IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 175 OF 2021
(ARISING OUT OF SLP (CRIMINAL) NO. 2898 OF 2020)
RAM VIJAY SINGH…..APPELLANT(S)
STATE OF UTTAR PRADESH…..RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1.The present appeal has been preferred against the order dated22.4.2020 passed by the High Court of Judicature at Allahabad.Vide the said order, the appeal filed by the appellant against hisconviction for an offence under Section 302 read with Section 34of the Indian Penal Code, 18601 was dismissed.
2.Before this Court, the appellant filed an application for bail, interalia, on the ground that he was juvenile on the date of incident i.e. 20.7.1982. In support of plea of juvenility, the appellant reliedupon family register maintained by the Panchayat, Aadhaar Cardand an order passed by the High Court in the year 1982. In thesaid order, the High Court had granted bail on the basis of thereport of the Radiologist that the age of the appellant at that timewas between 15½ – 17½ years. The appellant has further statedthat he had moved criminal miscellaneous application raising aclaim of him being a juvenile at the time of commission of offencebefore the High Court but the said application was not decided andthe appeal has been dismissed on merits.
1For short, the ‘IPC
3.Keeping in view the said assertion raised by the appellant, thisCourt passed the following order on 20.7.2020 :
“Having heard Shri Pranav Sachdeva, learned counselfor the petitioner, for some time, we are of the viewthat the miscellaneous application that was filed in2015 raising the claim of the petitioner’s juvenility atthe time of the office which has still not been decided,be decided within a period of four weeks from today bythe High Court and if possible, judgment on the samebe delivered within two weeks thereafter.Adjourned.Liberty to mention.”
4.It is thereafter, the High Court had sought the report of the Medi-cal Board. Such Medical Board consisting of five doctors comprisedof (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M.and Associated Hospitals, Lucknow, (2) Dr. Mausami Singh, Additional Professor, Forensic Medicine & Texicology, (3) Dr. Garima Se-hgal, Associate Professor, Department of Anatomy, (4) Prof. PavitraRastogi, Department of Periodontology, King George’s Medical Uni-versity and (5) Dr. Sukriti Kumar, Assistant Professor, Departmentof Radiodiagnosis, KGMU, UP, Lucknow. The Medical Board, in its report submitted on 8.9.2020 to the High Court opined that theage of the appellant is between 40-55 years. The State and the in-formant objected to the report. Further, there was also a mentionof a single barrel gun granted to the appellant on 24.7.1982, acouple of days after the occurrence of the incident. However, theHigh Court on the basis of the medical report submitted its orderto this Court stating that the appellant was juvenile on the date ofcommission of the offence. The conclusions drawn by the HighCourt reads thus:
“43. We were impressed by aforesaid submission at thefirst flush particularly in the light of observations made inMukarrab & Ors. v. State of Uttar Pradesh2wherein theCourt rejected the age determination report prepared by AllIndia Institute of Medical Sciences (AIIMS) New Delhi, butupon deeper scrutiny, we do not find any force in thissubmission. The facts in Mukarrab’s case were veryclinching which is not the case here. In the present case,except for the fact that accused-appellant was issued a gunlicense on 24.7.1982 which is after the date of occurrencei.e. 20.7.1982, nothing else has been brought on record.The same may create a suspicion. But suspicion howsoeverstrong cannot take the place of proof. Perusal of theobjections filed by informant does not indicate the groundson which the member of the Medical Board is sought to beexamined and secondly, no such material has been appended along with the objections filed by informant onthe basis of which prima facie we could feel satisfied tosummon a member of Medical Board. We accordingly,negate the submission urged by learned counsel forinformant to summon a member of Medical Board for cross-examination.
44. Having dealt with the conflicting claims of the parties,the swinging circumstances of the case and the law as laiddown Mukarrab and Others (Supra), we find that themedical report dated 18.9.2020 is worthy of acceptance,wherein the age of accused-appellant-2 Ram Vijai Singh hasbeen determined as 40-55 years on date. The occurrencetook place on 20.7.1982 i.e. 38 years ago. When age ofaccused-appellant-2 Ram Vijai Singh is determined on allhypothetical calculations i.e. (55-38=17 years) (40-38= 2years) and taking the average of difference betweenmaximum and minimum age i.e. 48-38 = 10 years, then theage of accused-appellant-2 Ram Vijai Singh falls below 17years.”
2(2017) 2 SCC 21
5.This Court on 13.1.2021 directed the learned Advocate appearingfor the State to produce all original documents with regard to theGun Licence in question. In pursuance of the said direction, theState filed an application submitted on behalf of the appellant toseek the Arms Licence. In Column 2 of the application, the appel-lant has provided his date of birth as 30.12.1961. Such applicationwas filed on or around 21.12.1981 wherein a police report wassubmitted on 28.3.1982 stating that no criminal case was regis-tered against the appellant. It is on that basis, the application forArms Licence was processed and the Area Magistrate approvedthe grant of Licence. The Arms Licence was hence granted on24.7.1982, that is after the date of incident.
6.With this factual background, the question of juvenility of the ap-pellant as on the date of incident, i.e., 20.7.1982 is required to beexamined.7.There is no dispute that the plea of juvenility can be raised at anystage even after finality of the proceedings before this Court. Inthe present case, the appellant has raised the plea of juvenility be-fore the High Court vide Criminal Miscellaneous Application No.382916 of 2015. This Court in a judgment reported as AbuzarHossain alias Gulam Hossain v. State of West Bengal3 held as under:
“39.1. A claim of juvenility may be raised at any stageeven after the final disposal of the case. It may beraised for the first time before this Court as well afterthe final disposal of the case. The delay in raising theclaim of juvenility cannot be a ground for rejection ofsuch claim. The claim of juvenility can be raised inappeal even if not pressed before the trial court andcan be raised for the first time before this Court thoughnot pressed before the trial court and in the appealcourt.”
8.Section 7-A of the Juvenile Justice (Care and Protection of Children)Act, 20004 contemplated that whenever a claim of juvenility israised before any Court, the Court shall make an inquiry and takesuch evidence as may be necessary. In terms of the provisions ofthe 2000 Act, the Juvenile Justice (Care and Protection of Children) Rules, 20075 have been framed. Rule 12 of the Rules contem-plates a procedure to be followed for determination of age. The2000 Act has been repealed by the Juvenile Justice (Care and Pro-tection of Children) Act, 20156. Section 9(2) of the Act is the analo-gous provision to Section 7-A of the 2000 Act. The procedure fordetermining the age is now part of Section 94 of the Act which wasearlier part of Rule 12 of the Rules. Section 94 of the Act readsthus:
“Section 94. Presumption and determination of age
(1) Where, it is obvious to the Committee or the Board,based on the appearance of the person brought before itunder any of the provisions of this Act (other than for thepurpose of giving evidence) that the said person is a child,the Committee or the Board shall record such observationstating the age of the child as nearly as may be andproceed with the inquiry under section 14 or section 36, asthe case may be, without waiting for further confirmation ofthe age.
(2) In case, the Committee or the Board has reasonablegrounds for doubt regarding whether the person broughtbefore it is a child or not, the Committee or the Board, asthe case may be, shall undertake the process of agedetermination, by seeking evidence by obtaining-
(i) the date of birth certificate from the school, or thematriculation or equivalent certificate from the concernedexamination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or amunicipal authority or a panchayat;
(iii) and only in the absence of (I) and (ii) above, age shall be determined by an ossification test or any other latestmedical age determination test conducted on the orders ofthe Committee or the Board:Provided such age determination test conducted on theorder of the Committee or the Board shall be completedwithin fifteen days from the date of such order.(3) The age recorded by the Committee or the Board to bethe age of person so brought before it shall, for the purposeof this Act, be deemed to be true age of that person.”
3(2012) 10 SCC 489
4For short, the ‘2000 Ac
5For short, the ‘Rules’
6For short, the ‘Ac
9.The judgment in Abuzar Hossain considered Section 7-A of theAct and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of theRules shows that in the absence of documents as mentioned inclause (i), (ii) or (iii), the medical opinion will be sought from a dulyconstituted Medical Board, which will declare the age of the juve-nile or child. It was further provided that in case wherein the exactassessment of the age cannot be done, the Court or the JuvenileJustice Board, if considered necessary, give benefit to the child orjuvenile by considering his/her age on lower side within the marginof one year. However, it is to be noted that Section 94 of the Actdoes not have any corresponding provision of giving benefit ofmargin of age.
10.Admittedly, in the present case, there is no Date of Birth Certifi-cate from the school or matriculation or equivalent certificate or aBirth Certificate given by a Corporation or Municipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to de-termine the age by an ossification test or any other latest medicalage determination test conducted on the orders of the Committeeor the Board comes into play.
11.Mr. Gopal Sankaranarayanan, learned senior counsel appeared onbehalf of the appellant, argued that the accused was given bail bythe High Court keeping in view his age as 15½ – 17½ years in theyear 1982. Therefore, the appellant has to be treated as a juvenilein the light of the said order. It was contended that even consider-ing the maximum age as 55 years as per the Medical Report nowsubmitted, the appellant would still be less than 18 years on thedate of incident. It was also argued that procedure as contained inRule 12(3)(b) of the Rules is now part of Section 94 of the Act.Therefore, once the statute has provided ossification test as thebasis of determining juvenility, the findings of such ossificationtest cannot be ignored.
12.Mr. Goel, on the contrary, argued that procedure as provided un-der Rule 12(3)(b) of the Rules is not materially different from thatcontained in the Statute. In fact, the discretion given to the Courtto lower the age by one year in the Rules has been omitted. Hefurther relied upon a judgment of this Court in Mukarrab whereinit has been held that the Courts have observed that the evidence afforded by radiological examination is a useful guiding factor fordetermining the age of a person but the evidence is not of aconclusive and incontrovertible nature and is subject to a marginof error. Medical evidence as to the age of a person though a veryuseful guiding factor is not conclusive and has to be consideredalong with other circumstances. It was further held that the ossifi-cation test cannot be regarded as conclusive when the appellantshave crossed the age of thirty years which is an important factorto be taken into account as age cannot be determined with preci-sion. It was held as under:
“26. Having regard to the circumstances of this case, ablind and mechanical view regarding the age of aperson cannot be adopted solely on the basis of themedical opinion by the radiological examination. At p.31 of Modi’s Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:
“In ascertaining the age of young persons radiogramsof any of the main joints of the upper or the lowerextremity of both sides of the body should be taken, anopinion should be given according to the followingTable, but it must be remembered that too muchreliance should not be placed on this Table as it merelyindicates an average and is likely to vary in individualcases even of the same province owing to theeccentricities of development.
”Courts have taken judicial notice of this fact and havealways held that the evidence afforded by radiologicalexamination is no doubt a useful guiding factor fordetermining the age of a person but the evidence is notof a conclusive and incontrovertible nature and it issubject to a margin of error. Medical evidence as to theage of a person though a very useful guiding factor isnot conclusive and has to be considered along with other circumstances.
27. In a recent judgment,State of M.P.v.AnoopSingh,(2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], itwas held that the ossification test is not the sole criteriafor age determination. FollowingBabloo Pasi[BablooPasiv.State of Jharkhand, (2008) 13 SCC 133 : (2009) 3SCC (Cri) 266] andAnoop Singh cases[State ofM.P.v.Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC(Cri) 208], we hold that ossification test cannot beregarded as conclusive when it comes to ascertainingthe age of a person. More so, the appellants hereinhave certainly crossed the age of thirty years which isan important factor to be taken into account as agecannot be determined with precision. In fact in themedical report of the appellants, it is stated that therewas no indication for dental x-rays since both theaccused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article“A study of wrist ossification for age estimation inpaediatric group in Central Rajasthan”, which reads asunder:
There are various criteria for age determination of anindividual, of which eruption of teeth and ossificationactivities of bones are important. Nevertheless age canusually be assessed more accurately in younger agegroup by dentition and ossification along withepiphyseal fusion.
[Ref.:Gray H. Gray’s Anatomy, 37th Edn., ChurchillLivingstone Edinburgh London Melbourne and New York:1996; 341-342];
A careful examination of teeth and ossification at wristjoint provide valuable data for age estimation inchildren.
[Ref.:Parikh C.K. Parikh’s Textbook of MedicalJurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal Centre Colaba: 1990; 44-45];
Variations in the appearance of centre of ossification atwrist joint shows influence of race, climate, diet andregional factors. Ossification centres for the distal endsof radius and ulna consistent with present study videarticle “A study of wrist ossification for age estimationin paediatric group in Central Rajasthan” by DrAshutosh Srivastav, Senior Demonstrator and a team ofother doctors, Journal of Indian Academy of ForensicMedicine (JIAFM), 2004; 26(4). ISSN 0971-0973].
29. In the present case, their physical, dental andradiological examinations were carried out. Radiologicalexamination of skull (AP and lateral view), sternum (APand lateral view) and sacrum (lateral view) was advisedand performed. As per the medical report, there was noindication for dental x-rays since both the accused weremuch beyond 25 years of age. Therefore, the agedetermination based on ossification test though may beuseful is not conclusive. An x-ray ossification test canby no means be so infallible and accurate a test as toindicate the correct number of years and days of aperson’s life.”
13.We do not find any merit in the arguments advanced by the appel-lant. The medical report in support of the bail order is not avail-able. Such order granting bail cannot be conclusive determinationof age of the appellant. It was an interim order of bail pendingtrial but in the absence of a medical report, it cannot be conclu-sively held that the appellant was juvenile on the date of the inci-dent.
14.We find that the procedure prescribed in Rule 12 is not materiallydifferent than the provisions of Section 94 of the Act to determine the age of the person. There are minor variations as the Rule 12(3)(a)(i) and (ii) have been clubbed together with slight change in thelanguage. Section 94 of the Act does not contain the provisions re-garding benefit of margin of age to be given to the child or juve-nile as was provided in Rule 12(3)(b) of the Rules. The importanceof ossification test has not undergone change with the enactmentof Section 94 of the Act. The reliability of the ossification test re-mains vulnerable as was under Rule 12 of the Rules.
15.As per the Scheme of the Act, when it is obvious to the Committeeor the Board, based on the appearance of the person, that the saidperson is a child, the Board or Committee shall recordobservations stating the age of the Child as nearly as may bewithout waiting for further confirmation of the age. Therefore, thefirst attempt to determine the age is by assessing the physicalappearance of the person when brought before the Board or theCommittee. It is only in case of doubt, the process of agedetermination by seeking evidence becomes necessary. At thatstage, when a person is around 18 years of age, the ossificationtest can be said to be relevant for determining the approximateage of a person in conflict with law. However, when the person isaround 40-55 years of age, the structure of bones cannot be help-ful in determining the age. This Court in Arjun Panditrao Khotkarv.Kailash Kushanrao Gorantyal and Ors.7 held, inthe context of certificate required under Section 65B of the Evi-dence Act, 1872, that as per the Latin maxim, lex non cogit ad im-possibilia, law does not demand the impossible. Thus, when theossification test cannot yield trustworthy and reliable results, suchtest cannot be made a basis to determine the age of the personconcerned on the date of incident. Therefore, in the absence ofany reliable trustworthy medical evidence to find out age of theappellant, the ossification test conducted in year 2020 when theappellant was 55 years of age cannot be conclusive to declare himas a juvenile on the date of the incident.
16.Apart from the said fact, there is an application submitted by theappellant himself for obtaining an Arms Licence prior to the dateof the incident. In such application, he has given his date of birthas 30.12.1961 which would make him of 21 years of age on thedate of the incident i.e. 20.7.1982. The Court is not precludedfrom taking into consideration any other relevant and trustworthymaterial to determine the age as all the three eventualities men-tioned in sub-section (2) of Section 94 of the Act are either notavailable or are not found to be reliable and trustworthy. Sincethere is a document signed by the appellant much before the dateof occurrence, therefore, we are of the opinion that the appellant cannot be treated to be juvenile on the date of incident as he wasmore than 21 years of age as per his application submitted to ob-tain the Arms Licence.
7(2020) 7 SCC 1
17.On merits, the argument of the appellant was that Girendra Singh,the brother of the deceased, was not examined by prosecutionthough as per Ram Naresh Singh (PW-1), he was walking few stepsbehind the deceased. It was further argued that as per PW-1 RamNaresh Singh, Dhruv Singh had used Barchhi as lathi, though thefirst version was that Dhruv had used Barchhi. The argument wasthat Ram Naresh Singh (PW-1) has been disbelieved qua the roleof Dhruv Singh and hence cannot be relied upon in determiningthe role of the appellant.
18.We do not find any merit in the arguments raised by the learnedcounsel for the appellant. A part statement of a witness can be be-lieved even though some part of the statement may not be reliedupon by the court. The maxim Falsus in Uno, Falsus in Omnibusisnot the rule applied by the courts in India. This Court recently in ajudgment reported as Ilangovan v. State of T.N.8held thatIndian courts have always been reluctant to apply the principle asit is only a rule of caution. It was held as under:-
“11.The counsel for the appellant lastly argued that oncethe witnesses had been disbelieved with respect to the co-accused, their testimonies with respect to the present accused must also be discarded. The counsel is, in effect,relying on the legal maxim “falsus in uno, falsus inomnibus”, which Indian courts have always been reluctantto apply. A three-Judge Bench of this Court, as far back as in1957, inNisar Aliv.State of U.P.[Nisar Aliv.State of U.P.,AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point asfollows: (AIR p. 368, paras 9-10)“9.
It was next contended that the witnesses had falselyimplicated Qudrat Ullah and because of that the courtshould have rejected the testimony of these witnesses asagainst the appellant also. The well-known maximfalsus inuno, falsus in omnibuswas relied upon by the appellant.The argument raised was that because the witnesses whohad also deposed against Qudrat Ullah by saying that hehad handed over the knife to the appellant had not beenbelieved by the courts below as against him, the High Courtshould not have accepted the evidence of these witnessesto convict the appellant.This maxim has not receivedgeneral acceptance in different jurisdictions in India nor hasthis maxim come to occupy the status of a rule of law. It ismerely a rule of caution. All that it amounts to is that insuch cases the testimony may be disregarded and not thatit must be disregarded. One American author has stated:
‘… the maxim is in itself worthless; first in point of validity… and secondly, in point of utility because it merely tellsthe jury what they may do in any event, not what they mustdo or must not do, and therefore, it is a superfluous form ofwords. It is also in practice pernicious….’ [Wigmore onEvidence, Vol. III, Para 1008]
10. Thedoctrine merely involves the question of weight ofevidence which a court may apply in a given set ofcircumstances but it is not what may be called “amandatory rule of evidence”.”(emphasis supplied)This principle has been consistently followed by this Court,most recently inRohtasv.State of Haryana[Rohtasv.Stateof Haryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] andneeds no reiteration.”
19.Therefore, merely because a prosecution witness was not believedin respect of another accused, the testimony of the said witnesscannot be disregarded qua the present appellant. Still further, it isnot necessary for the prosecution to examine all the witnesseswho might have witnessed the occurrence. It is the quality of evi-dence which is relevant in criminal trial and not the quantity.Therefore, non-examination of Girendra Singh cannot be said to beof any consequence.
20.The other accused, who was convicted apart from the appellant isShiv Vijay Singh, was armed with an axe. Dr. Shyam MohanKrishna (PW-4) has conducted the postmortem examination andreported the following injuries:
“1. Contusion 4 cm. x 2 cm. on back of left ear ontemporal region.
2. Contusion 4 cm. x 1 cm. on left side below Inj. no. 1oblique.
3. Lacerated wound 3 cm. x 1 cm. x bone deep placed onback near occipital region on back of left ear.
4. Contusion 2 cm. x 1 cm. on left side of frontal region ofscalp above left Eye brow.
5. Contusion 2 cm. x 2 cm. on middle of left Eye brow.
6. Contusion 4 cm. x 2 cm. at chin.
7. Contusion 6 cm. x 2 cm. on left side of neck, oblique inmiddle.
8. Contusion 5 cm. x 2 cm. on apex of left shoulder.
9. Incised wound 6 cm. x 2 cm. bone deep on left cheekupper part oblique.
10. Incised wound 4 cm. x 2 cm. bone deep placed on leftcheek below Inj. no. 9.
11. Abrasion left side of chest lower part ant. aspect 5 cm.x 4 cm.
12. Contusion 3 cm. x 1 cm. on left axilla on anterioraxillary fold.
13. Contusion 8 cm. x 2 cm. on left upper arm on lateralaspect oblique.
14. Incised wound 5 cm. x 2 cm. on dorsum of left wrist inmiddle.
15. Abrasion 10 cm. x 8 cm. on back left side upper part.
16. Contusion 6 cm. x 2 cm. oblique on left side of chestlower part near Inj. no. 11.”
21.The oral evidence along with the statement of Dr. Shyam MohanKrishna (PW-4) suggest that the injuries on the head of the de-ceased were caused by a blunt weapon. The blunt weapon as de-posed by the eyewitness is the lathi in the hands of the present 22.As per the postmortem report, the deceased suffered multiple in-juries which shows attack by more than one person. The nature ofinjuries also shows that hard and blunt object as well as sharpedged weapons were used to inflict injuries. It is the appellantwho was armed with Lathi whereas the other convicted accusedShiv Vijay Singh was armed with Axe. The incised wound sufferedby the deceased was possible with an Axe. As per the report,there are sufficient number of injuries caused by an Axe and Lathion the person of the deceased.
23.However, the learned trial court as well as the High Court hadappreciated the entire evidence to return a finding of guilt againstthe appellant. appellant. Lathi may be common article with the villagers but theuse of lathi as a weapon of offence is a finding of fact recorded bythe Courts below.
24.Therefore, we do not find any merit in the present appeal. Thesame is hereby dismissed.
(ROHINTON FALI NARIMAN)
NEW DELHI;FEBRUARY 25, 2021.