Supreme Court of India
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU & KASHMIR) & ORS.versusSHUBAM SANGRA
- Citation
- 2022 INSC 1205
- Decided
- 16 November 2022
- Disposal
- Appeal(s) allowed
- Bench
- AJAY RASTOGI
Holding
The authority must refer age determination to a duly constituted medical board where documents conflict, and the medical board’s finding that Shubam Sangra was not a juvenile at the time of the offence is conclusive, rendering the lower courts' orders unsustainable.
Summary
The appeal arose from the Kathua gang‑rape case where the accused Shubam Sangra claimed to be a juvenile. The Chief Judicial Magistrate, relying on municipal and parental testimony, held him a minor, a decision affirmed by the High Court. The State appealed, arguing that contradictory documentary evidence required referral to a medical board under Rule 74(3) of the Jammu & Kashmir Juvenile Justice Rules, 2014, and that the medical board’s opinion that Sangra was between 19 and 23 years old should control. The Supreme Court held that the word "may" in the rule is to be read as "shall" when documents are inconsistent, mandating a medical board assessment, and that the medical report outweighed the doubtful birth certificates. Consequently, Sangra was not a juvenile at the time of the offence and the lower courts' orders were set aside. The Court also reiterated principles on interpreting statutory language and the limited scope of the benevolent Juvenile Justice legislation for heinous offences.
Issues considered
- Whether sub‑rule (3) of Rule 74, J&K Juvenile Justice (Care and Protection of Children) Rules, 2014, imposes a mandatory duty to refer age determination to a medical board when documentary evidence is contradictory.
- Whether the birth‑date certificates on record are reliable enough to establish Shubam Sangra's juvenility.
- Whether the medical board’s opinion that the accused was over 19 years old should be given decisive weight.
- Whether the High Court erred in upholding the CJM’s finding that the accused was a juvenile.
- Interpretation of the word "may" versus "shall" in the statutory provision.
Legislation cited
- Indian Evidence Act, 1872s. 35
- Jammu and Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014s. Rule 74
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 7A, s. 94
- Juvenile Justice (Care and Protection of Children) Act, 2013s. 48, s. 8
- Juvenile Justice (Care and Protection of Children) Act, 2015s. 94
- Registration of Births and Deaths Act, 1956s. 19(3)
Subjects
juvenile justiceage determinationmedical boardinterpretation of statutory languageheinous crimeKathua rape caseclaim of juvenility
Judgment
[2022] 8 S.C.R. 349 349
THE STATE OF JAMMU & KASHMIR A
(NOW U.T. OF JAMMU & KASHMIR) & Ors.
v.
SHUBAM SANGRA
(Criminal Appeal No. 1928 of 2022) B
NOVEMBER 16, 2022
[AJAY RASTOGI AND J. B. PARDIWALA, JJ.]
Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care
and Protection of Children) Rules, 2014: r.74 – Plea of Juvenility –
C
Kathua Rape Case – The Kathua rape case involved abduction,
gang rape and murder of an eight year-old girl by six men and the
respondent (claiming to be a juvenile) – Special Medical Board
opined the age of respondent as above 19 years – However, the
CJM, Kathua relied on the deposition of the Executive Officer,
Municipal Committee and the deposition of father of respondent D
held that respondent was juvenile on date of the commission of the
offence – High Court upheld the order of CJM – Hence instant
appeal by State – Held: Sub rule (3) of r.74 provides that in the
absence of mentioned certificates or in the event of any
contradiction, the authority deciding the issue of age ‘may’ refer
E
the matter to duly constituted medical board – The word “may”
should be read as “shall” having regard to the very object of sub-
rule (3) of r.74 – If there is a clear and unambiguous case in favour
of the juvenile accused that he was minor on the date of the incident
and the documentary evidence at least prima facie established the
same, he would be entitled to the special protection under the F
Juvenile Justice Act – Whereas when an accused commits a heinous
and grave crime and thereafter attempts to take the statutory shelter
under the guise of being a minor, a casual or cavalier approach
cannot be permitted while recording as to whether he is a juvenile
or not – There is no good reason to overlook or ignore or doubt
G
the credibility of the final opinion given by a team of five qualified
doctor – In the absence of all other acceptable materials, if opinion
of the experts points to a reasonable possibility regarding range of
his age, the Court must consider the same in the interest of justice –
In the instant case, the documents evidencing date of birth did not
inspire any confidence and there was no other option but to fall H
349
350 SUPREME COURT REPORTS [2022] 8 S.C.R.
A back on the report of the Special Medical Board in the interest of
justice – The order passed by the High Court affirming the CJM’s
order was not sustainable in law – Respondent accused was not
juvenile at the time of the commission of the offence and, therefore,
should be tried the way other co-accused were tried – Juvenile
Justice (Care and Protection of Children) Act, 2000 – ss.7A and 94
B
– Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013 – ss.8 and 48.
Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013: ss.8, 48 – Plain reading of s.8 of the Act, 2013
indicates that whenever a claim of juvenility is raised before any
C court or the court is of the opinion that the accused person was a
juvenile on the date of the commission of the offence, then it is
mandatory for the court to make an inquiry and in the course of
such inquiry, the court may take such evidence as may be necessary,
however, not an affidavit, so as to determine the age of such person
D – At the end of the inquiry, if the court finds a person to be a juvenile
on the date of commission of the offence under sub-section (1) of
s.8, then in such circumstance, the court is obliged in law to forward
the juvenile to the Juvenile Justice Board for passing appropriate
order and the sentence – s.48 talks about a competent authority,
whereas, s.8 is in respect to the court – However, what is relevant to
E note is that in both the Sections the word ‘shall’ has been used.
Word and phrase: “May” – When Mandatory – It is a well
settled principle of interpretation that the word ‘may’ when used in
legislation by itself does not connote a directory meaning – If in a
particular case, in the interests of equity and justice it appears to
F the court that the intent of the legislature is to convey a statutory
duty, then the use of the word ‘may’ will not prevent the court from
giving it a mandatory colour – Jammu and Kashmir Juvenile Justice
(Care and Protection of Children) Rules, 2014 – r.74.
Allowing the appeal, the Court
G
HELD: 1. Sub-rule (3) of Rule 74, makes it abundantly clear
that in the absence of the certificates mentioned in sub clause (i)
to (iii) or in the event of any contradiction arising therefrom,
authority deciding the issue of age may refer the matter to a duly
constituted medical board which, in turn, would record its findings
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 351
& KASHMIR) v. SHUBAM SANGRA
and submit to the Juvenile Justice Board. There are discrepancies A
in the certificates on record disclosing the date of birth of the
respondent. There is no good reason why the matter should not
be referred to a duly constituted medical board which shall, in
turn, record its findings and submit to the Juvenile Justice Board.
The word “may” should be read as “shall” having regard to the
B
very object of sub-rule (3) of Rule 74. [Para 38][380-F-G; 381-B-
C]
2. The plain reading of Section 8 of the Act, 2013 indicates
that whenever a claim of juvenility is raised before any court or
the court is of the opinion that the accused person was a juvenile
on the date of the commission of the offence, then it is mandatory C
for the court to make an inquiry and in the course of such inquiry,
the court may take such evidence as may be necessary, however,
not an affidavit, so as to determine the age of such person. At the
end of the inquiry, if the court finds a person to be a juvenile on
the date of commission of the offence under sub-section (1) of D
Section 8, then in such circumstance, the court is obliged in law
to forward the juvenile to the Juvenile Justice Board for passing
appropriate order and the sentence. Section 48 talks about a
competent authority, whereas, Section 8 of the Act 2013, is in
respect to the court. However, what is relevant to note is that in
both the Sections i.e., Section 8 as well as Section 48 the word E
‘shall’ has been used. [Paras 42 & 44][383-B-D; 383-H; 384-A]
3. It is no doubt true that if there is a clear and unambiguous
case in favour of the juvenile accused that he was a minor on the
date of the incident and the documentary evidence at least prima
facie establishes the same, he would be entitled to the special F
protection under the Juvenile Justice Act. However, when an
accused commits a heinous and grave crime like the one on hand
and thereafter attempts to take the 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 G
permitted as the courts are enjoined upon to perform their duties
with the object of protecting the confidence of a common man in
the institution entrusted with the administration of justice. [Para
72][399-G-H; 400-A]
H
352 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 4. There is no good reason why this Court should overlook
or ignore or doubt the credibility of the final opinion given by a
team of five qualified doctors, one from the Department of
Physiology, one from the Department of Anatomy, one from the
Department of Oral Diagnosis, one from the Department of
Forensic Medicine and one from the Department of Radio
B
Diagnosis, all saying in one word that on the basis of the physical,
dental and radiological examination, the approximate age of the
respondent could be fixed between 19 and 23 years. Nothing much
has been said on behalf of the respondent accused in regard to
the credibility of the medical report prepared by the Special
C Medical Board constituting of five medical experts. The only
argument is that ignore the medical report as there is proof of
the date of birth to be found in the various documents on record.
The documents evidencing date of birth does not inspire any
confidence and there is no other option but to fall back on the
report of the Special Medical Board in the interest of justice.
D
[Paras 74 & 77][400-G; 401-F-G]
Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12
SCC 372 : [2008] 2 SCR 424; Rishipal Singh Solanki
v. State of U.P. (2022) 8 SCC 602; Parag Bhati v. State
of U.P., (2016) 12 SCC 744 : [2016] 2 SCR 1089- relied
E on.
Ramdeo Chauhan alias Raj Nath v. State of Assam
(2001) 5 SCC 714 : [2001] 3 SCR 669; Ashwani Kumar
Saxena v. State of Madhya Pradesh (2012) 9 SCC 750
: [2012] 10 SCR 540; Darga Ram alias Gunga v. State
F of Rajasthan (2015) 2 SCC 775 : [2015] 1 SCR 350;
Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC
338 : [2007] 10 SCR 245; Mukarrab v. State of Uttar
Pradesh (2017) 2 SCC 210 : [2016] 8 SCR 557;
Sanjeev Kumar Gupta v. State of Uttar Pradesh (2019)
G 12 SCC 370 : [2019] 9 SCR 735; Abuzar Hossain @
Gulam Hossain v. State of West Bengal (2012) 10 SCC
489 : [2012] 9 SCR 244; Ashwani Kumar Saxena v.
State of Madhya Pradesh (2012) 9 SCC 750 : [2012]
10 SCR 540; Babloo Pasi v. State of Jharkhand, (2008)
13 SCC 133 : [2008] 14 SCR 161; Arnit Das v. State
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 353
& KASHMIR) v. SHUBAM SANGRA
of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; A
Jitendra Ram alias Jitu v. State of Jharkhand, (2006) 9
SCC 428 : [2006] 1 Suppl. SCR 286; Om Prakash v.
State of Rajasthan (2012) 5 SCC 201 : [2012]5
SCR 237- referred to.
Case Law Reference B
[2001] 3 SCR 669 referred to Para 32
[2012] 10 SCR 540 referred to Para 35
[2015] 1 SCR 350 referred to Para 35
[2008] 2 SCR 424 relied on Para 39 C
[2007] 10 SCR 245 relied on Para 40
[2016] 8 SCR 557 referred to Para 47
(2022) 8 SCC 602 relied on Para 58
[2016] 2 SCR 1089 relied on Para 58 (i) D
[2019] 9 SCR 735 referred to Para 58 (ii)
[2012] 9 SCR 244 referred to Para 58 (iii)
[2012] 10 SCR 540 referred to Para 58 (iv)
E
[2008] 14 SCR 161 referred to Para 59 (v)
[2000] 1 Suppl. SCR 69 referred to Para 58 (vi)
[2006] 1 Suppl. SCR 286 referred to Para 58 (vii)
[2012] 5 SCR 237 referred to Para 70
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1928 of 2022.
From the Judgment and Order dated 11.10.2019 of the High Court
of Jammu and Kashmir at Jammu in CRR No. 27 of 2018.
P. S. Patwalia, Sr. Adv., Shailesh Madiyal, Parth Awasthi, Vaibhav G
Sabharwal, Vinayaka S. Pandit, Ms. Harshika Verma, Ms. Taruna
Ardhendumauli Prasad, Advs. for the Appellants.
Nitin Sangra, Mrs. Pragya Baghel, Advs. for the Respondent.
H
354 SUPREME COURT REPORTS [2022] 8 S.C.R.
A The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
“Rape is one of the most terrible crimes on earth and it happens
every few minutes. The problem with groups who deal with
rape is that they try to educate women about how to defend
B themselves. What really needs to be done is teaching men not
to rape. Go to the source and start there.”
- Kurt Cobain
1. This appeal is at the instance of the State of Jammu & Kashmir
C (now U.T. of Jammu & Kashmir) and is directed against the order passed
by the High Court of Jammu & Kashmir at Jammu dated 11.10.2019 by
which the High Court rejected the Criminal Revision Application No. 27
of 2018 filed by the appellant State herein, thereby affirming the order
passed by the Chief Judicial Magistrate, Kathua dated 27.03.2018 holding
the respondent accused herein to be a juvenile on the date of the
D commission of the alleged offence.
2. This litigation originates from the most unfortunate Kathua rape
case. The Kathua rape case involved the abduction, gang rape and murder
of an eight year-old Muslim girl by name ‘X’ by six Hindu men and the
respondent herein (claiming to be a juvenile) in January, 2018 in the
E Rasana village near Kathua in Jammu & Kashmir. The victim belonged
to the nomadic Bakarwal community. She disappeared for a week before
her body was recovered by the villagers a kilometer away from the
village. In all eight individuals were arrested in connection with the ghastly
crime which includes the respondent herein. Since the respondent herein
F claimed to be a juvenile, his trial was separated. The other six co-accused
were put to trial and vide the Judgment and Order dated 10.06.2019
passed by the trial court, six of the seven accused stood convicted and
one accused was acquitted. Three of those convicted were sentenced
to life imprisonment and remaining three to five years rigorous
imprisonment. The Special Investigation Team (SIT) was constituted to
G probe into the entire matter and ultimately chargesheet came to be filed
against all the accused persons. The father of the victim namely ‘Y’
lodged a complaint in the Hira Nagar Police Station stating that his daughter
had gone missing.
3. On 17.01.2018, the body of the victim was found and taken into
H custody by the police. The body was sent for autopsy. The post-mortem
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 355
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
was conducted by a team of doctors at the District Hospital, Kathua on A
the same day. On 22.01.2018, investigation of the case was transferred
to the Crime Branch and Crime Headquarters.
4. The post-mortem revealed the presence of clonazepam in the
body of the deceased girl. The examination by the doctors found that the
deceased had been drugged which was sedative, before she was raped B
and murdered. The forensic evidence suggested that she had been held
on several dates by Sanji Ram, one of the accused persons of the crime.
The strands of hair recovered from the temple matched those taken
from the deceased. The forensic examination stated that the deceased
had been raped multiple times by different men and that she had been
strangulated to death as well as hit on the head by a heavy stone. C
5. The Delhi Forensic Science Laboratory analysed fourteen
packets of evidence containing vaginal swabs, hair strands, blood samples
of four accused, viscera of the deceased girl, the girl’s frock and salwar,
simple clay and blood-stained clay. The vaginal swabs matched with the
DNA of the accused as did some other samples. The hair strands found D
in the temple, where the deceased was raped, matched that of the girl
and the accused.
6. One of the accused persons namely Sanji Ram along with the
respondent herein was found to be the main accused in the case. He at
the relevant point of time was the priest of the family temple where the E
incident allegedly took place. The respondent herein happens to be the
nephew of the Sanji Ram.
7. On 10.06.2019, six of the seven accused persons were found
to be guilty and one was acquitted. Sanji Ram, Deepak Khajuria and
Parvesh Kumar were sentenced to life imprisonment for 25 years with F
a fine of Rs. One lakh each. The other three accused persons namely
Tilak Raj, Anand Dutta and Surinder Kumar were sentenced to five
years in jail for destroying crucial evidence in the case. Vishal Jangotra
S/o Sanji Ram came to be acquitted due to lack of evidence. The eighth
accused, who is yet to be tried claiming to be a juvenile at the time of G
commission of the offence, is the respondent herein.
8. The specific case put up by the prosecution against the
respondent herein is contained in the chargesheet reads thus:
“ ... He immediately rushed down stairs, took 3 Manars and
keys to Devisthan and told ‘X ‘ that he had seen her horses. H
356 SUPREME COURT REPORTS [2022] 8 S.C.R.
A He led her to jungle and also called accused Mannu who
was already waiting for his signal. Sensing some trouble the
victim tried to flee away. The JD stopped her by catching
hold of her neck and covered her mouth with one of his hands
and pushed her and she fell on the ground. Accused Mannu
held her legs and the JCL (respondent) administered Manars
B
one by one forcibly to the victim. The victim fell unconscious
and was raped by JCL...Later on, they took the girl and kept
her inside Devisthan under the table over two Chatayees
(plastic mats) and then covered her two Darees (cotton thread
Mats) ...
C At about 8.30 a.m. the JCL again went to Devisthan and
administered 3 sedatives tablets to the girl while she was
unconscious with empty stomach ....
... The accused Vishal Jangotra @Shamma raped ‘X’.
Thereafter, JCL also raped the girl in presence of the accused
D Mannu. The investigation also revealed that after committing
the rape, JCL directed accused Vishal Jangotra @ Shmma
and accused Mannu to leave Devisthan. JCL again took out
03 tablets out of the strip which he had kept under a heap of
garbage near an electric pole outside the Devisthan and gave
E the same to the girl and again covered here with mats and
dropped the utensil container in front of her in order to hide
her ...
During investigation it has been found that after distributing
Lohri to relatives in the evening JCL informed accused Sanji
F Ram that he and accused Vishal Jangotra had committed gang
rape with ‘X’ inside Dev!sthan .... On the spot accused Deepak
Khajuria @Deepu told JCL to wait as he wanted to rape the
girl before she is killed. As such once again the little girl ‘X’
was gang raped firstly by accused Deepal Khajuria @Deepu
and then by JCL. After committing the barbaric act of rape
G on his left thigh and started applying force with his hands on
her neck in order to kill her. As accused Deepak Khajuria
@Deepu was unsuccessful in killing her another accused JCK
killed her by pressing his knees against her back and
strangulated the girl by applying force on both the ends of
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 357
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
Chunni. Thereafter, accused JCL, in order to make sure that A
the victim is dead, hit her twice on head with stone ...
... As per plan JCL along with accused Vishal Jangotra
@Shamma went to Devisthan. Accused Vishal Jangotra
@Shamma opened the door while JCL lifted the dead body
on his shoulder. The accused Vishal Jangotra @Shamma B
locked the door and JCL disposed the dead body by throwing
it inside the jungle while accused Vishal Jangotra @Sham
ma was guarding outside bushes ... “
Further, in the Supplementary Charge Sheet dated 09-08-2018
it has been observed as under:- C
... “During the course of investigation, it has already been
established that victim was administered sedatives by
accused during her captivity. Two tablets recovered on the
disclosure of Juvenile in conflict with law near Devsthan
Rasana were sent to forensic lab for analysis. The chemical D
analysis report obtained thereof, revealed the present of
Clonazepam salt in the said tablets. To ascertain the effect
of sedatives ‘Mannar’ as well as Clonazepam on the victim
with empty stomach, the concerned expert (Professor and
Head, Pharmacology, GMC Jammu) has opined that the
sedative Clonazepam (Epitril 0.Smg) has the following E
effects:- (1) Drowsiness, (2) Confusion, (3) Impaired, ( 4)
Coordination, (5) Slow reflexes, (6) Slowed or stopped
breathing, (7) Coma (loss of consciousness) and Death.
As per the final opinion of the expert “the peak
concentration of Clonazepam is achieved in the blood after F
one hour to 1.5. hours of oral administration. Clonazepam
absorption from the enteral route is complete irrespective
of administered either with or without food”. ...”
9. The crime that the respondent accused herein has been charged
with is heinous; its execution was vicious and cruel, by any stretch of G
imagination. The entire crime was calculated and ruthless. This case
captured the attention and indignation of the society across the country,
more particularly, in the State of Jammu and Kashmir, as a cruel crime
that raised alarm regarding safety within the community.
H
358 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 10. Our adjudication in the present litigation is restricted to the
question whether the respondent was a juvenile on the date of commission
of the offence? It all started with the order dated 21.02.2018 passed by
the High Court of Jammu & Kashmir in the OWP No. 259 of 2018 with
M.P. No. 1 of 2018. The order reads thus:
B “In compliance of the order dated 09.02.2018, Mr. W S Nargal,
learned Senior Additional Advocate General has produced
the copy of the status report. After hearing learned counsel
for the parties and from perusal of the status report, I deem it
appropriate to issue the following directions to the SIT:
C 1. That the SIT shall take steps for ascertaining the age of
Shubam Sangra within a period of 10 days from today by
Medical Board which shall be constituted by Principal,
Government Medical College, Jammu;
2. That the SIT shall also ascertain the whereabouts of Mannu
D whose name is mentioned in paragraph 6 of the status report
and shall take steps for apprehending the aforesaid Mannu;
3. That the SIT shall also obtain the copy of the post mortem
report along with detailed questionnaire which has been
supplied by it to the doctors of the Boards conducting the
E post mortem.
Let a fresh status report with regard to the aforesaid points
be filed within a period of two weeks from today.
Taking into account the fact that the part of the status report
dated 19.02.2018 has been published in daily newspaper,
F namely, Greater Kashmir, in extensor and taking into account
the sensitivity of the matter as well as to ensure free and fair
trial, I deem it appropriate to direct that the proceeding of the
instant writ petition shall not be published in any newspaper.
List on 09.03.2018 at the bottom of the list.
G 11. In due compliance with the directions issued by the High Court
in its order referred to above, the Special Investigation Team vide its
letter dated 26.02.2018 requested the Principal, Government Medical
College, Jammu to constitute a medical board for the determination of
age of the respondent herein.
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 359
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
12. The Principal and Dean of the Government Medical College, A
Jammu constituted a Special Medical Board comprising the following
doctors:
B
C
13. The Special Medical Board constituted, as above, undertook
the medical examination of the respondent herein and gave its report
dated 03.3.2018 which reads thus:
D
AGE ESTIMATION REPORT
Name SHUBHAM SANGRA @ SHUBOO Sex: MALE
S/o. Sh. Om Parkash Sangra
Address Hiranagar, Ward No. 10, NP Rasana E
Age as alleged by person/miscellaneous data 15 years
Brought by/Authority Dy SP Shwetamber Sharma
Standing Medical Board, No. GMC/2018/SMBd KPS - 125747
Court Case 12176 Dated 26/02/2016 Crime Branch Jammu. F
Purpose of examination Assessment of age of Subham Sangra
Sd/-
(Signature/Thumb Impression of Individual)
Marks of Identification: 1. Black mole above left angle of G
mouth
2. Scar mark on right eyebrow
1. PHYSICAL EXAMINATION
H
360 SUPREME COURT REPORTS [2022] 8 S.C.R.
A (i) Height 5’3" (ii) Weight 48 Kg
(ii) Built Average (ii) Voice Masculine
(v) Secondary Sex Characters Well developed
II. DENTAL EXAMINATION
B
C
Referred to Deptt of Oral Diagnosis IGGDC Jammu for dental
age estimation by Dr Satvinder Singh.
03/03/2018 -On Clinical examination, all permanent teeth
erupted except 18, 28, 38 & 48 on OPG (radiographic)
D examination; 18 & 28 show V2 root formation approximately
38 & 48 show near complete root formation with open
(illegible). On the cavity this findings, the dental of patient is
of 19+ years.
III. RADIOLOGICAL EXAMINATION: Referred to Department
E of Radio diagnose for X-rays for age estimation. Advised (1)
X-ray (Rt.) Humerus (Shoulder Jt) AP (2) X-ray Hip (Pelvis) -
AP (3) X-ray (RF) Knee Jt-AP (4) X-ray (Rt) Elbow Joint AP
Lat (5) X-ray (Rt) Hand & wrist- AP.
OPINION - reserved till the receipt of reports from IGGDC
F Jammu and the Deptt of Radio diagnosis.
Sd/- Sd/-
Dr. Mrityunjay Shivani Mehta
(Deptt of Physiology) (Deptt of Forensic Medicine)
G Sd/- Sd/- Sd/-
Dr. Jeevitesh Khuda Dr. Ashwani Dr. Satvinder
(Deptt of Radio (Deptt of Anatomy) (IGDDC Jammu)
Diagnosis)
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 361
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
3/03/2018 FINAL OPINION – Received R/8" x 10" x four (4) A
films reported by Dr. Jeevitesh Khoda with the opinion-
keeping in view the above findings the age of the patient in
my opinion is between Nineteen to Twenty Three (19-23) years
of age.
FINAL OPINION - On the basis of Physical Dental & B
Radiological Examination the approximate age of above
individual is above nineteen years (19 +)
Sd/- Sd/- Sd/-
Dr. Mrityunjay Dr. Ashwani Dr. Satvinder C
(Deptt of Physiology) (Deptt of Anatomy) (Deptt of Oral
Diagnosis)
Sd/- Sd/-
Dr. Shivani Mehta Dr. Jeevitesh Khuda
D
(Deptt of Forensic Medicine) (Deptt of Radio Diagnosis)”
14. The High Court thereafter passed an order dated 14.03.2018
in the OWP No. 259 of 2018 with M.P. No. 1 of 2018 which reads thus:
“When the matter was taken up today, learned Senior E
Additional Advocate General submitted that despite request
being made to the Medical Superintendent, District Hospital
Kathua, till today, the post-mortem report has not been handed
over to the Investigating Officer. In view of the aforesaid
submission, the Medical Superintendent, District Hospital,
Kathua is directed to hand over the copy of the post-mortem F
report as well as reply to the questionnaire to the officer
heading the Special Investigating Team within a period of
three days from the date of receipt of certified copy of the
order passed today.
With regard to the averments in para 7 of the status report G
which has been filed on behalf of respondents 1 to 3, it is
submitted that the Special Investigating Team shall obtain the
warrant of arrest in respect of absconding accused, namely,
Sanjhi Ram and shall take all effective steps to arrest him
and shall interrogate him as well as other persons who are
H
362 SUPREME COURT REPORTS [2022] 8 S.C.R.
A related to the offences in question whose names have been
mentioned in para 7 of the status report. Let the aforesaid
exercise be carried out with three weeks from today.
Mr. Nargal, learned Sr. AAG further submitted that since the
matter is pending before this Court, the Chief Judicial
B Magistrate, Kathua is not ascertaining the age of the accused,
namely, Shubam Sangra. In view of the aforesaid submissions
and taking into account the provisions contained under
Section 8 of the J and K Juvenile Justice (Care and Protection
of Children) Act, 2013 as well as Rule 74 of the Rules framed
under the Act, the Chief Judicial Magistrate, Kathua is directed
C to ascertain the age of the accused, namely, Shubam Sangra
within a period of ten days from the date of receipt of certified
copy of the order passed today, without being influenced by
the report submitted to the District Medical Board.
List on 09.04.2018.
D
Let a copy of this Order be supplied to learned counsel for
the parties under the seal and signatures of the bench secretary
of this Court.”
15. The Tehsildar of Hira Nagar vide his communication dated
E 14.03.2018 informed the Superintendent of Police, In-charge SIT Crime
Branch that the original record in respect of date of birth of the respondent
herein was not traceable. The letter of the Tehsildar dated 14.03.2018
reads thus:
“Government of Jammu & Kashmir Revenue Department
F “OFFICE OF THE TEHSILDAR, EXECLJTIVE MAGISTRATE
1st CLASS, HIRANAGAR (Kathua)
The Dy. Superintendent of Police
SIT Member Crime Branch, J&K,
Jammu.
G No. JC/232 Dated: 14.03.2018
Sub:- Investigation of Case Fir No. 10/2018 u/s 363/302/
343/376/201/120- B RPC of P/S Hiranagar.
H Ref:- CB/FIR/10-2018/127 dated 13.03.2018
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 363
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
R/Sir, A
In reference to your office letter No.CB/FIR/10-2018/127
dated 13.03.2018 regarding the subject cited above.
In this context if is hereby submitted that original, record
pertaining to the order No. 22/JC dated 15.04.2004 issued
from this office in respect of date of birth of Shubam Sangra B
S/o Om Parkash R/o Hiranagar is not traceable in this office.
Moreover, the old miscellaneous record has been dilapidated
for which undersigned is not in position to submit the original
record of the same.
C
Yours faithfully,
Sd/-
Gourav Sharma,
Tehsildar, Hiranagar”
16. The Block Medical Officer, Health & Family Welfare, Hira D
Nagar by his communication dated 15.03.2018 informed the
Superintendent of Police, In-Charge SIT Crime Branch, Jammu &
Kashmir that the verification of the records available in the institution
reveals that no delivery in the name of Smt. Tripta Devi W/o Om Prakash,
mother of the respondent herein, had taken place on 23.10.2002. The E
date of 23.02.2002 assumes significance as it is the case of the respondent
that he was born on 23.10.2002.
17. On 20.03.2018, the respondent herein preferred an application
in the Court of the CJM, Kathua under Section 8 of the Jammu and
Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013 F
(for short, ‘the Act, 2013’) for determination of his claim as a juvenile.
18. The appellant State filed detailed objections to the aforesaid
application filed by the respondent herein under Section 8. The objections
read thus:
“a. On 12.01.2018 one Mohd. Yousuf S/o Sahib Din caste G
Bakarwal R/o Rasana Mohara Plakh Phawara Tehsil
Hiranagar produced an application in Urdu before the P/S
Hiranagar stating therein that his daughter Miss Asifa Age 8
years had gone for grazing horses in the nearby forest on
10.01.2018. She was seen with the horses at about 14:00 H
364 SUPREME COURT REPORTS [2022] 8 S.C.R.
A hrs. At about 16:00 hrs, the horses returned back in the dera
but Asifa did not return. On this Mohd. Yousuf along with
others started search in the forest but Asifa could not be traced
out. He has the suspicion that some miscreants have
kidnapped his daughter. Consequently, Case FIR No. 10/2018
u/s 363 RPC was registered in P/S Hiranagar and section
B
302 and 343 RPC were added after recovery of the dead body
of the prosecutrix. The investigating officer of P/s Hiranagar,
on the basis of a secret information had apprehended a
Juvenile delinquent namely Shubam Sangra @ Chuboo on
19.01.2018 and was produced before the Ld. Chief Judicial
C Magistrate Kathua on 20.01.2018 for seeking remand. The
investigation of the case was subsequently transferred to
Crime Branch Jammu vide PHQ order No. 374/2018 dated
22.01.2018 for further investigation. The case was formally
handed over to Crime Branch on 27.01.2018. During the
course of the investigation the offences u/s, 376, 201· and
D
120-B RPC came to be included.
b. The Ld. Chief Judicial Magistrate, Kathua has granted
remand for lodgment of Shubam Sangra @ Chuboo in
observation home R.S Pura, the details of which is as under:-
E i. 20.01.2018 to 29.01.2018 = 10 days
11. 29.01.2018 to 03.02.2018 = 6 days
ill. 03.02.2018 tol2.03.2018= 10 days
iv. 12.02.2018 to 26.02.2018 = 15 days
F v. 26.02.2018 to 12.03.2018 = 15 days
vi. 12.03.2018 to 22.03.2018 = 11 days
Total - 67 days, (62 days as per the calendar entries)
Apart from this, the Ld. Court of Chief Judicial Magistrate
G Kathua vide order dated 30.01.2018, 05.02.2018, 19.02.2018
and 26.02.2018 has granted the custody of juvenile delinquent
Shubam Sangra for 3 days + 3 days + 3 days + 1day
respectively. This way, the juvenile was granted a total of 10
days police custody for the purpose of investigation. The
juvenile delinquent during the course of sustained questioning
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 365
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
also admitted to have committed the offences of kidnapping, A
rape and murder of deceased Asifa. Even as in the chain of
events, on the basis of statement of witnesses u/s 161 and
164-A Cr. PC and circumstantial evidence the offences u/s
363, 343, 302, 376, 120-B/RPC have been prima facie made
out against Shubam Sangra@ chuboo.
B
c. Moreover, during investigation it also transpired that the
Date of Birth Certificate of the Juvenile obtained from
Municipal Committee Hiranagar and the one obtained from
Modem Public Higher Secondary School Hiranagar were at
variance. In the mean time. the Hon’ble High Court on
21.02.2018 in OHP No. 259 of 2018 titled Mohd. Akhter Vs. C
State had interallia passed the following direction:-
“SIT shall take steps for ascertaining the age of Shubam
Sangra within a period of 10 days from today by a Medical
Board to be which shall be constituted by Principal GMC
Jammu”. D
In compliance to the above direction of Hon’ble High Court
J&K Jammu, the Principal GMC Jammu was requested vide
this office letter No. CBJ/FIR/l0 2018/56 dated 26.02.2018
to constitute a Medical Board for determination of age in
respect of juvenile delinquent Shubam Sangra @ Chuboo. In E
response to which, the Principal GMC Jammu constituted
board of doctors comprising of (i). Dr. Mrityinjay, department
of physiology (ii). Dr. Shivani Mehta, department of Forensic
Medicine (iii). Dr. Jeevitesh Khtida, department of Radio
Diagnosis (iv). Dr. Ashawani, department of Anatamy and (v). F
Dr. Satvinder Singh, department of Indira Gandhi Govt. Dental
College Jammu (IGGDC). The board of doctors so constituted
examined the juvenile delinquent Shubam Sangra on
28.02.2018 and accordingly Principal GMC Jammu submitted
the opinion of the board vide letter No. GMC/2017 /SMVC/
court case/2209 dated 05.03.2018. G
Final Opinion :-
On the basis of Physical, Dental and Radiological
examination the approximate age of above mentioned
H
366 SUPREME COURT REPORTS [2022] 8 S.C.R.
A individual is above Nineteen years (19+). (The copy of the
Medical report is appended as Annexure A for reference).
d. On the basis of questioning from Juvenile delinquent
Shubam Sangra, statement of witnesses u/s 161 and 164-A
CrPC and circumstantial evidence accused persons namely
B (i). Deepak Khajuria @ Deepu S/o Updesh Khajuria (ii).
Surinder Kumar S/o Sain Dass R/o Dhamiyal Hiranagar and
(iii). Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Rasana
Hiranagar, (iv). VishalJangotra@ Shamma and (v). Sanji Ram
were arrested and put to sustained interrogation. The
investigation conducted so far reveals that the accused
C De’epak Kumar Khajuria and the juvenile delinquent hatched
a criminal conspiracy with Sanji Ram S/o Des Raj R/o Rasana
for kidnapping, rape and murder of deceased Asifa, d/o Mohd.
Yousuf of village Rasana and in furtherance of this criminal
conspiracy the accused persons namely Surinder Kumar S/o
D Sain Dass R/o Dhamiyal Hiranagar, Parvesh Kumar @ Mannu
S/o Ashok Kumar R/o Rasana Hiranagar and Vishal jangotra
@ Shamma became a part of the conspiracy as well as the
execution plan.
e. Further, during investigation it has also transpired that the
E officers and officials of P/s Hiranagar were a part of the
criminal conspiracy as the clothes of deceased Asifa were
washed up in the premises of Police Station Hiranagar on
17.01.2018 before being sent to FSL for forensic examination.
On the basis confessional statements of accused persons, and
statement of witnesses uls 161 Cr. PC as well as other
F circumstances HC Tilak Raj of P/S Hiranagar and S.I Anand
Dutta, the erstwhile I/O of instant case of P/s Hiranagar have
been arrested for disappearance of evidence, done with the
intention of screening out the offender from legal punishment.
Both the police officials are on police remand and lodged in
G P/s Crime Branch Jammu.
f. That as per the opinion of Board of Doctors Shubam Sangra
@ Chuboo is above nineteen years of age and thus he is an
adult. Further it is submitted that in the writ petition titled
Mohd. Akhter Vs. State OWP No. 259 of 2018, pending
H adjudication before the Hon’ble High Court of J&K, Jammu
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 367
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
a detail status report reflecting the opinion of board of doctors A
of GMC Jammu was filed before the Hon’ble court on
09.03.2018 in sealed cover for the perusal of the Hon’ble
High Court.
2. It is also relevant to submit before this Hon’ble Court that,
Tehsildar Hiranagar was requested vide office letter no. CB/ B
FIR/10-20181127 dated 13.03.2018 to provide the file
regarding issuance of order to executive officer Municipal
Committee Hiranagar for making the entry of date of birth in
respect of said Shubam Sangra in the record of Municipal
Committee. In response to the above communication, Tehsildar
Hiranagar vide letter no. JC/232 dated 14.03.2018 has C
intimated that the file in question is not traceable in his office.
(The reply of Tehsildar is annexed for reference and marked
as Annexure -B).
3. Further it is also submitted that Executive officer of
Municipal Committee Hiranagar has made an entry in the D
date of birth register of Municipal Committee in respect of
juvenile Shubam Sangra mentioning there in that the said
individual was born in Hiranagar Hospital. However,
contrary to this, in response to this office letter no. CB/FIR/
10-2018/135 dated 14.03.2018 the Block Medical Officer E
Health and Family Welfare Hiranagar vide office letter No.
BMO/CHC/HGR/ Acctts/2214 dated 15.03.2018 has intimated
that on verification of records available in the institution it is
found that no delivery in the name of Smt. Tripata Devi w/o
Sh. Om Parkash R/o Hiranagar has taken place on
23.10.2002, which clearly indicates that the entry made by F
Executing officer Municipal Committee Hiranagar is not
based on facts and even the order of the Tehsildar Hiranagar
for making the said entry has become doubtful. (Photocopy
of letter of BMO Hiranagar is annexed for reference and
marked as Annexure-C}. G
4. That it is also relevant to place on record that the aforesaid
mentioned writ petition was listed before the Hon’ble court
of 14.03.2018 wherein the Hon’ble court after going through
the status report filed in the sealed cover was please to issue
the 3 directives, out of which the one pertaining to the issue H
368 SUPREME COURT REPORTS [2022] 8 S.C.R.
A in hand was for the sake of reference is reproduced here in
under:-
“Taking into account the provisions contained under
Section 8 of the J&K ]uvenile]ustice (Care and Protection
of Children) Act; 2013 as well as Rule 74 of the Rules
B framed under the Act; the Chief Judicial Magistrate Kathua
is directed to ascertain the age of the accused, namely,
Shubam Sangra with in a period of ten days from the date
of receipt of certified copy of the order passed today,
without being influenced by the report submitted by the
District Medical Board”.
C
The certified copy of court order has already been sent to the
Ld. Court through CPO, vide letter no. CB/FIR/10-2018/154
dated 16.03.2018. However, another photocopy of the of the
court order is again annexed for reference, marked as
Annexure-D.
D
5. That in view of the aforementioned reply of the Tehsildar
Hiranagar as well as the Block Medical officer Health and
Family Welfare Hiranagar and coupled with the report of the
Medical Board, it is submitted that the applicant Shubam
Sangra @ Chuboo may not be declared as juvenile and rather
E in view of the role played by him in the gruesome and dastardly
act as well as his conduct and behavior, forthcoming from
the investigation conducted so far, he is rather mature and
not a juvenile. Further it is also placed on record that the
date of arrest of the Shubam Sangra as per the CD file is
F 19.01.2018 and not 12.01.2018 as reflected in the
application.
In the light of the aforesaid submission it is humbly prayed
that the aforesaid application may kindly be rejected and the
applicant Shubam Sangra @ Chuboo S/o Om Parkash R/o
G Ward No. 10 Hiranagar Np Village Rasana, Tehsil- Hiranagar
may kindly be declared as an adult or alternatively not a
juvenile, so that the investigation of instant case is finalized
on merits.
Superintendent of Police,
I/GSIT Crime Branch, J&K,
H
Jammu”
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 369
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
19. For the purpose of adjudicating the application filed by the A
respondent herein under Section 8 of the Act, 2013 referred to above,
the CJM, Kathua recorded the deposition of the Executive Officer,
Municipal Committee, Hira Nagar and of the father of the respondent
herein namely Om Prakash.
20. Ultimately the CJM, Kathua passed the final order dated B
27.03.2018 holding the respondent herein to be a juvenile. The relevant
part of the order passed by the CJM, Kathua reads thus:
“Having discussed legal position qua determination of
juvenility in terms of rule 74 supra and section 8 of Juvenile
Justice Act, let focus now be shifted to the facts of the case at C
hand.
Executive Officer, Municipal Committee Hiranagar appeared
on 23-03-2018 along with record pertaining to date of birth
of petitioner. He was examined on the same day. According to
him date of birth of petitioner is recorded as 23-10-2002 in D
the Birth and Death Register maintained by his office; that
parentage of petitioner is : son of Om Parkash and Smt. Tripta.
Further, according to this witness, date of birth entry of
petitioner has been recorded on 15-04-2004 in the records of
Municipal Committee; that said entry has been made by then
Executive Officer whose signatures and seal is at serial no. E
80 of register concerned; that this entry was recorded
pursuant to order of Executive Magistrate 1st Class Hiranagar
bearing no. 22/JC dated 15-04-2004; that father of petitioner
had moved an application before then Executive Magistrate
(Tehsildar) Hiranagar seeking direction for making entry of F
date of birth of petitioner; that in-terms of order no. 22/JC
dated 15-04-2004 entry of three children of Om Parkash
(father of petitioner) was directed to be made by Executive
Magistrate 1st Class Hiranagar; that date of birth of petitioner
was entered in compliance with this order of Executive
Magistrate 1st Class only; that signature father of petitioner G
exists at serial no. 80 of register concerned; that date of birth
certificate the photocopy of which is on the file of this court
has been issued from his office in which date of birth of
petitioner is recorded as 23-10-2002 and this entry is correct
and true according to original record etc. etc. H
370 SUPREME COURT REPORTS [2022] 8 S.C.R.
A In cross examination, witness deposed that incumbent
Executive Officer ensures signatures of any application on
the birth register in his presence; that with regard to place of
birth of new born, entry is made on the basis of information
given by an applicant and no verification is made in this regard
because entry is made on the basis of order of Magistrate;
B
that order no. 22/JC does not mention place of birth of
petitioner and that after year 2012 orders pertaining to entry
in date of birth are issued by courts and not by Executive
Magistrate etc. etc.
Another witness namely Om Parkash who is father of
C petitioner was examined on 24-03-2018.
According to this witness, petitioner is his real son; that date
of birth of petitioner is 23-10-2002; that this date of birth of
petitioner is also entered in the record of Municipal Committee
Hiranagar and same was made on 15-04-2004; that prior to
D this he moved an application for making entry of date of birth
of petitioner before Executive Magistrate 1st Class Hiranagar
and also led evidence and finally Tehsildar Hiranagar issued
order in the name of Municipal Committee Hiranagar
pursuant to which date of birth of petitioner was recorded as
E 23-10- 2002; that name of his wife is Tripta Devi. Petitioner
was admitted in Modern Public Higher Secondary School
Hiranagar in the first class; that there also he disclosed date
of birth of petitioner as 23-102-2002; that petitioner was
admitted in said school 10 years back; that however a wrong
entry of date of birth of petitioner has been made in school
F records; that date of birth of petitioner shown in school is
23-10-2003; that he came to know about this wrong entry of
date of birth of petitioner in school only when FIR was
registered against him (petitioner) pursuant to which he went
to school to get date of birth certificate of petitioner etc. etc.
G On cross examination, witness deposed that he has three
children; that the youngest one is petitioner. Because of
ignorance he moved application for making entry of date of
birth of his children as late as in year 2004 even though his
eldest issue was born in the year 1996; that he cannot say
H the age at which Shubam Sangra was admitted in the school
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 371
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
and that he is 4th class employee in the education department A
etc etc.
Be it noted that evidence of Executive Officer, Municipal
Committee Hiranagar puts in perspective the process which
ultimately culminated in recording date of birth of petitioner
in the record of Municipal Committee Hiranagar way back in B
the year 2004. As a matter of record, it stands established
that date of birth of petitioner was recorded in the birth register
of Municipal Committee Hiranagar vide registration no.80
on 15-04-2004 right in line with the order no.22/JC dated
15-04-2004 passed by then Executive Magistrate 1st Class
(Tehisildar) Hiranagar. The fact that birth certificate issued C
by Municipal committee supra on 17-03-2018 is in accord
with and conforms to original record, have been vividly
demonstrated, both, by records of Municipal Committee supra
as also by the testimony of its Executive Officer. Date of birth
certificate issued by Municipal Committee Hiranagar in favour D
of petitioner on 17-03-2018 depicting his date of birth as 23-
10-2002, in the obtaining circumstances as outlined here-in-
above - therefore cannot be said to have been manufactured,
engineered or fabricated. Also, once it (Date of birth
certificates of petitioner) does not give a prima facie sense of
concoction or trickery, then to mull over an idea of over E
scrutiny of same, if I say so, would indeed be a fallacy directed
at the very ambit and scope of section 8 of Juvenile Justice
(Care and protection of Children) Act and rule 74 framed
thereunder. Notably also, the narrative un-wound by father
of petitioner is in sync with account given by Executive Officer, F
Municipal Committee Hiranagar and relevant official record.
There is another crucial aspect of the matter which cannot be
afforded to be over looked or side tracked. That is this: Date
of birth of petitioner was recorded in the birth register
maintained in the course of official business by Municipal G
Committee Hiranagar way back on 15-04-2004. Committee
did not record this entry suomoto but in compliance with order
issued in that end by Executive Magistrate 1st Class
Hiranagar. Occurrence in which involvement of petitioner is
alleged is of January 2018. To insinuate therefore that date
H
372 SUPREME COURT REPORTS [2022] 8 S.C.R.
A of birth entry was so caused to be made in favour of petitioner
as if he knew that after more than thirteen years later he
would seek to derive benefit in a criminal indictment would
not only be an over-statement but also an erroneous and in-
substantial assumption to say the least.
B No sooner as birth certificate issued by Municipal Committee
concerned in favour of petitioner is found to be prima facie
legitimate than recourse to other modes of age determination
is not allowable. This essentially is the mandate of rule 74
framed under Juvenile Justice (Care and Protection of
Children) Act.
C
For all what is discussed hereinabove, and in deference to
the standard of proof required for the purpose of section 8 of
the Act supra and Rule 74 and in light of proof offered, it is
held that birth certificate issued by Municipal Committee
Hiranagar in favour of petitioner Shubam Sangra depicting
D his date of birth as 23-10-2002 is legitimate, un-tainted and
fair and therefore credence needs to be given to it for the
purpose of Juvenile Justice Act supra. Reckoning date of birth
of petitioner as 23- 10-2002, it is held that age of petitioner
as on date of passing of this order is less than sixteen years.
E Age of petitioner is accordingly ascertained in compliance
with directive of Hon’ble High Court dated 14-03-2018 in
OWP no. 259/2018.”
21. The appellant State being dissatisfied and aggrieved with the
aforesaid order passed by the CJM, Kathua dated 27.03.2018 challenged
F the same by filing the Criminal Revision Application before the High
Court. The High Court rejected the Revision Application affirming the
order passed by the CJM, Kathua holding the respondent herein to be a
juvenile on date of the commission of the offence. The impugned order
of the High Court reads thus:
G “26. Admittedly, the date of birth of the respondent in the
Municipal record as well as school record is shown as
23.10.2002, meaning thereby on the date of registration of
the FIR, he was below the age of 18 years. Moreso, the
petitioners have not denied the authenticity of the aforesaid
record. Once there is clear proof of the respondent in the
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 373
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
shape of birth certificate of the Municipal Committee and A
certificate issued by the school authority, the medical
examination regarding the age of the respondent
automatically loses its significance.
27. Next question raised by Mr. Pant is with regard to the
maintainability of the Revision Petition. As held by the Apex B
Court in Jabar Singh Vs. Dinesh and another 2010(3) SCC
757, the scope of Revision is very limited. The relevant
paragraph of the judgment is reproduced as under:
“29. A plain reading of Section 52 of the Act shows that
no statutory appeal is available against any finding of the C
court that a person was not a juvenile at the time of
commission of the offence. Section 53 of the Act which is
titled “Revision”, however, provides that the High Court
may at any time, either of its own motion or on an
application received on that behalf, call for the record of
any proceeding in which any competent authority or court D
of session has passed an order for the purpose of satisfying
itself as to the legality or propriety of any such order, and
may pass such order in relation thereto as it thinks fit. While
exercising such revisional powers, the High Court cannot
convert itself to an appellate court and reverse the findings E
of fact arrived at by the trial Court on the basis of evidence
or material on record, except where the High Court is not
satisfied as to the legality or propriety of the order passed
by the trial Court.”
28. It is admitted by the petitioners that the scope of Revision F
is the same as the scope of Revision under Code of Criminal
Procedure. Section 52 of Juvenile Justice Act, 2013 referred
to by the petitioners also refers to the facts that Court has to
satisfy itself as to the legality and propriety of any such order,
as such, the factual findings of fact cannot be upset by the
Court unless and until it is found to be perverse. In the present G
case where, factual finding has been given by the Court below,
therefore, there is no illegality or impropriety in the order, as
such, there is no question of interference with the findings of
the Court below.
H
374 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 29. In the instant case, the trial Court has given finding of
fact relying upon the evidence and has acted in conformity
with Rule 74 of the Rules of 2014 and that there is no
perversion in the findings of fact, as such, the trial Court has
not committed any illegality or impropriety which warrants
interference in this Revision Petition. Accordingly, this
B
Revision Petition is dismissed along with connected CrlM(s).
Record, if any, be sent down. Interim direction, if any, shall
stand vacated.
C Jammu Tashi Rabstan)
11.10.2019 Judge”
22. In view the aforesaid the appellant State is here before this
Court with the present appeal.
Submissions on behalf of the Appellant State:
D 23. Mr. P.S. Patwalia, the learned senior counsel appearing for
the appellant State vehemently submitted that the orders passed by the
CJM, Kathua and the High Court could be termed as palpably erroneous
and thereby rendering the dispensation of justice to a mockery. The
learned senior counsel came down very heavily while criticizing both the
orders submitting that the two courts have conveniently ignored about
E
the statutory rules governing the determination of age of a juvenile. He
submitted that there is no cogent, clear and convincing documentary
evidence on record to suggest or indicate that the respondent was born
on 23.10.2002. He invited the attention of this Court to an order passed
by the Executive Officer Municipal Committee, Hira Nagar dated
F 15.04.2004 specifying the date and place of birth of three children of
Om Prakash Sangra. This order dated 15.04.2004 came to be passed
pursuant to an application said to have been filed by the father of the
respondent herein namely Om Prakash under Section 19 (3) of the
Registration of Births and Deaths Act, 1956 r/w Rule 19(3) of the Rules.
The order reads thus:
G
“Application U/S 19(3) of Registration of Birth and Deaths
Act, 1956 (illegible) with Rule 19(3) of the J&K Registration
of Births and Deaths (illegible) of birth certificate of the
(illegible) Son Rahul Sangra Riya Sangra Shubam Sangra
District Hiranagar, Tehsil Hiranagar.
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 375
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
ORDER A
The applicant has moved an application for the issuance of
date of birth certificate. The applicant Om Parkash Sangra
has stated that he/she was born on 23-11-97, 21-2-98, 23-
10-02 Village Hiranagar Tehsil Hiranagar and submitted that
the of birth has not been recorded by the M.C. Hiranagar. B
The applicant has filed an application in this Court supported
by duly sworn affidavit avering therein that due to ignorance
of the concerned his/her date of birth could not be recorded.
The applicant has examined (illegible) S/o Ram Krishan of
Tehsil Hiranagar besides himself as his own witnesses in C
support of the averments made in the application. The
applicant has supported the contents of the application and
Hiranagar, Ward No. 7 Distt Kathua witnesses appearing for
the applicant have corborated the material averments of the
applicant. D
I have gone through the application, affidavit and the
statements of witnesses from the above it has been established
that the (illegible) of the applicant’s son Rahul Sangra has
taken place at village Tehsil Hiranagar on 23-11-97, 21-2-
98, 23-10-02 keeping in view the material placed before this E
Court, it is ordered that entry of the above named applicant’s.
____ be made in the Register of __ as mentioned above in
terms of Rule 19(3) of the Registration of birth and __ Rules.
The child particulars are stated as under :-
F
S.No. Name Father Date & Place of
birth
1. Rahul Sangra Om Parkash 23-11-97
2. Riya Sangra R/o Hiranagar 21-02-98 G
3. Shubam Sangra 23-10-02
No: 22/JC Sd/-
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376 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Date 15-4-04 ............ Hiranagar
Copy of this order shall be forwarded to the M.C. Hiranagar
for information and necessary action.
Sd/-
Executive Officer
B Municipal Committee
Hiranagar”
24. The learned senior counsel submits that no reliance could have
been placed on the aforesaid order for the purpose of coming to the
conclusion that the date of birth of the respondent herein is 23.10.2002.
C
25. Our attention was drawn to the fact that the first child of Om
Prakash namely Rahul Sangra is shown to have been born on 23.11.1997
whereas the second child i.e. the daughter namely Riya Sangra is shown
to have been born on 23.01.1998 i.e. just within three months from the
date of birth of the eldest child. The date of birth of the respondent
D herein is shown to have been 23.10.2002.
26. As against the aforesaid, the learned senior counsel invited
the attention of this Court to a birth certificate said to have been issued
by Modern Public Higher Secondary School dated 06.09.2017. The same
reads thus:
E
“Modern Public Higher Secondary School
(10+2)
Ward. N .. 10-11 Hiranagar (Kathua) J&K
Recognised by J&K Govt. and Affiliated to J&K State Board of
School
F
Education
No. Dated 06/09/2017
DATE OF BIRTH CERTIFICATE
G Certified that the Date of Birth of Shubam Sangra Son
of Sh Om Parkash / Tripta Devi is (In Figures) 23/10/2003
(In Words) Twenty Third Oct. Two Thousand Three as per
School Records.
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 377
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
His Admission No. is 1435. He was reading in Class 10th. A
Address
W/ No. 10, P.O Hiranagar, Teh Hiranagar,
Distt Kathua, Pin 184142
Sd/- B
Principal
Modern Public Higher Sec. School
Hiranagar”
27. Thus, in the aforesaid certificate the date of birth is shown to
be 23.10.2003. Our attention was thereafter drawn to an extract of the C
admission withdrawal register of the primary department school, Modern
Public Higher Secondary School, which is at page 58 of the paper book
Annexure-P-3, wherein the name of the respondent is at S. No. 1757
and the date of birth is shown to be 23.10.2003.
28. After highlighting the contradictions in the date of birth as D
above, the learned senior counsel invited our attention to the Jammu &
Kashmir Juvenile Justice (Care and Protection of Children) Rules, 2014,
(for short, ‘the Rules, 2014’) more particularly Rule 74. Rule 74 is with
respect to the determination of age. Although what is relevant for our
purpose is sub-rule (3) of Rule 74 of the Rules, 2014, yet we deem it
E
appropriate to reproduce the entire Rule 74, which reads thus:
“74. Determination of age.—(1) Whenever an alleged
offender who appears to be below the age of 21 years is
produced before a Court not being the Board, it shall on the
very first date of production question the alleged offender
about his age, satisfy itself that he is not a juvenile, make a F
note of its findings and order immediate transfer of the matter
to the Board where necessary.
(2) When a juvenile or child or a juvenile in conflict with the
law is produced before the Board or the Committee as the
case may be, it shall determine and declare his age within a G
period of thirty days from the date of such production.
(3) The Board or the Committee, as the case may be shall, as
far as possible, decide the juvenility or otherwise, on the basis
of physical appearance or documents available, if any. Where
H
378 SUPREME COURT REPORTS [2022] 8 S.C.R.
A an inquiry is instituted by the Board or the Committee for
determination of age, such inquiry shall be conducted on the
basis of following evidence: —
(i) the birth certificate issued by a Corporation or a
Municipal Committee or any other notified authority; or
B (ii) the matriculation or equivalent certificate; or
(iii) in absence of the certificates mentioned in sub-clauses
(i) and (ii) or in case of any contradiction arising therefrom,
the authority deciding the age issue may refer the matter
to a duly constituted Medical Board, which shall record its
C findings and submit to the Juvenile Justice Board.
(4) All Government Hospitals shall constitute Medical Boards
for medical age examination, consisting of a Physiologist, a
Dental Examiner and a Radiologist or Forensic Expert, of
whom one shall be notified as the Chairperson.
D
(5) All the Members of the Medical Board shall give their
individual findings on age, which shall then be forwarded to
the Chairperson of the Board to give the final opinion on the
age within a margin of one year.
(6) The duly constituted Medical Boards shall give their report
E
with the findings on age within 15 days of request being made
in this regard.”
29. The learned senior counsel submitted that sub-rule (3) of the
Rule 74 makes it abundantly clear that in case of any contradiction
between the certificates mentioned in sub clause (i) and (ii) of the sub-
F
rule (3), the authority deciding age may refer the matter to a duly
constituted medical board which, in turn, shall record its findings and
submit it to the Juvenile Justice Board.
30. The learned senior counsel submits that there is an apparent
contradiction in the documentary evidence on record in the form of various
G certificates and in such circumstances the matter had to be referred to a
duly constituted medical board and the age has now to be determined on
the basis of the report of the medical board which is on record.
31. The learned senior counsel submitted that the certificate issued
by the medical board makes it abundantly clear that the age of the
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 379
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
respondent herein at the time of commission of the offence could be A
between 19 and 23 years.
32. In the last, the learned senior counsel submitted that the case
on hand is one of a very heinous crime committed on a minor girl aged
08 years. He would submit that if the plea of juvenility or the fact that
the accused had not attained the age of discretion so as to understand B
the consequences of his heinous act is not free from ambiguity or doubt,
such plea cannot be allowed to be raised merely on doubtful certificates
evidencing age and in such circumstances the medical evidence will
have to be given due weightage while determining the age of the accused.
In the aforesaid context, the learned senior counsel placed strong reliance
on the decision of this Court in Ramdeo Chauhan alias Raj Nath v. C
State of Assam, (2001) 5 SCC 714.
33. In such circumstances referred to above, Mr. Patwalia, the
learned senior counsel prayed that there being merit in his appeal, the
same be allowed and the impugned order passed by the High Court be
set aside and it be held that the respondent was not a juvenile on the date D
of the commission of the offence.
Submissions on behalf of the Respondent accused:
34. On the other hand, the learned counsel appearing for the
respondent vehemently opposed the present appeal submitting that no E
error, not to speak of any error of law could be said to have been
committed by the courts below in determining the age of the respondent.
According to him, sub-rule (3) of Rule 74 has no application in the present
case as there is no contradiction in the certificates evidencing the age of
the respondent accused. He would submit that the respondent accused
was born on 23.10.2002 is crystal clear and the same is evident from the F
admission form of the respondent duly filled while seeking admission in
the Modern Public Higher Secondary School, Hira Nagar in the year
2008. He submitted that howsoever the heinous crime may be but on the
date of commission of the alleged offence if the accused is a juvenile
then he has to be tried as a juvenile in accordance with law and not like G
any other accused. He would submit that heinousness or brutality of the
crime has nothing to do with the object of the Juvenile Justice Act. He
further argued that no reliance could be placed on the opinion of the
medical board because ultimately it is an expert opinion and cannot be
said to be conclusive as regards the age. The learned counsel vehemently
H
380 SUPREME COURT REPORTS [2022] 8 S.C.R.
A submitted that the court may take notice of the relevant fact that there is
no certificate/document in the case on hand which indicates that the
respondent was not a minor or a major as on the date of the alleged
offence. He argued that in the event the school record (Admission Form)
indicating the date of birth is not be treated as falling in the category
mentioned in sub-rule (3) (ii) of Rule 74, then in view of the Order No.
B
22/JC/certificate issued by the Municipal Committee being available,
recourse to Rule 74(3)(ii) is not at all warranted.
35. The learned counsel in support of his aforesaid submissions
placed reliance on the following decisions of this Court:
C (i) Ashwani Kumar Saxena v. State of Madhya Pradesh,
(2012) 9 SCC 750
(ii) Darga Ram alias Gunga v. State of Rajasthan,
(2015) 2 SCC 775
D 36. In such circumstances referred to above, the learned counsel
appearing for the respondent accused prayed that there being no merit
in the present appeal, the same may be dismissed.
Analysis
37. Having heard the learned counsel appearing for the parties
E and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in passing the impugned order?
38. Sub-rule (3) of Rule 74 referred to by us in Para 28 above,
makes it abundantly clear that in the absence of the certificates mentioned
F in sub-clause (i) to (iii) or in the event of any contradiction arising
therefrom, the authority deciding the issue of age may refer the matter
to a duly constituted medical board which, in turn, would record its findings
and submit to the Juvenile Justice Board. The materials on record as
looked into by us above reveal no manner of doubt that there are
G discrepancies in the certificates on record disclosing the date of birth of
the respondent. We fail to understand as to why the Courts below were
not able to take cognizance of such discrepancies or contradictions. We
are not at all impressed with the submission canvassed on behalf of the
respondent that even if there are contradictions or discrepancies in the
documentary evidence of record there is not a single date emerging on
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 381
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
record on the basis of which it could be said that the respondent was A
major on the date of the alleged offence. It is a very unreasonable
argument. That is not the correct way of looking at the core issue. The
correct way of looking at the core issue is to closely examine whether
there is any cogent or convincing evidence as regards the correct date
of birth of the respondent accused and after ascertaining the same, reach
B
to an appropriate conclusion. If, there is any doubt in this regard, there is
no good reason why the matter should not be referred to a duly constituted
medical board which shall, in turn, record its findings and submit to the
Juvenile Justice Board. The word “may” should be read as “shall” having
regard to the very object of sub-rule (3) of Rule 74.
39. It is a well settled principle of interpretation that the word C
‘may’ when used in a legislation by itself does not connote a directory
meaning. If in a particular case, in the interests of equity and justice it
appears to the court that the intent of the legislature is to convey a
statutory duty, then the use of the word ‘may’ will not prevent the court
from giving it a mandatory colour. This Court in Bachahan D
Devi v. Nagar Nigam, Gorakhpur reported in (2008) 12 SCC
372, held as under:
“18. It is well settled that the use of the word “may” in a
statutory provision would not by itself show that the provision
is directory in nature. In some cases, the legislature may use E
the word “may” as a matter of pure conventional courtesy
and yet intend a mandatory force. In order, therefore, to
interpret the legal import of the word “may”, the court has to
consider various factors, namely, the object and the scheme
of the Act, the context and the background against which the
words have been used, the purpose and the advantages sought F
to be achieved by the use of this word, and the like. It is
equally well settled that where the word “may” involves a
discretion coupled with an obligation or where it confers a
positive benefit to a general class of subjects in a utility Act,
or where the court advances a remedy and suppresses the G
mischief, or where giving the words directory significance
would defeat the very object of the Act, the word “may” should
be interpreted to convey a mandatory force. As a general rule,
the word “may” is permissive and operative to confer
discretion and especially so, where it is used in juxtaposition
H
382 SUPREME COURT REPORTS [2022] 8 S.C.R.
A to the word “shall”, which ordinarily is imperative as it
imposes a duty. Cases, however, are not wanting where the
words “may”, “shall” and “must” are used interchangeably.
In order to find out whether these words are being used in a
directory or in a mandatory sense, the intent of the legislature
should be looked into along with the pertinent circumstances.”
B
40. Similarly, this Court in Dhampur Sugar Mills Ltd. v. State
of U.P. reported in (2007) 8 SCC 338, held:
“36. ….In our judgment, mere use of word “may” or “shall”
is not conclusive. The question whether a particular provision
C of a statute is directory or mandatory cannot be resolved by
laying down any general rule of universal application. Such
controversy has to be decided by ascertaining the intention
of the legislature and not by looking at the language in which
the provision is clothed. And for finding out the legislative
intent, the court must examine the scheme of the Act, purpose
D and object underlying the provision, consequences likely to
ensue or inconvenience likely to result if the provision is read
one way or the other and many more considerations relevant
to the issue.”
41. We may also refer to Section 8 of the Act, 2013. Section 8
E provides for the procedure to be followed, when the claim of juvenility is
raised before any court. Section 8 reads thus:
“8. 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
F person was a juvenile on the date of commission of the offence,
the court shall make an 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 not, stating his age as nearly as may be :
G Provided that a claim of juvenility may be raised before
any court 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 the Act and the rules
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of the Act.
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 383
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
(2) If the court finds a person to be a juvenile on the A
date of commission of the offence under sub-section (1), it
shall forward the juvenile to the Board for passing appropriate
order and the sentence, if any, passed by a court shall be
deemed to have no effect.”
42. The plain reading of Section 8 referred to above indicates that B
whenever a claim of juvenility is raised before any court or the court is
of the opinion that the accused person was a juvenile on the date of the
commission of the offence, then it is mandatory for the court to make an
inquiry and in the course of such inquiry, the court may take such evidence
as may be necessary, however, not an affidavit, so as to determine the
age of such person. At the end of the inquiry, if the court finds a person C
to be a juvenile on the date of commission of the offence under sub-
section (1) of Section 8, then in such circumstance, the court is obliged
in law to forward the juvenile to the Juvenile Justice Board for passing
appropriate order and the sentence.
43. We may also look into Section 48 of the Act, 2013. Section 48 D
is in regard to the presumption and determination of age. Section 48
reads thus:
“48. Presumption and determination of age.—(1) Where it
appears to a competent authority that person brought before
it under any of the provisions of the Act (otherwise than for E
the purpose of giving evidence) is a juvenile or the child, the
competent authority shall make due inquiry so as to the age
of that person and for that purpose shall take such evidence
as may be necessary (but not an affidavit) and shall record a
finding whether the person is a juvenile or the child or not, F
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 child, and the age recorded by the competent authority G
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.”
44. Section 48 referred to above talks about a competent authority,
whereas, Section 8 of the Act 2013 referred to above, is in respect to the
H
384 SUPREME COURT REPORTS [2022] 8 S.C.R.
A court. However, what is relevant to note is that in both the Sections i.e.,
Section 8 as well as Section 48 the word ‘shall’ has been used.
45. There is one another aspect of this matter. It is the High Court
who thought fit to pass the order dated 21.02.2018 referred to by us in
para 9 as above, directing the Special Investigation Team (SIT) to take
B steps for ascertaining the age of the respondent herein. It is pursuant to
such directions issued by the High Court that a Special Medical Board
comprising of five medical experts on different subjects was constituted
and it is this medical board comprising of five medical experts whose
report we are looking into so far as the approximate age of the respondent
is concerned. When we have reached to the conclusion that there is no
C cogent and convincing documentary evidence on record as regards the
date of birth or age of the respondent accused on the date of the alleged
crime then there is no good reason for us not to look into or ignore the
medical report prepared by the Special Medical Board which is on record.
In such circumstances, the argument canvassed on behalf of the
D respondent in regard to the applicability of sub-rule (3)(iii) of Rule 74
pales into insignificance. In other words, the argument that the Special
Medical Board should not have been constituted pales into insignificance
because the Special Board was constituted under the directions issued
by the High Court.
E 46. Let us see what this Court has to say in the case of Darga
Ram @ Gunga (supra) upon which strong reliance has been placed on
behalf of the learned counsel appearing for the respondent accused. In
Darga Ram @ Gunga (supra), this Court held as under:
“16. The medical opinion given by the duly constituted Board
F comprising Professors of Anatomy, Radiodiagnosis and
Forensic Medicine has determined his age to be “about” 33
years on the date of the examination. The Board has not been
able to give the exact age of the appellant on medical
examination, no matter the advances made in that field. That
being so, in terms of Rule 12(3)(b) the appellant may even be
G entitled to the benefit of fixing his age on the lower side within
a margin of one year in case the Court considers it necessary
to do so in the facts and circumstances of the case. The need
for any such statutory concession may not however arise
because even if the estimated age as determined by the
H Medical Board is taken as the correct/true age of the appellant
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 385
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
he was just about 17 years and 2 months old on the date of A
the occurrence and thus a juvenile within the meaning of that
expression as used in the Act aforementioned. Having said
that we cannot help observing that we have not felt very
comfortable with the Medical Board estimating the age of the
appellant in a range of 30 to 36 years as on the date of the
B
medical examination.
17. The general rule about age determination is that the age
as determined can vary plus minus two years but the Board
has in the case at hand spread over a period of six years and
taken a mean to fix the age of the appellant at 33 years. We
are not sure whether that is the correct way of estimating the C
age of the appellant. What reassures us about the estimate of
age is the fact that the same is determined by a Medical Board
comprising Professors of Anatomy, Radiodiagnosis and
Forensic Medicine whose opinion must get the respect it
deserves. That apart, even if the age of the appellant was D
determined by the upper extremity limit i.e. 36 years the same
would have been subject to variation of plus minus 2 years
meaning thereby that he could as well be 34 years on the
date of the examination. Taking his age as 34 years on the
date of the examination he would have been 18 years, 2
months and 7 days on the date of the occurrence but such an E
estimate would be only an estimate and the appellant may be
entitled to additional benefit of one year in terms of lowering
his age by one year in terms of Rule 12(3)(b) (supra) which
would then bring him to be 17 years and 2 months old,
therefore, a juvenile.” F
47. On the other hand, the learned senior counsel appearing for
the appellant State submitted that Darga Ram @ Gunga (supra) came
to be considered by this Court in the case of Mukarrab v. State of
Uttar Pradesh (2017) 2 SCC 210, and this Court in Mukarrab (supra)
observed as under: G
“22. A reading of the above decision in Darga Ram case
(supra) shows that courts need to be aware of the fact that
age determination of the persons concerned cannot be
certainly ascertained in the absence of original and valid
documentary proof and there would always lie a possibility H
386 SUPREME COURT REPORTS [2022] 8 S.C.R.
A that the age of the person concerned may vary plus or minus
two years. Even in the presence of medical opinion, the Court
showed a tilt towards the juvenility of the accused. However,
it is pertinent to note that such an approach in Darga Ram
case (supra) was taken in the specific facts and circumstances
of that particular case and any attempt of generalising the
B
said approach could not be justifiably entertained.”
48. Thus, in Mukarrab (supra), this Court made itself clear that
Darga Ram @ Gunga (supra) was rendered in the peculiar facts &
circumstances of that case & any attempt of generalizing the said
approach could not be justifiably entertained.
C
49. Before we proceed further, we may clarify that Darga Ram
@ Gunga (supra), was under the Juvenile Justice (Care and Protection
of Children) Act, 2000 (for short, ‘the Act, 2000’). We may give a fair
idea in regard to the scheme of procedure to be followed, when claim of
juvenility is raised under the Act, 2000.
D
50. Section 7A of the Act, 2000 reads as under:
“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
E 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 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
F 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 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
G
made thereunder, even if the juvenile has ceased to be so on
or before the date of commencement of this Act.
(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
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 387
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
orders and the sentence, if any, passed by a court shall be A
deemed to have no effect.”
51. From a reading of Section 7A, what becomes very obvious is
that whenever a claim of juvenility is raised, an inquiry has to be made
and such inquiry would take place by receiving evidence which would
be necessary but not an affidavit so as to determine the age of such B
person.
52. The procedure to be followed for the determination of age is
provided under Rule 12(3)(b) of the 2007 Rules, which reads as:
“12. Procedure to be followed in determination of age.—(3)
In every case concerning a child or juvenile in conflict with C
law, the age determination inquiry shall be conducted by the
court 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; D
(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
E
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought from
a duly constituted Medical Board, which will declare the
age of the juvenile or child. In case exact assessment of
F
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 necessary, give benefit to the
child or juvenile by considering his/her age on lower side
within the margin of one year.
and, G
while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in respect
of his age and either of the evidence specified in any of the
H
388 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 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 the juvenile in conflict with law.”
53. Sub-clause (3) of the aforesaid Rule clearly mandates that
while conducting an inquiry about the juvenility of an accused, the Juvenile
B Justice Board would seek evidence by obtaining the matriculation or
equivalent certificates and in the absence whereof the date of birth
certificate from the school first attended and in absence whereof the
birth certificate given by a corporation or a Municipal authority or a
Panchayat. It is made clear by sub-clause (b) that only in the absence of
the aforesaid three documents, medical information would be sought
C from a duly constituted Medical Board which will declare the age of the
juvenile or child. Thus, it is only in the absence of the aforesaid documents
that the Juvenile Justice Board can ask for medical information/ossification
test.
54. Mukarrab (supra), referred to above was also under the Act,
D 2000.
55. We shall now look into the decision of this Court in the case of
Ashwani Kumar Saxena (supra) wherein this Court observed in para
34 as under:
E “34. … There may be situations where the entry made 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 the JJ Act is not
F 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
G Board or the committee need to go for medical report for age
determination.”
56. Ashwani Kumar Saxena (supra), referred to above, also deals
with the Act, 2000.
57. After observing the aforesaid this Court in Ashwani Kumar
H Saxena (supra) proceeded to examine the essential differences between
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 389
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
the words “inquiry, investigation and trial” as we find in the Criminal A
Procedure Code (for short “CrPC”). Thereafter the Court proceeded to
hold that the procedure to be followed under the Juvenile Justice Act in
conducting the inquiry is the procedure as laid down in that statute itself
i.e. Rule 12 of 2007 Rules and held that the age determination inquiry
contemplated under the Juvenile Justice Act and the Rules had nothing
B
to do with the inquiry under other legislations like entry in service,
retirement and promotion. The Court observed that where the entry
made in the school certificates is available, the Court or the Juvenile
Justice Board is not expected to conduct a roving inquiry and go beyond
those certificates to examine their correctness when those documents
have been kept during the normal course of business. The Court held C
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.
This Court also held that the certificates should not be viewed as doubtful
on a notion that the parents usually get wrong date of birth entered in the
D
admission registers. The decision of Ashwani Kumar Saxena (supra)
has been pressed hard in service by the learned counsel appearing for
the respondent to make good his submission that the Court should not
conduct a roving inquiry and go beyond the documentary evidence on
record.
58. This Court in Rishipal Singh Solanki v. State of U.P., (2022) E
8 SCC 602, after due consideration of its following earlier decisions,:
(i) Parag Bhati v. State of U.P.,
(2016) 12 SCC 744,
(ii) Sanjeev Kumar Gupta v. State of Uttar Pradesh, F
(2019) 12 SCC 370,
(iii) Abuzar Hossain @ Gulam Hossain v. State of West
Bengal,
(2012) 10 SCC 489, G
(iv) Ashwani Kumar Saxena v. State of Madhya Pradesh,
(2012) 9 SCC 750,
(v) Babloo Pasi v. State of Jharkhand,
(2008) 13 SCC 133, H
390 SUPREME COURT REPORTS [2022] 8 S.C.R.
A (vi) Arnit Das v. State of Bihar,
(2000) 5 SCC 488,
(vii) Jitendra Ram alias Jitu v. State of Jharkhand,
(2006) 9 SCC 428.
B pointed out the difference in the procedure under the two
enactments, i.e., the Act, 2000 and the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short, ‘the Act, 2015’), as to the
inquiry into determination of age of the juvenile and also the power to
seek evidence, how and when to exercise that power and when to go
C for the ossification test. This Court held that each case may be dealt
with in the light of its own peculiar facts and circumstances while keeping
certain principles as the guiding factor in mind as described in the
concluding para of the judgment of this Court. We shall reproduce the
concluding para a little later.
D 59. In Rishipal Singh Solanki (supra), this Court pointed out the
similarity between the Rule 12 of the JJ Rules, 2007 and sub-section (2)
of Section 94 of the Act, 2015, as substantive provisions. This Court
referred to its decisions in Ashwani Kumar Saxena (supra) and Abuzar
Hossain @ Gulam Hossain (supra) highlighting the fact that only in the
cases where certificates are found to be fabricated and manipulated,
E the Juvenile Justice Board need to go for medical report and also
highlighted the fact that the yardstick for relying on the school certificates
may be a bit different where the school leaving certificate or voter list
etc. is obtained after conviction.
60. Thus, this Court kept in mind the facts and circumstances
F attached to the production of documents/certificates, as required by the
provisions of the Juvenile Justice Act before those documents could be
relied upon. In other words, even if the documents are found to be prima
facie correct, there may be facts and circumstances to alert the Court
to go into the inquiry to satisfy itself as to correctness of the claim. In
the same breath, this Court referred to an opinion given in the judgment
G
of Abuzar Hossain @ Gulam Hossain (supra) that when any claimant
or any of the parents or siblings in support of the claim of the juvenility
raised for the first time in appeal or revision depends on mere affidavits,
it shall not be sufficient to justify the inquiry for determination of age
unless there exist circumstances which cannot be ignored.
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 391
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
61. In Sanjeev Kumar Gupta (supra), the credibility and A
authenticity of the matriculation certificate for the purpose of
determination of age under Section 7(A) of the Act, 2000 came up for
consideration. In the said case, the Juvenile Justice Board had rejected
the claim of the juvenility and that decision of the Juvenile Justice Board
was restored by this Court by rejecting the order of the High Court. It
B
was observed therein that the records maintained by the C.B.S.E. were
purely on the basis of final list of the students forwarded by the Senior
Secondary School where the juvenile had studied from Class 5 to 10 and
not on the basis of any other underlying documents. On the other hand,
there was clear and unimpeachable evidence of date of birth which had
been recorded in the records of another school, which the second C
respondent therein had attended till class 4 and which was supported by
voluntary disclosure made by the accused while obtaining both, the
Aadhaar Card and driving license. It was observed that the date of birth
reflected in the matriculation certification could not be accepted as
authentic or credible. In the said case, it was held that the date of birth
D
of the second respondent there was 17.12.1995 and that he was not
entitled to claim juvenility as the date of the alleged incident was
18.08.2015.
62. This Court in Sanjeev Kumar Gupta (supra) considered the
judgments in Ashwani Kumar Saxena (supra) and Abuzar Hossain @
Gulam Hossain (supra), and observed that the credibility and E
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. This Court
reproduced the observation of itself in Abuzar Hossain @ Gulam
Hossain (supra) which is below: F
“48. … directing an enquiry is not the same thing as declaring
the accused to be a juvenile. The standard of proof required
is different for both. In the former, the court simply records a
prima facie conclusion. In the latter, the court makes a
declaration on evidence, that it scrutinises and accepts only G
if it is worthy of such acceptance. …”
63. Abuzar Hossain (supra) is also under the Act, 2000.
64. In Rishipal Singh Solanki (supra), after due consideration
of all its earlier decisions, this Court held as below:
H
392 SUPREME COURT REPORTS [2022] 8 S.C.R.
A “33. What emerges on a cumulative consideration of the
aforesaid catena of judgments is as follows:
33.1. 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
B for rejection of such claim. It can also be raised for the first
time before this Court.
33.2. An application claiming juvenility could be made either
before the Court or the JJ Board.
33.2.1. When the issue of juvenility arises before a Court, it
C 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 Board, section 94 of the JJ Act, 2015 applies.
33.2.2. If an application is filed before the Court claiming
juvenility, the provision of sub-section (2) of section 94 of
D 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 a finding stating the age of the person
as nearly as may be.
33.2.3. When an application claiming juvenility is made under
E 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
94 of the JJ Act, 2015 would apply. Under the said provision
if the JJ Board has reasonable grounds for doubt regarding
F whether the person brought before it is 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
G 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 of the offence is pending (vide section 9 of the JJ
Act, 2015).
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 393
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
33.3. That when a claim for juvenility is raised, the burden is A
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
B
satisfaction of the Court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
33.4. 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
33.5. 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 a prima facie conclusion but when there is
a determination of age as per sub-section (2) of section 94 of D
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 in a
proceeding where the determination and declaration of the E
age of a person has to be made on the basis of evidence
scrutinised and accepted only if worthy of such acceptance.
33.6. 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.
33.7. 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. G
33.8. 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 the JJ Act, 2015 is made applicable to the juvenile in
conflict with law. At the same time, the Court should ensure
H
394 SUPREME COURT REPORTS [2022] 8 S.C.R.
A that the JJ Act, 2015 is not misused by persons to escape
punishment after having committed serious offences.
33.9. That when the determination of age is on the basis of
evidence such as school records, it is necessary that the same
would have to be considered as per Section 35 of the Indian
B Evidence Act, inasmuch as any public or official document
maintained in the discharge of official duty would have greater
credibility than private documents.
33.10. Any document which is in consonance with public
documents, such as matriculation certificate, could be
C 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.
33.11. Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of a
D 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 JJ Act, 2015.”
E 65. Rishipal Singh Solanki (supra) is under the Act, 2015.
66. With a view to compare Section 48 of the Act, 2013 with
Section 94 of the Act, 2015, we may also reproduce hereinbelow Section
94 of the Act, 2015:
“94. Presumption and determination of age.—(1) Where, it is
F obvious to the Committee or the Board, based on the
appearance of the person brought before it under any of the
provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or the
Board shall record such observation stating the age of the
child as nearly as may be and proceed with the inquiry under
G
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
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 395
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
case may be, shall undertake the process of age determination, A
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 B
municipal 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: C
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed within
fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to D
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.”
67. This Court after referring to the fact that there was no other
document contradicting the date of birth as shown in the matriculation
certificate, held that the medical evidence was not required and thereby
E
upheld the order of the High Court affirming the judgment of the Sessions
Court as well as the Juvenile Justice Board. Thus, the decisions relied
upon by the learned counsel appearing for the respondent accused should
be looked into and appreciated as aforesaid. The decisions do not help
the respondent accused in any manner. On the contrary, the ratio
discernable from all the decisions discussed above, is that the credibility F
and acceptability of the documents including the school leaving certificate
etc. would depend on the facts and circumstances of each case and no
hard and fast rule as such could be laid in that regard.
68. In Parag Bhati (supra), after referring to Abuzar Hossain
case (supra) and other decisions, this Court held as under: G
“34. It is no doubt true that if there is a clear and unambiguous
case in favour of the juvenile accused that he was a minor
below the age of 18 years on the date of the incident and the
documentary evidence at least prima facie proves the same,
he would be entitled to the special protection under the JJ H
396 SUPREME COURT REPORTS [2022] 8 S.C.R.
A Act. But when an accused commits a grave and heinous
offence and thereafter attempts to take statutory shelter under
the guise of being a minor, a casual or cavalier 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
B
confidence 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 the basis of at
C least prima facie evidence regarding his minority as the benefit
of the possibilities of two views in regard to the age of the
alleged accused who is involved in grave and serious offence
which he committed and gave effect to it in a well-planned
manner reflecting his maturity of mind rather than innocence
D indicating that his plea of juvenility is more in the nature of a
shield to dodge or dupe the arms of law, cannot be allowed
to come to his rescue.”
(emphasis added)
The dictum of the aforesaid is that the purpose of the Act, 2000 is
E not to give shelter to the accused of grave and heinous offences.
69. This Court in several of its decisions including Ramdeo
Chauhan alias Raj Nath (supra) dealing with a similar situation which
fortifies what we have stated, observed as follows:
F “…….. it is clear that the petitioner neither was a child nor
near about the age of being a child within the meaning of the
Juvenile Justice Act or the Children Act. He is proved to be a
major at the time of the commission of the offence. No doubt,
much less a reasonable doubt is created in the mind of the
Court, for the accused entitling him to the benefit of a lesser
G punishment. It is true that the accused tried to create a
smokescreen with respect to his age but such efforts appear
to have been made only to hide his real age and not to create
any doubt in our mind. The judicial system cannot be allowed
to be taken to ransom by having resort to imaginative and
concocted grounds by taking advantage of loose sentences
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 397
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
appearing in the evidence of some of the witnesses, A
particularly at the stage of special leave petition. The law
insists on finality of judgments and is more concerned with
the strengthening of the judicial system. The courts are
enjoined upon to perform their duties with the object of
strengthening the confidence of the common man in the
B
institution entrusted with the administration of justice. Any
effort which weakens the system and shakes the faith of the
common man in the justice dispensation system has to be
discouraged.”
(Emphasis supplied)
C
70. The above-noted observations in Ramdeo Chauhan alias
Raj Nath (supra) no doubt were recorded by the learned Judges of this
Court while considering the imposition of death sentence on the accused
who claimed to be a juvenile, nevertheless the views expressed therein
clearly lend weight for resolving an issue where the court is not in a
position to clearly draw an inference wherein an attempt is made by the D
accused or his guardian claiming benefit available to a juvenile which
may be an effort to extract sympathy and impress upon the court for a
lenient treatment towards the so-called juvenile accused who, in fact
was a major on the date of incident. (See Om Prakash v. State of
Rajasthan (2012) 5 SCC 201). E
71. In Om Prakash (supra), this Court in paras 33, 34, 35, 36, 37
and 38 resply observed as under:
“33. Similarly, if the conduct of an accused or the method
and manner of commission of the offence indicates an evil
and a well-planned design of the accused committing the F
offence which indicates more towards the matured skill of an
accused than that of an innocent child, then in the absence
of reliable documentary evidence in support of the age of the
accused, medical evidence indicating that the accused was a
major cannot be allowed to be ignored taking shelter of the G
principle of benevolent legislation like the Juvenile Justice
Act, subverting the course of justice as statutory protection
of the Juvenile Justice Act is meant for minors who are
innocent law-breakers and not the accused of matured mind
who use the plea of minority as a ploy or shield to protect
himself from the sentence of the offence committed by him. H
398 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 34. The benefit of benevolent legislation under the Juvenile
Justice Act obviously will offer protection to a genuine child
accused/juvenile who does not put the court into any dilemma
as to whether he is a juvenile or not by adducing evidence in
support of his plea of minority but in absence of the same,
reliance placed merely on shaky evidence like the school
B
admission register which is not proved or oral evidence based
on conjectures leading to further ambiguity, cannot be relied
upon in preference to the medical evidence for assessing the
age of the accused.
35. While considering the relevance and value of the medical
C evidence, the doctor’s estimation of age although is not a
sturdy substance for proof as it is only an opinion, such
opinion based on scientific medical tests like ossification and
radiological examination will have to be treated as strong
evidence having corroborative value while determining the
D age of the alleged juvenile accused.
36. In Ramdeo Chauhan alias Raj Nath v. State of
Assam [(2001) 5 SCC 714 : 2001 SCC (Cri) 915] , the learned
Judges have added an insight for determination of this issue
when they recorded as follows: (SCC p. 720 d-e)
E “Of course the doctor’s estimate of age is not a sturdy
substitute for proof as it is only his opinion. But such
opinion of an expert cannot be sidelined in the realm where
the court gropes in the dark to find out what would possibly
have been the age of a citizen for the purpose of affording
F him a constitutional protection. In the absence of all other
acceptable materials, if such opinion points to a reasonable
possibility regarding the range of his age it has certainly
to be considered.”
(emphasis supplied)
G The situation, however, would be different if the academic
records are alleged to have been withheld deliberately to hide
the age of the alleged juvenile and the authenticity of the
medical evidence is under challenge at the instance of the
prosecution. In that event, whether the medical evidence
H
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 399
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
should be relied upon or not will obviously depend on the A
value of the evidence led by the contesting parties.
37. In view of the aforesaid discussion and analysis based
on the prevailing facts and circumstances of the case, we are
of the view that Respondent 2 Vijay Kumar and his father
have failed to prove that Respondent 2 was a minor at the B
time of commission of offence and hence could not have been
granted the benefit of the Juvenile Justice Act which
undoubtedly is a benevolent legislation but cannot be allowed
to be availed of by an accused who has taken the plea of
juvenility merely as an effort to hide his real age so as to
create a doubt in the mind of the courts below who thought it C
appropriate to grant him the benefit of a juvenile merely by
adopting the principle of benevolent legislation but missing
its vital implication that although the Juvenile Justice Act by
itself is a piece of benevolent legislation, the protection under
the same cannot be made available to an accused who in fact D
is not a juvenile but seeks shelter merely by using it as a
protective umbrella or statutory shield. We are under
constraint to observe that this will have to be discouraged if
the evidence and other materials on record fail to prove that
the accused was a juvenile at the time of commission of the
offence. E
38. The Juvenile Justice Act which is certainly meant to treat
a child accused with care and sensitivity offering him a chance
to reform and settle into the mainstream of society, the same
cannot be allowed to be used as a ploy to dupe the course of
justice while conducting the trial and treatment of heinous F
offences. This would clearly be treated as an effort to weaken
the justice dispensation system and hence cannot be
encouraged.”
72. Thus, it is no doubt true that if there is a clear and unambiguous
case in favour of the juvenile accused that he was a minor on the date of G
the incident and the documentary evidence at least prima facie
establishes the same, he would be entitled to the special protection under
the Juvenile Justice Act. However, when an accused commits a heinous
and grave crime like the one on hand and thereafter attempts to take the
statutory shelter under the guise of being a minor, a casual or cavalier H
400 SUPREME COURT REPORTS [2022] 8 S.C.R.
A approach while recording as to whether an accused is a juvenile or not
cannot be permitted as the courts are enjoined upon to perform their
duties with the object of protecting the confidence of a common man in
the institution entrusted with the administration of justice. As observed
by this Court in Parag Bhati (supra), the benefit of the principle of
benevolent legislation attached to the Juvenile Justice Act would thus be
B
extended to only such cases wherein the accused is held to be a juvenile
on the basis of at least prima facie evidence inspiring confidence
regarding his minority as the benefit of the possibilities of two views in
regard to the age of the alleged accused who is involved in grave and
serious offence which he is alleged to have committed and gave effect
C 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 of a
shield to dodge or dupe the arms of law, cannot be allowed to come to
his rescue.
73. It appears from the material on record that the father of the
D respondent at the time of preferring the application under Section 19(3)
of the Registration of Birth and Deaths Act, 1956 r/w 19(3) of the Rules
declared before the Executive Officer Municipal Committee, Hira Nagar
that the medical committee, Hira Nagar had failed to record the birth of
his three children including the respondent herein and in such
circumstances he sought an order from the authority concerned as regards
E the date and place of birth under Section 19(3) of the Act, 1956. However,
the letter dated 15.03.2018 addressed by the Block Medical Officer of
the Health and Family Welfare, Hira Nagar to the Superintendent of
Police, Jammu stating that no delivery in the name of Smt. Tripta Devi,
W/o Om Prakash had taken place on 23.10.2002 at the municipal hospital
F makes the picture abundantly clear.
74. There is no good reason why we should overlook or ignore or
doubt the credibility of the final opinion given by a team of five qualified
doctors, one from the Department of Physiology, one from the
Department of Anatomy, one from the Department of Oral Diagnosis,
G one from the Department of Forensic Medicine and one from the
Department of Radio Diagnosis, all saying in one word that on the basis
of the physical, dental and radiological examination, the approximate
age of the respondent could be fixed between 19 and 23 years.
75. We may only add that there are better techniques available
H and are used for determination of age across the world. For example,
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU 401
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
the United States Immigration Department uses ‘wisdom teeth’ technique A
for determination of age. Under this technique, the doctors examine the
third molar which usually erupts between 17 to 25 years of age. The
average error, in this technique is also significantly lower than the
ossification of any other bone. Another technique is ‘epigenetic clock’
technique. The Epigenetic clock is DNA clock which measures DNA
B
methylation levels to estimate the age of a tissue or an organ. The median
error in this technique can be reduced to less than four weeks. What we
are trying to convey is that such techniques should be introduced in our
country as well. (Reference : Shamin T, Age Estimation: A Dental
Approach, Journal of Punjab Academy of Forensic Medicine &
Toxicology, Vol. 6 Issue 1. ISSN-0972-5687) C
76. As observed by this Court in Ramdeo Chauhan alias Raj
Nath (supra), the medical expert’s estimate of age may not be a statutory
substitute for proof and is only an opinion but such opinion of an expert
should not be brushed aside or ignored when the Court itself is in doubt
in regard to the age of a citizen claiming constitutional protection. In the D
absence of all other acceptable materials, if such opinion of the experts
points to a reasonable possibility regarding range of his age, the Court
must consider the same in the interest of justice. This is not a case
wherein the appellant State has been accused of deliberately withholding
the necessary records only with a view to hide or conceal the age of the
alleged juvenile and the authenticity of the medical evidence is challenged E
at the instance of the prosecution. If such would have been the case
then whether the medical evidence should be relied upon or not would
obviously depend on the value of the evidence that may led by the
contesting parties.
77. It is pertinent to note that nothing much has been said on F
behalf of the respondent accused in regard to the credibility of the medical
report prepared by the Special Medical Board constituting of five medical
experts. At the cost of repetition, the only argument is that ignore the
medical report as there is proof of the date of birth to be found in the
various documents on record. We have made ourselves very clear that G
the documents evidencing date of birth does not inspire any confidence
and there is no other option but to fall back on the report of the Special
Medical Board in the interest of justice.
H
402 SUPREME COURT REPORTS [2022] 8 S.C.R.
A 78. In the overall view of the matter, we are convinced that the
order passed by the High Court affirming the CJM’s order is not
sustainable in law.
79. Before we close this matter, we would like to observe that the
rising rate of juvenile delinquency in India is a matter of concern and
B requires immediate attention. There is a school of thought, existing in
our country that firmly believes that howsoever heinous the crime may
be, be it single rape, gangrape, drug peddling or murder but if the accused
is a juvenile, he should be dealt with keeping in mind only one thing i.e.,
the goal of reformation. The school of thought, we are taking about
believes that the goal of reformation is ideal. The manner, in which brutal
C and heinous crimes have been committed over a period of time by the
juveniles and still continue to be committed, makes us wonder whether
the Act, 2015 has subserved its object. We have started gathering an
impression that the leniency with which the juveniles are dealt with in
the name of goal of reformation is making them more and more
D emboldened in indulging in such heinous crimes. It is for the Government
to consider whether its enactment of 2015 has proved to be effective or
something still needs to be done in the matter before it is too late in the
day.
80. In the result, this appeal succeeds and is hereby allowed. The
E impugned order passed by the CJM, Kathua and the High Court is set
aside. It is held that the respondent accused was not a juvenile at the
time of commission of the offence and should be tried the way other co-
accused were tried in accordance with the law. Law to take its own
course.
F 81. It is needless to clarify that the guilt or the innocence of the
respondent accused shall be determined strictly on the basis of the
evidence that may be led by the prosecution and the defence at the time
of the trial. All observations made in this judgment are meant only for
the purpose of deciding the issue of juvenility.
G 82. Pending application, if any, also stands disposed of.
Devika Gujral Appeal allowed.
(Assisted by : Shubhanshu Das, LCRA)
H
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