assistant Professor in Radiology who opined before the court
on 23.11.2007 that on the basis of the x-ray films, age of the
accused is above 18 years and below 20 years.
     16. Learned counsel for the accused-respondent on his
                                                                       E
part contended that medical opinion could be sought only when
matriculation or equivalent certificate or date of birth certificate
from the school was not available and since in the present case
the admission certificate of the accused from the school record
is available which states the date of birth to be 30.6.1990, the
school certificate ought to be allowed to prevail upon the             F
medical opinion.
     17. We are unable to appreciate and accept the aforesaid
contention of learned counsel for the respondent since the age
of the accused could not be proved merely on the basis of the          G
school record as the courts below in spite of its scrutiny could
not record a finding of fact that the accused, in fact, was a minor
on the date of the incident. Hence, in a situation when the school
record itself is not free from ambiguity and conclusively prove
the minority of the accused, medical opinion cannot be allowed
                                                                       H
    254       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A to be overlooked or treated to be of no consequence. In this
  context the statement of NAW-3 Dr. Jagdish Jugtawat, the
  medical jurist who conducted the ossification test of the
  accused and opined before the court that the accused was 19
  years of age is of significance since it specifically states that
B the accused was not a juvenile on the date of commission of
  the offence. The statement of NAW-1 Dr. C.R. Agarwal, Asstt.
  Professor in Radiology also cannot be overlooked since he
  opined that on the basis of x-ray films, the age of the accused
  is above 18 years and below 20 years. Thus, in a circumstance
c where the trial court itself could not arrive at a conclusive finding
  regarding the age of the accused, the opinion of the medical
  experts based on x-ray and ossification test will have to be
  given precedence over the shaky evidence based on school
  records and a plea of circumstantial inference based on a story
D set up by the father of the accused which prima facie is a cock
  and bull story.
         18. It is no doubt true that if there is a clear and
    unambiguous case in favour of the juvenile accused that he was
    a minor below the age of 18 years on the date of the incident
E   and the documentary evidence at least prima facie proves the
    same, he would be entitled for this special protection under the
    Juvenile Justice Act. But when an accused commits a grave
    and heinous offence and thereafter attempts to take statutory
    shelter under the guise of being a minor, a casual or cavalier
F   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 the confidence
    of common man in the ·institution entrusted with the
    administration of justice. Hence, while the courts must be
G   sensitive in dealing with the juvenile who is involved in cases
    of serious nature like sexual molestation, rape, gang rape,
    murder and host of other offences, the accused cannot be
    allowed to abuse the statutory protection by attempting to prove
    himself as a minor when the documentary evidence to prove
H   his minority gives rise to a reasonable doubt about his assertion
    of minority. Under such circumstance, the medical evidence
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 255
          [GYAN SUDHA MISRA, J.]
based on scientific investigation will have to be given due weight     A
and precedence over the evidence based on school
administration records which give rise to hypothesis and
speculation about the age of the accused. The matter however
would stand on a different footing if the academic certificates
ad school records are alleged to have been with held                   B
deliberately with ulterior motive and authenticity of the medical
evidence is under challenge by the prosecution.
       19. In the instant matter, the accused Vijay Kumar is alleged
 to have committed a crime which repels against moral
 conscience as he chose a girl of 13 and a half years to satisfy       C
 his lust by hatching a plot with the assistance of his accomplice
 Subhash who already stands convicted and thereafter the
 accused has attempted to seek protection under the plea that
 he committed such an act due to his innocence without
 understanding its implication in which his father Joga Ram is         D
clearly assisting by attempting to rope in a story that he was a
 minor on the date of the incident which is not based on
conclusive evidence worthy of credence but is based on a
confused story as also shaky and fragile nature of evidence
which hardly inspires confidence. It is hard to ignore that when       E
the Additional Sessions Judge in spite of meticulous scrutiny
of oral and documentary evidence could not arrive at a
conclusive finding that he was clearly a juvenile below the age
of 18 years on the date of incident, then by what logic and
reasoning he should get the benefit of the theory of benevolent        F
legislation on the foothold of Juvenile Justice Act is difficult to
comprehend as it clearly results in erroneous application of this
principle and thus we find sufficient force in the contention of
learned counsel for the appellant that the benefit of the principle
of benevolent legislation can be made applicable in favour of          G
only those delinquents who undoubtedly have been held to be
a juvenile which leaves no scope for speculation about the age
of the alleged accused.
     20. We therefore cannot overlook that the trial court as well
as the High Court while passing the impugned order could not           H
    256      SUPREME COURT REPORTS               [2012) 5 S.C.R.


A arrive at any finding at all as to whether the accused was a
  major or minor on the date of the incident and yet gave the
  benefit of the principle of benevolent legislation to an accused
  whose plea of minority that he was below the age of 18 years
  itself was in doubt. In such situation, the scales of justice is
B required to be put on an even keel by insisting for a reliable
  and cogent proof in support of the plea of juvenility specially
  when the victim was also a minor.
       21. The benefit of the principle of benevolent legislation
  attached to Juvenile Justice Act would thus apply to only such
C 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 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
D planned manner reflecting his maturity of mind rather than
  innocence indicating that his plea of juven;lity is more in the
  nature of a shield to dodege or dupe the arms of law, cannot
  be allowed to come to his rescue. Hence if the plea of juvenility
  or the fact that he had not attained the age of discretion so as
E to understand the consequence of his heinous act is not free
  from ambiguity or doubt, the said plea cannot be allowed to be
  raised merely on doubtful school admission record and in the
  event it is doubtful, the medical evidence will have to be given
  due weightage while determining the age of the accused.
F      22. Adverting to the facts of this case we have noticed that
  the trial court in spite of the evidence led on behalf of the
  accused, was itself not satisfied that the accused was a juvenile
  as none of the school records relied upon by the respondent-
  accused could be held to be free from doubt so as to form a
G logical and legal basis for the purpose of deciding the correct
  date of birth of the accused indicating that the accused was a
  minor/juvenile on the date of the incident. This Court in several
  decisions including the case of Ramdeo Chauhan @ Raj Nath
  vs. State of Assam, reported in (2001) 5 SCC 714dealing with
H a similar circumstance had observed which a~ds weight and
 OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 257
           [GYAN SUDHA MISRA, J.]
strength to what we have stated which is quoted herein as             A
follows :-
      "it is clear that the petitioner neither was a child nor near
      about the age of being a child within the meaning of the
      Juvenile Justice Act or the Children Act. He is proved to
                                                                      B
      be a major at the time of the commission of the offence.
      No doubt, much less a reasonable doubt is created in the
      mind of the court, for the accused entitling him to the
     benefit of a lesser punishment, it is true that the accused
     tried to create a smoke screen with respect to his age. But
      such effort appear to have been made only to hide his real      C
     age and not to create any doubt in the mind of the court.
     The judicial system cannot be allowed to be taken to
     ransom by having resort to imaginative and concocted
     grounds by taking advantage of loose sentences
     appearing in the evidence of some of the witnesses               D
     particularly at the stage of special leave petition. The law
     insists on finality of judgments and is more concerned with
     the strengthening of the judicial system. The courts are
     enjoined upon to perform their duties with the object of
     strengthening the confidence of the common man in the            E
     institution entrusted with the administration of justice. Any
     effort which weakens the system and shakes the faith of
     the common man in the justice dispensation system has
     to be discouraged."
                                                                      p
     The-above noted observations no doubt were recorded by
the learned Judges of this Court while considering the
 imposition of death sentence on the accused who claimed to
be a juvenile, nevertheless the views expressed therein clearly
lends weight for resolving an issue where the court is not in a
position to clearly draw an inference wherein an attempt is           G
made by the accused or his guardian claiming benefit available
to a juvenile which may be an effort to extract sympathy and
impress upon the Court for a lenient tre~tment towards the so-
called juvenile accused who, in fact was a major on the date of
incident.                                                             H
    258       SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A         23. However, we reiterate that we may not be
    misunderstood so as to infer that even if an accused is clearly
    below the age of 18 years on the date of commission of
    offence, should not be granted protection or treatment available
    to a juvenile under the Juvenile Justice Act if a dispute
B   regarding his age had been raised but was finally resolved on
    scrutiny of evidence. What is meant to be emphasized is that
    where the courts cannot clearly infer in spite of available
    evidence on record that the accused is a juvenile or the said
    plea appear to have been raised merely to create a mist or a
c   smokescreen so as to hide his real age in order to shield the
    accused on the plea of his minority, the attempt cannot be
    allowed to succeed so as to subvert or dupe the cause of
    justice. Drawing parallel between the plea of minority and the
    plea of alibi, it may be worthwhile to state that it is not
     uncommon to come across criminal cases wherein an accused
0
    makes an effort to take shelter under the plea of alibi which has
    to be raised at the first instance but has to be subjected to strict
    proof of evidence by the court trying the offence and cannot be
    allowed lightly in spite of lack of evidence merely with the aid
    of salutary principle that an innocent man may not have to suffer
E   injustice by recording an order of conviction in spite of his plea
    of alibi. Similarly, if the conduct of an accused or the method
    and manner of commission of the offence indicates an evil and
    a well planned design of the accused committing the offence
    which indicates more towards the matured skill of an accused
F   than that of an innocent child, then in the absence of reliable
    documentary evidence in support of the age of the accused,
    medical evidence indicating that the accused was a major
    cannot be allowed to be ignored takin9 shelter of the principle
    of benevolent legislation like the Juvenile Justice Act, subverting
G   the course of justice as statutory protection of the Juvenile
    Justice Act is meant for minors who are innocent law breakers
    and not accused of matured mind who uses the plea of minority
    as a ploy or shield to protect himself from the sentence of the
    offence committed by him. The benefit of benevolent legislation
H
OM PRAKASH v. STATE OF RAJASTHAN AND ANR. 259
          [GYAN SUDHA MISRA, J.]
under the Juvenile Justice Act obviously will offer protection to   A
a genuine child accused/juvenile who does not put the court into
any dilemma as to whether he is a juvenile or not by adducing
evidence in support of his plea of minority but in absence of
the same, reliance placed merely on shaky evidence like the
school admission register which is not proved or oral evidence      B
based on conjectures leading to further ambiguity, cannot be
relied upon in preference to the medical evidence for assessing
the age of the accused.
      24. While considering the relevance and value of the
medical evidence, the doctor's estimation of age although is        C
not a sturdy substance for proof as it is only an opinion, such
opinion based on scientific medical test like ossification and
racjiological examination will have to be treated as a strong
evi~ence having corroborative value while determining the age
of the alleged juvenile accused. In the case of Ramdeo              D
Chauhan Vs. State of Assam (supra), the learned judges have
added an insight for determination of this issue when it
recorded as follows:-
    "Of course \he doctor's estimate of age is not a sturdy
    substitute for proof as it is only his opinion. But such        E
    opinion of an expert cannot be sidelined in the realm where
    the Court gropes in the dark to find out what would possibly
    have been the age of a citizen for the purpose of affording
    him a constitutional protection. In the absence of all other
    acceptable material, if such opinion points to a                F
    reasonable possibility regarding the range of his age, it
    has certainly to be considered."
The situation, however, would be different if the academic
records are alleged to have been with held deliberately to hide     G
the age of the alleged juvenile and ~he authenticity of the
medical evidence is under challenge at the instance of the
prosecution. In that event, whether the medical evidence should
be relied upon or not will obviously depend on the value of the
evidence led by the contesting parties.
                                                                    H
    260       SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A         25. In view of the aforesaid discussion and analysis based
     on the prevailing facts and circumstances of the case, we are
     of the view that the Respondent No.2 Vijay Kumar and his
    father have failed to prove that Respondent No.2 was a minor
    at the time of commission of offence and hence could not have
8   been granted the benefit of the Juvenile Justice Act which
    undoubtedly is a benevolent legislation but cannot be allowed
    to be availed of by an accused who has taken the plea of
    juvenility merely as an effort to hide his real age so as to create
    a doubt in the mind of the courts below who thought it
c   appropriate to grant him the benefit of a juvenile merely by
    adopting the principle of benevolent legislation but missing its
    vital implication that although the Juvenile Justice Act by itself
    is a piece of benevolent legislation, the protection under the
    same cannot be made available to an accused who in fact is
    not a juvenile but seeks shelter merely by using it as a protective
0
    umbrella or statutory shield. We are under constraint to observe
    that this will have to be discouraged if the evidence and other
    materials on record fail to prove that the accused was a juvenile
    at the time of commission of the offence. Juvenile Justice Act
    which is certainly meant to treat a child accused with care and
E   sensitivity offering him a chance to reform and settle into the
    mainstream of society, the same cannot be allowed to be used
    as a ploy to dupe the course of justice while conducting trial
    and treatment of heinous offences. This would clearly be treated
    as an effort to weaken the justice dispensation system and
F   hence cannot be encouraged.
       26. We therefore deem it just and appropriate to set aside
  the judgment and order passed by the High Court as also the
  courts below and thus allow this appeal. Consequently, the
G accused Vijay Kumar, S/o Joga Ram shall be sent for trial
  before the court of competent jurisdiction wherein the trial is
  pending and not to the Juvenile Court as pleaded by him. We
  order accordingly.
    8.8.8.                                          Appeal allowed.
H