# RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [2021] 12 S.C.R. 502
- **Court:** Supreme Court of India
- **Decided:** 2021-11-18
- **Case number:** Criminal Appeal No.1240 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rishipal-singh-solanki-v-state-of-uttar-pradesh-ors-35170
- **Pages:** 41

## Headnote

Juvenile Justice (Care and Protection of Children) Act, 2015
- Claim of juvenility - Determination of age - Matriculation
Certificate - Respondent no.2-accused along with others was alleged
to have attacked the appellant and his family causing death of his
father and uncle - Application filed by respondent no.2, through
his mother/natural guardian before the Juvenile Justice Board for
declaring the respondent no.2 as a juvenile delinquent - Appellant
sought medical test of respondent no.2 to ascertain his true age,
application dismissed - Respondent no.2 was declared a juvenile
delinquent - Appellant's appeal before District and Sessions Judge
was dismissed - Criminal Revision before the High Court was also
rejected - On appeal, held: Respondent no.2's date of birth as
recorded in the school admission records, as well as the matriculation
certificate are the same i.e., 25.09.2004 - Date of the incident was
05.05.2020 - The mark-sheet pertaining to the matriculation of
respondent no.2, issued by the concerned Board, gives rise to a
presumption that he was less than 16 years of age on the date of
incident - Moreover, the letter dtd. 22.07.20 of the Administrative
Officer, Regional Office, Intermediate Education Council, UP,
(Meerut) also authenticated the date of birth of respondent no.2 as
25.09.2004 - No contra evidence to the documents produced by
respondent no.2 have been produced by the appellant - Order of
the High Court sustaining the judgement of the District & Sessions
Court as well as of the JJ Board, not differed from - Evidence Act,
1872 - s.35 - Juvenile Justice (Care and Protection of Children)
Act, 2000 - Juvenile Justice (Care and Protection of Children) Rules,
2007 - r.12 - Penal Code, 1860 - ss.147-149, 323, 307, 302, 34.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Evidence Act, 1872 - s.35 - Application filed for declaration that
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respondent no.2 was a juvenile delinquent was supported with
Certificate-cum-Marks Sheet of the High School issued by the
concerned Board stating that the date of birth of respondent no.2
was 25.09.2004 - Admission forms were relied upon to prove that
the respondent's date of birth mentioned in the said documents are
in consonance with the date of birth indicated in the matriculation
certificate - Plea of appellant that the genuineness of the said
documents was in grave doubt and thus could not have been relied
upon in support of claim of juvenility - Held: In the instant case,
admittedly, there is no other document indicating the date of birth
of the respondent no.2 contrary to what has been indicated in the
matriculation certificate - There is no discrepancy in the date of
birth.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Determination of age - Evidence - School records - Evidence
Act, 1872 - s.35 - Held: When the determination of age is on the
basis of evidence such as school records, it is necessary that the
same would have to be considered as per s.35 inasmuch as any
public or official document maintained in the discharge of official
duty would have greater credibility than private documents - Any
document in consonance with public documents, such as
matriculation certificate, could be accepted by the Court or the JJ
Board provided such public document is credible and authentic as
per s.35 and other provisions.
Juvenile Justice (Care and Protection of Children) Act, 2015
- ss.94, 9(2), (3) - Juvenile Justice (Care and Protection of Children)
Act, 2000 - ss.7A, 49 - Juvenile Justice (Care and Protection of
Children) Rules, 2007 - r.12 - Determination of age - Difference
in the procedure - Discussed.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Claim of juvenility - Held: A claim of juvenility may be raised at
any stage of a criminal proceeding, even after final disposal of the
case - A delay in raising the claim of juvenility cannot be a ground
for rejection of such claim - It can also be raised for the

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SUPREME COURT REPORTS
[2021] 12 S.C.R.
 [2021] 12 S.C.R. 502
502
RISHIPAL SINGH SOLANKI
v.
STATE OF UTTAR PRADESH & ORS.
(Criminal Appeal No.1240 of 2021)
NOVEMBER 18, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
B. V. NAGARATHNA, JJ.]
Juvenile Justice (Care and Protection of Children) Act, 2015
- Claim of juvenility - Determination of age - Matriculation
Certificate - Respondent no.2-accused along with others was alleged
to have attacked the appellant and his family causing death of his
father and uncle - Application filed by respondent no.2, through
his mother/natural guardian before the Juvenile Justice Board for
declaring the respondent no.2 as a juvenile delinquent - Appellant
sought medical test of respondent no.2 to ascertain his true age,
application dismissed - Respondent no.2 was declared a juvenile
delinquent - Appellant's appeal before District and Sessions Judge
was dismissed - Criminal Revision before the High Court was also
rejected - On appeal, held: Respondent no.2's date of birth as
recorded in the school admission records, as well as the matriculation
certificate are the same i.e., 25.09.2004 - Date of the incident was
05.05.2020 - The mark-sheet pertaining to the matriculation of
respondent no.2, issued by the concerned Board, gives rise to a
presumption that he was less than 16 years of age on the date of
incident - Moreover, the letter dtd. 22.07.20 of the Administrative
Officer, Regional Office, Intermediate Education Council, UP,
(Meerut) also authenticated the date of birth of respondent no.2 as
25.09.2004 - No contra evidence to the documents produced by
respondent no.2 have been produced by the appellant - Order of
the High Court sustaining the judgement of the District & Sessions
Court as well as of the JJ Board, not differed from - Evidence Act,
1872 - s.35 - Juvenile Justice (Care and Protection of Children)
Act, 2000 - Juvenile Justice (Care and Protection of Children) Rules,
2007 - r.12 - Penal Code, 1860 - ss.147-149, 323, 307, 302, 34.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Evidence Act, 1872 - s.35 - Application filed for declaration that
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respondent no.2 was a juvenile delinquent was supported with
Certificate-cum-Marks Sheet of the High School issued by the
concerned Board stating that the date of birth of respondent no.2
was 25.09.2004 - Admission forms were relied upon to prove that
the respondent's date of birth mentioned in the said documents are
in consonance with the date of birth indicated in the matriculation
certificate - Plea of appellant that the genuineness of the said
documents was in grave doubt and thus could not have been relied
upon in support of claim of juvenility - Held: In the instant case,
admittedly, there is no other document indicating the date of birth
of the respondent no.2 contrary to what has been indicated in the
matriculation certificate - There is no discrepancy in the date of
birth.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Determination of age - Evidence - School records - Evidence
Act, 1872 - s.35 - Held: When the determination of age is on the
basis of evidence such as school records, it is necessary that the
same would have to be considered as per s.35 inasmuch as any
public or official document maintained in the discharge of official
duty would have greater credibility than private documents - Any
document in consonance with public documents, such as
matriculation certificate, could be accepted by the Court or the JJ
Board provided such public document is credible and authentic as
per s.35 and other provisions.
Juvenile Justice (Care and Protection of Children) Act, 2015
- ss.94, 9(2), (3) - Juvenile Justice (Care and Protection of Children)
Act, 2000 - ss.7A, 49 - Juvenile Justice (Care and Protection of
Children) Rules, 2007 - r.12 - Determination of age - Difference
in the procedure - Discussed.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Claim of juvenility - Held: A claim of juvenility may be raised at
any stage of a criminal proceeding, even after final disposal of the
case - A delay in raising the claim of juvenility cannot be a ground
for rejection of such claim - It can also be raised for the first time
before Supreme Court - A hyper-technical approach should not be
adopted when evidence is adduced on behalf of the accused in
support of the plea that he was a juvenile - If two views are possible
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on the same evidence, the court should lean in favour of holding
the accused to be a juvenile in borderline cases.
Juvenile Justice (Care and Protection of Children) Act, 2015
- ss.9, 94 - Determination of juvenility - Held: When the issue of
juvenility arises before a Court, it would be u/sub-section (2) and
(3) of s.9 but when a person is brought before a Committee or JJ
Board, s.94 applies - Further, if the JJ Board has reasonable grounds
for doubt regarding whether the person brought before it is a child
or not, the Board shall undertake the process of age determination
by seeking evidence - Age recorded by the JJ Board to be the age
of the person so brought before it shall, for the purpose of the 2015
Act, be deemed to be true age of that person - Hence, the degree of
proof required in such a proceeding before the JJ Board, when an
application is filed seeking a claim of juvenility when the trial is
before the concerned criminal court, is higher than when an inquiry
is made by a court before which the case regarding the commission
of the offence is pending.
Juvenile Justice (Care and Protection of Children) Act, 2015
- s.94 - Presumption of juvenility - Juvenile Justice (Care and
Protection of Children) Rules, 2007 - r.12 - Held: When a claim for
juvenility is raised, the burden is on the person raising the claim to
satisfy the Court to discharge the initial burden - However, the
documents mentioned in r.12(3)(a)(i), (ii), and (iii), 2007 Rules or
sub-section (2) of s.94, shall be sufficient for prima facie satisfaction
of the Court - On the basis of the aforesaid documents a
presumption of juvenility may be raised - However, said presumption
is not conclusive proof of the age of juvenility and may be rebutted
by contra evidence.
Juvenile Justice (Care and Protection of Children) Act, 2015
- Absence of documents mentioned in s.94(2), determination of age
- Held: Ossification Test cannot be the sole criterion for age
determination - A mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by
radiological examination - Such evidence is not conclusive evidence
but only a very useful guiding factor to be considered in the absence
of documents mentioned in s.94(2).
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Dismissing the appeal, the Court
HELD: 1.1 On repeal of JJ Act, 2000 and on the
enforcement of JJ Act, 2015, the procedure to be followed when
a claim of juvenility is raised before any court, other than a Board
is stipulated under section 9(2)&(3). There is no corresponding
Rule to determine juvenility akin to Rule 12 of the JJ Rules,
2007. On the other hand, under section 94 of the JJ Act, 2015, a
presumption is raised that when a person is brought before the
JJ Board or the Child Welfare Committee ('Committee') (other
than for the purpose of giving evidence) and the said person is a
child, the JJ Board or the Committee shall record such
observation stating the age of the child as nearly as may be, and
proceed with the inquiry under section 14 or 20 section 36, as
the case may be, without waiting for further confirmation of the
age. But where the said Board or the Committee has reasonable
grounds for doubt regarding whether the person brought before
it is a child or not, the JJ Board or the Committee, 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. Under section 7A
of JJ Act, 2000 which was inserted by an amendment with effect
from 22.08.2006, provision was made to claim juvenility by
contending that the accused person was a juvenile on the date of
commission of the offence and in such a case, on the evidence
taken on record, a finding regarding the age of such person had
to be recorded by the court, other than a JJ Board. The claim for
juvenility could be raised before any Court and at any stage, even
after the final disposal of a case and such claim had to be
determined in terms of the said Act and the rules made
thereunder. If the Court found a person to be a juvenile on the
date of commission of offence under sub-section (1) of section
7A of the JJ Act, 2000, it had to forward the juvenile to the JJ
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Board for passing appropriate orders and the sentence, if any,
passed by a Court would not have any effect. However, under the
JJ Act, 23 2015, a provision corresponding to section 7A of the
JJ Act, 2000, is in the form of sub-section 2 of section 9 of the
said Act. [Paras 21-23][521-D; 522-A-F; 523-F-H; 524-A]
1.2 The difference in the procedure under the two
enactments could be discerned as under:
(i) As per JJ Act, 2015 in the absence of requisite documents
as mentioned in Sub-section (2) of Section 94(a) and (b), there is
provision for determination of the age by an ossification test or
any other medical age related test to be conducted on the orders
of the Committee or the JJ Board as per Section 94 of the said
Act; whereas, under Rule 12 of the JJ Rules, 2007, in the absence
of relevant documents, a medical opinion had to be sought from a
duly constituted Medical Board which would declare the age of
the juvenile or child.
(ii) With regard to the documents to be provided as
evidence, what was provided under Rule 12 of the JJ Rules, 2007
has been provided under sub- section 2 of section 94 of the JJ
Act, 2015 as a substantive provision.
(iii) Under Section 49 of the JJ Act, 2000, where it appeared
to a competent authority that a person brought before it was a
juvenile or a child, then such authority could, after making an
inquiry and taking such evidence as was necessary, record a
finding as to the juvenility of such person and state the age of
such person as nearly as may be. Sub-section (2) of Section 49
stated that 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 had been made is not a
juvenile and the age recorded by the competent authority to be
the age of person so brought before it, for the purpose of the Act,
be deemed to be the true age of that person.
But, under Section 94 of the JJ Act, 2015, which also deals
with presumption and determination of age, the Committee or
the JJ Board has to record such observation stating the age of
the child as nearly as may be and proceed with the inquiry without
waiting for further confirmation of the age. It is only when the
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Committee or the JJ Board has reasonable grounds for doubt
regarding whether the person brought before it is a child or not,
it can undertake the process of age determination, by seeking
evidence. Sub-section (3) of Section 94 states that the age
recorded by the Committee or the JJ Board to be the age of the
persons so brought before it shall, for the purpose of the Act, be
deemed to be the true age of that person. Thus, there is a finality
attached to the determination of the age recorded and it is only
in a case where reasonable grounds exist for doubt as to whether
the person brought before the Committee or the Board is a child
or not, that a process of age determination by seeking evidence
has to be undertaken. [Paras 25-27][524-E-F; 525-A-E]
1.3 (i) A claim of juvenility may be raised at any stage of a
criminal proceeding, even after a final disposal of the case. A
delay in raising the claim of juvenility cannot be a ground for
rejection of such claim. It can also be raised for the first time
before this Court.
(ii) An application claiming juvenility could be made either
before the Court or the JJ Board.
(iia) When the issue of juvenility arises before a Court, it
would be under sub-section (2) and (3) of section 9 of the JJ Act,
2015 but when a person is brought before a Committee or JJ
Board, section 94 of the JJ Act, 2015 applies.
(iib) If an application is filed before the Court claiming
juvenility, the provision of sub-section (2) of section 94 of the JJ
Act, 2015 would have to be applied or read along with sub-section
(2) of section 9 so as to seek evidence for the purpose of recording
a finding stating the age of the person as nearly as may be.
(iic) When an application claiming juvenility is made under
section 94 of the JJ Act, 2015 before the JJ Board when the
matter regarding the alleged commission of offence is pending
before a Court, then the procedure contemplated under section
94 of the JJ Act, 2015 would apply. Under the said provision if
the JJ Board has reasonable grounds for doubt regarding whether
the person brought before it is a child or not, the Board shall
undertake the process of age determination by seeking evidence
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and the age recorded by the JJ Board to be the age of the person
so brought before it shall, for the purpose of the JJ Act, 2015, be
deemed to be true age of that person. Hence the degree of proof
required in such a proceeding before the JJ Board, when an
application is filed seeking a claim of juvenility when the trial is
before the concerned criminal court, is higher than when an
inquiry is made by a court before which the case regarding the
commission of the offence is pending (vide section 9 of the JJ
Act, 2015).
(iii) That when a claim for juvenility is raised, the burden is
on the person raising the claim to satisfy the Court to discharge
the initial burden. However, the documents mentioned in Rule
12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ
Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall
be sufficient for prima facie satisfaction of the Court. On the basis
of the aforesaid documents a presumption of juvenility may be
raised.
(iv) The said presumption is however not conclusive proof
of the age of juvenility and the same may be rebutted by contra
evidence let in by the opposite side.
(v) That the procedure of an inquiry by a Court is not the
same thing as declaring the age of the person as a juvenile sought
before the JJ Board when the case is pending for trial before the
concerned criminal court. In case of an inquiry, the Court records
a prima facie conclusion but when there is a determination of age
as per sub-section (2) of section 94 of 2015 Act, a declaration is
made on the basis of evidence. Also the age recorded by the JJ
Board shall be deemed to be the true age of the person brought
before it. Thus, the standard of proof in an inquiry is different
from that required in a proceeding where the determination and
declaration of the age of a person has to be made on the basis of
evidence scrutinised and accepted only if worthy of such
acceptance.
(vi) That it is neither feasible nor desirable to lay down an
abstract formula to determine the age of a person. It has to be on
the basis of the material on record and on appreciation of evidence
adduced by the parties in each case.
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(vii) A hyper- technical approach should not be adopted
when evidence is adduced on behalf of the accused in support of
the plea that he was a juvenile.
(viii) If two views are possible on the same evidence, the
court should lean in favour of holding the accused to be a juvenile
in borderline cases. This is in order to ensure that the benefit of
the JJ Act, 2015 is made applicable to the juvenile in conflict
with law. At the same time, the Court should ensure that the JJ
Act, 2015 is not misused by persons to escape punishment after
having committed serious offences.
(ix) That when the determination of age is on the basis of
evidence such as school records, it is necessary that the same
would have to be considered as per Section 35 of the Indian
Evidence Act, inasmuch as any public or official document
maintained in the discharge of official duty would have greater
credibility than private documents.
(x) Any document which is in consonance with public
documents, such as matriculation certificate, could be accepted
by the Court or the JJ Board provided such public document is
credible and authentic as per the provisions of the Indian
Evidence Act viz., section 35 and other provisions.
(xi) Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of a person
cannot be adopted solely on the basis of medical opinion by
radiological examination. Such evidence is not conclusive
evidence but only a very useful guiding factor to be considered
in the absence of documents mentioned in Section 94(2) of the
JJ Act, 2015. [Para 29][535-A-H; 536-A-H; 537-A-D]
1.4 The JJ Board, Baghpat, by its order dated 14.09.2020
dismissed the application seeking medical examination of
respondent no.2 herein and there is nothing produced to show
that the same has been set aside. According to the JJ Board, the
matriculation certificate issued by the concerned Board indicated
the date of birth as 25.09.2004 and it is only in the absence of
such a document that determination of age had to be by ossification
test or any other latest medical age determination test. In the
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instant case, since the certificate of the matriculation Board was
available, it was unnecessary for orders for medical test of
respondent no.2. By order dated 11.11.2020, the JJ Board
declared respondent no.2 as a juvenile delinquent in Case Crime
No.116 of 2020 for offences under sections 147, 148, 149, 323,
307, 302 and 34 of the IPC P.S. Singhawali Ahir, District Baghpat.
The aforesaid order has been sustained by the District and
Sessions Court as well as the High Court by holding that section
94 of the JJ Act, 2015 had been complied with in the instant case
inasmuch as the matriculation or equivalent certificate from the
concerned Examination Board had indicated the date of birth of
respondent no.2 to be 25.09.2004. Therefore, Sub-section 2 of
Section 94 of the JJ Act, 2015 applies as there were no reasonable
ground to doubt the said document. In the absence of there being
any evidence to negate the same, the criminal revision was
dismissed. This is on the strength of Subsection (3) of Section 94
of the JJ Act, 2015 which is a deeming provision. Though the
learned counsel for the appellant emphasized that the signatures
of respondent no.2 on the admission forms of class 1 and class 8
are identical and it could not be so on the admission form of class
1 as he was only four and half years old when he was admitted to
class 1. But the fact remains that in 2019, when respondent no.2
completed his class 10, his date of birth has been shown as
25.09.2004 in the matriculation certificate. Hence, respondent
no.2 was only about 15 years of age on the date of incident, and in
any case he was less than 16 years of age. In the absence of there
being any rebuttal evidence brought on record by the appellant
herein, even if the documents seeking admission to class 1 and
class 8 are discredited or eschewed, the fact remains that the
mark-sheet pertaining to the matriculation of respondent no.2,
issued by the concerned Board, gives rise to a presumption that
he was less than 16 years of age on the date of incident
i.e.05.05.2020. [Paras 37, 39-42][539-B-C, E-H; 540-A-D]
1.5 A photocopy of the High School marksheet of accused
respondent no.2 with Gazette year 2019, Roll No.0485064 year
2019, in respect of which a letter of verification being
No.R.O.I.E.C./records/4016 dated 22.07.2020, received from the
Office of the Administrative Officer, Regional Office, Intermediate
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Education Council, Uttar Pradesh (Meerut) also authenticated
the date of birth of accused respondent no.2 as 25.09.2004.
Moreover, the said matriculation certificate has been issued by
the concerned Board. Further, the date of birth as recorded in
the school admission records, as well as the matriculation
certificate are the same namely, 25.09.2004. The incident
occurred on 05.05.2020. Thus respondent no.2 was only 15 years
7 months of age on the date of the incident which in any case is
less than 16 years of age. In the instant case, admittedly, there is
no other document indicating the date of birth of the second
respondent contrary to what has been indicated in the
matriculation certificate. A discrepancy in the date of birth does
not arise herein. No contra evidence to the documents produced
by the second respondent have been produced by the appellant
herein. In the circumstances, this court is not inclined to differ
from the order of the High court which sustained the judgment of
the District & Sessions Court as well as of the JJ Board in this
case. [Paras 44, 46][540-G-H; 541-A-B; 541-D-E]
Sanjeev Kumar Gupta vs. State of Uttar Pradesh & Anr.
(2019) 12 SCC 370 : [2019] 9 SCR 735 - distinguished.
1.6 Section 94 of the JJ Act, 2015 raises a presumption
regarding juvenility of the age of the child brought before the JJ
board or the Committee. But in case the Board or Committee
has reasonable grounds for doubt about the person brought before
it is a child or not, it can undertake the process of determination
of age by seeking evidence. Thus, in the initial stage a
presumption that the child brought before the Committee or the
JJ Board is a juvenile has to be drawn by the said authorities.
The said presumption has to be drawn on observation of the child.
However, the said presumption may not be drawn when the
Committee or the Board has reasonable grounds for doubt
regarding the person brought before it is a child or not. In such a
case, it can undertake the process of age determination by the
evidence. The age recorded by the Committee or the Board to
be the age of the person so brought before it shall for the purpose
of the JJ Act, 2015 be deemed to be the true age of the person.
The deeming provision in sub-section (3) of section 94 of the JJ
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Act, 2015 is also significant inasmuch as the controversy or the
doubt regarding the age of the child brought before the Committee
or the JJ Board is sought to be set at rest at the level of the JJ
Board or the Committee itself. [Paras 47, 48][541-F-H;
542-C-D]
Babloo Pasi v. State of Jharkhand (2008) 13 SCC
133 : [2008] 14 SCR 161; State of M.P. V. Anoop Singh
(2015) 7 SCC 773 : [2015] 6 SCR 960; Ashwani Kumar
Saxena v. State of Madhya Pradesh (2012) 9 SCC
750 : [2012] 10 SCR 540; Arnit Das v. State of Bihar
(2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; Jitendra
Ram v. State of Jharkhand (2006) 9 SCC 428 : [2006]
1 Suppl. SCR 286; Bhola Bhagat & others v. State of
Bihar (1997) 8 SCC 720 : [1997] 4 Suppl. SCR 711;
Jabar Singh v. Dinesh and another (2010) 3 SCC 757
: [2010] 3 SCR 353; State of Madhya Pradesh v. Anoop
Singh (2015) 7 SCC 733; Ram Vijay Singh vs. State of
Uttar Pradesh 2021 CriLJ 2805 - relied on.
Abuzar Hossain alias Gulam Hossain v. State of West
Bengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Parag
Bhati v. State of Uttar Pradesh (2016) 12 SCC 744 :
[2016] 2 SCR 1089 - referred to.
Case Law Reference
[2016] 2 SCR 1089
referred to
Para 12
[2019] 9 SCR 735
distinguished
Para 12
[2012] 9 SCR 244
referred to
Para 12
[2008] 14 SCR 161
relied on
Para 16
[2015] 6 SCR 960
relied on
Para 16
[2012] 10 SCR 540
relied on
Para 28(a)
[2000] 1 Suppl. SCR 69
relied on
Para 28(c)
[2006] 1 Suppl. SCR 286
relied on
Para 28(d)
[1997] 4 Suppl. SCR 711
relied on
Para 28(d)
[2010] 3 SCR 353
relied on
Para 28(e)
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1240 of 2021.
From the Judgment and Order dated 12.03.2021 of the High Court
of Judicature at Allahabad in Criminal Revision No.430 of 2021.
Anupam Dwivedi, Pradeep Kumar Dwivedi, Sandeep Kumar
Dwivedi, Satyam Pandey, Vishweshwar Mishra, Vikash Kumar Sinha,
Rakesh Mishra, Advs. for the Appellant.
Sharan Thakur, AAG, Sarvesh Singh Baghel, Shantanu Singh,
Saurabh Trivedi, S. C. Tripathi, Advs. for the Respondents.
The Judgment of the Court was delivered by
NAGARATHNA J.
1. The appellant has preferred this appeal against the impugned
order dated 12.03.2021 passed by the High Court of Judicature at
Allahabad in Criminal Revision No.430 of 2021 whereby the High Court
rejected the aforesaid criminal revision filed against the judgment and
order dated 04.01.2021 passed by the Additional District and Sessions
Judge, Special Judge POCSO Act (Exclusive Court), Baghpat, Uttar
Pradesh,dismissing the Criminal Appeal No.27 of 2020. The said criminal
appeal was filed against the order dated 11.11.2020 passed by the Principal
Magistrate, Juvenile Justice Board, Baghpatallowing the Miscellaneous
Case No.16 of 2020 arising out of Case Crime No.116 of 2020 under
sections 147, 148, 149, 323, 307, 302 and 34 of the Indian Penal Code
(for short, the 'IPC'), Police Station at Singhawali Ahir, District Baghpat,
Uttar Pradesh, and declaring the accused - Nishant Solanki @ Nishu
(respondent no.2 herein) as a juvenile delinquent.
2. Succinctly stated, the facts are that, in an incident that occurred
on 05.05.2020 at around 4:00 pm, inter alia, respondent no.2 - Nishant
Solanki @ Nishu (hereinafter referred to as 'Nishant') along with other
accusedarealleged to have attacked upon the appellant and his family
causing serious injuries as well as death of appellant's father Bhopal
Singh, who was declared 'brought dead' by the doctor on the same day
i.e. 05.05.2020 and his uncle Kaluram,who died on 09.05.2020 due to
grievous injuries sustained by him in the aforesaid incident.
3. Nishant, through his mother/natural guardian-respondent no.3
herein, filed an application being Miscellaneous Case No.16/2020 before
the Juvenile Justice Board (hereinafter referred to as the 'JJ Board'),
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH
& ORS.
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Baghpat, praying therein that the respondent no.2/accused viz., Nishant,
be declared as a juvenile delinquent. Evidence was let in on the said
application through respondent no.3 who is the mother and natural
guardian of Nishant. On coming to know about the same, the appellant
hereinentered appearance in the said proceeding through his counsel
and filed an application dated 20.07.2020 under Section 311 of the Code
of Criminal Procedure (for short, the 'Cr.P.C.') seeking permission of
the JJ Board to cross-examinerespondent no.3. The appellant herein
was permitted to do so on 22.07.2020, on which date the application was
posted for further cross-examination of the mother of Nishant.On the
said date, respondent no.3 was further cross-examined by the appellant.
4. Another witness, Manoj Kumar, Principal, Sardar Vallabhbhai
Patel Higher Secondary School, Shajarpur, Kaidna, District Baghpat,
was also examined as DW-2 on 10.08.2020 and subsequently, Surendra
Kumar Saini, Principal, Sarvoday Public School, Khindora, District
Baghpat, was examined as DW-3.
5. The police also filed a charge-sheet under Sections 147, 148,
149, 323, 307, 302 and 34 of the IPC against all the accused including
respondent no.2 - Nishant on 22.07.2020.
6. In the said proceedings, an application was filed on 09.09.2020
before the JJ Board for medical test of respondent no.2 Nishant to
ascertain his actual and true age. By order dated 14.09.2020, the said
application was dismissed and the matter was ordered to be posted on
23.09.2020 for hearing on the issue of determination of age of the
respondent no.2 - Nishant.
7. Being aggrieved by the rejection of the application dated
09.09.2020 seeking medical test of respondent no.2 - Nishant, the
appellant herein filed a criminal revision before the District and Sessions
Judge, Baghpat and an application being Transfer Application (Criminal)
No.158/2020 before the High Court praying, inter alia, for the transfer
of proceedings in Miscellaneous Case No.16/2020 pending before the
JJ Board, Baghpat, to some other JJ Board of the State.
8. During the pendency of the aforesaid proceedings before the
High Court, the JJ Board, Baghpat vide order dated 11.11.2020 allowed
the application being Misc. Case No.16/2020 filed by respondent no.3
mother of Nishant and declared Nishant as a juvenile delinquent. Assailing
the said order, the appellant filed an appeal being Criminal Appeal No.27
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of 2020 under section 101 of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (hereinafter referred to as the 'JJ Act, 2015')
before the District and Sessions Judge, Baghpat. The said Court dismissed
the said appeal by its judgment dated 04.01.2021 against which the
appellant filed a Criminal Revision No.430 of 2021 before the High Court.
The said criminal revision was alsorejected by the High Court vide
impugned order dated 12.03.2021. Being aggrieved of the same, the
appellant has filed the present appeal by special leave before this Court.
9. We have heard Mr. Anupam Dwivedi, learned counsel for the
appellant, Mr. Sharan Thakur, learned Additional Advocate General for
the respondent - State of Uttar Pradesh, and Mr. Saurabh Trivedi,
learned counsel for respondent nos.2 and 3 and perused the record.
10. Mr. Dwivedi, learned counsel for the appellant contended that
respondent no.2 has been accused of committing grave offences under
sections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with other
co-accused, but respondent no.2 has filed an application claiming juvenility
and the same has been allowed erroneously by the JJ Board at Baghpat
which order has been sustained by the appellate court as well as the
High Court. It was contended that there are contradictions in the evidence
of the witnesses examined on behalf of the accused-respondent no.2,
particularly, his mother with regard to his date of birth which is stated to
be 25.09.2004 but the same has not been established in accordance with
law. The School Admission Form (Annexure P-11) was produced as
Ex.A-8 to show that the same was signed by respondent no.2 Nishant
when he was purportedly four years of age. Ex.A-9 (Annexure P-12) is
stated to be a document signed by respondent no.2 Nishant when he
wastwelve years of age.He submitted that the signatures on both these
documents are identical. Hence, the genuineness of the said documents
is in grave doubt and the same could not have been relied upon in support
of the claim of juvenility made by respondent no.2 herein.
11. In Ex.A-8, our attention was drawn to Column No.15 requiring
the Aadhaar number of the student to be filled, to contend that the said
form is said to have been submitted on 02.07.2009 seeking admission of
respondent no.2.That in July 2001 the requirement of furnishing UID/
Aadhaar number could not arise at all as it was issued for the first time
to a resident of Nandurbar, Maharashtra only on 29.09.2010. It was
urged thatEx.A-8 (Annexure P-11) is a got up document in order to
misrepresent the age of respondent no.2 and thereby claim the benefit
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH
& ORS. [B. V. NAGARATHNA J.]
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of juvenility. It was further contended that if in the year 2009, respondent
no.2 sought admission to the Class 1 when he was less than five years
of age, then, after a period of five years only, he could not have sought
admission to Class 8.There is no explanation as to how he could have
sought admission to Class 8 only after five years of seeking admission to
Class 1. It was also submitted that DW-3, Principal of the primary school
during his cross-examination admitted that the signature of Nishant on
the admission forms of class 1 and class 8 are identical. Hence it was
contended that it is doubtful as to how an infant, who was aged about
four years,(if really the date of birth of respondent no.2 was 25.09.2004,)
could have signed his name on the school admission form when he sought
admission to class 1. It was contended that such a signature is forged as
no child who is four years of age would have been able to sign his name
on the school admission form and secondly, could not have also sought
admission to class 1 at that age.
12. It was contended that the JJ Board has not appreciated the
legislative intent behind section 94 of the JJ Act, 2015 by declaring that
matriculation certificate is a conclusive document for determining the
age of the juvenile irrespective of other material discrepancies in the
oral testimony of the witnesses or other documents being produced.In
support of the said submissions, reliance was placed on Parag Bhati
vs. State of Uttar Pradesh - (2016) 12 SCC 744; Sanjeev Kumar
Gupta vs. State of Uttar Pradesh & Anr. - (2019) 12 SCC 370; and
Abuzar Hossain vs. State of West Bengal-(2012) 10 SCC 489.
13. It was further contended that in the aforesaid cases, the claim
of juvenility of the accused was rejected due to discrepancies in the
evidence, notwithstanding the fact that as per the matriculation
certificateissued to the accused therein, they were juveniles. In other
words, it was contended that the age shown in the matriculation certificate
cannot be accepted on its face value if there is other evidence which
contradicts the same. It was hence contended that the impugned order
of the High Court,judgment of the appellate court and order passed by
the JJ Board, Baghpat, may be set aside and the application filed on
behalf of the respondent no.2-Nishant may be dismissed.
14. Mr. Sharan Thakur, learned additional Advocate General for
the State of Uttar Pradesh, supported the contentions of learned counsel
for the appellant and submitted that the matriculation certificate relied
upon by respondent no.2 cannot be accepted as the accompanying
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document, though the age of Nishant indicated in the matriculation
certificate coincides with theage indicated in Ex-A8 and A9. It was
contended that these documents cannot be accepted on their face value
as the said exhibits could not have borne the signature of Nishant. They
are also not in consonance with the age at which Nishant would have
been admitted to school and completed his matriculation. Therefore, it
was contended that the orders impugned namely, the order of the High
Court as well as the orders of the learned District Judge and the JJ
Board may be set aside.
15. Mr. Saurabh Trivedi, learned counsel for respondent nos.2
and 3, contended that Nishant was born on 25.09.2004 and on the date
of the incident i.e.05.05.2020, he was a minor being only 15 years and 8
months of age.That initially, he studied in a private school in the village
and was admitted to class 1 in 2009; he passedclasses 6, 7, and 8 from
Sarvoday Public Junior High School, Village Khindoda, District Baghpat
and got a school transfer certificate on 31.03.2017 wherein his date of
birth was shown as 25.09.2004; that Nishant joined Sardar Vallabh Bhai
Patel Higher Secondary School, Khanjarpur Khaidar, District Baghpat,
on 04.07.2017 and completed his High School and cleared the Board
examination with 85% marks.The U.P. State Board of Secondary
Education issued a High School Certificate on completion of Board
Examination for Class 10 showing his date of birth as 25.09.2004.
Therefore, on the date of the incident i.e.05.05.2020, respondent no.2
was a juvenile and hence the JJ Board as well the High Court have
rightly appreciated the case of respondent no.2-Nishant and allowed his
application claiming juvenility. It was contended that the matriculation
certificate or the certificate issued by the Board conducting the said
examination (Annexure P-15) is sufficient proof of the age of the juvenile
as per the requirements of JJ Act, 2015.Reliance was placed on Ashwani
Kumar Saxena vs. State of M.P. - (2012) 9 SCC 750, to contend that
the matriculation certificate is a document on which full reliance could
be placed for determination of the age of the juvenile accused. Hence,
there is no merit in this appeal.
16. It was further submitted that the appellant cannot seek
ossification test of respondent no.2 for the purpose of determination of
his age as the same is not conclusive for the purpose of determination of
the age vide Babloo Pasi vs. State of Jharkhand - (2008) 13 SCC
133 and State of M.P. vs. Anoop Singh - (2015) 7 SCC 773.
RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH
& ORS. [B. V. NAGARATHNA J.]
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17. It was urged that the appellant has not been successful in
negating the case of respondent no.2 Nishant, who, being a juvenile on
the date of the incident is entitled to all protection under the provisions of
the JJ Act, 2015. It was submitted that there is no merit in the appeal and
the same may be dismissed.
18. The JJ Act, 2015 is a sequel to the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter referred to as the 'JJ Act,
2000') which has since been repealed. Under the JJ Act, 2000, an
amendment was made by Act33 of 2006 with effect from 22.8.2006
under which section 7A of was inserted which reads as under:
"7A. Procedure to be followed when claim of juvenility is raised
before any court.-
(1) Whenever a claim of juvenility is raised before any court or a
court is of the opinion that an accused person was a juvenile on
the date of commission of the offence, the court shall make an
inquiry, take such evidence as may be necessary (but not an
affidavit) so as to determine the age of such person, and shall
record a finding whether the person is a juvenile or a child or not,
stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any court
and it shall be recognised at any stage, even after final disposal of
the case, and such claim shall be determined in terms of the
provisions contained in this Act and the rules made thereunder,
even if the juvenile has ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a juvenile on the date of
commission of the offence under sub-section (1), it shall forward
the juvenile to the Board for passing appropriate orders and the
sentence, if any, passed by a court shall be deemed to have no
effect."
Section 49 of the said Act reads as under:
"49.