22 Nov 2023 7:53 AM GMT
The Supreme Court recently reviewed and accepted the plea of juvenility by a convict after 27 years in an assault and murder case that took place in 1995. Although Juvenile Justice Act, 1986 was in force at the time of offence and conviction, a 5-judge Constitutional bench in the Pratap Singh case (2005) had clarified that the 2000 Act applied to pending proceedings initiated under the 1986 Act. It is pertinent to note that JJ Act, 2000 had raised the age of juvenility from 16 to 18 years. In this case, the medical report showed the appellant’s age to be 19 years, the school register to approximately 16 years, and the panchayat register to 20 years.
The Court held that even if the medical report which shows the age of the appellant as 19 years is taken to be correct, even then, in a case where an exact assessment of age was not possible, considering the conflicting reports and documents in our considered opinion, the provision given in subrule 3(b) of Rule 12(2007) would come into play and the Court ought to have given the appellant a benefit of one year in the present case.
The Court emphasized that “One important aspect which was missed by the High Court as well as the Additional Sessions Judge was the provisions of Rule 12 of the 2007 Rules which are applicable for the determination of age in the present case and, in particular, the provision under subrule (3)(b) of Rule 12 which states that “in the 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”, we are of the considered view that in the present case, even assuming for the sake of argument that there were some conflicting aspects as to the age of the appellant but since the margin of age was so thin, the aforesaid benefit ought to have been given to the appellant.”
The Supreme Court bench comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing an appeal against the judgment of Allahabad HC which had upheld the conviction of the appellant under section 302/34 IPC and sentenced him to life imprisonment in an assault and murder case.
On December 1, 1995, the incident took place during a dispute over water irrigation between two families in Barabanki District. Pawan Kumar(appellant), along with his father Gaya Prasad Mishra, and another relative, was accused of assaulting the father and brother of the complainant, resulting in the death of Ganga Prasad. An FIR was filed under Sections 307, 504, and 323 IPC, with Section 302 added later due to the death caused.
The primary point of contention was the appellant’s age at the time of the incident. As per the school register, his date of birth was 1980 making him 15 years old, whereas the family Register from the Gram Panchayat indicated a D.O.B of 1975, making him 20 years old at the time of the offense. At that time, the Juvenile Justice Act, 1986 was in force when a juvenile was the one who had not completed 16 years of age. Initially, the Trial Court, in 1999, concluded that he was not a juvenile based on a bone ossification test. In 2019, the High Court dismissed the appeal, including the plea of juvenility.
The Supreme Court in 2021 sought a fresh report from the Additional Sessions Judge which maintained the appellant’s date of birth at 1975. The Court found that the Transfer Certificate was not adequately examined and remitted the matter back. In the latest report, dated September 28, 2022, the D.O.B. was determined as July 5, 1980.
The Court at the outset noted that while the appeal before the HC was still in process, the Juvenile Justice (Care and Protection of Children) Act, 2015 came into force, along with detailed Model Rules (JJ Rules, 2016). However, Section 25 of the 2015 Act specified that all proceedings concerning a child in conflict with the law pending before any board or court at the commencement of the Act shall continue under the previous rules.
The Court observed that this interpretation was reinforced in the Satya Deo alias Bhoorey case (2020), emphasizing that "all proceedings" included trials, revisions, or appeals. Therefore, it held that the Juvenile Justice Act, 2000, along with Rule 12 of the 2007 Rules would apply in this case.
The Court noted that the first document under the 2007 Rules that has to be considered is the matriculation certificate but here the appellant had not done his matriculation. The focus then shifted to the school leaving certificate of Primary School, Bhatgawan, which was recognized as a valid proof of evidence. The Court then highlighted Rule 12(3)(b) which allows the court to consider the age on the lower side within a margin of one year if an exact assessment is not possible
Primary school certificate valid proof of evidence, takes precedence over panchayat register
The Court dismissed the evidentiary value of the Panchayat Register, emphasizing the precedence of school certificates under the 2007 Rules.
The Court referred to Shah Nawaz v. State of Uttar Pradesh(2011) 13 SCC 7512 and observed that “The school leaving certificate of the first school attended by the appellant which is Primary School, Bhatgawan will be a certificate that is liable to be considered and the certificate is a valid proof of evidence for determination of the age of the appellant”.
Bone Ossification test does not give precise age, not entirely accurate
The Court further examined the medical report, specifically the Bone Ossification Test conducted approximately two months after the alleged incident. Acknowledging the limitations of this test, the court referenced previous cases emphasizing that it does not give the precise age but is at best an approximation
It opined “In any case, a bone ossification test, which is primarily done to determine the age, does not give the precise age but is at best an approximation Further, it must also be kept in mind that the medical opinion based on Bone Ossification Test, is not entirely accurate.”
The Court referred to Vinod Katara v. State of U.P. 2022 LiveLaw (SC) 757 which held that “The bone ossification test is not an exact science that can provide us with the exact age of the person. The individual characteristics such as the growth rate of bones and skeletal structures can affect the accuracy of this method. The ossification test is not conclusive for age determination because it does not reveal the exact age of the person, but the radiological examination leaves a margin of two years on either side of the age range as prescribed by the test irrespective of whether the ossification test of multiple joints is conducted.”
Courts must extend the benefit of juvenility where 2 views are possible on the same evidence
Citing the principle of a liberal approach in cases of juvenility, the court reiterated that in situations where conflicting reports exist, the benefit of the doubt should lean in favor of the accused being considered a juvenile.
The Court referred to Arnit Das v. State of Bihar (2000) 5 SCC 488 which held that “a hypertechnical 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.”
Such a view was also taken recently in Rishi pal Singh Solanki v. State of Uttar Pradesh (2021).
Therefore, the court finally accepted the report of the Additional Sessions Judge, Barabanki, dated September 28, 2022, declaring the appellant a juvenile at the time of the crime. While sustaining the conviction under Sections 302 and 307 IPC read with Section 34 IPC, the court quashed all sentences, citing Section 16 of the Juvenile Justice Act, 2000, which prohibits the imposition of such sentences on juveniles.
Case title: Pawan Kumar v. State of UP
Citation: 2023 LiveLaw (SC) 1003