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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELATE JURISDICTION

CRIMINAL     APPEAL     NO.        651         OF     2012   (Arising out of S.L.P.(Crl.) No. 2411/2011)

OM PRAKASH    ..Appellant

Versus

STATE OF RAJASTHAN & ANR.       ..Respondents

J     U     D     G     E     M     E     N     T   

GYAN     SUDHA     MISRA,     J.   

1. The Judgment and order dated 19.08.2010  

passed by the High Court of Rajasthan at Jodhpur in  

SBCRR No.597 of  2009 is under challenge in this appeal at  

the instance of the appellant Om Prakash who is a hapless  

father of an innocent girl of 13 ½ years who was subjected  

to rape by the alleged accused-Respondent No.2 Vijay  

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Kumar @ Bhanwroo who has been allowed to avail the  

benefit of protection under Juvenile Justice (Care and  

Protection of Children) Act 2000, although the courts below  

could not record a finding that he, in fact, was a  

juvenile since he had not attained the age of 18 years on the  

date of incident.  Hence this Special Leave Petition in which  

leave has been granted after condoning the delay.

2. Thus the questions inter alia which require  

consideration in this appeal are:-

(i) whether the respondent/accused herein  who is alleged  to have committed  an offence of  rape under Section 376 IPC  and other allied  sections along with a co-accused  who  already  stands convicted for the offence under Section 376  IPC, can be allowed to avail the benefit of protection  to a juvenile in order to refer him for trial  to a  juvenile court  under the Juvenile Justice (Care and  Protection of Children) Act, 2000 (shortly referred to  as the ‘Juvenile Justice Act’) although the trial court  and the High Court  could not record a conclusive  finding of fact that the respondent-accused was  below  the age of 18 years  on the date of  the  incident?

(ii) whether the principle and benefit of  ‘benevolent  legislation’ relating to  Juvenile Justice  Act could be applied in cases where two views  regarding determination of the age of child/accused  

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was possible and the so-called  child could not be  held to be a juvenile on the basis of evidence  adduced?

(iii) whether medical evidence and other  attending circumstances would be of any value and  assistance while determining the age of a juvenile, if  the academic record certificates do not conclusively  prove the age of the accused ?

(iv) whether reliance should be placed on  medical evidence if the certificates relating to  academic records is deliberately with held in order  to conceal the age of the accused and authenticity of  the medical evidence regarding the age is under  challenge?

3. Juvenile Justice Act was enacted with a laudable  

object of providing  a separate forum  or a special court  for  

holding trial of children/juvenile by the juvenile court as it  

was felt that children become delinquent  by force of  

circumstance and not by choice  and hence  they need to be  

treated with care and sensitivity  while dealing and trying  

cases involving criminal offence.   But when  an accused is  

alleged to have committed a heinous offence like rape and  

murder  or any other grave offence when he ceased to be a  

child  on attaining the age of 18 years, but  seeks protection  

of the Juvenile Justice Act under the ostensible plea  of  

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being a minor,  should such an accused be allowed to be  

tried by  a juvenile court  or should he be  referred to a  

competent court of  criminal jurisdiction where the trial of  

other adult persons  are held.

4. The questions referred  to hereinbefore arise in  

this appeal under the facts and circumstances emerging  

from the materials on record which disclose that the  

appellant/complainant lodged a written report on 23.5.2007  

at about 1.00 p.m. that his daughter Sandhya aged about  

13 1/2  years   a student of class IX at Secondary School  

Ghewada  was   called from the school by the accused  

Bhanwaru @ Vijay Kumar, son of Joga Ram through her  

friend  named Neetu on 23.2.2007 at about 1.00 p.m. in the  

afternoon.  Neetu told  Sandhya that Bhanwroo was in the  

Bolero vehicle near the bus stand.  Sandhya left the school  

after taking permission from the school authorities and  

when she reached  near the bus stand she did not find the  

Bolero vehicle.  She therefore, made a telephonic call to  

Bhanwru  who told her that he was standing at Tiwri Road  

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ahead of bus stand.  She then noticed  the Bolero vehicle on  

Tiwri Road, but  she did not find Neetu and when she  

enquired about Neetu, the accused Bhanwroo  @ Vijay  

Kumar son of  Joga Ram misguided her and  told  her that  

Neetu had got down to go to the  toilet after which she was  

made to sit  in the vehicle which  was forcibly driven  

towards Tiwri and after  a distance of  3-4 Km., a person  

named Subhash Bishnoi was also made to sit  in the  

vehicle.  The vehicle was then taken to a lonely place  off the  

road where heinous physical assault of rape was committed  

on her by Bhanwroo  @ Vijay Kumar and Subhash Bishnoi.  

Since the victim girl/the petitioner’s daughter resisted and  

opposed, she was  beaten as a result of which she sustained  

injuries on her thigh, hand and back.  She was then  taken  

towards the village  Chandaliya  and she was again  

subjected to rape.  Bhanwru then  received a phone call  

after which  Bhanwru and Subhash  dropped her near the  

village Ghewada  but threatened   her that in case she  

disclosed about this event to anyone, she will be killed.  

Sandhya, therefore,   did not mention about this  incident  

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to anyone in the school but on reaching  home, she  

disclosed it to her mother i.e. the  appellant’s/complainant’s  

wife who in turn narrated it to the appellant  when  he came  

back to village from Jodhpur on 24.2.2007.    The appellant  

could not take an immediate decision keeping in view the  

consequences of the incident and called his  brother Piyush  

from Jodhpur and then lodged  a report with the P.S. Osian  

on the basis of which a case was registered under Section  

365, 323 and 376 IPC bearing C.R.No. 40/2007 dated  

25.2.2007.   In course of the investigation, the accused  

Bhanwru @ Vijay Kumar was arrested and in the  arrest  

memo his name was mentioned as Vijay Kumar  @ Bhanwar  

Lal son of Joga Ram and his age has been  mentioned as 19  

years.   After completion of the investigation, it was   found  

that the offences under Sections 363, 366, 323 and 376 (2)

(g)   IPC were made out  against  the accused Vijay Kumar @  

Bhanwar Lal, son of Joga Ram Jat aged 19 years, Subhash  

son of  Bagaram Bishnoi aged 20 years and against Smt.  

Mukesh Kanwar @ Mugli @ Neetu aged 27 years and hence  

charge sheet was submitted before the Judicial Magistrate,  

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Osian.  Vijay Kumar @ Bhanwar Lal and Subhash were  

taken in judicial custody.

5. An application thereafter was moved on behalf of  

the accused Vijay Kumar @ Bhanwar Lal before the Judicial  

Magistrate, Osian  stating that he was a juvenile offender  

and, therefore, he may be sent to the Juvenile Court  for  

trial.

6. Arguments were heard  on the aforesaid  

application by the concerned learned magistrate on  

29.3.2007 and the learned magistrate allowed the  

application by his order dated 29.3.2007, although the  

Public Prosecutor  contested this application relying upon  

the police investigation and the medical report wherein the  

age of the accused was recorded as 19 years.  In the  

application, the   stand taken on behalf of Vijay Kumar was  

that in the school records, his date of birth was  30.6.1990.

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7. However, contents of this application clearly  

reveal  that  no dispute was raised in the application on  

behalf of  Vijay Kumar that the name of the accused Vijay  

Kumar was only Vijay Kumar  and not @ Bhanwar Lal.   It  

was also not urged that the name of  accused Vijay Kumar  

has been wrongly mentioned in the police papers as Vijay  

Kumar   @ Bhanwar Lal nor in  course of investigation it  

was evaer stated that the case was wrongly  registered in  

the name of  accused Vijay Kumar @ Bhanwar Lal.  

Without even raising this dispute, the academic record of  

Vijay Kumar @ Bhanwar Lal was produced  whereas  

according  to the complainant  the factual position is that  

the name of the accused was Bhanwar Lal which was  

recorded in the Government Secondary School Jeloo Gagadi  

(Osian) when he entered the school on  18.12.1993 and  

again on 22.4.1996  his name was  entered in the school  

register wherein his date of birth was recorded as  

12.12.1988

.

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8. The complainant contested the age of the accused  

Vijay Kumar and it was submitted that the accused Vijay  

Kumar had been admitted in the 2nd Standard in some  

private school known as Hari Om Shiksham Sansthan  in  

Jeloo Gagadi (Osian) with a changed name as Vijay Kumar  

and  there the date of birth was mentioned as  30.6.1990  

which was reflected  in the  subsequent  academic records  

and on that basis the admission card in the name of  Vijay  

Kumar with date of birth as 30.6.1990 was mentioned in  

the application for treating him as a juvenile.

9.    The case then came up  before the Additional  

Sessions Judge (Fast Tract No.I) Jodhpur as Sessions Case  

No. 151/2007 on 3.10.2007.  Shri Joga Ram, the father of  

the accused moved an application under Section  49 of the  

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

stating that the date of birth of his  son was 30.6.1990 in  

his school administration record and, therefore,  on the date  

of  incident i.e.  23.02.2007,  he  was less than  18 years.  

In this  application form  dated 3.10.2007,  Joga Ram,  

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father of the accused Vijay Kumar had himself  stated at  

three places i.e. title, para in the beginning and in the first  

part describing  the name of his son (accused) as Vijay  

Kumar @  Bhanwar Lal stating that his son was born on  

30.6.1990 at his house and he was first admitted  in the  

school named Hari Om Shikshan Sansthan, Jeloo Gagadi,  

Osian on  1.9.1997 in 2nd  standard and his son studied in  

this school  from 1.9.1997 to 15.7.2007  from 2nd standard  

and the transfer certificate dated 4.7.2007 was enclosed.  

The said application form had been signed  by Joga Ram as  

father of the accused  Vijay Kumar  on which the signature  

of  the headmaster along with the seal was also there.  In  

transfer certificate the date of birth of the accused was also  

stated  along with some other  facts in order to assert  that  

Vijay Kumar was less than 18 years of age on the date of the  

incident.   But he had nowhere stated that he  had another  

son named Bhanwru who had died in 1995 and whose date  

of birth  was 12.12.1988.  He attempted to establish that  

the accused Vijay Kumar  is the younger son of  Joga Ram  

and the elder son  Bhanwru had died in the year 1995 and  

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it was he whose date of birth was 1988.  He thus asserted  

that Vijay Kumar in fact was born in the year 1990  and his  

name was not Bhanwru but only Vijay Kumar.  This part of  

the story    was set up by the  father of the accused Joga  

Ram at a later stage when  the evidence  was adduced.

10. The application filed on behalf of the accused  

Vijay Kumar was contested by the complainant and  both  

the parties led evidence in support   of their respective plea.  

The specific case of the  complainant was that Bhanwru Lal  

and Vijay Kumar in fact  are one and the same person  and  

Joga Ram has cooked up a story that he had another son  

named Bhanwar Lal whose date of birth was 12.12.1988  

and who later expired in 1995.   The complainant stated  

that as per the version of the father of the accused if the  

deceased’s son Bhanwar Lal continued in the school up to  

24.2.1996, the same was impossible as he is  stated to have  

expired  in 1995 itself.   According to the complainant  Vijay  

Kumar  and Bhanwar Lal are the names of the same person  

who  committed the offence  of rape in the year 2007  and  

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the defence taken by the accused  was a concocted story  

merely to take undue advantage of the Juvenile Justice Act.

11. After taking into consideration the  oral and  

documentary evidence, the Sessions Court categorically  

concluded that in this  case no definite clear  and conclusive  

view is  possible keeping in view the evidence  which has  

come on record with regard to the age of the accused and  

both the views are clearly established and, therefore,  the  

view which is  in favour of the accused is taken and the  

accused is held to be a juvenile.  The accused Vijay Kumar  

was accordingly declared to be a juvenile and was directed  

to be sent to the Juvenile Justice Board for trial.  This order  

was passed by the Additional Sessions Judge (Fast Tract  

No.1) Jodhpur  on 16.5.2009 in Sessions Case No.  

151/2007.

12. The complainant-appellant thereafter assailed the  

order of the Additional Sessions Judge holding the  

respondent Vijay Kumar as a juvenile by filing a revision  

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petition before the High Court.  The learned Judge hearing  

the revision observed that a lot  of contradictory evidence  

with regard to the age and identity of Vijay Kumar @  

Bhanwru has emerged  and a lot of confusion has been  

created with regard to the date of birth of accused Vijay  

Kumar @ Bhanwroo.  But the learned single Judge was  

pleased to hold that the Additional Sessions Judge had  

appreciated the evidence  in the right perspective  and he is  

not found to have  erred in declaring respondent No.2 Vijay  

Kumar @ Bhanwru to be a juvenile offender.  He has,  

therefore, rightly  been referred to the Juvenile Justice  

Board for trial which warrants no interference.   The learned  

single Judge  consequently  dismissed the revision petition  

against  which  the complainant filed this  special leave  

petition (Crl.) No. 2411/2011 which after  grant of  leave has  

given rise to this appeal.

13. Assailing the orders of the courts below, learned  

counsel for the appellant  has essentially advanced twofold  

submissions in course of the hearing.  He had initially  

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submitted that Vijay Kumar alias Bhanwar Lal,  son of Joga  

Ram is the same person and Vijay Kumar  is the changed  

name of Bhanwar Lal whose correct date of birth  is  

12.12.1988 and not  30.6.1990 as stated by Joga Ram,  

father of the accused.  Hence, Vijay Kumar @ Bhanwar Lal  

was not a juvenile on the date of commission of the offence.

14. In order to substantiate this plea, learned counsel  

for the appellant submitted that in the application which  

was moved by Joga Ram, father of the accused, before the  

Additional Sessions Judge under Section 49 of the Juvenile  

Justice  Act, he has nowhere mentioned that he had two  

sons named Vijay Kumar and  Bhanwar Lal and that  

Bhanwar  Lal had died in 1995 whose date of birth was  

12.12.1988 and his other son Vijay Kumar’s date of birth  

was 30.6.1990.  In fact, he himself had mentioned  his son’s  

name as Vijay Kumar @ Bhanwru at more than one place in  

the application and later has planted a story that he had  

two sonce viz., Bhanwar Lal and Vijay Kumar, and Bhanwar  

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Lal whose date of birth was 12.12.1988 had already died in  

the year 1995.

15. Learned counsel for the appellant further  

contended that the benefit of the principle of  benevolent  

legislation conferred on the  Juvenile Justice Act, cannot be  

applied  in the present case as the courts below -specially  

the court of  fact which is the  Additional Sessions Judge  

(Fast Track No.1) Jodhpur did not record a categorical  

finding with regard to the date of birth of the respondent-

accused and the aforesaid  principle can be applied only to a  

case where the accused is clearly held to be a juvenile so as  

to be sent for trial by the  juvenile court or to claim any  

other benefit  by the alleged juvenile accused.  Counsel for  

the Appellant has relied upon the evidence of NAW-3  

-Medical Jurist, who conducted ossification test  of the  

accused and  opined before the court  that the accused  was  

19 years of age  and statement of NAW-1 Assistant Professor  

in Radiology who opined before the court  on 23.11.2007  

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that on the  basis of  the x-ray films, age of the accused is  

above 18 years and below 20 years.

16. Learned counsel for the accused-respondent  on  

his part contended that  medical opinion  could be sought  

only when matriculation  or equivalent  certificate or date of  

birth certificate  from the school was not available and since  

in the present case  the admission certificate of the accused  

from the school record is available which states  the date of  

birth to be 30.6.1990, the  school certificate ought to be  

allowed to prevail upon the medical opinion.

17. We are unable to appreciate and accept the  

aforesaid contention of learned counsel for the respondent  

since the age of the accused could not be proved merely on  

the basis of the school record as the courts below in spite of  

its scrutiny could not record a finding of fact that the  

accused, in fact, was a minor on the date of the incident.  

Hence, in a situation when the school record itself is not  

free from ambiguity and conclusively prove the minority of  

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the accused, medical opinion cannot be allowed to be  

overlooked or treated to be of no consequence.  In this  

context the statement of NAW-3 Dr. Jagdish Jugtawat, the  

medical jurist who conducted  the ossification test of the  

accused and opined before the court that the accused was  

19 years of age is of significance  since it specifically states  

that the accused was not a juvenile on the date of  

commission of the offence.  The statement of  NAW-1 Dr.  

C.R. Agarwal, Asstt. Professor  in Radiology  also cannot be  

overlooked since he  opined  that  on the basis of x-ray  

films, the age of the accused is above 18 years and below 20  

years.  Thus, in a circumstance where the trial court itself  

could not arrive at a conclusive finding regarding the age of  

the accused, the opinion of the medical experts based on x-

ray and ossification test will have to be given precedence  

over the shaky evidence based on school records and a plea  

of circumstantial inference based on a story set up by the  

father of the accused which prima facie is a cock and bull  

story.

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18. 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 for  this special  

protection under the Juvenile Justice 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.  Hence, while the courts must be  

sensitive in dealing with the juvenile  who is involved in  

cases of serious nature like sexual molestation, rape, gang  

rape, murder and host of other offences, the accused cannot  

be  allowed to abuse the statutory protection by attempting  

to prove himself as a minor when the documentary evidence  

to prove  his minority gives rise  to a reasonable doubt  

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about his assertion of minority.  Under such circumstance,  

the medical evidence based on scientific investigation will  

have to be given due weight and precedence over the  

evidence based on school administration records which give  

rise to hypothesis and speculation about the age of the  

accused.  The matter however would stand on a different  

footing if the academic certificates ad school records are  

alleged to have been with held deliberately with ulterior  

motive and authenticity of the medical evidence is under  

challenge by the prosecution.

19. In the instant matter, the accused Vijay Kumar is  

alleged to have committed a crime  which repels against  

moral conscience  as he  chose a girl of 13 and a half years  

to satisfy his lust by hatching  a plot with the  assistance of  

his accomplice Subhash who already stands convicted and  

thereafter the accused has attempted to seek protection  

under the plea that  he committed such an act  due to his  

innocence  without understanding  its implication  in which  

his father  Joga Ram is clearly assisting by attempting to  

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rope in a story that he was a minor on the date of the  

incident which is not based on conclusive evidence worthy  

of credence but is based on a confused story as also shaky  

and fragile nature of evidence which hardly inspires  

confidence.  It is hard to ignore that when the  Additional  

Sessions Judge in spite of meticulous  scrutiny of  oral and  

documentary evidence could not arrive at a conclusive  

finding  that  he was clearly a juvenile below the age of 18  

years on the date of incident, then by what logic and  

reasoning he should get the benefit of the theory of  

benevolent legislation on the foothold of Juvenile Justice Act  

is difficult to comprehend as it clearly  results in erroneous  

application of this principle and thus we find sufficient  

force in the contention of learned counsel for the appellant  

that the benefit of  the principle of benevolent legislation can  

be made applicable in favour of only those delinquents  who  

undoubtedly have been held to be a juvenile which leaves no  

scope for speculation about the age of the alleged accused.

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20. We therefore cannot overlook that the trial court  

as well as the High Court while passing the impugned order  

could not arrive at any finding at all as to whether the  

accused was a major or minor on the date of the incident  

and yet gave the benefit of the principle of benevolent  

legislation to an accused whose plea of minority that he was  

below the age of 18 years itself was in doubt.  In such  

situation, the scales of justice is required to be put on an  

even keel by insisting for a reliable and cogent proof in  

support of the plea of juvenility specially when the victim  

was also a minor.

21. The benefit of the principle of  benevolent  

legislation attached to Juvenile Justice 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  

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maturity of mind rather than innocence indicating that his  

plea of juvenility is more in the nature of a shield to dodege  

or dupe the arms of law, cannot be allowed to come to his  

rescue.  Hence if the plea of juvenility or the fact that he  

had not attained the age of discretion so as to understand  

the consequence of his heinous act is not free from  

ambiguity or doubt, the said plea cannot be allowed to be  

raised merely on doubtful school admission record and in  

the event it is doubtful, the medical evidence will have to be  

given due weightage while determining the age of the  

accused.

22. Adverting to the facts of this case we have noticed  

that the trial court in spite of the evidence led on behalf of  

the accused, was itself not satisfied that the accused  was  a  

juvenile as none of the school records relied upon by the  

respondent-accused  could be held to be free from doubt so  

as to form a logical and legal basis for the purpose of  

deciding the correct date of birth of the accused indicating  

that the accused was a minor/juvenile on the date of the  

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incident. This Court  in several decisions including  the case  

of  Ramdeo Chauhan @ Raj Nath vs. State of Assam,  

reported in  (2001) 5 SCC 714dealing with a similar  

circumstance had observed which adds weight and strength  

to what we have stated which is quoted herein as follows :-  

“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  punishment, it is true that the accused tried to  create a smoke screen with respect to his age.  But such effort   appear to have been made only  to hide  his real age and not to create any doubt  in the mind of the court.  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 appearing in the evidence of  some of  the witnesses 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  institution entrusted with the administration of  justice.  Any effort which  weakens the system  and shakes the faith of the common man in the  

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justice dispensation  system has to be  discouraged.”   

The above noted observations 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 lends 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 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.

23.    However, we reiterate that we may not be  

misunderstood  so as to infer that even if  an accused is  

clearly below the age of 18 years on the date  of  commission  

of  offence, should not be  granted protection or treatment  

available to a juvenile under the Juvenile Justice Act if a  

dispute regarding his age had been raised but was finally  

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resolved on scrutiny of evidence.  What is meant to be  

emphasized is that where the courts cannot clearly infer in  

spite of available evidence on record that the accused is a  

juvenile or the said plea appear to have been raised merely  

to create a mist or a smokescreen so as to hide his real age  

in order to shield the accused on the plea of his minority,  

the attempt cannot be allowed to succeed so as to subvert  

or dupe the cause of justice.  Drawing parallel between the  

plea of minority and the plea of alibi,  it may be worthwhile  

to state that it is not uncommon to come across criminal  

cases wherein an accused makes an effort to take shelter  

under the plea of alibi which has to be raised at the first  

instance but has to be subjected to strict  proof  of evidence  

by the court trying the offence and cannot be allowed lightly  

in spite of lack of evidence merely with the aid of salutary  

principle  that an innocent   man  may not  have to suffer  

injustice by recording an order of conviction in spite of his  

plea of alibi.  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  

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committing the 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 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 accused of matured  mind who uses the  

plea of minority as a ploy or shield  to protect himself  from  

the sentence  of the offence committed by him.  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 admission register which is not proved or oral  

evidence based on conjectures leading to further ambiguity,  

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cannot be relied upon in preference to the  medical evidence  

for assessing  the age of the accused.

24. While considering the relevance and value of the  

medical 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 test like  

ossification and radiological examination will have to be  

treated as a strong evidence having corroborative value  

while determining the age of the alleged juvenile accused. In  

the case of Ramdeo Chauhan Vs. State of Assam (supra), the  

learned judges have added an insight for determination of  

this issue when it recorded as follows:-

“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 him a constitutional protection. In     the    absence     of     all     other     acceptable     material,     if     such    opinion     points     to     a     reasonable     possibility    regarding     the     range     of     his     age,     it     has     certainly     to    be     considered.  ”    

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The situation, however, would be different if the academic  

records are alleged to have been with held 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 should be relied upon or not will obviously depend  

on the value of the evidence led by the contesting parties.

25. In view of the aforesaid discussion and analysis  

based on the prevailing facts and circumstances of the case,  

we are of the view that the Respondent No.2 Vijay Kumar  

and his father have failed to prove that Respondent No.2  

was a minor at the 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 appropriate to grant him the benefit of  

a juvenile merely by adopting the principle of benevolent  

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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  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. 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 trial and treatment of  heinous offences.  

This would clearly be treated as an effort to weaken the  

justice dispensation system and hence cannot be  

encouraged.

26. We therefore deem it just and appropriate to set  

aside the judgment and order passed by the High Court as  

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also the courts below and thus allow this appeal.  

Consequently, the accused Vijay Kumar, S/o Joga Ram  

shall be sent for trial before the court of competent  

jurisdiction wherein the trial is pending and not to the  

Juvenile Court as pleaded by him.  We order accordingly.

                …..……………………..J      (G.S. Singhvi)

        …………………………J      (Gyan Sudha Misra)

New Delhi,  April 13, 2012

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