Supreme Court of India
RISHIPAL SINGH SOLANKIversusSTATE OF UTTAR PRADESH & ORS.
- Citation
- 2021 INSC 752
- Decided
- 18 November 2021
- Disposal
- Dismissed
- Bench
- D Y CHANDRACHUD
Holding
When credible school documents such as a matriculation certificate establish the date of birth, a presumption of juvenility under Section 94 of the Juvenile Justice Act, 2015 arises and, absent any contrary evidence, the age recorded is deemed the true age, justifying the JJ Board's declaration of the accused as a juvenile delinquent.
Summary
The appellant alleged that respondent No.2, Nishant Solanki, who was charged with serious offences including murder, was not a juvenile and challenged the Juvenile Justice Board's (JJ Board) declaration that he was a juvenile delinquent based on his matriculation certificate. The appellant argued that the admission forms and signatures showed inconsistencies, seeking a medical age test, which the JJ Board rejected. The Supreme Court examined the evidentiary value of school records under Section 35 of the Evidence Act and the presumption of juvenility under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. It held that the matriculation certificate and corroborating school records, authenticated by the education authority, were sufficient to establish the accused’s age as 15 years, creating a presumption of juvenility that was not rebutted by any contrary evidence. Consequently, the Court upheld the JJ Board’s order and dismissed the appeal.
Issues considered
- The adequacy of a matriculation certificate and school records to establish the age of the accused under the Juvenile Justice Act, 2015
- Whether the JJ Board should have ordered a medical age determination (ossification test) in the presence of documentary evidence
- The applicability and rebuttal of the presumption of juvenility under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015
- The permissibility of raising a claim of juvenility at any stage of criminal proceedings
- The allocation of the burden of proof and the standard of proof required for a claim of juvenility
Legislation cited
- Code of Criminal Procedure, 1973s. 101, s. 311
- Indian Evidence Act, 1872s. 35
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 34
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 49, s. 7A
- Juvenile Justice (Care and Protection of Children) Act, 2015s. 9, s. 94
- Juvenile Justice (Care and Protection of Children) Rules, 2007s. Rule 12
Subjects
juvenile justiceclaim of juvenilityage determinationmatriculation certificateSection 94 JJ Actpresumption of ageossification testEvidence Act section 35burden of proofserious offences
Judgment
502 [2021]
SUPREME COURT 12 S.C.R. 502
REPORTS [2021] 12 S.C.R.
A RISHIPAL SINGH SOLANKI
v.
STATE OF UTTAR PRADESH & ORS.
(Criminal Appeal No.1240 of 2021)
B NOVEMBER 18, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015
– Claim of juvenility – Determination of age – Matriculation
C
Certificate – Respondent no.2-accused along with others was alleged
to have attacked the appellant and his family causing death of his
father and uncle – Application filed by respondent no.2, through
his mother/natural guardian before the Juvenile Justice Board for
declaring the respondent no.2 as a juvenile delinquent – Appellant
D sought medical test of respondent no.2 to ascertain his true age,
application dismissed – Respondent no.2 was declared a juvenile
delinquent – Appellant’s appeal before District and Sessions Judge
was dismissed – Criminal Revision before the High Court was also
rejected – On appeal, held: Respondent no.2’s date of birth as
recorded in the school admission records, as well as the matriculation
E
certificate are the same i.e., 25.09.2004 – Date of the incident was
05.05.2020 – The mark-sheet pertaining to the matriculation of
respondent no.2, issued by the concerned Board, gives rise to a
presumption that he was less than 16 years of age on the date of
incident – Moreover, the letter dtd. 22.07.20 of the Administrative
F Officer, Regional Office, Intermediate Education Council, UP,
(Meerut) also authenticated the date of birth of respondent no.2 as
25.09.2004 – No contra evidence to the documents produced by
respondent no.2 have been produced by the appellant – Order of
the High Court sustaining the judgement of the District & Sessions
Court as well as of the JJ Board, not differed from – Evidence Act,
G
1872 – s.35 – Juvenile Justice (Care and Protection of Children)
Act, 2000 – Juvenile Justice (Care and Protection of Children) Rules,
2007 – r.12 – Penal Code, 1860 – ss.147-149, 323, 307, 302, 34.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Evidence Act, 1872 – s.35 – Application filed for declaration that
H
502
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 503
& ORS.
respondent no.2 was a juvenile delinquent was supported with A
Certificate-cum-Marks Sheet of the High School issued by the
concerned Board stating that the date of birth of respondent no.2
was 25.09.2004 – Admission forms were relied upon to prove that
the respondent’s date of birth mentioned in the said documents are
in consonance with the date of birth indicated in the matriculation
B
certificate – Plea of appellant that the genuineness of the said
documents was in grave doubt and thus could not have been relied
upon in support of claim of juvenility – Held: In the instant case,
admittedly, there is no other document indicating the date of birth
of the respondent no.2 contrary to what has been indicated in the
matriculation certificate – There is no discrepancy in the date of C
birth.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Determination of age – Evidence – School records – Evidence
Act, 1872 – s.35 – Held: When the determination of age is on the
basis of evidence such as school records, it is necessary that the D
same would have to be considered as per s.35 inasmuch as any
public or official document maintained in the discharge of official
duty would have greater credibility than private documents – Any
document in consonance with public documents, such as
matriculation certificate, could be accepted by the Court or the JJ
Board provided such public document is credible and authentic as E
per s.35 and other provisions.
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss.94, 9(2), (3) – Juvenile Justice (Care and Protection of Children)
Act, 2000 – ss.7A, 49 – Juvenile Justice (Care and Protection of
Children) Rules, 2007 – r.12 – Determination of age – Difference F
in the procedure – Discussed.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Claim of juvenility – Held: A claim of juvenility may be raised at
any stage of a criminal proceeding, even after final disposal of the
case – A delay in raising the claim of juvenility cannot be a ground G
for rejection of such claim – It can also be raised for the first time
before Supreme Court – A hyper-technical approach should not be
adopted when evidence is adduced on behalf of the accused in
support of the plea that he was a juvenile – If two views are possible
H
504 SUPREME COURT REPORTS [2021] 12 S.C.R.
A on the same evidence, the court should lean in favour of holding
the accused to be a juvenile in borderline cases.
Juvenile Justice (Care and Protection of Children) Act, 2015
– ss.9, 94 – Determination of juvenility – Held: When the issue of
juvenility arises before a Court, it would be u/sub-section (2) and
B (3) of s.9 but when a person is brought before a Committee or JJ
Board, s.94 applies – Further, if the JJ Board has reasonable grounds
for doubt regarding whether the person brought before it is a child
or not, the Board shall undertake the process of age determination
by seeking evidence – Age recorded by the JJ Board to be the age
C of the person so brought before it shall, for the purpose of the 2015
Act, be deemed to be true age of that person – Hence, the degree of
proof required in such a proceeding before the JJ Board, when an
application is filed seeking a claim of juvenility when the trial is
before the concerned criminal court, is higher than when an inquiry
is made by a court before which the case regarding the commission
D
of the offence is pending.
Juvenile Justice (Care and Protection of Children) Act, 2015
– s.94 – Presumption of juvenility – Juvenile Justice (Care and
Protection of Children) Rules, 2007 – r.12 – Held: When a claim for
E juvenility is raised, the burden is on the person raising the claim to
satisfy the Court to discharge the initial burden – However, the
documents mentioned in r.12(3)(a)(i), (ii), and (iii), 2007 Rules or
sub-section (2) of s.94, shall be sufficient for prima facie satisfaction
of the Court – On the basis of the aforesaid documents a
presumption of juvenility may be raised – However, said presumption
F is not conclusive proof of the age of juvenility and may be rebutted
by contra evidence.
Juvenile Justice (Care and Protection of Children) Act, 2015
– Absence of documents mentioned in s.94(2), determination of age
– Held: Ossification Test cannot be the sole criterion for age
G
determination – A mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by
radiological examination – Such evidence is not conclusive evidence
but only a very useful guiding factor to be considered in the absence
of documents mentioned in s.94(2).
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 505
& ORS.
Dismissing the appeal, the Court A
HELD: 1.1 On repeal of JJ Act, 2000 and on the
enforcement of JJ Act, 2015, the procedure to be followed when
a claim of juvenility is raised before any court, other than a Board
is stipulated under section 9(2)&(3). There is no corresponding
Rule to determine juvenility akin to Rule 12 of the JJ Rules, B
2007. On the other hand, under section 94 of the JJ Act, 2015, a
presumption is raised that when a person is brought before the
JJ Board or the Child Welfare Committee (‘Committee’) (other
than for the purpose of giving evidence) and the said person is a
child, the JJ Board or the Committee shall record such
observation stating the age of the child as nearly as may be, and C
proceed with the inquiry under section 14 or 20 section 36, as
the case may be, without waiting for further confirmation of the
age. But where the said Board or the Committee has reasonable
grounds for doubt regarding whether the person brought before
it is a child or not, the JJ Board or the Committee, as the case D
may be, shall undertake the process of age determination by
seeking evidence by obtaining - (i) the date of birth certificate
from the school, or the matriculation or equivalent certificate from
the concerned examination Board, if available; and in the absence
thereof; (ii) the birth certificate given by a corporation or a
municipal authority or a panchayat; (iii) and only in the absence E
of (i) and (ii) above, age shall be determined by an ossification
test or any other latest medical age determination test conducted
on the orders of the Committee or the Board. Under section 7A
of JJ Act, 2000 which was inserted by an amendment with effect
from 22.08.2006, provision was made to claim juvenility by F
contending that the accused person was a juvenile on the date of
commission of the offence and in such a case, on the evidence
taken on record, a finding regarding the age of such person had
to be recorded by the court, other than a JJ Board. The claim for
juvenility could be raised before any Court and at any stage, even
after the final disposal of a case and such claim had to be G
determined in terms of the said Act and the rules made
thereunder. If the Court found a person to be a juvenile on the
date of commission of offence under sub-section (1) of section
7A of the JJ Act, 2000, it had to forward the juvenile to the JJ
H
506 SUPREME COURT REPORTS [2021] 12 S.C.R.
A Board for passing appropriate orders and the sentence, if any,
passed by a Court would not have any effect. However, under the
JJ Act, 23 2015, a provision corresponding to section 7A of the
JJ Act, 2000, is in the form of sub-section 2 of section 9 of the
said Act. [Paras 21-23][521-D; 522-A-F; 523-F-H; 524-A]
B 1.2 The difference in the procedure under the two
enactments could be discerned as under:
(i) As per JJ Act, 2015 in the absence of requisite documents
as mentioned in Sub-section (2) of Section 94(a) and (b), there is
provision for determination of the age by an ossification test or
C any other medical age related test to be conducted on the orders
of the Committee or the JJ Board as per Section 94 of the said
Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence
of relevant documents, a medical opinion had to be sought from a
duly constituted Medical Board which would declare the age of
the juvenile or child.
D
(ii) With regard to the documents to be provided as
evidence, what was provided under Rule 12 of the JJ Rules, 2007
has been provided under sub- section 2 of section 94 of the JJ
Act, 2015 as a substantive provision.
E (iii) Under Section 49 of the JJ Act, 2000, where it appeared
to a competent authority that a person brought before it was a
juvenile or a child, then such authority could, after making an
inquiry and taking such evidence as was necessary, record a
finding as to the juvenility of such person and state the age of
such person as nearly as may be. Sub-section (2) of Section 49
F stated that no order of a competent authority shall be deemed to
have become invalid merely by any subsequent proof that the
person in respect of whom the order had been made is not a
juvenile and the age recorded by the competent authority to be
the age of person so brought before it, for the purpose of the Act,
G be deemed to be the true age of that person.
But, under Section 94 of the JJ Act, 2015, which also deals
with presumption and determination of age, the Committee or
the JJ Board has to record such observation stating the age of
the child as nearly as may be and proceed with the inquiry without
waiting for further confirmation of the age. It is only when the
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 507
& ORS.
Committee or the JJ Board has reasonable grounds for doubt A
regarding whether the person brought before it is a child or not,
it can undertake the process of age determination, by seeking
evidence. Sub-section (3) of Section 94 states that the age
recorded by the Committee or the JJ Board to be the age of the
persons so brought before it shall, for the purpose of the Act, be
B
deemed to be the true age of that person. Thus, there is a finality
attached to the determination of the age recorded and it is only
in a case where reasonable grounds exist for doubt as to whether
the person brought before the Committee or the Board is a child
or not, that a process of age determination by seeking evidence
has to be undertaken. [Paras 25-27][524-E-F; 525-A-E] C
1.3 (i) A claim of juvenility may be raised at any stage of a
criminal proceeding, even after a final disposal of the case. A
delay in raising the claim of juvenility cannot be a ground for
rejection of such claim. It can also be raised for the first time
before this Court. D
(ii) An application claiming juvenility could be made either
before the Court or the JJ Board.
(iia) When the issue of juvenility arises before a Court, it
would be under sub-section (2) and (3) of section 9 of the JJ Act,
2015 but when a person is brought before a Committee or JJ E
Board, section 94 of the JJ Act, 2015 applies.
(iib) If an application is filed before the Court claiming
juvenility, the provision of sub-section (2) of section 94 of the JJ
Act, 2015 would have to be applied or read along with sub-section
(2) of section 9 so as to seek evidence for the purpose of recording F
a finding stating the age of the person as nearly as may be.
(iic) When an application claiming juvenility is made under
section 94 of the JJ Act, 2015 before the JJ Board when the
matter regarding the alleged commission of offence is pending
before a Court, then the procedure contemplated under section G
94 of the JJ Act, 2015 would apply. Under the said provision if
the JJ Board has reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the Board shall
undertake the process of age determination by seeking evidence
H
508 SUPREME COURT REPORTS [2021] 12 S.C.R.
A and the age recorded by the JJ Board to be the age of the person
so brought before it shall, for the purpose of the JJ Act, 2015, be
deemed to be true age of that person. Hence the degree of proof
required in such a proceeding before the JJ Board, when an
application is filed seeking a claim of juvenility when the trial is
before the concerned criminal court, is higher than when an
B
inquiry is made by a court before which the case regarding the
commission of the offence is pending (vide section 9 of the JJ
Act, 2015).
(iii) That when a claim for juvenility is raised, the burden is
on the person raising the claim to satisfy the Court to discharge
C the initial burden. However, the documents mentioned in Rule
12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ
Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall
be sufficient for prima facie satisfaction of the Court. On the basis
of the aforesaid documents a presumption of juvenility may be
D raised.
(iv) The said presumption is however not conclusive proof
of the age of juvenility and the same may be rebutted by contra
evidence let in by the opposite side.
(v) That the procedure of an inquiry by a Court is not the
E same thing as declaring the age of the person as a juvenile sought
before the JJ Board when the case is pending for trial before the
concerned criminal court. In case of an inquiry, the Court records
a prima facie conclusion but when there is a determination of age
as per sub-section (2) of section 94 of 2015 Act, a declaration is
F made on the basis of evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age of the person brought
before it. Thus, the standard of proof in an inquiry is different
from that required in a proceeding where the determination and
declaration of the age of a person has to be made on the basis of
evidence scrutinised and accepted only if worthy of such
G acceptance.
(vi) That it is neither feasible nor desirable to lay down an
abstract formula to determine the age of a person. It has to be on
the basis of the material on record and on appreciation of evidence
adduced by the parties in each case.
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 509
& ORS.
(vii) A hyper- technical approach should not be adopted A
when evidence is adduced on behalf of the accused in support of
the plea that he was a juvenile.
(viii) If two views are possible on the same evidence, the
court should lean in favour of holding the accused to be a juvenile
in borderline cases. This is in order to ensure that the benefit of B
the JJ Act, 2015 is made applicable to the juvenile in conflict
with law. At the same time, the Court should ensure that the JJ
Act, 2015 is not misused by persons to escape punishment after
having committed serious offences.
(ix) That when the determination of age is on the basis of C
evidence such as school records, it is necessary that the same
would have to be considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or official document
maintained in the discharge of official duty would have greater
credibility than private documents.
D
(x) Any document which is in consonance with public
documents, such as matriculation certificate, could be accepted
by the Court or the JJ Board provided such public document is
credible and authentic as per the provisions of the Indian
Evidence Act viz., section 35 and other provisions.
E
(xi) Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by
radiological examination. Such evidence is not conclusive
evidence but only a very useful guiding factor to be considered
in the absence of documents mentioned in Section 94(2) of the F
JJ Act, 2015. [Para 29][535-A-H; 536-A-H; 537-A-D]
1.4 The JJ Board, Baghpat, by its order dated 14.09.2020
dismissed the application seeking medical examination of
respondent no.2 herein and there is nothing produced to show
that the same has been set aside. According to the JJ Board, the G
matriculation certificate issued by the concerned Board indicated
the date of birth as 25.09.2004 and it is only in the absence of
such a document that determination of age had to be by ossification
test or any other latest medical age determination test. In the
H
510 SUPREME COURT REPORTS [2021] 12 S.C.R.
A instant case, since the certificate of the matriculation Board was
available, it was unnecessary for orders for medical test of
respondent no.2. By order dated 11.11.2020, the JJ Board
declared respondent no.2 as a juvenile delinquent in Case Crime
No.116 of 2020 for offences under sections 147, 148, 149, 323,
307, 302 and 34 of the IPC P.S. Singhawali Ahir, District Baghpat.
B
The aforesaid order has been sustained by the District and
Sessions Court as well as the High Court by holding that section
94 of the JJ Act, 2015 had been complied with in the instant case
inasmuch as the matriculation or equivalent certificate from the
concerned Examination Board had indicated the date of birth of
C respondent no.2 to be 25.09.2004. Therefore, Sub-section 2 of
Section 94 of the JJ Act, 2015 applies as there were no reasonable
ground to doubt the said document. In the absence of there being
any evidence to negate the same, the criminal revision was
dismissed. This is on the strength of Subsection (3) of Section 94
of the JJ Act, 2015 which is a deeming provision. Though the
D
learned counsel for the appellant emphasized that the signatures
of respondent no.2 on the admission forms of class 1 and class 8
are identical and it could not be so on the admission form of class
1 as he was only four and half years old when he was admitted to
class 1. But the fact remains that in 2019, when respondent no.2
E completed his class 10, his date of birth has been shown as
25.09.2004 in the matriculation certificate. Hence, respondent
no.2 was only about 15 years of age on the date of incident, and in
any case he was less than 16 years of age. In the absence of there
being any rebuttal evidence brought on record by the appellant
herein, even if the documents seeking admission to class 1 and
F
class 8 are discredited or eschewed, the fact remains that the
mark-sheet pertaining to the matriculation of respondent no.2,
issued by the concerned Board, gives rise to a presumption that
he was less than 16 years of age on the date of incident
i.e.05.05.2020. [Paras 37, 39-42][539-B-C, E-H; 540-A-D]
G 1.5 A photocopy of the High School marksheet of accused
respondent no.2 with Gazette year 2019, Roll No.0485064 year
2019, in respect of which a letter of verification being
No.R.O.I.E.C./records/4016 dated 22.07.2020, received from the
Office of the Administrative Officer, Regional Office, Intermediate
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 511
& ORS.
Education Council, Uttar Pradesh (Meerut) also authenticated A
the date of birth of accused respondent no.2 as 25.09.2004.
Moreover, the said matriculation certificate has been issued by
the concerned Board. Further, the date of birth as recorded in
the school admission records, as well as the matriculation
certificate are the same namely, 25.09.2004. The incident
B
occurred on 05.05.2020. Thus respondent no.2 was only 15 years
7 months of age on the date of the incident which in any case is
less than 16 years of age. In the instant case, admittedly, there is
no other document indicating the date of birth of the second
respondent contrary to what has been indicated in the
matriculation certificate. A discrepancy in the date of birth does C
not arise herein. No contra evidence to the documents produced
by the second respondent have been produced by the appellant
herein. In the circumstances, this court is not inclined to differ
from the order of the High court which sustained the judgment of
the District & Sessions Court as well as of the JJ Board in this
D
case. [Paras 44, 46][540-G-H; 541-A-B; 541-D-E]
Sanjeev Kumar Gupta vs. State of Uttar Pradesh & Anr.
(2019) 12 SCC 370 : [2019] 9 SCR 735 – distinguished.
1.6 Section 94 of the JJ Act, 2015 raises a presumption
regarding juvenility of the age of the child brought before the JJ E
board or the Committee. But in case the Board or Committee
has reasonable grounds for doubt about the person brought before
it is a child or not, it can undertake the process of determination
of age by seeking evidence. Thus, in the initial stage a
presumption that the child brought before the Committee or the
JJ Board is a juvenile has to be drawn by the said authorities. F
The said presumption has to be drawn on observation of the child.
However, the said presumption may not be drawn when the
Committee or the Board has reasonable grounds for doubt
regarding the person brought before it is a child or not. In such a
case, it can undertake the process of age determination by the G
evidence. The age recorded by the Committee or the Board to
be the age of the person so brought before it shall for the purpose
of the JJ Act, 2015 be deemed to be the true age of the person.
The deeming provision in sub-section (3) of section 94 of the JJ
H
512 SUPREME COURT REPORTS [2021] 12 S.C.R.
A Act, 2015 is also significant inasmuch as the controversy or the
doubt regarding the age of the child brought before the Committee
or the JJ Board is sought to be set at rest at the level of the JJ
Board or the Committee itself. [Paras 47, 48][541-F-H;
542-C-D]
B Babloo Pasi v. State of Jharkhand (2008) 13 SCC
133 : [2008] 14 SCR 161; State of M.P. V. Anoop Singh
(2015) 7 SCC 773 : [2015] 6 SCR 960; Ashwani Kumar
Saxena v. State of Madhya Pradesh (2012) 9 SCC
750 : [2012] 10 SCR 540; Arnit Das v. State of Bihar
(2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; Jitendra
C Ram v. State of Jharkhand (2006) 9 SCC 428 : [2006]
1 Suppl. SCR 286; Bhola Bhagat & others v. State of
Bihar (1997) 8 SCC 720 : [1997] 4 Suppl. SCR 711;
Jabar Singh v. Dinesh and another (2010) 3 SCC 757
: [2010] 3 SCR 353; State of Madhya Pradesh v. Anoop
D Singh (2015) 7 SCC 733; Ram Vijay Singh vs. State of
Uttar Pradesh 2021 CriLJ 2805 – relied on.
Abuzar Hossain alias Gulam Hossain v. State of West
Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Parag
Bhati v. State of Uttar Pradesh (2016) 12 SCC 744 :
E [2016] 2 SCR 1089 – referred to.
Case Law Reference
[2016] 2 SCR 1089 referred to Para 12
[2019] 9 SCR 735 distinguished Para 12
F [2012] 9 SCR 244 referred to Para 12
[2008] 14 SCR 161 relied on Para 16
[2015] 6 SCR 960 relied on Para 16
[2012] 10 SCR 540 relied on Para 28(a)
G [2000] 1 Suppl. SCR 69 relied on Para 28(c)
[2006] 1 Suppl. SCR 286 relied on Para 28(d)
[1997] 4 Suppl. SCR 711 relied on Para 28(d)
[2010] 3 SCR 353 relied on Para 28(e)
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 513
& ORS.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal A
No.1240 of 2021.
From the Judgment and Order dated 12.03.2021 of the High Court
of Judicature at Allahabad in Criminal Revision No.430 of 2021.
Anupam Dwivedi, Pradeep Kumar Dwivedi, Sandeep Kumar
Dwivedi, Satyam Pandey, Vishweshwar Mishra, Vikash Kumar Sinha, B
Rakesh Mishra, Advs. for the Appellant.
Sharan Thakur, AAG, Sarvesh Singh Baghel, Shantanu Singh,
Saurabh Trivedi, S. C. Tripathi, Advs. for the Respondents.
The Judgment of the Court was delivered by C
NAGARATHNA J.
1. The appellant has preferred this appeal against the impugned
order dated 12.03.2021 passed by the High Court of Judicature at
Allahabad in Criminal Revision No.430 of 2021 whereby the High Court
rejected the aforesaid criminal revision filed against the judgment and D
order dated 04.01.2021 passed by the Additional District and Sessions
Judge, Special Judge POCSO Act (Exclusive Court), Baghpat, Uttar
Pradesh,dismissing the Criminal Appeal No.27 of 2020. The said criminal
appeal was filed against the order dated 11.11.2020 passed by the Principal
Magistrate, Juvenile Justice Board, Baghpatallowing the Miscellaneous
E
Case No.16 of 2020 arising out of Case Crime No.116 of 2020 under
sections 147, 148, 149, 323, 307, 302 and 34 of the Indian Penal Code
(for short, the ‘IPC’), Police Station at Singhawali Ahir, District Baghpat,
Uttar Pradesh, and declaring the accused – Nishant Solanki @ Nishu
(respondent no.2 herein) as a juvenile delinquent.
F
2. Succinctly stated, the facts are that, in an incident that occurred
on 05.05.2020 at around 4:00 pm, inter alia, respondent no.2 – Nishant
Solanki @ Nishu (hereinafter referred to as ‘Nishant’) along with other
accusedarealleged to have attacked upon the appellant and his family
causing serious injuries as well as death of appellant’s father Bhopal
Singh, who was declared ‘brought dead’ by the doctor on the same day G
i.e. 05.05.2020 and his uncle Kaluram,who died on 09.05.2020 due to
grievous injuries sustained by him in the aforesaid incident.
3. Nishant, through his mother/natural guardian-respondent no.3
herein, filed an application being Miscellaneous Case No.16/2020 before
the Juvenile Justice Board (hereinafter referred to as the ‘JJ Board’), H
514 SUPREME COURT REPORTS [2021] 12 S.C.R.
A Baghpat, praying therein that the respondent no.2/accused viz., Nishant,
be declared as a juvenile delinquent. Evidence was let in on the said
application through respondent no.3 who is the mother and natural
guardian of Nishant. On coming to know about the same, the appellant
hereinentered appearance in the said proceeding through his counsel
and filed an application dated 20.07.2020 under Section 311 of the Code
B
of Criminal Procedure (for short, the ‘Cr.P.C.’) seeking permission of
the JJ Board to cross-examinerespondent no.3. The appellant herein
was permitted to do so on 22.07.2020, on which date the application was
posted for further cross-examination of the mother of Nishant.On the
said date, respondent no.3 was further cross-examined by the appellant.
C 4. Another witness, Manoj Kumar, Principal, Sardar Vallabhbhai
Patel Higher Secondary School, Shajarpur, Kaidna, District Baghpat,
was also examined as DW-2 on 10.08.2020 and subsequently, Surendra
Kumar Saini, Principal, Sarvoday Public School, Khindora, District
Baghpat, was examined as DW-3.
D 5. The police also filed a charge-sheet under Sections 147, 148,
149, 323, 307, 302 and 34 of the IPC against all the accused including
respondent no.2 – Nishant on 22.07.2020.
6. In the said proceedings, an application was filed on 09.09.2020
before the JJ Board for medical test of respondent no.2 Nishant to
E ascertain his actual and true age. By order dated 14.09.2020, the said
application was dismissed and the matter was ordered to be posted on
23.09.2020 for hearing on the issue of determination of age of the
respondent no.2 – Nishant.
7. Being aggrieved by the rejection of the application dated
F 09.09.2020 seeking medical test of respondent no.2 - Nishant, the
appellant herein filed a criminal revision before the District and Sessions
Judge, Baghpat and an application being Transfer Application (Criminal)
No.158/2020 before the High Court praying, inter alia, for the transfer
of proceedings in Miscellaneous Case No.16/2020 pending before the
G JJ Board, Baghpat, to some other JJ Board of the State.
8. During the pendency of the aforesaid proceedings before the
High Court, the JJ Board, Baghpat vide order dated 11.11.2020 allowed
the application being Misc. Case No.16/2020 filed by respondent no.3
mother of Nishant and declared Nishant as a juvenile delinquent. Assailing
the said order, the appellant filed an appeal being Criminal Appeal No.27
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 515
& ORS. [B. V. NAGARATHNA J.]
of 2020 under section 101 of the Juvenile Justice (Care and Protection A
of Children) Act, 2015 (hereinafter referred to as the ‘JJ Act, 2015’)
before the District and Sessions Judge, Baghpat. The said Court dismissed
the said appeal by its judgment dated 04.01.2021 against which the
appellant filed a Criminal Revision No.430 of 2021 before the High Court.
The said criminal revision was alsorejected by the High Court vide
B
impugned order dated 12.03.2021. Being aggrieved of the same, the
appellant has filed the present appeal by special leave before this Court.
9. We have heard Mr. Anupam Dwivedi, learned counsel for the
appellant, Mr. Sharan Thakur, learned Additional Advocate General for
the respondent – State of Uttar Pradesh, and Mr. Saurabh Trivedi,
learned counsel for respondent nos.2 and 3 and perused the record. C
10. Mr. Dwivedi, learned counsel for the appellant contended that
respondent no.2 has been accused of committing grave offences under
sections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with other
co-accused, but respondent no.2 has filed an application claiming juvenility
and the same has been allowed erroneously by the JJ Board at Baghpat D
which order has been sustained by the appellate court as well as the
High Court. It was contended that there are contradictions in the evidence
of the witnesses examined on behalf of the accused-respondent no.2,
particularly, his mother with regard to his date of birth which is stated to
be 25.09.2004 but the same has not been established in accordance with E
law. The School Admission Form (Annexure P-11) was produced as
Ex.A-8 to show that the same was signed by respondent no.2 Nishant
when he was purportedly four years of age. Ex.A-9 (Annexure P-12) is
stated to be a document signed by respondent no.2 Nishant when he
wastwelve years of age.He submitted that the signatures on both these
documents are identical. Hence, the genuineness of the said documents F
is in grave doubt and the same could not have been relied upon in support
of the claim of juvenility made by respondent no.2 herein.
11. In Ex.A-8, our attention was drawn to Column No.15 requiring
the Aadhaar number of the student to be filled, to contend that the said
form is said to have been submitted on 02.07.2009 seeking admission of G
respondent no.2.That in July 2001 the requirement of furnishing UID/
Aadhaar number could not arise at all as it was issued for the first time
to a resident of Nandurbar, Maharashtra only on 29.09.2010. It was
urged thatEx.A-8 (Annexure P-11) is a got up document in order to
misrepresent the age of respondent no.2 and thereby claim the benefit H
516 SUPREME COURT REPORTS [2021] 12 S.C.R.
A of juvenility. It was further contended that if in the year 2009, respondent
no.2 sought admission to the Class 1 when he was less than five years
of age, then, after a period of five years only, he could not have sought
admission to Class 8.There is no explanation as to how he could have
sought admission to Class 8 only after five years of seeking admission to
Class 1. It was also submitted that DW-3, Principal of the primary school
B
during his cross-examination admitted that the signature of Nishant on
the admission forms of class 1 and class 8 are identical. Hence it was
contended that it is doubtful as to how an infant, who was aged about
four years,(if really the date of birth of respondent no.2 was 25.09.2004,)
could have signed his name on the school admission form when he sought
C admission to class 1. It was contended that such a signature is forged as
no child who is four years of age would have been able to sign his name
on the school admission form and secondly, could not have also sought
admission to class 1 at that age.
12. It was contended that the JJ Board has not appreciated the
D legislative intent behind section 94 of the JJ Act, 2015 by declaring that
matriculation certificate is a conclusive document for determining the
age of the juvenile irrespective of other material discrepancies in the
oral testimony of the witnesses or other documents being produced.In
support of the said submissions, reliance was placed on Parag Bhati
vs. State of Uttar Pradesh – (2016) 12 SCC 744; Sanjeev Kumar
E Gupta vs. State of Uttar Pradesh & Anr. – (2019) 12 SCC 370; and
Abuzar Hossain vs. State of West Bengal–(2012) 10 SCC 489.
13. It was further contended that in the aforesaid cases, the claim
of juvenility of the accused was rejected due to discrepancies in the
evidence, notwithstanding the fact that as per the matriculation
F certificateissued to the accused therein, they were juveniles. In other
words, it was contended that the age shown in the matriculation certificate
cannot be accepted on its face value if there is other evidence which
contradicts the same. It was hence contended that the impugned order
of the High Court,judgment of the appellate court and order passed by
G the JJ Board, Baghpat, may be set aside and the application filed on
behalf of the respondent no.2-Nishant may be dismissed.
14. Mr. Sharan Thakur, learned additional Advocate General for
the State of Uttar Pradesh, supported the contentions of learned counsel
for the appellant and submitted that the matriculation certificate relied
H upon by respondent no.2 cannot be accepted as the accompanying
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 517
& ORS. [B. V. NAGARATHNA J.]
document, though the age of Nishant indicated in the matriculation A
certificate coincides with theage indicated in Ex-A8 and A9. It was
contended that these documents cannot be accepted on their face value
as the said exhibits could not have borne the signature of Nishant. They
are also not in consonance with the age at which Nishant would have
been admitted to school and completed his matriculation. Therefore, it
B
was contended that the orders impugned namely, the order of the High
Court as well as the orders of the learned District Judge and the JJ
Board may be set aside.
15. Mr. Saurabh Trivedi, learned counsel for respondent nos.2
and 3, contended that Nishant was born on 25.09.2004 and on the date
of the incident i.e.05.05.2020, he was a minor being only 15 years and 8 C
months of age.That initially, he studied in a private school in the village
and was admitted to class 1 in 2009; he passedclasses 6, 7, and 8 from
Sarvoday Public Junior High School, Village Khindoda, District Baghpat
and got a school transfer certificate on 31.03.2017 wherein his date of
birth was shown as 25.09.2004; that Nishant joined Sardar Vallabh Bhai D
Patel Higher Secondary School, Khanjarpur Khaidar, District Baghpat,
on 04.07.2017 and completed his High School and cleared the Board
examination with 85% marks.The U.P. State Board of Secondary
Education issued a High School Certificate on completion of Board
Examination for Class 10 showing his date of birth as 25.09.2004.
Therefore, on the date of the incident i.e.05.05.2020, respondent no.2 E
was a juvenile and hence the JJ Board as well the High Court have
rightly appreciated the case of respondent no.2-Nishant and allowed his
application claiming juvenility. It was contended that the matriculation
certificate or the certificate issued by the Board conducting the said
examination (Annexure P-15) is sufficient proof of the age of the juvenile F
as per the requirements of JJ Act, 2015.Reliance was placed on Ashwani
Kumar Saxena vs. State of M.P. – (2012) 9 SCC 750, to contend that
the matriculation certificate is a document on which full reliance could
be placed for determination of the age of the juvenile accused. Hence,
there is no merit in this appeal.
G
16. It was further submitted that the appellant cannot seek
ossification test of respondent no.2 for the purpose of determination of
his age as the same is not conclusive for the purpose of determination of
the age vide Babloo Pasi vs. State of Jharkhand – (2008) 13 SCC
133 and State of M.P. vs. Anoop Singh – (2015) 7 SCC 773.
H
518 SUPREME COURT REPORTS [2021] 12 S.C.R.
A 17. It was urged that the appellant has not been successful in
negating the case of respondent no.2 Nishant, who, being a juvenile on
the date of the incident is entitled to all protection under the provisions of
the JJ Act, 2015. It was submitted that there is no merit in the appeal and
the same may be dismissed.
B 18. The JJ Act, 2015 is a sequel to the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as the ‘JJ Act,
2000’) which has since been repealed. Under the JJ Act, 2000, an
amendment was made by Act33 of 2006 with effect from 22.8.2006
under which section 7A of was inserted which reads as under:
C “7A. Procedure to be followed when claim of juvenility is raised
before any court.—
(1) Whenever a claim of juvenility is raised before any court or a
court is of the opinion that an accused person was a juvenile on
the date of commission of the offence, the court shall make an
D inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and shall
record a finding whether the person is a juvenile or a child or not,
stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court
E and it shall be recognised at any stage, even after final disposal of
the case, and such claim shall be determined in terms of the
provisions contained in this Act and the rules made thereunder,
even if the juvenile has ceased to be so on or before the date of
commencement of this Act.
F (2) If the court finds a person to be a juvenile on the date of
commission of the offence under sub-section (1), it shall forward
the juvenile to the Board for passing appropriate orders and the
sentence, if any, passed by a court shall be deemed to have no
effect.”
Section 49 of the said Act reads as under:
G
“49. Presumption and determination of age.-(1) Where it appears
to a competent authority that person brought before it under any
of the provisions of this Act (otherwise than for 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
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 519
& ORS. [B. V. NAGARATHNA J.]
purpose shall take such evidence as may be necessary (but not A
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.
(2) No order of a competent authority shall be deemed to have
become invalid merely by any subsequent proof that the person in
respect of whom the order has been made is not a juvenile or the B
child, and the age recorded by the competent authority to be the
age of person so brought before it, shall for the purpose of this
Act, be deemed to be the true age of that person.”
19. Rule 12 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the ‘JJ Rules, 2007’) prescribed C
the procedures for determination of age. Rule 12 reads as under –
“12. Procedure to be followed in determination of Age.
(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 D
such juvenile or child or a juvenile in conflict with law within a
period of thirty days from 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 E
or as the case may be the juvenile in conflict with 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 F
or the Board or, as the case may be, the Committee by seeking
evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available;
and in the absence whereof;
(ii) the date of birth certificate from the school (other than a G
play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
H
520 SUPREME COURT REPORTS [2021] 12 S.C.R.
A (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 be done, the
Court or the Board or, as the case may be, the Committee, for
the reasons to be recorded by them, may, if considered
B
necessary, give benefit to the child or juvenile by considering
his/her age on lower side within the margin of one year.
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
C and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or Ihe juvenile in conflict
with law.
(4) If the age of a juvenile or child or the juvenile in conflict with
D 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 Committee shall in
writing pass an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and these rules
E 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 required,
inter alia, in terms of section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by the court or the
F Board after examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those
disposed of cases, where the status of juvenility has not been
determined in accordance with the provisions contained in sub-
G rule (3) and the Act, requiring dispensation of the sentence under
the Act for passing appropriate order in the interest of the juvenile
in conflict with law.”
20. Rule 12 of the JJ Rules, 2007 deals with the procedure to be
followed in determination of age. The juvenility of a person in conflict
with law had to be decided prima facie on the basis of physical appearance,
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 521
& ORS. [B. V. NAGARATHNA J.]
or documents, if available. But an inquiry into the determination of age A
by the Court or the JJ Board was by seeking evidence by obtaining : (i)
the matriculation or equivalent certificates, if available and in the absence
whereof; (ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof; (iii) the birth
certificate given by a corporation or a municipal authority or a panchayat.
B
Only in the absence of either (i), (ii) and (iii) above, the medical opinion
could be sought from a duly constituted Medical Board to declare the
age of the juvenile or child. It was also provided that while determination
was being made, benefit could be given to the child or juvenile by
considering the age on lower side within the margin of one year. If a
juvenile in conflict with law was found to be below 18 years, an order C
had to be passed declaring the status of the juvenility by the Court. The
said procedure was also applicable to dispose offcases where the status
of the juvenility had not been determined in accordance with the Act and
the Rules made thereunder.
21. On repeal of JJ Act, 2000 and on the enforcement of JJ Act, D
2015, the procedure to be followed when a claim of juvenility is raised
before any court, other than a Board is stipulated under section 9(2)&(3).
The same reads as under –
“2) In case a person alleged to have committed an offence claims
before a court other than a Board, that the person is a child or E
was a child on the date of commission of the offence, or if the
court itself is of the opinion that the person was a child on the date
of commission of the offence, the said court shall make an inquiry,
take such evidence as may be necessary (but not an affidavit) to
determine the age of such person, and shall record a finding on
the matter, stating the age of the person as nearly as may be: F
Provided that such a claim may be raised before any court and it
shall be recognised at any stage, even after final disposal of the
case, and such a claim shall be determined in accordance with
the provisions contained in this Act and the rules made thereunder
even if the person has ceased to be a child on or before the date G
of commencement of this Act.
(3) If the court finds that a person has committed an offence and
was a child on the date of commission of such offence, it shall
forward the child to the Board for passing appropriate orders and
H
522 SUPREME COURT REPORTS [2021] 12 S.C.R.
A the sentence, if any, passed by the court shall be deemed to have
no effect.”
There is no corresponding Rule to determine juvenility akin to
Rule 12 of the JJ Rules, 2007.
22. On the other hand,under section 94 of the JJ Act, 2015, a
B presumption is raised that when a person is brought before the JJ Board
or the Child Welfare Committee (‘Committee’ for short) (other than for
the purpose of giving evidence) and the said person is a child, the JJ
Board or the Committee shall record such observation stating the age of
the child as nearly as may be, and proceed with the inquiry under section
C 14 orsection 36, as the case may be, without waiting for further
confirmation of the age. But where the said Board or the Committee
has reasonable grounds for doubt regarding whether the person brought
before it is a child or not, the JJ Board or the Committee, as the case
may be, shall undertake the process of age determination by seeking
evidence by obtaining -
D
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
E authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical
age determination test conducted on the orders of the
Committee or the Board.
F Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen days from
the date of such order. The age recorded by the Committee or the Board
to be the age of person so brought before it shall, for the purpose of the
Act, be deemed to be the true age of that person. For immediate reference
section 94 of JJ Act, 2015 is extracted as under:
G
“94. Presumption and determination of age.-(1) Where, it is obvious
to the Committee or the Board, based on the appearance of the
person brought before it under any of the provisions of this Act
(other than for the purpose of giving evidence) that the said person
is a child, the Committee or the Board shall record such observation
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 523
& ORS. [B. V. NAGARATHNA J.]
stating the age of the child as nearly as may be and proceed with A
the inquiry under section 14 or section 36, as the case may be,
without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds
for doubt regarding whether the person brought before it is a child
or not, the Committee or the Board, as the case may be, shall B
undertake the process of age determination, by seeking evidence
by obtaining –
a) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board,
if available; and in the absence thereof; C
b) the birth certificate given by a corporation or a municipal
authority or a panchayat;
c) and only in the absence of (i) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or D
the Board.
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen
days from the date of such order.
E
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of this
Act, be deemed to be the true age of that person.
23. Under section 7A of JJ Act, 2000 which was inserted by an
amendment with effect from 22.08.2006, provision was made to claim
F
juvenility by contending that the accused person was a juvenile on the
date of commission of the offence and in such a case, on the evidence
taken on record, a finding regarding the age of such person had to be
recorded by the court, other than a JJ Board. The claim for juvenility
could be raised before any Court and at any stage, even after the final
disposal of a case and such claim had to be determined in terms of the G
said Act and the rules made thereunder. If the Court found a person to
be a juvenile on the date of commission of offence under sub-section (1)
of section 7A of the JJ Act, 2000, it had to forward the juvenile to the JJ
Board for passing appropriate orders and the sentence, if any, passed by
a Court would not have any effect. However, under the JJ Act, 2015, a
H
524 SUPREME COURT REPORTS [2021] 12 S.C.R.
A provision corresponding to section 7A of the JJ Act, 2000, is in the form
of sub-section 2 of section 9 of the said Act, which has been extracted
above.
24. Further, unlike section 49 of JJ Act, 2000, section 94 of JJ Act,
2015 provides for presumption and determination of age if the Juvenile
B Justice Board or the Committee has reasonable grounds to doubt whether
the person brought before it is a child or not. It shall undertake the process
of determination of age by seeking evidence such as:
(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board,
C if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal
authority or a panchayat; and
(iii) only in the absence of (i) and (ii) above, age shall be determined
by an ossification test or any other latest medical age determination
D test conducted on the orders of the Committee or the Board.
25. The difference in the procedure under the two enactments
could be discerned as under:
(i) As per JJ Act, 2015 in the absence of requisite documents as
mentioned in Sub-section (2) of Section 94(a) and (b), there is
E
provision for determination of the age by an ossification test or
any other medical agerelated test to be conducted on the orders
of the Committee or the JJ Board as per Section 94 of the said
Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence
of relevant documents, a medical opinion had to be sought from a
F duly constituted Medical Board which would declare the age of
the juvenile or child.
(ii) With regard to the documents to be provided as evidence,
what was provided under Rule 12 of the JJ Rules, 2007 has been
provided under sub-section 2 of section 94 of the JJ Act, 2015 as
G a substantive provision.
(iii) Under Section 49 of the JJ Act, 2000, where it appeared to a
competent authority that a person brought before it was a juvenile
or a child, then such authority could, after making an inquiry and
taking such evidence as was necessary, record a finding as to the
H juvenility of such person and state the age of such person as nearly
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 525
& ORS. [B. V. NAGARATHNA J.]
as may be. Sub-section (2) of Section 49 stated that no order of a A
competent authority shall be deemed to have become invalid merely
by any subsequent proof that the person in respect of whom the
order had been made is not a juvenile and the age recorded by the
competent authority to be the age of person so brought before it,
for the purpose of the Act, be deemed to be the true age of that
B
person.
26. But, under Section 94 of the JJ Act, 2015, which also deals
with presumption and determination of age, the Committee or the JJ
Board has to record such observation stating the age of the child as
nearly as may be and proceed with the inquiry without waiting for further
confirmation of the age. It is only when the Committee or the JJ Board C
has reasonable grounds for doubt regarding whether the person brought
before it is a child or not, it can undertake the process of age determination,
by seeking evidence.
27. Sub-section (3) of Section 94 states that the age recorded by
the Committee or the JJ Board to be the age of the persons so brought D
before it shall, for the purpose of the Act, be deemed to be the true age
of that person. Thus, there is a finality attached to the determination of
the age recorded and it is only in a case where reasonable grounds exist
for doubt as to whether the person brought before the Committee or the
Board is a child or not, that a process of age determination by seeking E
evidence has to be undertaken.
28. The relevant decisions on the provisions under consideration
could be referred to at this stage:
(a) In the case of Ashwani Kumar Saxena v. State of Madhya
F
Pradesh - (2012) 9 SCC 750, this Court opined that under
Section 7A of JJ Act, 2000 obligated the Court to make an
inquiry and not an investigation or trial under the Code of
Criminal Procedure. The Court stated its opinion in the
following words :
“34……..There may be situations where the entry made G
in the matriculation or equivalent certificates, date of
birth certificate from the school first attended and even
the birth certificate given by a corporation or a municipal
authority or a panchayat may not be correct. But court,
Juvenile Justice Board or a committee functioning under H
526 SUPREME COURT REPORTS [2021] 12 S.C.R.
A the JJ Act is not expected to conduct such a roving
enquiry and to go behind those certificates to examine
the correctness of those documents, kept during the
normal course of business. Only in cases where those
documents or certificates are found to be fabricated or
manipulated, the court, the Juvenile Justice Board or the
B
committee need to go for medical report for age
determination.”
(b) Reference could also be made to another decision of this
Court in the case of Abuzar Hossain alias Gulam Hossain
v. State of West Bengal - (2012) 10 SCC 489, wherein it
C has been summarized as under:
“39.1. A claim of juvenility may be raised at any stage
even after the final disposal of the case. It may be raised
for the first time before this Court as well after the final
disposal of the case. The delay in raising the claim of
D juvenility cannot be a ground for rejection of such claim.
The claim of juvenility can be raised in appeal even if
not pressed before the trial Court and can be raised for
the first time before this Court though not pressed before
the trial Court and in the appeal Court.
E 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 of juvenility is necessary. Initial burden
has to be discharged by the person who claims juvenility.
F 39.3. As to what materials would prima facie satisfy the
Court and/or ae sufficient for discharging the initial
burden cannot be catalogued nor can it be laid down as
to what weight should be given to a specific piece of
evidence which may be sufficient to raise presumption
G of juvenility but the documents referred to in Rules
12(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 22-10-2021 (Page 6 of 12) under
Section 313 of the Code is too tentative and may not by
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 527
& ORS. [B. V. NAGARATHNA J.]
itself be sufficient ordinarily to justify or reject the claim A
of juvenility. 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 he prima facie
B
accepted or rejected. In Akbar Sheikh - (2009) 7 SCC
415 and Pawan - (2009) 15 SCC 259, these documents
were not found prima facie credible while in Jitendra
Singh - (2010) 13 SCC 523 the documents viz., school
leaving certificate, marksheet and the medical report
were treated sufficient for directing an inquiry and C
verification of the appellant’s 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.
D
39.4. An affidavit of the claimant or any of the parents
or a sibling or a relative in support of the claim of
juvenility 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 E
the circumstances of the case are so glaring that satisfy
the judicial conscience of the Court 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 F
of the 2000 Act and be alive to the position that the
beneficent and salutary provisions contained in the 2000
Act are not defeated by the hyper technical approach
and the persons who are entitled to get benefits of the
2000 Act shall get such benefits. The Courts should not G
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 or
that age determination by medical examination is not
very precise. The matter should be considered prima
H
528 SUPREME COURT REPORTS [2021] 12 S.C.R.
A facie on the touchstone of preponderance of probability.
39.6. Claim of juvenility lacking in credibility or frivolous
claim of juvenility or patently absurd or inherently
improbable claim of juvenility must be rejected by the
Court at the threshold whenever raised.”
B (c) In Arnit Das v. State of Bihar - (2000) 5 SCC 488, this
Court observed that while considering the question as to
determination of the age of an accused for the purpose of
ascertaining whether he is a juvenile or not, a hyper-technical
approach should not be adopted while appreciating the
evidence adduced in support of the plea that he was a
C juvenile and, if two views may be possible, the Court should
lean in favour of holding the accused to be a juvenile in
borderline cases. This is because the Act being a welfare
legislation, Courts should be zealous to see that a juvenile
derives full benefits of the provisions of the Act but at the
D 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 escape punishment for having
committed serious offences.
(d) In Jitendra Ram v. State of Jharkhand - (2006) 9 SCC
E 428, this Court has sounded a note of caution on the earlier
observations made by it in the case of Bhola Bhagat &
others v. State of Bihar - (1997) 8 SCC 720, whereinit
was observed that an obligation has been cast on the Court
that where such a plea is raised having regard to the
beneficial nature of the socially oriented legislation, the same
F should be examined with great care. This Court referring
to its decision in Bhola Bhagat (supra) observed as follows:
“20. …We are, however, of the opinion that the same
would not mean that a person who is not entitled to the
benefit of the said Act would be dealt with leniently only
G because such a plea is raised. Each plea must be judged
on its own merit. Each case has to be considered on the
basis of the materials brought on records.”
The aforesaid observations were made in the context of
what had been stated in Bhola Bhagat vs. State of Bihar
H – (1997) 8 SCC 720 which is extracted as under:
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 529
& ORS. [B. V. NAGARATHNA J.]
“18. Before parting with this judgment, we would like to A
reemphasis that when a plea is raised on behalf of an
accused that he was a “child” within the meaning of the
definition of the expression under the Act, it becomes
obligatory for the court, in case it entertains any doubt
about the age as claimed by the accused, to hold an
B
inquiry itself for determination of the question of age of
the accused or cause an enquiry to be held and seek a
report regarding the same, if necessary, by asking the
parties to lead evidence in that regard. Keeping in view
the beneficial nature of the socially oriented legislation,
it is an obligation of the court where such a plea is raised C
to examine that plea with care and it cannot fold its hands
and without returning a positive finding regarding that
plea, deny the benefit of the provisions of an accused.
The court must hold an enquiry and return a finding
regarding the age, one way or the other.”
D
(e) Further, in Jabar Singh v. Dinesh and another - (2010)
3 SCC 757, this Court considered a situation wherein the
entry of date of birth in the admission form of the school
records or transfer certificates did not satisfy the condition
laid down under Section 35 of the Evidence Act, i.e., the
said entry was not in any public or official register and was E
not made either by a public servant, in the discharge of his
official duty or by any person in performance of a duty
specially enjoined by the law of the country and therefore
the said evidence was not relevant for the purpose of
determining the age of the accused in the said case. In the F
aforesaid case, this Court set aside the order of the High
Court in revision and confirmed the order of the trial Court
holding that the accused therein was a juvenile at the time
of the commission of the alleged offence.
(f) In Babloo Pasi Vs. State of Jharkhand and another - G
(2008) 13 SCC 133, this Court while dealing with the
provisions of JJ Act, 2000, observed as under:
“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 H
530 SUPREME COURT REPORTS [2021] 12 S.C.R.
A 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 considered along
with other cogent evidence.
B 23. It is true that in Arnit Das v. State of Bihar 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 purpose of finding out whether
he is a juvenile or not, a hyper-technical approach should
not be adopted while appreciating the evidence adduced
C on behalf of the accused in support of the plea that he
was a juvenile and if two views may be possible on the
same evidence, the court should lean in favour of holding
the accused to be a juvenile in borderline cases. We are
also not oblivious of the fact that being a welfare
D 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 escape
punishments for having committed serious offences.”
E
(g) In State of Madhya Pradesh v. Anoop Singh - (2015) 7
SCC 733, it was observed that the ossification test is not
the sole criterion for determination of date of birth, when
birth certificate and middle school certificate are available.
It was observed that the High court was not right in
F presuming that the prosecutrix, therein, was more than 18
years of age at the time of the incident. There was a
difference of two days in the date of birth mentioned in the
birth certificate and the middle school certificate but the
same was held to be a minor discrepancy. In that case, it
G was held that prosecutrix was below 16 years of age at the
date of the incident and set aside the judgment passed by
the High Court.
(h) Sanjeev Kumar Gupta vs. State of Uttar Pradesh and
another - (2019) 12 SCC 370, is a judgment authored by
H one of us (Hon’ble Dr.D.Y. Chandrachud, J.), wherein the
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 531
& ORS. [B. V. NAGARATHNA J.]
credibility and authenticity of the matriculation certificate A
for the purpose of determination of the age under Section-
7A of the JJ Act, 2000, came up for consideration. In the
said case, the JJ Board had rejected the claim of juvenility
and this Court confirmed the decision of the JJ Board
rejecting the claim of juvenility by setting aside the judgment
B
of the High Court. In the said case, it was observed that
the records maintained by the CBSE were purely on the
basis of the final list of the students forwarded by the Senior
Secondary School where the second respondent therein had
studied from class 5 to 10, and not on the basis of any other
underlying document. On the other hand, there was clear C
and unimpeachable evidence of date of birth which had
been recorded in the records of another school which the
second respondent therein had attended till class 4 and which
was supported by voluntary disclosure made by the accused
therein while obtaining both, Aadhaar Card and driving
D
license. It was observed that the date of birth reflected in
the matriculation certificate could not be accepted as
authentic or credible. In the said case, it was held that the
date of birth of the second respondent therein was
17.12.1995 and that he was not entitled to claim juvenility
as the date of the alleged incident was 18.08.2015. E
In the said case, the judgment of this Court in Ashwani Kumar
Saxena (supra) and Abuzar Hossain (supra) were considered and it
was noted that the decision in Abuzar Hossain was rendered three
daysafter the decision in Ashwani Kumar Saxena, and in Abuzar
Hossain, which was a three- Judge Bench decision, it was observed F
that the credibility and acceptability of the documents, including the school
leaving certificate, would depend on the facts and circumstances of each
case and no hard and fast rule as such could be laid down in that regard.
It was observed in Abuzar Hossain (supra) by Hon’ble T.S.
Thakur J., as then the learned Chief Justice was,that directing an inquiry G
is not the same thing as declaring the accused to be a juvenile. In the
former, the Court simply records a prima facie conclusion, while a
declaration is made on the basis of evidence. Hence, the approach at
the stage of directing an inquiry has to be more liberal lest, there is
miscarriage of justice. The standard of proof required is different for
H
532 SUPREME COURT REPORTS [2021] 12 S.C.R.
A both. In the former, the Court simply records the prima facie conclusion.
It would eventually depend on how the Court evaluates such material
for a prima facie conclusion and the Court may or may not direct an
inquiry.In the latter, the Court makes a declaration on evidence that it
scrutinises and accepts such evidence only if it is worthy of acceptance.
His Lordship further observed as under:
B
“The Court would, therefore, in each case weigh the relevant
factors, insist upon filing of better affidavits if the need so arises,
and even direct, any additional information considered relevant
including the information regarding the age of the parents, the age
of siblings and the like, to be furnished before it decides on a
C case-to-case basis whether or not an enquiry under Section 7-A
ought to be conducted. It will eventually depend on how the court
evaluates such material for a prima facie conclusion that the court
may or may not direct an enquiry.”
(i) In case of Parag Bhati (Juvenile through Legal
D Guardian-Mother-Smt. Rajini Bhati v. State of Uttar
Pradesh and another – (2016) 12 SCC 744,both the
aforesaid judgments were considered and this Court
observed as under:
“34.It is no doubt true that if there is a clear and
E 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 and the documentary evidence at least prima
facie proves the same, he would be entitled to the special
protection under the JJ Act. But when an accused
F commits a grave and heinous offence and thereafter
attempts to take statutory shelter under the 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
G of common man in the institution entrusted with the
administration of justice.
35. 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
H the basis of at least prima facie evidence regarding his
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 533
& ORS. [B. V. NAGARATHNA J.]
minority as the benefit of the possibilities of two views A
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
reflecting his maturity of mind rather than innocence
indicating that his plea of juvenility is more in the nature
B
of a shield to dodge or dupe the arms of law cannot be
allowed 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.
36. It is settled position of law that if the matriculation C
or equivalent certificates are available and there is no
other material to prove the correctness of date of birth,
the date of birth mentioned in the matriculation certificate
has to be treated as a conclusive proof of the date of
birth of the accused. However, if there is any doubt or a D
contradictory stand is being taken by the accused which
raises a doubt on the correctness of the date of birth
then as laid down by this Court in Abuzar Hossain, an
enquiry for determination of the age of the accused is
permissible which has been done in the present case.”
E
(j) In the judgment rendered by Hon’ble Hemant Gupta, J., in
Ram Vijay Singh vs. State of Uttar Pradesh – 2021 CriLJ
2805, itwas observed that the ossification test is not the
sole criterion of age determination and a blind and
mechanical view regarding the age of the person cannot be
adopted solely on the basis of medical opinion by radiological F
examination. Though, radiological examination is a useful
guiding factor for determining the age of a person, the
evidence is not of a conclusive and incontrovertible nature
and it is subject to a margin of error. Medical evidence as
to the age of a person, though a very useful guiding factor, G
is not conclusive and has to be considered along with other
circumstances. The relevant paragraphs of the said judgment
are extracted as under:
“14. We find that the procedure prescribed in Rule 12 is
not materially different than the provisions of Section H
534 SUPREME COURT REPORTS [2021] 12 S.C.R.
A 94 of the Act to determine the age of the person There
are minor variations as the Rule 12(3)(a)(i) and (ii) have
been clubbed together with slight change in the language.
Section 94 of the Act does not contain the provisions
regarding benefit of margin of age to be given to the
child or juvenile as was provided in Rule 12(30(b) of the
B
Rules. The importance of ossification test has not
undergone change with the enactment of Section 94 of
the Act. The reliability of the ossification test remains
vulnerable as was Under Rule 12 of the Rules.
15. As per the Scheme of the Act, when it is obvious to
C the Committee or the Board, based on the appearance
of the person, that the said person is a child, the Board
or Committee shall record observations stating the age
of the Child as nearly as may be without waiting for
further confirmation of the age. Therefore, the first
D attempt to determine the age is by assessing the physical
appearance of the person when brought before the Board
or the Committee. It is only in case of doubt, the process
of age determination by seeking evidence becomes
necessary. At that stage, when a person is around 18
years of age, the ossification test can be said to be
E relevant for determining the approximate age of a person
in conflict with law. However, when the person is around
40-55 years of age, the structure of bones cannot be
helpful in determining the age. This Court in Arjun
PanditraoKhotkar v. Kailash KushanraoGorantyal and
F Ors. (2020) 7 SCC 1 held, in the context of certificate
required under Section 65B of the Evidence Act, 1872,
that as per the Latin maxim, lex non cogitadimpossibilia,
law does not demand the impossible. Thus, when the
ossification test cannot yield trustworthy and reliable
results, such test cannot be made a basis to determine
G the age of the person concerned on the date of incident.
Therefore, in the absence of any reliable trustworthy
medical evidence to find out age of the appellant, the
ossification test conducted in year 2020 when the
appellant was 55 years of age cannot be conclusive to
H declare him as a juvenile on the date of the incident.”
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 535
& ORS. [B. V. NAGARATHNA J.]
29. What emerges on a cumulative consideration of the aforesaid A
catena of judgments is as follows:
(i) A claim of juvenility may be raised at any stage of a criminal
proceeding,even after a final disposal of the case. A delay
in raising the claim of juvenility cannot be a ground for
rejection of such claim. It can also be raised for the first B
time before this Court.
(ii) An application claiming juvenility could be made either before
the Court or the JJ Board.
(iia) When the issue of juvenility arises before a Court, it would
be under sub-section (2) and (3) of section 9 of the JJ Act, C
2015 but when a person is brought before a Committee or
JJ Board, section 94 of the JJ Act, 2015 applies.
(iib) If an application is filed before the Court claiming juvenility,
the provision of sub-section (2) of section 94 of the JJ Act,
2015 would have to beapplied or read along with sub-section D
(2) of section 9 so as to seek evidence for the purpose of
recording a finding stating the age of the person as nearly
as may be.
(iic) When an application claiming juvenility is made under
section 94 of the JJ Act, 2015 before the JJ Board when E
the matter regarding the alleged commission of offence is
pending before a Court, then the procedure contemplated
under section 94 of the JJ Act, 2015 would apply. Under
the said provision if the JJ Board has reasonable grounds
for doubt regarding whether the person brought before it is F
a child or not, the Board shall undertake the process of age
determination by seeking evidence and the age recorded
by the JJ Board to be the age of the person so brought
before it shall, for the purpose of the JJ Act, 2015, be deemed
to be true age of that person. Hence the degree of proof
required in such a proceeding before the JJ Board, when G
an application is filed seeking a claim of juvenility when the
trial is before the concerned criminal court, is higher than
when an inquiry is made by a court before which the case
regarding the commission of the offence is pending (vide
section 9 of the JJ Act, 2015).
H
536 SUPREME COURT REPORTS [2021] 12 S.C.R.
A (iii) That when a claim for juvenility is raised, the burden is on
the person raising the claim to satisfy the Court to discharge
the initial burden. However, the documents mentioned in
Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made
under the JJ Act, 2000 or sub-section (2) of section 94 of JJ
Act, 2015, shall be sufficient for prima facie satisfaction of
B
the Court. On the basis of the aforesaid documents a
presumption of juvenility may be raised.
(iv) The said presumption is however not conclusive proof of
the age of juvenility and the same may be rebutted by contra
evidence let in by the opposite side.
C
(v) That the procedure of an inquiry by a Court is not the same
thing as declaring the age of the person as a juvenile sought
before the JJ Board when the case is pending for trial before
the concerned criminal court. In case of an inquiry, the Court
records aprima facie conclusion but when there is a
D determination of age as per sub-section (2) of section 94 of
2015 Act, a declaration is made on the basis of evidence.
Also the age recorded by the JJ Board shall be deemed to
be the true age of the person brought before it. Thus,the
standard of proof in an inquiry is different from that required
E in aproceeding where the determination and declaration of
the age of a person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such acceptance.
(vi) That it is neither feasible nor desirable to lay down an
abstract formula to determine the age of a person. It has to
be on the basis of the material on record and on appreciation
F of evidence adduced by the parties in each case.
(vii) This Court has observed that a hyper-technical approach
should not be adopted when evidence is adduced on behalf
of the accused in support of the plea that he was a juvenile.
(viii) If two views are possible on the same evidence, the court
G
should lean in favour of holding the accused to be a juvenile
in borderline cases. This is in order to ensure that the benefit
of the JJ Act, 2015 is made applicable to the juvenile in
conflict with law. At the same time, the Court should ensure
that the JJ Act, 2015 is not misused by persons to escape
H punishment after having committed serious offences.
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 537
& ORS. [B. V. NAGARATHNA J.]
(ix) That when the determination of age is on the basis of A
evidence such as school records, it is necessary that the
same would have to be considered as per Section 35 of the
Indian Evidence Act, inasmuch as any public or official
document maintained in the discharge of official duty would
have greater credibility than private documents.
B
(x) Any document which is in consonance with public
documents, such as matriculation certificate, could be
accepted by the Court or the JJ Board provided such public
document is credible and authentic as per the provisions of
the Indian Evidence Act viz., section 35 and other provisions.
C
(xi) Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of
a person cannot be adopted solely on the basis of medical
opinion by radiological examination. Such evidence is not
conclusive evidence but only a very useful guiding factor to
be considered in the absence of documents mentioned in D
Section 94(2) of the JJ Act, 2015.
30. Bearing in mind the aforesaid position of law, the same could
be applied to the facts of the present case. It is noted that in the FIR
dated 05.05.2020, the name of respondent no.2 has been written as
Nishuand it has been stated that Nishu S/o Bhushan and other accused E
were carrying a Farsa (battle-axe), lathi and balkaties (cane-knives)
and attacked the complainant/ appellant herein and the members of his
family (Annexure P-1).
31. An application being Misc. Case No.16/2020 filed on behalf
of respondent no.2 Nishant before the JJ Board, Baghpat, was for a F
declaration that respondent no.2 was a juvenile delinquent and that he
was approximately 15 years 8 months of age on the date of commissionof
the alleged offences i.e. 05.05.2020. No such application was filed before
the competent Sessions Court.
32. Be that as it may. In support of the aforesaid application, G
Certificate-cum-Marks Sheet of the High School issued by the Board of
High School and Intermediate Examination U.P., was produced stating
that the date of birth of respondent no.2 Nishant was 25.09.2004and
that he had passed the High School Examination held in February, 2019.
The said certificate is dated 27.04.2019.
H
538 SUPREME COURT REPORTS [2021] 12 S.C.R.
A 33. It was stated by the mother of respondent no.2 that birth
certificate of respondent no.2 was not sought after his birth; that when
the father of respondent no.2 sought admission in class 1 in Sarvoday
Public School, Khindora, District Baghpat, no document in respect of
birth was given at the time of admission in the school. The date of birth
was mentioned orally.That respondent no.2 Nishant studied in Sarvoday
B
Public School upto Class 8 and thereafter, he was admitted in another
school viz., Sardar Vallabhbhai Patel Higher Secondary School, Shajarpur,
Kaidna, District Baghpat for class 9.The mother of respondent no.2 in
her cross examination has reiterated that the date of birth of respondent
no.2 was orally mentioned at the time of admission of respondent no.2-
C Nishant in class 1 at Sarvoday Public School and no document in support
thereof was submitted in the school.
34. DW-2 Manoj Kumar, Principal, Sardar Vallabhbhai Patel
Higher Secondary School, Shajarpur, Kaidna, District Baghpat, stated in
his deposition that respondent no.2 Nishant was admitted to class 9 on
D 04.07.2017 and a transfer certificate recording the date of birth of
respondent no.2 as 25.09.2004 was submitted and the same was entered
in the school records. All the admission forms had to be signed by the
students and the guardians but the transfer certificate from the previous
school was not verified.
E 35. Annexure P-11 is a copy of the Admission Application Form
of SarvodayPublic School, Khindora, Baghpat, which is in Hindi, wherein
respondent no.2 has signed. Annexure P-12 is a copy of the application
form dated 03.04.2014 seeking admission to class 8. It is contended by
learned counsel for respondents that ona comparison of the signatures
of respondent no.2 on Annexure P-11 and Annexure P-12, it is noted
F that the signature on Annexure P-11 was made in the year 2009, whereas,
the signature on Annexure P-12 was made in the year 2014and they are
similar. Further, it is not possible for a child seeking admission to class 1
to sign his name on the admission form.
36. DW-3 Surendra Kumar Saini, Principal, Sarvoday Public
G School, Khindora, Baghpat, has stated that respondent no.2 Nishant wasa
little above four years of age at the time of admission in class 1; that no
photograph of Nishant was affixed on the admission form nor was any
document of the previous school of Nishant submitted; that Nishant studied
in Sarvoday Public School from class 1 toclass 8 andafter passing class
H 5, admission form for class 6 had to be filled but the same was not
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 539
& ORS. [B. V. NAGARATHNA J.]
available in the file. He further stated that the admission form dated A
03.04.2014 which was duly signed by Nishant and his father was available
on record and pertained to class 8. He also admitted that the signature
of Nishant on admission forms of class 1 and class 8 are identical but the
said admission forms are not fabricated.
37. The JJ Board, Baghpat, by its order dated 14.09.2020 dismissed B
the application seeking medical examination of respondent no.2-Nishant
herein and there is nothing produced to show that the same has been set
aside.According to the JJ Board, the matriculation certificate issued by
the concerned Board indicated the date of birth as 25.09.2004 and it is
only in the absence of such a document that determination of age had to
be by ossification test or any other latest medical age determination test. C
In the instant case, since the certificate of the matriculation Board was
available, it was unnecessary for orders for medical test of Nishant.
38. Subsequently, the JJ Board by its order dated 11.11.2020
allowed the application of respondent no.1 being Misc. Case No.16/
2020 filed on behalf of respondent no.2-Nishant. The JJ boardobserved D
that letter dated 22.07.2020 issued by the Office of the Administrative
Officer, Regional Office, Intermediate Education Council, Meerut, UP,
revealed that the date of birth of accused Nishant had rightly been
recorded as 25.09.2004 in the High School mark-sheet. The date of the
incident was 05.05.2020. Hence respondent no.2 Nishant was 15 years E
and 8 months of age as on the date of the incident.
39. By order dated 11.11.2020, the JJ Board declared respondent
no.2 Nishant as a juvenile delinquent in Case Crime No.116 of 2020 for
offences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPC
P.S. Singhawali Ahir, District Baghpat. F
40. The aforesaid order has been sustained by the District and
Sessions Court as well as the High Court by holding that section 94 of
the JJ Act, 2015 had been complied with in the instant case inasmuch as
the matriculation or equivalent certificate from the concerned Examination
Board had indicated the date of birth of respondent no.2 Nishant to be G
25.09.2004. Therefore, Sub-section 2 of Section 94 of the JJ Act, 2015
applies as there were no reasonable ground to doubt the said document.In
the absence of there being any evidence to negate the same, the criminal
revision was dismissed. This is on the strength of Sub-section (3) of
Section 94 of the JJ Act, 2015 which is a deeming provision.
H
540 SUPREME COURT REPORTS [2021] 12 S.C.R.
A 41. Though Mr. Dwivedi, learned counsel for the appellant,
emphasized that the signatures of respondent no.2-Nishant on the
admission forms of class 1 and class 8 are identical and it could not be so
on the admission form of class 1 as Nishant was only four and half years
old when he was admitted to class 1.But the fact remains that in 2019,
when Nishant completed his class 10, his date of birth has beenshown
B
as 25.09.2004 in the matriculation certificate.Hence, respondent no.2
was only about 15 years of age on the date of incident, and in any case
he was less than 16 years of age.
42. In the absence of there being any rebuttal evidence brought
on record by the appellant herein,even if the documents seeking admission
C to class 1 and class 8 are discredited or eschewed, the fact remains that
the mark-sheet pertaining to the matriculation of Nishant, issued by the
concerned Board, gives rise to a presumption that Nishant was less than
16 years of age on the date of incident i.e.05.05.2020. Moreover, the
letter dated 22.07.2020 of the Administrative Officer, Regional Office,
D Intermediate Education Council, UP, reveals his age as 25.09.2004.
43. There are two considerations which would distinguish the
judgment in Sanjeev Kumar Gupta. Firstly, in Sanjeev Kumar Gupta,
this Court held that, though, there was no underlying document
corroborating the CBSE record maintained on the basis of final list of
E the document forwarded by the secondary school, there was clear and
unimpeachable evidence of date of birth which had been recorded in the
records of the school which the second respondent therein had attended
till class 4 and which was supported by voluntary disclosure made by the
accused therein while obtaining both Aadhaar Card and Driving Licence.
F 44. In the instant case, Ex- P-11 and 12 have been relied upon to
prove that the date of birth of respondent no. 2 mentioned in the said
documents are in consonance with the date of birth indicated in the
matriculation certificate. Although, learned counsel for the respondents
contended that Ex- P-11 and 12 cannot be relied upon, the fact remains
that a photocopy of the High School marksheet of accused Nishant with
G Gazette year 2019, Roll No.0485064 year 2019, in respect of which a
letter of verification being No.R.O.I.E.C./records/4016 dated 22.07.2020,
received from the Office of the Administrative Officer, Regional Office,
Intermediate Education Council, Uttar Pradesh (Meerut) also
authenticated the date of birth of accused Nishant as 25.09.2004.
H
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH 541
& ORS. [B. V. NAGARATHNA J.]
Moreover, the said matriculation certificate has been issued by the A
concerned Board. Further, the date of birth as recorded in the school
admission records, as well as the matriculation certificate are the same
namely, 25.09.2004. The incident occurred on 05.05.2020. Thus
respondent no.2 was only 15 years 7 months of age on the date of the
incident which in any case is less than 16 years of age.
B
45. Secondly, in Sanjeev Kumar Gupta, the High Court had
reversed the findings of the Sessions Judge on the basis of the
matriculation certificate by holding the said certificate would have
precedence over any other document. The same was reversed by this
Court as the Aadhaar Card, Voter’s ID and Eighth standard marksheet C
indicated the date of birth of the second respondent therein as 27.12.1995
whereas, matriculation certificate indicated the date of birth as 17.12.1998.
And, according to the medical report, it was opined that the second
respondent was nineteen years of age on 09.11.2016, when the alleged
offences were said to have committed by him in the said case.
D
46. But in the instant case, admittedly, there is no other document
indicating the date of birth of the second respondent contrary to what
has been indicated in the matriculation certificate. Thus, such a
discrepancy in the date of birth does not arise herein. No contra evidence
to the documents produced by the second respondent have been produced
by the appellant herein. In the circumstances, we are not inclined to E
differ from the order of the High court which sustained the judgment of
the District &Sessions Court as well as of the JJ Board in this case.
47. Section 94 of the JJ Act, 2015 raises a presumption regarding
juvenility of the age of the child brought before the JJ board or the
Committee. But in case the Board or Committee has reasonable grounds F
for doubt about the person brought before it is a child or not, it can
undertake the process of determination of age by seeking evidence.
Thus, in the initial stage a presumption that the child brought before the
Committee or the JJ Board is a juvenile has to be drawn by the said
authorities. The said presumption has to be drawn on observation of the G
child. However, the said presumption may not be drawn when the
Committee or the Board has reasonable grounds for doubt regarding the
person brought before it is a child or not. In such a case, it can undertake
the process of age determination by the evidence which can be in the
form of:
H
542 SUPREME COURT REPORTS [2021] 12 S.C.R.
A (i) Date of birth certificate from the school or the matriculation
certificate from the concerned board, if available or in the
absence thereof;
(ii) The birth certificate given by a corporation or by a municipal
authority or a panchayat and in the absence of the above;
B (iii) Age has to be determined by an ossification test or any
other medical age determination test conducted on the orders
of the committee or the board.
48. The age recorded by the Committee or the Board to be the
age of the person so brought before it shall for the purpose of the JJ Act,
C 2015 be deemed to be the true age of the person. The deeming provision
in sub-section (3) of section 94 of the JJ Act, 2015 is also significant
inasmuch as the controversy or the doubt regarding the age of the child
brought before the Committee or the JJ Board is sought to be set at rest
at the level of the JJ Board or the Committee itself.
D 49. In the circumstances, we find no merit in the instant appeal
and the same is dismissed.
50. Pending interlocutory applications, if any, stand disposed.
Divya Pandey Appeal dismissed.
E
F
G
H
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