2022 Supreme(SC) 905

SUPREME COURT OF INDIA
DINESH MAHESHWARI, J.B. PARDIWALA, JJ.
Vinod Katara – Petitioner
Versus
State of Uttar Pradesh – Respondent
Writ Petition (Criminal) No. 121 of 2022
Decided On : 12-09-2022

IMPORTANT POINTS
(1) Claim of juvenility might be raised before any court and it shall be recognized at any stage, even after final disposal of case – If two views are possible, Court should lean in favour of holding accused to be a juvenile in borderline cases.
(2) Plea of juvenility – Determination of age – Bone Ossification Test – Bone Ossification Test is not an exact science that can provide with exact age of person – Individual characteristics such as growth rate of bones and skeletal structures can affect accuracy of this method.

Headnote:

(A) Juvenile Justice (Care and Protection of Children) Act, 2000[Now repealed by Juvenile Justice (Care and Protection of Children) Act, 2015] – Sections 7-A, 16 and 20 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rules 3 and 12(3)(b) – Constitution of India – Article 39 – Benefit of juvenility – Claim of juvenility might be raised before any court and it shall be recognized at any stage, even after final disposal of case – Such claim shall be determined in terms of provisions contained in 2000 Act and Rules made thereunder, even if juvenile has ceased to be so, on or before date of commencement of 2000 Act – In all cases where accused was above 16 years but below 18 years of age on date of occurrence, Court would not pass an order of sentence against him but juvenile would be referred to Board for appropriate orders under 2000 Act – Whenever a claim of juvenility is raised, 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 age of such person – While conducting inquiry about juvenility of accused, Juvenile Justice Board would seek evidence by obtaining matriculation or equivalent certificates and in absence whereof date of birth certificate from school first attended and in absence whereof birth certificate given by a corporation or a Municipal authority or a Panchayat – Only in absence of these three documents, medical information would be sought from a duly constituted Medical Board which will declare age of juvenile or child. (Paras 25, 28, 32 and 43)

(B) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Plea of juvenility – Determination of age – In deciding whether accused is juvenile or not, hyper-technical approach should not be adopted – While appreciating evidence adduced on behalf of accused in support of plea that he is a juvenile, if two views are possible on same evidence, Court should lean in favour of holding accused to be juvenile in borderline cases – Inquiry contemplated is not a roving inquiry – Court can accept as evidence something more than an affidavit i.e. documents, certificates etc. as evidence in proof of age – Mere opinion by a person as to accused looking one or two years older than age claimed by him or fact that accused told his age to be more than what he alleges in the case while being arrested by police officer would not hold much water – It is documentary evidence placed on record that plays a major role in determining age of a juvenile in conflict of law – It is only in cases where documents or certificates placed on record by accused in support of his claim of juvenility are found to be fabricated or manipulated, that Court, Juvenile Justice Board or Committee need to go for medical test for age determination – In those cases where plea of juvenility is raised at a belated stage, often certain medical tests are resorted to forage determination in absence of documents enumerated in Section 94 of Act 2015 – Rule allowing plea of juvenility to be raised at a considerably belated stage has its rationale in contemporary child rights jurisprudence which requires stakeholders to act in best interest of child. (Paras 45, 46 and 49)

(C) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Plea of juvenility – Determination of age – Bone Ossification Test – Test is to be conducted by Child Welfare Committee (CWC) and it has legislative sanction – Bone Ossification Test is not an exact science that can provide with exact age of person – Individual characteristics such as growth rate of bones and skeletal structures can affect accuracy of this method – Radiological examination leaves a margin of two years on either side of age range as prescribed by the test irrespective of whether Ossification Test of multiple joints is conducted – After age of thirty years Ossification Test cannot be relied upon for age determination – Standard of proof for determination of age is degree of probability and not proof beyond reasonable doubt – If two views are possible, Court should lean in favour of holding accused to be a juvenile in borderline cases. (Paras 56, 58 and 60)

Facts of the case:

Instant Writ Application under Article 32 of the Constitution is at instance of a convict accused undergoing life imprisonment for offence of murder seeking appropriate directions to respondent State of Uttar Pradesh to verify the exact age of convict on the date of the commission of the offence as it is the case of the convict that on the date of the commission of offence i.e. 10.09.1982 he was a juvenile aged around 15 years.

Findings of Court:

Concerned Sessions Court shall also examine authenticity and genuineness of the Family Register sought to be relied upon by writ applicant convict considering that document does not appear to be contemporaneous. This document assumes importance, more particularly in the light of the fact that the ossification test report may not be absolutely helpful in determining the exact age of the writ applicant on the date of incident. If Family Register on record is ultimately found to be authentic and genuine, then we may not have to fall upon Ossification Test Report. In such circumstances, the Presiding Officer concerned shall pay adequate attention towards this document and try to ascertain authenticity and genuineness of the same. If need be, statements of persons concerned i.e. from the concerned government department may also be recorded.

Result : Directions issued.