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REPORTABLE     IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1119-1120 OF 2016 [Arising out of SLP (Crl.) Nos. 6754-55 of 2014]

MUKARRAB ETC.    APPELLANTS

Versus STATE OF U.P.                                                                  RESPONDENT

J U D G M E N T

R. BANUMATHI, J.

The present appeals by special leave impugn the judgment dated 27.05.2014

passed by the High Court of Judicature at Allahabad, whereby the appeal filed by

the appellants herein was dismissed affirming their conviction under Section 302 IPC

read with Section 149 and Section 148 IPC and also sentence of imprisonment for

life under Section 302 IPC and rigorous imprisonment for two years under Section

148 IPC.  

2. Totally  six  accused  including  the  appellants  herein  were  convicted.  The

Special Leave Petitions preferred by the other accused namely Babban, Moazzam,

Jahangir and Jamil were dismissed by this Court at the admission stage itself on

12.09.2014.  Since  the  appellants  Mukarrab  and  Arshad  had raised  the  claim of

juvenility before this Court, notice was issued qua these accused to examine their

claim that they are juveniles in conflict with law under Section 7A of the Juvenile

Justice (Care and Protection of Children) Act, 2000.  

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3. Case of the prosecution is that 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 on the

pretext that he was causing obstruction in Mangal Bazaar. 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.

4. The accused Moazzam, Jahangir, Jamil,  Mukarrab (appellant),  Babban and

Arshad (appellant),  were charge-sheeted under Sections 147, 148, 149, 302 IPC

and the case was committed to the Court of Session. Trial was conducted and a

number of witnesses were examined on behalf of the prosecution as well as the

defence. Vide judgment and order dated 16.09.1995 passed by the VIIIth Additional

District and Sessions Judge, Moradabad in Session Trial No. 484 of 1994, all the

accused 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. All the

sentences were to run concurrently. The accused challenged their conviction and

sentence imposed on them by filing three separate appeals before the High Court.

The High Court disposed of all the three appeals vide common judgment and order

dated  27.05.2014,  thereby  affirming  the  conviction  of  the  accused  persons  and

sentence imposed thereof.  

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5. The above judgment  and order dated 27.05.2014 was challenged by filing

special leave petition before this Court. Appellants Mukarrab and Arshad for the very

first time raised the claim of juvenility before this Court. This Court 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. The trial court

which had conducted the trial was directed to examine the aspect of juvenility of the

present appellants and submit a report. As noted earlier, the special leave petitions

qua other accused were dismissed.  

6. VIIIth 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, on perusal of the

above report dated 28.10.2014 as well as the objections filed thereagainst, certain

doubts  were  raised  concerning  the  genuineness  of  the  report.  Accordingly,  vide

order dated 06.04.2016, this 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.  

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7. Accused-Mukarrab  and  accused-Arshad  who  were  lodged  in  Mathura  and

Hardoi jails respectively in U.P. were produced before the Medical Board constituted

at the All India Institute of Medical Science (AIIMS), New Delhi on 02.05.2016 for

medical  examination (ossification test  for  ascertaining bone age).  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.  

8. The short question falling for consideration in these appeals is that whether

the appellants Mukarrab and Arshad were juveniles on the date of the occurrence

and  the  question  of  admissibility  and  reliability  of  medical  opinion  in  age

determination under the Juvenile Justice (Care and Protection of Children) Act, 2000

vis-à-vis juvenility of the accused at the time of committing the offences.

9. We have heard the parties before us and have perused the materials and the

medical report available on record.

10. Age determination is essential to find out whether or not the person claiming

to  be  a child  is  below the  cut-off  age prescribed for  application  of  the  Juvenile

Justice Act. The issue of  age determination is of utmost importance as very few

children  subjected  to  the  provisions  of  the  Juvenile  Justice  Act  have  a  birth

certificate.  As juvenile  in  conflict  with  law usually  do not  have any documentary

evidence, age determination, cannot be easily ascertained, specially in borderline

cases. Medical examination leaves a margin of about two years on either side even

if ossification test of multiple joints is conducted.

11. Time and again, the questions arise: How to determine age in the absence of

birth certificate? Should documentary evidence be preferred over medical evidence?

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How  to  use  the  medical  evidence?  Is  the  standard  of  proof,  a  proof  beyond

reasonable doubt or can the age be determined by preponderance of evidence?

Should the person whose age cannot be determined exactly, be given the benefit of

doubt and be treated as a child? In the absence of a birth certificate issued soon

after birth by the concerned authority, determination of age becomes a very difficult

task providing a lot  of  discretion to the Judges to pick and choose evidence.  In

different  cases,  different  evidence  has  been  used  to  determine  the  age  of  the

accused.  

12. This Court in Arnit Das v. State of Bihar (2000) 5 SCC 488, clarified that the

review of judicial  opinion shows that the Court should not take a hyper-technical

approach while appreciating evidence for determination of age of the accused. If two

views are possible, the Court should lean in favour of holding the accused to be a

juvenile in borderline cases. This approach was further reiterated by this Court in

Rajindra Chandra v. State of Chhatisgarh and Another (2002) 2 SCC 287, in

which it laid down that the standard of proof for age determination is the degree of

probability and not proof beyond reasonable doubt.

13. It is noteworthy that the Juvenile Justice (Care and Protection of Children) Act,

2000 does not lay down any fixed criteria for determining the age of the person.

Section 49(1) of the  Juvenile Justice (Care and Protection of Children)  Act, 2000

provides for presumption and determination of age as under:-

“49.  Presumption  and  determination  of  age.—(1)  Where  it  appears  to  a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that  person  and  for  that  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, stating his age as nearly as may be.”

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From a reading of the above provision, it is clear that it provides that when it appears

to the competent authority namely, the Board that the person brought before it is a

juvenile, the Board is obliged to make it clear as to the age of that person and for

that purpose the Board shall  take such evidence as may be necessary and then

record a finding whether the person is a juvenile or a child or not, stating his age as

nearly as may be.  

14. Under Rule 12, the Board is enjoined to take evidence for determination of

age. Rule 12 is as under:-

“12. Procedure to be followed in determination of Age: ―  (1) In every case concerning a child or a juvenile in conflict with law, the court or  the  Board  or  as  the  case  may  be  the Committee referred to in rule 19 of these rules shall  determine the  age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.  (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of  physical   appearance  or  documents, if available, and  send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (a)  (i)  the  matriculation  or  equivalent  certificates,  if  available;  and  in  the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii)  the  birth  certificate  given  by  a  corporation  or  a  municipal  authority  or a panchayat; (b) and only in the absence of either (i),  (ii)  or (iii)  of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if  considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.  and, while passing orders in such case shall,  after taking into consideration such evidence as may be available, or the medical opinion,  

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as the case may be, record a finding in respect of his age  and  either  of  the evidence  specified  in  any  of  the  clauses  (a)(i),  (ii),  (iii)  or  in  the  absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee  shall  in  writing  pass an order  stating  the  age and declaring  the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

15. Summarizing the legal position as to the claim of juvenility and observing that

such  plea  can  be  raised  at  any  stage  and  after  referring  to  various  decisions,

three-Judges Bench of this Court in Abuzar Hossain alias Gulam Hossain v. State

of West Bengal (2012) 10 SCC 489 held as under:-

“39. Now, we summarise the position which is as under: 39.1. A claim of  juvenility  may be raised at  any stage even after  the  final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court. 39.2. For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry  into  the  claim  of  juvenility  is  necessary.  Initial  burden  has  to  be discharged by the person who claims juvenility. 39.3. As  to  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 statement recorded under Section 313 of the Code

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is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters’ list, etc. obtained after conviction would  depend  on  the  facts  and  circumstances  of  each  case  and  no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh (2009) 7 SCC 415 and Pawan (2009) 15 SCC 259 these documents were not found prima facie credible while in Jitendra Singh (2010) 13 SCC 523 the documents viz. school leaving certificate, marksheet and  the  medical  report  were  treated  sufficient  for  directing  an  inquiry  and verification  of  the  appellant’s  age.  If  such  documents  prima  facie  inspire confidence  of  the  court,  the  court  may  act  upon  such  documents  for  the purposes of Section 7-A and order an enquiry for determination of the age of the delinquent. 39.4. An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of the age of the delinquent. 39.5. The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hypertechnical approach and the persons who are entitled to get  benefits  of  the  2000  Act  get  such  benefits.  The  courts  should  not  be unnecessarily  influenced  by  any  general  impression  that  in  schools  the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability. 39.6. Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at the threshold whenever raised.”

16. In the present case, the appellants by filing applications under Section

7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with

Rule 12 of the Juvenile Justice Rules, 2007 have claimed that at the time of

committing the offences they were juvenile i.e.  below the age of  18 years.

Appellant-Mukarrab has claimed that he was born on 01.07.1978 and thus, on

the date of the incident i.e. 22.03.1994, he was a child aged 15 years 8 months

22  days.  Likewise,  appellant-Arshad  has  claimed  that  he  was  born  on

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05.02.1979 and thus on the date of the incident i.e. 22.03.1994, he was a child

aged 15 years 1 month 17 days. Appellants did not raise the plea of juvenility

before any of the previous fora; it is only before this Court that they have raised

the plea of juvenility.

17. As already noted, by an order dated 18.02.2016, this Court had directed the

concerned District and Sessions Judge to conduct an inquiry and submit a report as

to the age of the appellants (Mukarrab and Arshad). As per the report submitted by

the VIIIth Additional District and Sessions Judge, Moradabad both the appellants

(Mukarrab and Arshad) were major on the date of the incident. After perusing the

report  of  the  District  Judge,  by  order  dated  06.04.2016,  this  Court  has  directed

medical examination of the appellants (Mukarrab and Arshad) to be conducted by a

duly constituted Medical Board of the AIIMS, New Delhi. Accordingly, the doctors of

AIIMS have examined the appellants (Mukarrab and Arshad) and given their opinion

as under:-  

“Alleged history in Brief: On perusal of the documents submitted to AIIMS, it was revealed that the year of  commission of crime was 1994 i.e.  22 years before today i.e. 02.05.2016. The said accused Mukarrab alleged his date of birth to be 1st July, 1978. The said accused Arshad has submitted the documentary proof of his age stating date of Birth as 5th February, 1979. Examination Proceedings: Both the accused were examined after taking due informed consent along with signature and left thumb impression. ..... Their physical, dental and radiological examinations were carried out. X-ray examination of Skull (AP and lateral view), Sternum (AP and lateral view) and Sacrum (lateral view) were advised and performed. There was no indication for Dental X-rays since both accused were much beyond 25 years of age in any case.

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Physical  and  Dental  Examination: In  both  cases,  general  physical examination findings are consistent with findings of normal adult male. Dental examination shows presence of complete 8 sets of permanent teeth in all 4 quadrants.

    Report of Radiological Examination- A. Mukarrab 1. Medical end of clavicle fused-age>more than 22 years 2. Xiphoid process not fused with sternal body-age<40 years 3. Manubrium not fused with sternal body-age<50 years 4. Complete fusion of sacral bodies-age>32 years 5. Saggital suture obliterated in posterior 1/3rd and coronal suture obliterated in lower

½-age<40 years.

B. Arshad 1. Medical end of clavicle fused-age>more than 22 years 2. Xiphoid process not fused with sternal body-age<40 years 3. Manubrium not fused with sternal body-age<50 years 4. Complete fusion of sacral bodies-age>32 years 5. Saggital suture obliterated in posterior 1/3rd and coronal suture intact-age<40 years.

Opinion: Both  accused  have  been  brought  for  examination  at  AIIMS  on 02.05.2016, 22 years after the alleged date of incidence. After going through the various findings of physical, dental and radiological examinations; medical board is of considered opinion that the age of accused viz.  Mukarrab s/o Mr. Mulla Zafar as well as Arshad s/o Rashid is between 35-40 years on the date of examination i.e. 02.05.2016.

18. The question falling for consideration is whether the opinion of the Medical

Board of AIIMS determining the age of the appellants between 35-40 years, can be

accepted or not.

19. Learned Senior Counsel for the appellants contended that the general rule

about age determination is that the age determined by the Medical Board vary plus

or minus two years but the Medical Board in this case had fixed the age of  the

appellants at 35-40 years and going by the general rule, the age of the appellants is

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to  be  estimated  as  38  years  on  the  date  of  medical  examination  and  giving

additional benefit of one year in lowering the age in terms of Rule 12(3)(b), age of

the  appellants  is  to  be  determined  as  37  years  as  on  the  date  of  medical

examination on 02.05.2016. It was, therefore, submitted that taking the age of the

appellants  as  37  years  as  on  02.05.2016  which  means  that  at  the  time  of

commission of the offence in 1994, the appellants would have been only aged about

15 years and, therefore, the benefit of Juvenile Justice Act to be extended to the

appellants. Contending that the benefit of benevolent provisions of Juvenile Justice

Act  and  the  Rules  must  be  extended  to  the  appellants  herein,  learned  Senior

Counsel  for  the  appellant  relied  upon  Darga  Ram  alias  Gunga  v.  State  of

Rajasthan (2015) 2 SCC 775 wherein it has been held as under:-

“16. The medical  opinion  given  by  the  duly  constituted  Board  comprising Professors  of  Anatomy,  Radio  diagnosis  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 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 Medical Board is taken as the correct/true age of the appellant he was just about 17 years and 2 months old on the date of 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 medical examination.

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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 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 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 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.”

20. Per contra, learned counsel for the State submitted that the ossification

test is not the sole criteria for determining the age and that the medical opinion

has  to  be  considered  alongwith  other  cogent  evidence.  In  support  of  this

contention, reliance was placed upon Babloo Pasi v. State of Jharkhand and

Anr. (2008) 13 SCC 133.

21. A reading of  the above decision in  Darga Ram alias Gunga’s case

shows that courts need to be aware of the fact that age determination of the

concerned persons cannot be certainly ascertained in the absence of original

and valid documentary proof and there would always lie a possibility that the

age of the concerned person 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 alias Gunga’s case was taken in the specific facts and circumstances of

that particular case and any attempt of generalising the said approach could

not be justifiably entertained.

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22. It is well-accepted fact that age determination using ossification test does

not yield accurate and precise conclusions after the examinee crosses the age

of  30  years,  which  is  true  in  the  present  case.  After  referring  to  Bhola

Bhagat’s case and other decisions, in Babloo Pasi’s case, this Court held as

under:-

“18. Nevertheless, in Jitendra Ram v. State of Jharkhand (2006) 9 SCC 428 the Court sounded a note of caution that the aforestated observations in Bhola Bhagat (1997) 8 SCC 720 would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit and each case has to be considered on the basis of the materials brought on record. 22. It  is well  settled that it  is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties.  The medical  evidence as to the age of  a  person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 23. It is true that in Arnit Das v. State of Bihar (2000) 5 SCC 428 this Court has,  on  a  review  of  judicial  opinion,  observed  that  while  dealing  with  a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act  are  not  misused  by  unscrupulous  persons  to  escape  punishments  for having committed serious offences.”

23. In  Criminal  Appeal  No.  486  of  2016  dated  12.05.2016,  Parag  Bhati

(Juvenile) through Legal Guardian-Mother-Smt.  Rajni  Bhati  v. State of Uttar

Pradesh and Anr., after referring to Abuzar Hossain case and other decisions of

this Court, this Court held as under:-

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“26. 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. 27. 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 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.” [Emphasis added]

From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is

not to give shelter to the accused of grave and heinous offences.  

24. Keeping in view the above principles, let us consider the medical opinion of

the Medical Board determining the age of the appellants as between 35-40 years on

the date of examination that is on 02.05.2016. This wide variation in the age, even

as per medical opinion is because of the reason that it was now too late, because of

the advanced age of the appellants to have precise determination of his age. As

noted earlier, such a plea of juvenility is raised for the first time in this Court and the

same has to be considered on the material brought on record before this Court. On

the basis of the age of the appellants (Mukarrab and Arshad) determined between

35-40 years in May, 2016, giving a variation of two years in upper age limit i.e. age

of the appellants would be 38 years. Giving additional benefit of lowering their age

by one year in terms of Rule 12(3)(b) would bring their age as 37 years as on May,

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2016. That means the appellants are supposed to be born in 1979 and at the time of

occurrence in 1994, the appellants would have been of around 15 years of age.  

25. Having regard to the circumstances of this case, 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. At page 31 of Modi’s Text Book of Medical

Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:

“In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following table, but it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.”

Courts have taken judicial notice of this fact and have always held that the evidence

afforded  by  radiological  examination  is  no  doubt  a  useful  guiding  factor  for

determining  the  age  of  a  person  but  the  evidence  is  not  of  a  conclusive  and

incontrovertible nature and it is subject to a margin of error. Medical evidence as to

the age of a person though a very useful guiding factor is not conclusive and has to

be considered along with other circumstances.

26. In a recent judgment,  State of Madhya Pradesh v. Anoop Singh (2015) 7

SCC  773,  it  was  held  that  the  ossification  test  is  not  the  sole  criteria  for  age

determination.  Following  Babloo Pasi and  Anoop Singh’s cases,  we hold  that

ossification test cannot be regarded as conclusive when it comes to ascertaining the

age of a person. More so, the appellants herein have certainly crossed the age of

thirty years which is an important factor to be taken into account as age cannot be

determined with precision. In fact in the medical report of the appellants, it is stated

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that there was no indication for dental x-rays since both the accused were beyond

25 years of age.  

27. At  this  juncture,  we  may  usefully  refer  to  an  article  “A  study  of  wrist

ossification for age estimation in pediatric group in central Rajasthan”, which reads

as under:-

“There are various criteria  for  age determination  of  an  individual,  of  which eruption  of  teeth  and  ossification  activities  of  bones  are  important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification alongwith epiphyseal fusion.  [Ref: Gray H. Gray’s Anatomy. 37th ed. Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342];  A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.  [Ref:  Parikh  CK.  Parikh’s  Textbook  of  Medical  Jurisprudence  and Toxicology. 5th edn.: Mumbai Medico-Legal Centre Colaba:1990;44-45];  ……

Variations  in  the  appearance  of  center  of  ossification  at  wrist  joint  shows influence of race, climate, diet and regional factors. Ossification centres for the distal  ends of  radius and ulna consistent  with present  study vide article “A study  of  Wrist  Ossification  for  age  estimation  in  pediatric  group  in Central Rajasthan”  by Dr. Ashutosh Srivastav, Senior Demonstrator and a team  of  other  doctors,  Journal  of  Indian  Academy  of  Forensic  Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].

28. In the present case, their physical, dental and radiological examinations were

carried out. Radiological examination of Skull (AP and lateral view), Sternum (AP

and lateral view) and Sacrum (lateral view) was advised and performed. As per the

medical  report,  there was no indication for dental  x-rays 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. An X-ray ossification test

can by no means be so infallible  and accurate a test  as to  indicate the correct

number of years and days of a person’s life.  

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29. Let  us  consider  the  medical  report  in  the  facts  and  circumstances  of  the

present case. The learned counsel on behalf of the respondent-State has brought to

our notice that the appellant-Mukarrab is involved in twenty four cases of various

offences  allegedly  committed  between  1988  and  1995.  He  is  alleged  to  have

committed murder and robbery in the year 1988. Likewise, appellant-Arshad is also

allegedly  involved  in  commission  of  serious  offences  from  1993  to  2003.

Proceedings in the context of such offences are stated to be still pending against the

appellants before various courts.  Learned Counsel  for the State has produced a

chart before us to show that the appellant-Mukarrab is involved in at least twenty

cases  for  various  offences  right  from  the  year  1988  in  Case  Nos.  160/1988,

327/1989, 96/1989, 184/1989 etc. and other cases under Sections 25A Act, 394 IPC,

323,  352,  504,  506  IPC,  323,  352,  504,  506  IPC  and  other  offences  till  2006.

Likewise, appellant-Arshad is involved in at least ten cases for various offences right

from the year 1993 in case Nos. 102/1993, 50/1994, 80/1994, 878/1994 etc. and

other cases under Sections 393, 363, 376, 147, 148, 149, 302, 147, 504, 506, 307

IPC respectively till 2003.

30. We are referring to the chart  produced by the State neither for taking into

account the history sheet of the present appellants for the purpose of ascertaining

criminal antecedents of the appellants nor casting any remarks on the nature of the

offences for which the appellants are proceeded with. We are referring to the chart

only for the limited purpose of arriving at a logical and definite conclusion as to the

age of the appellants. As discussed earlier, in para No. 24 had the appellants been

born in 1979, in the years 1988, 1989, 1990, the appellant-Mukarrab would have

been only in the age of 9, 10, 11 years respectively. In the year 1993, (first case in

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which appellant-Arshad involved) the appellant-Arshad would have been only  14

years of age. Had it been so, when the appellants were produced in those cases the

appellants would have been considered as ‘children’ by the very appearance. They

would have been dealt  with accordingly by the concerned juvenile court  and the

matters would not have been kept pending till  this date. This, in our view, is yet

another reason that the opinion of the Medical Board determining the age of the

appellants as 35-40 years in May, 2016 cannot be relied upon.  

31. In the facts and circumstances of the case, the opinion of the medical board in

determining the age of the appellants cannot be relied upon so as to give benefit

under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000.

In the absence of other cogent evidence, the plea of juvenility of the appellants is

liable to be rejected. The special leave petitions  qua other accused were already

dismissed  vide  order  dated  12.09.2014  as  mentioned  hereinbefore.  Hence,  the

appeals of these appellants are also dismissed.

...……………………….J.                                                                                                  [A.K. SIKRI]  

.………………………..J.                                                                                                  [R. BANUMATHI] New Delhi; November 30, 2016.  

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