2016 Supreme(SC) 949

SUPREME COURT OF INDIA
A.K. SIKRI, R. BANUMATHI, JJ.
MUKARRAB ETC. – APPELLANTS
Versus
STATE OF U.P. – RESPONDENT
CRIMINAL APPEAL NOS. 1119-1120 OF 2016 [Arising out of SLP (Crl.) Nos. 6754-55 of 2014]
Decided On : 30-11-2016

IMPORTANT POINTS
Standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt.
Ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years.
Medical evidence though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.

Headnote:(a) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A – Determination of age – Ossification test – Medical examination leaves a margin of about two years on either side even if ossification test of multiple joints is conducted. (Para 10)

       (b) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A and Section 49(1) r/w Rule 12, Juvenile Justice Rules, 2007 – Determination of age – Hyper technical view should not be taken – When two views are possible, the one leaning towards accused should be taken – Standard of proof for age determination is the degree of probability and not proof beyond reasonable doubt. (Para 12)

       (2000) 5 SCC 488; (2002) 2 SCC 287; (2012) 10 SCC 489 – Relied upon

       (c) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A and Section 49(1) r/w Rule 12, Juvenile Justice Rules, 2007 – Determination of age – Ossification test – Ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years as in the present case – Object of the Act is not to give shelter to accused of grave and heinous offences. (Para 22, 24,

       (2008) 13 SCC 133; Criminal Appeal No. 486 of 2016 – Relied upon

       (2015) 2 SCC 775 – Distinguished

       (d) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A and Section 49(1) r/w Rule 12, Juvenile Justice Rules, 2007 – Determination of age – A blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination after the age of 30 years – Medical evidence though a very useful guiding factor is not conclusive and has to be considered along with other circumstances – Instantly dental x-rays was not indicated since both the accused were much beyond 25 years of age – Therefore, the age determination based on ossification test though may be useful is not conclusive. (Para 25, 26, 28)

       (2015) 7 SCC 773 – Relied upon

       (e) Juvenile Justice (Care and Protection of Children) Act, 2000 – Section 7A and Section 49(1) r/w Rule 12, Juvenile Justice Rules, 2007 – Determination of age – Accused persons raising plea of juvenility before Supreme Court for the first time – As per medical opinion they would be supposed to be born in 1979 – Quite good number of cases under various penal provisions pending against appellant-Mukarrab since 1988 when they would have been 9 years of age and must have looked a child – Similarly, appellant-Arshad would have been only 14 years of age when first case was initiated against him in 1993 – Those cases therefore ought to be dealt under the Act which are still pending – In the circumstances opinion of medical board cannot be relied upon – In absence of other cogent evidence, plea of juvenility of appellants liable to be rejected. (Para 29, 30, 31)

       (2015) 7 SCC 773 – Relied upon

       Facts of the case:

       On 22.03.1994, present appellants, Mukarrab and Arshad alongwith four others viz. Babban, Moazzam, Jahangir and Jamil had a quarrel with the deceased, Azamul Haq while he was coming back to his house from the market at around 5.30 p.m., the accused persons abused the deceased. Deceased tried to escape from the clutches of the appellants and other accused; but he was caught and attacked by tamanchas/guns and knives and killed. The occurrence was witnessed by five eye witnesses who were coming behind the deceased.

       All the accused were charge-sheeted under Sections 147, 148, 149, 302 IPC and were convicted under Section 302 IPC read with Section 149 IPC and Section 148 IPC and sentence of imprisonment for life under Section 302 IPC and rigorous imprisonment for two years under Section 148 IPC was imposed.

       The High Court affirmed the conviction of the accused persons and sentence imposed thereof.

       Appellants Mukarrab and Arshad for the very first time raised the claim of juvenility before Supereme Court which, vide order dated 12.09.2014, issued notice qua present appellants only viz. accused-Mukarrab and accused-Arshad, only with regard to their claim that they are minors under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000.

       VIII th Additional District and Sessions Judge, Moradabad conducted an inquiry and recorded his findings in a report dated 28.10.2014. The learned Judge concluded that in all probabilities on the date of occurrence, accused-Mukarrab could not have been younger than 22 years 2 months 21 days and accused-Arshad, than 19 years 2 months 21 days on the date of the incident, thereby negatived the claim of juvenility raised by the two accused-appellants. However, as certain doubts were raised concerning the genuineness of the report, Supreme Court observing that there is no document from which date of birth of the appellants could be ascertained, directed ossification test to be conducted, so as to ascertain the age of the appellants.

       Medical Board constituted at AIIMS, New Delhi in its report dated 05.05.2016, opined that the age of both the accused ranges between 35-40 years on the date of the examination, i.e., 02.05.2016.

       Finding of the Court:

       Ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years.

       Result: Appeals dismissed.