# Lakhan Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 10 ILRA 16
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-18
- **Case number:** Criminal Appeal No. 2102 of 1983
- **Bench:** Pankaj Naqvi, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-singh-ors-in-jail-v-state-of-u-p-45139
- **Pages:** 19

## Headnote

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 Section
111- Claim for juvenility after rejection of
Criminal Appeal- Decided with reference
to Section 49 of the 2015 Act-Matters
pending under the Act of 2000 to be
decided under the new Act of 2015 - The
application for claiming juvenility was
filed by accused-appellant-2 after he had
been convicted by Court below. At this
point of time, Act 2000 was in force. Act,
2000 came to be repealed by Act 2015
which came into force on 1.1.2016. The
appeal was dismissed, but the application
dated 28.10.2015 was not decided. To
carry out the provision of Act, 2015, "The
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016", have been
framed. However, there is no provision in
the aforesaid Rules supplementing the
provisions of Section 49 of Act, 2015
which
deals
with
presumption
and
determination of age of a child who is in
conflict with law. Therefore, the Court has
to decide the issue of juvenility as raised
in above noted application with reference
to Section 49 of Act, 2015. On date, the
provisions of Act, 2015 are in force. By
virtue of Section 111 of Act, 2015, the
provisions of this very Act alone shall
apply. Accordingly, the issue of juvenility
raised by accused-appellant- 2 claiming
himself to be a juvenile on the date of
occurrence i.e. 20.7.1982 has to be
decided as per the mandate of law
contained in Section 94 of Act, 2015 alone.

As per the mandate of Section 111 of the
2015 Act although the application claiming
juvenility was filed when the Act of 2000 was
in operation but after the repeal of the said
Act, the Application has to be now decided on
the basis of the Act of 2015, with reference to
Section 49 of the Act of 2015.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015- Section
94 of Act, 2015- Determination of age in
absence
of
relevant
documents-
Ossification Test- There is no date of birth
certificate or matriculation or equivalent
certificate
of
accused-appellant-2.
Similarly, there is no birth certificate given
by a corporation or a municipal authority
or a panchayat of accused-appellant-2 on
record. Therefore, of necessity the age of
accused-appellant-2 can be determined
only by getting conducted an ossification
test/radiological test. Duly constituted
medical
Board
got
conducted
the
radiological test as well as ossification
test and on the basis the age of accusedappellant-2 Ram Vijai Singh falls below 17
years.

In absence of birth certificate from school and
birth certificate issued by corporation or
municipal authority, the age of the person has
to be determined by ossification test done by a
duly constituted medical board.

Accused-appellant-2 was enlarged on bail
by this Court during the pendency of trial,
primarily on the ground that as per the
report of radiologist, his age is between
15 1⁄2 to 17 1⁄2 years. However, the
radiological repor

## Text

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16 INDIAN LAW REPORTS ALLAHABAD SERIES
role of catching hold of the deceased to
Liyaqat and Firasat. He has even in his
examination-in-chief stated in specific
terms that the deceased Nasiruddin did not
have any enmity with anyone, but in the
F.I.R. had stated that he was having enmity
with the appellant- Safat due to the reason
of his running a shop.

27. Hence this Court comes to the
conclusion that P.W.-1 Jamal is an
interested, artificial and unnatural witness
and was not present at the place and time of
occurrence and is thus totally unreliable.

28. Thus the conviction of the
appellant on the basis of sole testimony of
P.W.-1 Jamal by the trial court is not
sustainable in the eyes of law. The trial
court committed error in recording the
conviction and sentence of the appellant.
Hence the impugned judgement and order
dated 4.3.2002 passed by the trial court is
liable to be set aside, which is accordingly
set aside.

29. The present appeal is allowed.

30. The appellant- Safat is in jail in
pursuance of non-bailable-warrant issued
by this Court vide order dated 18.9.2019,
he is directed to be released forthwith
unless wanted in any other case.

31. Keeping in view the provisions of
Section
437-A
Cr.P.C.
the
accusedappellant Safat is directed to forthwith
furnish a personal bond in terms of Form
No. 45 prescribed in the Code of Criminal
Procedure of a sum of Rs.25,000/- with two
reliable sureties in the like amount before
the court concerned which shall be
effective for a period of six months along
with an undertaking that in the event of
filing of Special Leave Petition against the
instant judgement or for grant of leave, the
aforesaid appellant on receipt of notice
thereof shall appear before the Hon'ble
Supreme Court.

31. The lower court record along with
a copy of this judgement be sent back
immediately to the trial court concerned for
compliance and necessary action.

32. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad
before
the
concerned
Court/Authority/Official.

33. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

34.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2020)10ILR A16
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Appeal No. 2102 of 1983

Lakhan Singh & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri P.N. Misra, Sri A.N. Dayal, Sri Apul
Misra, Sri Sarvesh, Ms. Anjali Singh, Sri
Anoop Trivedi
10 All. Lakhan Singh & Ors. Vs. State of U.P.
17
Counsel for the Respondent:
A.G.A., Sri Arun Kumar Singh, Sri K.K.
Tripathi, Sri R.K. Paramhansh

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015 Section
111- Claim for juvenility after rejection of
Criminal Appeal- Decided with reference
to Section 49 of the 2015 Act-Matters
pending under the Act of 2000 to be
decided under the new Act of 2015 - The
application for claiming juvenility was
filed by accused-appellant-2 after he had
been convicted by Court below. At this
point of time, Act 2000 was in force. Act,
2000 came to be repealed by Act 2015
which came into force on 1.1.2016. The
appeal was dismissed, but the application
dated 28.10.2015 was not decided. To
carry out the provision of Act, 2015, "The
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016", have been
framed. However, there is no provision in
the aforesaid Rules supplementing the
provisions of Section 49 of Act, 2015
which
deals
with
presumption
and
determination of age of a child who is in
conflict with law. Therefore, the Court has
to decide the issue of juvenility as raised
in above noted application with reference
to Section 49 of Act, 2015. On date, the
provisions of Act, 2015 are in force. By
virtue of Section 111 of Act, 2015, the
provisions of this very Act alone shall
apply. Accordingly, the issue of juvenility
raised by accused-appellant- 2 claiming
himself to be a juvenile on the date of
occurrence i.e. 20.7.1982 has to be
decided as per the mandate of law
contained in Section 94 of Act, 2015 alone.

As per the mandate of Section 111 of the
2015 Act although the application claiming
juvenility was filed when the Act of 2000 was
in operation but after the repeal of the said
Act, the Application has to be now decided on
the basis of the Act of 2015, with reference to
Section 49 of the Act of 2015.

Civil Law - Juvenile Justice (Care and
Protection of Children) Act, 2015- Section
94 of Act, 2015- Determination of age in
absence
of
relevant
documents-
Ossification Test- There is no date of birth
certificate or matriculation or equivalent
certificate
of
accused-appellant-2.
Similarly, there is no birth certificate given
by a corporation or a municipal authority
or a panchayat of accused-appellant-2 on
record. Therefore, of necessity the age of
accused-appellant-2 can be determined
only by getting conducted an ossification
test/radiological test. Duly constituted
medical
Board
got
conducted
the
radiological test as well as ossification
test and on the basis the age of accusedappellant-2 Ram Vijai Singh falls below 17
years.

In absence of birth certificate from school and
birth certificate issued by corporation or
municipal authority, the age of the person has
to be determined by ossification test done by a
duly constituted medical board.

Accused-appellant-2 was enlarged on bail
by this Court during the pendency of trial,
primarily on the ground that as per the
report of radiologist, his age is between
15 1⁄2 to 17 1⁄2 years. However, the
radiological report referred to in the order
granting bail is not on record. Once the
recital contained in the order granting bail
to the Appellant No. 2 , has not been
challenged at any point of time, the
correctness or otherwise of the recital
contained in the order qua the age of
accused-appellant-2 , cannot be agitated
at this stage.The gun license has been
issued to accused-appellant-2 after the
occurrence had taken place, but there is
nothing on record to show that accusedappellant-2 crossed the age prescribed for
a juvenile before 20.7.1982 or after
20.7.1982. The State has not filed the
copy of gun license issued to accusedappellant-2 or the extract of any register
pertaining
to
grant
of
gun
license
maintained by the office of District
Magistrate, Kanpur to demonstrate that
accused-appellant-2 was a major on the
date
of
occurrence.
Perusal
of
the
objections filed by informant does not
indicate
the
grounds
on
which
the
member of the Medical Board is sought to
18 INDIAN LAW REPORTS ALLAHABAD SERIES
be examined and secondly, no such
material has been appended along with
the objections file by informant on the
basis of which prima facie we could feel
satisfied to summon a member of Medical
Board.

During the pendency of trial, the appellant was
enlarged on bail, the State has failed to
demonstrate by any evidence to show that the
appellant was a major on the date of the
occurrence and no grounds have been made out
in the Objections filed by the first informant to
justify the summoning of a Member of the
Medical Board, hence application filed by
accused-appellant-2 claiming himself to be a
juvenile on the date of occurrence is allowed.

Application allowed.(Para 32, 33, 35, 37, 38,
40, 43, 44) (E-3)

Case law cited/ Discussed:-

Mukarrab & ors. Vs St. of U.P, (2017) 2 SCC 210

(Delivered by Hon'ble Rajeev Misra, J.)

1. The present criminal appeal arises
out of the judgement and order dated
3.9.1983, passed by IIIrd Additional
Sessions Judge, Kanpur, in Sessions Trial
No. 466/M of 1980 (State Vs. Lakhan
Singh and others) whereby, accusedappellants Lakhan Singh, Ram Vijai Singh
and Shiv Vijai Sigh have been convicted
under section 302 read with section 34
I.P.C. and consequently, sentenced to
rigorous imprisonment for life.

2. We have heard Mr. Anoop
Trivedi,
learned
Senior
Advocate,
assisted by Ms. Anjali Singh, learned
counsel for accused appellant-2, Ram
Vijai Singh. Mr. A.N. Mulla, learned
A.G.A along with Mr. Sameer Shankar
A.G.A. as well as Mr. A.K. Kushwaha
(AGA) and Mr. Arun Kumar Singh,
learned counsel for informant.

3. Instant appeal came up for admission
on 7.9.1983, when it was admitted and accusedappellants were enlarged on bail.

4. During the pendency of this appeal,
appellant-1 Lakhan Singh died and therefore
the appeal in respect of aforesaid appellant was
abated vide order dated 26.11.2015.

5. After expiry of a period of more than
32 years, from the year of filing of present
appeal, accused-appellant-2 Ram Vijai Singh
filed an application dated 28.10.2015, claiming
juvenility, to the effect on the date of occurrence
i.e. on 20.7.1982, he was aged about 13 years
and therefore a juvenile.

6. Instant criminal appeal was heard on
26.2.2020 and judgement was reserved.
Ultimately, the appeal came to be dismissed by
this Court vide judgment and order dated
22.4.2020. However, the application dated
28.10.2015, filed by accused appellant-2 Ram
Vijai Singh claiming juvenility remained
undecided.

7. Feeling aggrieved by judgement and
order dated 22.4.2020, accused appellant-2
Ram Vijai Singh preferred Special Leave to
Appeal (Criminal) No. 2898 of 2020 (Ram
Vijai Singh vs. State of U.P) before Apex Court.
Aforesaid special leave petition came up for
orders on 28.7.2020 and Court passed the
following order:-

"Having
heard
Shri
Pranav
Sachdeva,
learned
counsel
for
the
petitioner, for some time, we are of the view
that the miscellaneous application that was
filed in 2015 raising the claim of the
petitioner's juvenility at the time of the
offence which has still not been decided, be
decided within a period of four weeks from
today by the High Court and if possible,
10 All. Lakhan Singh & Ors. Vs. State of U.P.
19
judgment on the same be delivered within
two weeks thereafter.

Adjourned.

Liberty to mention."

8. Pursuant to order dated 20.7.2020,
Hon'ble the Chief Justice, vide order dated
30.7.2020 nominated
instant
Criminal
appeal to this Bench for disposal of
application dated 28.10.2015, filed by
accused appellant-2 Ram Vijai Singh,
claiming juvenility. This is how the present
criminal appeal has come up for orders
before this Bench.

9. The Bench proceeded with the
matter. Considering the intricate issue
involved in this application, the Court
passed following order on 5.8.2020:-

"Re: Criminal Misc. Application
dated 28.10.2015.

Pursuant to the order of the Apex
Court dated 20.7.2020 in Special Leave
Petition (Criminal) No. 2898 of 2020 (Ram
Vijay Singh Vs. State of U.P.), the matter is
listed before us. The Apex Court has called
upon us to decide the application claiming
juvenality of appellant no. 2- Ram Vijai
Singh.

Case called out.

No one responds on behalf of
appellant No.2 - Ram Vijai Singh.

An application dated 28.10.2015
claiming juvenality has been filed by Sri
Apul Mishra, Advocate, but the Bench
Secretary informed that Mobile phone of
Sri Apul Mishra, Advocate, is switched off.

Issue notice to the informant or
his legal heirs, if any, in order to enable
him / her to file objections to the
application dated 28.10.2015.

Learned A.G.A. is also at liberty
to file his objection, if any.

The
Chief
Metropolitan
Magistrate, Kanpur Nagar or the Judicial
Magistrate concerned, as the case may be,
is directed to ensure service of notice along
with copy of application dated 28.10.2015
on the informant or his legal heir, if any, as
the case may be.

List
on
27.8.2020
in
the
additional cause list.

It is made clear that on the next
date matter shall not be adjourned. We
further make it clear that in the event
learned counsel appearing on behalf of
appellant No.2 - Ram Vijai Singh, does not
ensure his presence, we may have no option
but to appoint an Amicus.

Registry to take follow up action
forthwith.

Copy of this order be also served
upon Sri. A.N. Mulla, learned A.G.A.
forthwith. "

10. Thereafter matter was taken up on
10.9.2020 and the Bench passed following
order:-

"This is an expedited appeal from
the Apex Court.

Sri Arun Kumar Singh, learned
counsel for the informant has filed a
counter affidavit, after serving a copy
thereof to learned counsel for appellant no.
2 / Ram Vijai Singh today in the Court.

Sri Anoop Trivedi, the learned
Senior Counsel for appellant no. 2 prays
for and is granted time till Monday
(14.9.2020) to rebut the affidavit.

Sri A.N. Mulla, assisted by Sri
Sameer Shankar, learned AGA's are also
directed to file a counter affidavit, averring
therein the factum of obtaining of a firearm-licence by appellant no. 2.

Meanwhile, we deem appropriate
to call for a radiological / ossification
20 INDIAN LAW REPORTS ALLAHABAD SERIES
report as regards the age of appellant no. 2
/ Ram Vijai Singh.

We, accordingly, direct the Jail
Superintendent concerned and the Director,
S.G.P.G.I.,
Lucknow
to
carry
out
radiological / ossification or any other
latest technique test forthwith in order to
ascertain the age of appellant no.2 / Ram
Vijai Singh. The report must reflect the
inner and the outer limit of age.

List in the additional cause list on
15.9.2020 along with the proposed report
in a sealed cover.

Sri Sameer Shanker, the learned
AGA shall obtain a computer generated
copy of this order and intimate the
authorities concerned personally forthwith
for immediate compliance of this order as
the present exercise is being carried out
expeditiously under the orders of the Apex
Court. "

11. Pursuant to order dated 10.9.2020,
requisite correspondence was made with
Sanjay Gandhi Postgraduate Institute of
Medical Sciences (S.G.P.G.I), Lucknow to
determine the age of accused appellant-2
Ram
Vijai
Singh
by
conducting
radiological and ossification test. However
as age determination facility is not
available at S.G.P.G.I, Lucknow, the case of
accused appellant-2 Ram Vijai Singh was
accordingly referred to King George's
Medical University (K.G.M.U), Lucknow.

12. Accordingly, a medical Board was
constituted at K.G.M.U, Lucknow to
determine the age of accused-appellant-2
Ram Vijai Singh. The same comprised of
(1) Professor A.A. Mehdi, Chief Medical
Superintendent,
G.M.
and
Associated
Hospitals, Lucknow, Professor (2) Dr.
Mausami Singh, Additional Professor,
Forensic Medicine & Texicology, (3) Dr.
Garima
Sehgal,
Associate
Professor,
Department of Anatomy, (4)Pro. Pavitra,
Rastogi, Department of Peridontolody,
King George's Medical University (5) Dr.
Sukriti
Kumar,
Assistant
Professor,
Department of Radiodiagnosis, KGMU,
UP, Lucknow. Accused-appellant-2 gave
his
consent
in
writing
for
Medical
Examination.
Accordingly,
X-ray
of
accused-appellant was taken on 14.9.2020
thereafter
aforesaid
Medical
Board
examined accused-appellant-2 Ram Vijai
Singh and submitted report dated 18.9.2020
regarding his age. In the opinion of
Medical Board, present age of accusedappellant-2 Ram Vijai Singh is in between
40-55 years. For ready reference report
dated 18.9.2020 is reproduced herein
under:-

KING GOERGE'S MEDICAL
UNIVERSITY, U.P.,LUCKNOW.

DEPARTMENT
OF
FORENSIC
MEDICINE
&
TOXICOLOGY

Ref. No..................

Date. 18/09/2020

EXAMINATION
FOR
DETERMINATION

Name of the person:Ram Vijai Singh

Address:
District Jail, Kanpur

Requisition
no:
Cri
9089/GA/HC/ALLD/Dated:
10.9.2020
Dated

18/09/2020

From SI:
---- P.S. ........

Brought by PC: Ramesh Babu No:
HC-1071 P.S: Police Line, Kanpur

History:------.
Age:

52
years (as stated by
the individual)

Consent: from subject/parent:
Attached

Date and time of examination:
18/09/2020, 2:35 PM
10 All. Lakhan Singh & Ors. Vs. State of U.P.
21

Marks of identification (1) Pin point
brown mole presentation left side of face, 3
cm lateral to lateral canthus of left eye &
9.5 cm above left angle of ..........

(2) Old healed scar
mark of size 1.8 cm x 2.5 cm

present at dorsal surface of right
forearm, 1.5

cm proximal to right
styloid
process & 25 cm distal to right

elbow joint.

Physical Examination:

Height 168 cm.

Weight 76.7 kg.

General
Built
Good
dood/moderate/poor

Voice Deep (Deep or soft)

Adam's
Apple
prominent
(prominent/not prominent)

Hairs:
Pubic
Bushy
(Absent/Downy/Sparse/Black/Rich/Bushy)

Axillary
Bushy
(
Absent/Downy/Sparse/Black/Rich/Bushy)

Moustache
Bushy
(Absent/Downy/Sparse/Black/Rich/Bushy)

Breasts: NA.

External genitaia: Well develioped

History of menarche/ejaculation NA

Other
features,
if
any
...................................................

Dental Examinaton

Total Number of Teeth: 29

Dental Formula (FDI/Modified)

17 16 15 14 13 12 11
22 22 23 24 25
26 27 28
47 46 45 44 43 42 41
31 32 33 34 35
36 37

Radiological examination:

X-Rays were taken on:

14/09/2020

Regions

Findings:

1.
X-Ray
skull
(Lateral
&
frontalview) 1. Xiphoid Process has been

completely fused with body of
sternum

2. X-Ray Chest (PA & lateral
view)
2. Manubrium has not been

fused.

3.
 3. Lambdoid, Coronal &

Sagittal Sutures are in uniting
phase. They have not been fused

completely

NCCT head

O.Pg

Opinion:

Based on the physical, dental and
radiological findings. I am of the opinion
that the person is aged above Forty (40)
years & below Fifty Five (55) years.

Place: Lucknow
Head

Department of Forensic Medicine &

Toxicology
K.G's
Medical
University, UP, Lucknow

(1) Dr. Mousami Singh
(3)
Pro. Patitra Rastogi Additional

Professor
Department
of
Periodontology

Forensic Medicine & Toxicology
King George' Medical University

(2) Dr. Garima Sehgal
(4)
Dr. Sukriti Kumar

Associate Professor

Assistant Professor

Department of Anatomy

Department of Radiodiagnosis

KGMU, UP Lucknow

(5) Prof. A.A. Mehdi

Chief Medical Superintendent

G.M & Associated Hospitals

Lucknow

13. Medical report dated 18.9.2020,
was sent to this Court, through the
Government Advocate, in a sealed cover.

14. Subsequent to 10.9.2020, the
Bench heard the matter on 23.9.2020. On
aforesaid dates, above mentioned medical
22 INDIAN LAW REPORTS ALLAHABAD SERIES
report was placed before the Bench in a
sealed cover. The same was taken on
record. Thereafter, it was opened and
perused by the Bench. In the light of above,
the Bench passed following order on
23.9.2020:

"Re: Crl. Misc. Application dated
28.10.2015

Rejoinder affidavit filed today is
taken on record.

Two sealed envelops are opened
before us, one bearing a letter of the
Superintendent Jail, with the endorsement
that as the age determination test facility is
unavailable at the SGPGI, Lucknown, King
George Medical University, Lucknow is
being requested to conduct the requisite test
of the appellant concerned, and the other is
the medical report of the appellant
concerned from the latter.

We take the report on record.

The office is directed to tender a
copy of the report of the King George
Medical
University,
Lucknow
dated
18.9.2020, to all the parties concerned
forthwith. Parties are at liberty to file a
rebuttal, if any, positively by 26.9.2020.

Sri A.N. Mulla, the learned
A.G.A, assisted by Sri Sameer Shanker,
appeared for the State.

Put up for further hearing in the
additional cause list on 28.9.2020. This
date is fixed with the consent of all. "

15. In compliance of order dated 23.9.2020,
State has filed a short counter affidavit dated
11.9.2020, whereas, informant has filed his
objections dated 27.9.2020 to the Medical Report
dated
18.9.2020
submitted
by
K.G.M.U,
Lucknow. We shall refer to above noted counter
affidavit/objection in the later part of this order.

16. Ultimately, counsel for parties were
heard at length on 28.9.2020 and orders on the
application dated 28.10.2015 filed by accusedappellant-2 Ram Vijai Singh claiming juvenility
was reserved.

17. Before proceeding to consider the claim
of accused-appellant-2 Ram Vijai Singh regarding
juvenility, it would be prudent to refer to the
statutory provisions contained in the relevant Act
and Rules in the light of which, the contested
claim of accused-appellant-2 regarding juvenility
is to be decided.

18. In order to ameliorate children
who are in conflict with law, it was felt
necessary to enact a legislation which
would be self sufficient in handling various
facets of children who need care and
protection and also children who are in
conflict with law, as well as their
reformation,
punishment,
custody,
rehabilitation
etc.
Accordingly,
The
Juvenile Justice Act, 1986 was enacted.
However, it was found that the act is
deficient in catering the needs of a child
who is in conflict with law. Accordingly,
above Act, 1986 was repealed . Thereafter,
Parliament enacted The Juvenile Justice
(Care and Protection of Children) Act,
2000. The Act was a self contained Act as it
encompasses within itself the method and
methodology for reforming a child who is
in conflict with law and also a child who
needs care and protection. However,
aforesaid Act could not keep face with the
changing
vicissitudes
of
time.
Consequently, aforesaid Act was amended
in the year 2006. Surprisingly the Rules
supplementing the provisions of Act, 2000
were framed in 2015 known as Juvenile
Justice (Care and Protection of Children)
Rules,
2015.
In
spite
of
various
amendments in Act 2000, it was felt that as
Act 2000 is insufficient to answer the
various contingencies which have arisen
but are also required to be dealt with in an
10 All. Lakhan Singh & Ors. Vs. State of U.P.
23
effective manner, it was therefore felt
imperative that the law in respect of a child
who is in conflict with law needs to be
streamlined. Accordingly Act, 2000 as
amended in 2006 was repealed. Parliament,
accordingly, enacted Juvenile Justice (Care
and Protection of Children) Act, 2015. To
carry out the provisions of Act, 2015 the
Juvenile Justice (Care and Protection of
Children) Model Rules, 2016 were framed.

19 We shall now refer to the relevant
provisions of Juvenile Justice (Care and
Protection
of
Children)
Act,
2000
(hereinafter referred to as "Act, 2000"), as
amended in 2006 and also the relevant rules
of Juvenile Justice (Care and Protection of
Children) Rules, 2015 (hereinafter referred
to as "Rules, 2015"), which have a material
bearing on the issue in hand. Section 49 of
Act, 2000 and Rule 12 of Rules 2015 are
relevant for the controversy in hand.
Accordingly, same are reproduced herein
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.

(2) No order of a competent
authority shall be deemed to have become
invalid merely by any subsequent proof that
the person in respect of whom the order has
been made is not a juvenile or the child,
and the age recorded by the competent
authority to be the age of person so brought
before it, shall for the purpose of this Act,
be deemed to be the true age of that
person."

"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
24 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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 Ihe
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
of 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."

20. Section 94 of Juvenile Justice
(Care and Protection of Children) Act, 2015
(hereinafter referred to as "Act, 2015")
provides
for
presumption
and
determination of age of a juvenile. For
ready reference, the same is reproduced
herein under:

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 it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child,
the Committee or the Board shall record
such observation stating the age of the
child as nearly as may be and proceed with
the inquiry under section 14 or section 36,
as the case may be, without waiting for
further confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining--

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal 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 latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
10 All. Lakhan Singh & Ors. Vs. State of U.P.
25
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.

21. It will not be out of place to
mention here that to carry out the provision
of Act, 2015, "The Juvenile Justice (Care
and Protection of Children) Model Rules,
2016", have been framed. However, there is
no provision in the aforesaid Rules
supplementing the provisions of Section 49
of Act, 2015 which deals with presumption
and determination of age of a child who is
in conflict with law. Therefore, the Court
has to decide the issue of juvenility as
raised in above noted application with
reference to Section 49 of Act, 2015.

22. Accused-appellant-2 Ram Vijai
Singh has claimed juvenility on the ground
that on the date of occurrence, he was
juvenile as he was aged about 13 years. In
support of his claim of juvenility, he has
relied upon the entry occuring in the extract
of family register, issued in the year 201516, wherein the approximate age of
accused-appellant-2 Ram Vijai Singh has
been mentioned as 31 years in the year
2001. Support has also been drawn from
the Adhar
Card
issued
to
accusedappellant-2, wherein his year of birth has
been mentioned as 1969. On the basis of
aforesaid documents, it is sought to be
urged by Mr. Anoop Trivedi, learned Senior
Counsel for accused-appellant-2 Ram Vijai
Singh that on the date of occurrence,
accused-appellant-2 was aged about 13
years and therefore a juvenile. Lastly,
reliance has been placed upon the order
dated 22.10.1982, whereby, this Court
enlarged accused-appellant-2 on bail during
the pendency of trial on the ground of his
being juvenile as per the report of
radiologist. For ready reference order dated
22.10.1982 is reproduced herein under:

"The
Radiologist's
report,
admittedly is that the applicant is between
15 1⁄2 to 17 1⁄2 years old. For that
consideration alone and also taking in view
that the applicant was armed with a Lathi,
which is not a deadly weapon as such, the
bail application is allowed.

Applicant, Ram Vijai Singh, be
released on bail on his furnishing a
personal bond with two sureties in the like
amount to the satisfaction of the Chief
Judicial Magistrate, Kanpur in Crime No.
128 of 1982, P.S. Bidhuna District Kanpur.
"

With reference to order dated
22.10.1982, it is sought to be urged by
learned Senior Counsel appearing for
appellant/accused-appellant-2
that
this
Court has already enlarged the accusedappellant-2 Ram Vijai Singh on bail on the
ground that as per the radiological report,
the age of accused-appellant-2 is between
15 1⁄2 to 17 1⁄2 years. The recital contained in
the order dated 22.10.1982 shall be deemed
to be correct and is not open to challenge.
In case the same is diputed by any party,
remedy was to approach the court which
passed the order dated 22.10.1982. As same
has not been done, the correctness or
otherwise of the same cannot be examined
now. It is also urged by learned Senior
Counsel that since the rediologist report
referred to in the order dated 22.10.1982 is
not on record, the said issue cannot be
raised or examined now.

23. Learned A.G.A. has filed short
counter affidavit in above mentioned
application, wherein it has been averred
26 INDIAN LAW REPORTS ALLAHABAD SERIES
that information regarding age of accusedappellant-2 was sought to be obtained from
Sri
Thakur
Ji
Uttar
Madhyamik
Vidhyalaya, Koriyan, Sanigawan, Kanpur
Nagar. However, the Principal of aforesaid
Institution vide his letter dated 5.9.2020,
has categorically stated that accusedappellant-2 has never studied in aforesaid
institution.

24. It is also averred in counter
affidavit that on 24.7.1982 an arm's licence
bearing no. 7580, pertaining to S.B.B.L gun
was issued in favour of accused-appellant2.

25 Mr. A.N. Mulla learned A.G.A.
alongwith Mr. Sameer Shankar (A.G.A.)
and Mr. A.K. Kushwaha (A.G.A) submits
that a paradoxical position has emerged in
this case. On the one hand is the order
dated 22.10.1982 passed by this Court
whereby accused-appellant-2 Ram Vijai
Singh was enlarged on bail on the ground
of his being aged between 15 1⁄2 & 17 1⁄2
years, as per the report of radiologist. But
the report of the radiologist relied upon by
Court while passing order dated 22.10.1982
is not on record. On the other hand the
accused-appellant-2 was issued a gun
license bearing no. 7580 on 24.7.1982,
whereas the occurrence took place on
20.7.1982. However, there is nothing on
record to show that accused-appellant-2
had attained majority before 20.7.1982 or
between 20.7.1982 to 24.7.1982.

26. Except for bringing the above
noted facts on record, nothing substantial
has been averred in the counter affidavit
filed by State.

27. Informant has filed an objection to
the
medical
report
dated
18.9.2020,
primarily on the ground that since gun
license was issued in favour of accusedappellant-2, therefore, accused-appellant-2
was a major on the date of occurrence.
Accused-appellant cannot blow hot and
cold at the same time.

28. In the submission of Mr. Arun Kumar
Singh, learned counsel for informant, medical
report submitted by Medical Board alone is not
sufficient to decide the age of accused
appellant-2 and this Court can itself decide the
claim of juvenility raised by accused-appellant2. In support of aforesaid submission, reliance is
placed upon Mukarrab and Others Vs. State
of Uttar Pradesh, reported in (2017) 2 SCC
210. Referring to section 293 Cr.P.C. it has also
been averred in the objection that at least one
member of the Board should be summoned by
this Court for cross-examination to ascertain the
veracity of medical report dated 18.9.2020
submitted by Medical Board, K.G.M.U,
Lucknow.

29. On the aforesaid pleadings and
submissions urged by respective counsel,
this Court has to decide the issue of
juvenility raised by accused-appellant-2
Ram Vijai Singh.

30. Before we proceed to evaluate the
material on record in the light of provision
contained in Section 94 of Act, 2015, it
would be worthwhile to refer to the
judgement in Mukarrab and Others
(Supra), wherein Court has dealt with the
issue regarding determination of juvenility
in a very pragmatic manner. Paragraphs 10,
11, 12, 15, 18, 19, 21, 22, 23, 24, 25, 26, 27
and 28 are relevant for the controversy in
hand and accordingly, they are reproduced
herein under:

"10.
Age
determination
is
essential to find out whether or not the
person claiming to be a child is below the
10 All. Lakhan Singh & Ors. Vs. State of U.P.
27
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?
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 inArnit Das v.
State of Bihar(2000) 5 SCC 488, clarified
that the review of judicial opinion shows
that the Court should not take a hypertechnical 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.

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 aliasGulam 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 underSection
28 INDIAN LAW REPORTS ALLAHABAD SERIES
313of the Code 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.