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Abhishek @ Sonu vs State on 17 March, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.REV.P. 860/2019 and CRL.M.A.33853/2019

Reserved on : 02.03.2020
Date of Decision : 17.03.2020
IN THE MATTER OF:
ABHISHEK @ SONU ….. Petitioner
Through: Mr.Ramesh Gupta, Sr. Advocate with
Mr.Jitender Tyagi and Ms. Ananya Roy,
Advocates

Versus
STATE ….. Respondent
Through: Dr. M.P.Singh, APP for State

CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J.

1. The present revision petition has been filed assailing the order
dated 11.07.2019 passed by the Addl. Sessions Judge in FIR
No.465/2013, registered under Sections 363/376 IPC Section 4 of
POCSO Act at Police Station Dabri, Delhi. Vide impugned order, the
Trial Court has directed that the petitioner’s ossification test be
conducted by a duly constituted medical board.

2. Learned Senior Counsel for the petitioner submitted that the
present FIR was registered on 23.08.2013 on the basis of the statement of
the complainant with respect to an incident dated 22.08.2013. It was
stated by the prosecutrix that when she left her house to buy sweets for
her aunt, the petitioner, who was already known to her, met her at the

CRL.REV.P. 860/2019 Page 1 of 9
sweet shop. The petitioner forcibly took her to his flat and committed
rape upon her.

3. Learned Senior Counsel for the petitioner submitted that on the
date of the incident, the petitioner was a juvenile however, no
investigation to this effect was carried out by the Investigating Officer.

4. During trial, the petitioner took the plea of juvenility on the basis
of a birth certificate issued on 10.05.2019 by Nagar Nigam, Chhappra,
Bihar and a transfer certificate dated 10.05.2019 issued by Upgraded
Middle School, Hari Har Chhappra District Siwan (Bihar). In the trial
court, a Status Report was filed on behalf of State verifying the attested
copies of admission form, school certificate and the admission register of
the school of the petitioner.

5. On 03.06.2019, the trial court issued notice to the Head Master of
the school where the petitioner had studied. On 11.07.2019, Shri Param
Hans Mishra, Principal In-charge, Upgraded Middle School, Hari Har,
Chhappra District Siwan (Bihar) was examined as a Court Witness No.1.
He produced the admission register of the school, according to which the
petitioner was admitted in Class II of their school on 12.02.2002 vide
admission No.36. The relevant entry in the admission register was
exhibited as Ex.CW-1/A. The witness also stated that the relevant entry
was made by the erstwhile Head Mistress, Ms. Girija Sharma. He
identified her signatures, having worked with her in the school. The
admission register shows the petitioner’s date of birth as 14.07.1996. The
witness was cross-examined by the learned APP for the State wherein it
was admitted that no documents including any affidavit were produced at
the time of admission of the petitioner in the school and the date of birth

CRL.REV.P. 860/2019 Page 2 of 9
was recorded as told by the guardian of the petitioner. During cross-
examination by the learned counsel for the petitioner, the witness stated
that prior to 2010, no document or undertaking regarding date of birth of
the student at the time of admission was required to be taken.

6. Learned Senior Counsel for the petitioner urged that as the alleged
incident has occurred on 22.08.2013, the petitioner being born on
14.07.1996 was a juvenile on the date of the incident. It is the grievance
of the petitioner that despite availability of the evidence in the form of
school admission register, duly proved by the Principal of the school
(CW-1), the trial court instead of declaring the petitioner a juvenile,
rather directed the petitioner to undergo the Ossification test. He further
contended that the direction to conduct ossification test of the petitioner
was contrary to Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.

7. Learned APP for the State, on the other hand, has supported the
impugned order. He submitted that the petitioner did not take the plea of
juvenility before the trial court at the first instance and that the trial is
now at the fag end. He further submitted that the petitioner himself has
mentioned a different date of birth not only in the Customer Application
Form submitted at the time of obtaining a mobile telephone connection
but also in his PAN Card, where he mentioned his date of birth as
14.07.1990. Lastly, it was submitted that the certificates on which the
reliance is placed are recent and not of the contemporaneous time.

8. I have heard the learned Senior Counsel for the petitioner and also
the learned APP for the State and have also gone through the case
records.

CRL.REV.P. 860/2019 Page 3 of 9

9. The Juvenile Justice Act is a legislation with an underlying
objective to give children, who have gone astray for any reason to enable
them to realize their mistakes, rehabilitate them and rebuild their lives to
become useful citizens of the society instead of degenerating into
hardened criminals.

10. So far as the contention raised by learned APP for the State that
the plea of juvenility cannot be taken at the fag end of the trial is
concerned, the same is entirely misplaced. Time and again, it has been
held that the plea of juvenility can be raised at any stage before any
Court. The law on the subject was crystalized by Supreme Court in Hari
Ram v. State of Rajasthan, reported as (2009) 13 SCC 211 where it was
held as under:

“59. The law as now crystallized on a conjoint reading of
Sections 2(k), 2(I), 7-A, 20 and 49 read with Rules 12 and
98, places beyond all doubt that all persons who were
below the age of 18 years on the date of commission of
the offence even prior to 1-4-2001, would be treated as
juveniles, even if the claim of juvenility was raised after
they had attained the age of 18 years on or before the
date of commencement of the Act and were undergoing
sentence upon being convicted.”

11. In Abdul Razzak v. State of UP, reported as (2015) 15 SCC 637,
the Supreme Court while referring to its earlier decision in Hari Ram
(supra) clarified that in terms of proviso appended to Section 7A of the
Juvenile Justice Act (2000), the claim of juvenility can be raised before
any Court even if the same is raised after the final disposal of the case
and even if the juvenile has ceased to be so on or before the date of
commencement of the Act.

CRL.REV.P. 860/2019 Page 4 of 9

12. To the similar effect are the decisions of Supreme Court in Union
of India v. Ex-GNR Ajeet Singh, reported as 2013 4 SCC 186 and
Division Bench of this Court in Faeem v. State reported as (2019) 25
DLT 541 and Jitender @ Jitu v. State reported as 2011 (124) DRJ 1.

13. The determination of age of an accused in the context of his plea
of juvenility is to be considered in terms of either Rule 12 of J.J. Rules
2007 or Section 94 of the J.J. Act, 2015 depending on the date of the
incident.

14. The scope of ‘Age determination inquiry’ was considered by the
Supreme Court in Ashwani Kumar Saxena v. State of M. P., reported as
(2012) 9 SCC 750, wherein after analyzing the entire conspectus of law,
it was held as under :-

“31. We also remind all courts/Juvenile Justice Boards
and the Committees functioning under the Act that a duty
is cast on them to seek evidence by obtaining the
certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii). The
courts in such situations act as a parens patriae because
they have a kind of guardianship over minors who from
their legal disability stand in need of protection.

32. Age determination inquiry” contemplated under
Section 7-A of the Act read with Rule 12 of the 2007
Rules enables the court to seek evidence and in that
process, the court can obtain the matriculation or
equivalent certificates, if available. Only in the absence
of any matriculation or equivalent certificates, the court
needs to obtain the date of birth certificate from the
school first attended other than a play school. Only in the
absence of matriculation or equivalent certificate or the
date of birth certificate from the school first attended, the
court needs to obtain the birth certificate given by a

CRL.REV.P. 860/2019 Page 5 of 9
corporation or a municipal authority or a panchayat (not
an affidavit but certificates or documents). The question
of obtaining medical opinion from a duly constituted
Medical Board arises only if the abovementioned
documents are unavailable. In case exact assessment of
the age cannot be done, then the court, for reasons to be
recorded, may, if considered necessary, give the benefit
to the child or juvenile by considering his or her age on
lower side within the margin of one year.

33. Once the court, following the abovementioned
procedures, passes an order, that order shall be the
conclusive proof of the age as regards such child or
juvenile in conflict with law. It has been made clear in
sub-rule (5) of Rule 12 that no further inquiry shall be
conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof
after referring to sub-rule (3) of Rule 12. Further, Section
49 of the JJ Act also draws a presumption of the age of
the juvenility on its determination.

34. Age determination inquiry contemplated under the JJ
Act and the 2007 Rules has nothing to do with an enquiry
under other legislations, like entry in service, retirement,
promotion, etc. 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 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,

CRL.REV.P. 860/2019 Page 6 of 9
the court, the Juvenile Justice Board or the committee
need to go for medical report for age determination.”

15. Later, in Parag Bhati v. State of U.P., reported as (2016) 12 SCC
744, the Supreme Court held as under :

“33. In Abuzar Hossain, wherein a three-Judge Bench of
this Court has already summarised the position regarding
what materials would prima facie satisfy the court and/or
are sufficient for discharging the initial burden cannot be
catalogued nor can it be laid down as to what weight
should be given to a specific piece of evidence which may
be sufficient to raise presumption of juvenility but the
documents referred to in Rules 12(3)(a)(i) to (iii) shall
definitely be sufficient for prima facie satisfaction of the
court about the age of the delinquent necessitating further
enquiry under Rule 12. The credibility and/or acceptability
of the documents would depend on the facts and
circumstances of each case and no hard-and-fast rule can
be prescribed that they must be prima facie accepted or
rejected and if such documents prima facie inspire
confidence of the court, the court may act upon such
documents for the purposes of Section 7-A and order an
enquiry for determination of the age of the appellant.

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 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 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

CRL.REV.P. 860/2019 Page 7 of 9
wherein the accused is held to be a juvenile on the basis of
at least prima facie evidence regarding his minority as the
benefit of the possibilities of two views in regard to the age
of the alleged accused who is involved in grave and
serious offence which he committed and gave effect to it in
a well-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.

36. It is settled position of law that if the matriculation or
equivalent certificates are available and there is no other
material to prove the correctness of date of birth, the date
of birth mentioned in the matriculation certificate has to be
treated as a conclusive proof of the date of birth of the
accused. However, if there is any doubt or a contradictory
stand is being taken by the accused which raises a doubt
on the correctness of the date of birth then as laid down by
this Court in Abuzar Hossain, an enquiry for
determination of the age of the accused is permissible
which has been done in the present case.”

(emphasis added)

16. Recently, in Sanjeev Kumar Gupta v. State of Uttar Pradesh
Anr., reported as (2019) 12 SCC 370, the Supreme Court while setting
aside the decision of the High Court and dismissing the petitioner’s claim
of juvenility observed that there were two different dates of birth
appearing in two different school registers which were attended by the
accused. The date of birth mentioned in the first school register which the
accused attended up-to 4th standard was found matching with his other
documents i.e., the Driving License and Aadhaar card. In these
circumstances, the date of birth mentioned in the matriculation certificate
was disbelieved as the same was recorded on the basis of an entry
forwarded by the subsequent school attended by the accused.

CRL.REV.P. 860/2019 Page 8 of 9

17. In the present case, although the petitioner has placed on record his
birth certificate, school transfer certificate and the relevant entry in the
school admission register was also proved by the concerned Head Master
(CW-1) but at the same time, the petitioner has used a different date of
birth in the Customer Application Form and his PAN Card. According to
the date of birth mentioned in above two documents, the petitioner was
not a juvenile on the date of the incident.

18. As such, from the evidence, two different dates of birth of the
petitioner are available on the record. The birth certificate and school
transfer certificate produced on record are of the year 2019 (i.e., after the
date of the incident) and the entry in the school record was not made on
the basis of any supporting document. Be that as it may, the trial court is
yet to take a view on the petitioner’s plea of juvenility. It is therefore
imperative that in the facts and circumstances of the case, the
Ossification test of the accused to ascertain his age from a duly
constituted medical board be conducted, at the earliest. In this view of the
matter, the petition is dismissed alongwith the pending application.

19. The observations made hereinabove are only for the purpose of
deciding the present petition. The trial court shall decide the plea of
juvenility uninfluenced by the observations made in this judgment.

20. A copy of this judgment be communicated to the trial court.

(MANOJ KUMAR OHRI)
JUDGE

MARCH 17, 2020/dc

CRL.REV.P. 860/2019 Page 9 of 9

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