# THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU & KASHMIR) & Ors v. SHUBAM SANGRA

- **Citation:** [2022] 8 S.C.R. 349
- **Court:** Supreme Court of India
- **Decided:** 2022-11-16
- **Case number:** Criminal Appeal No. 1928 of 2022
- **Bench:** Ajay Rastogi, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-jammu-kashmir-now-u-t-of-jammu-kashmir-ors-v-shubam-sangra-36427
- **Pages:** 54

## Headnote

Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care
and Protection of Children) Rules, 2014: r.74 - Plea of Juvenility -
Kathua Rape Case - The Kathua rape case involved abduction,
gang rape and murder of an eight year-old girl by six men and the
respondent (claiming to be a juvenile) - Special Medical Board
opined the age of respondent as above 19 years - However, the
CJM, Kathua relied on the deposition of the Executive Officer,
Municipal Committee and the deposition of father of respondent
held that respondent was juvenile on date of the commission of the
offence - High Court upheld the order of CJM - Hence instant
appeal by State - Held: Sub rule (3) of r.74 provides that in the
absence of mentioned certificates or in the event of any
contradiction, the authority deciding the issue of age 'may' refer
the matter to duly constituted medical board - The word "may"
should be read as "shall" having regard to the very object of subrule (3) of r.74 - If there is a clear and unambiguous case in favour
of the juvenile accused that he was minor on the date of the incident
and the documentary evidence at least prima facie established the
same, he would be entitled to the special protection under the
Juvenile Justice Act - Whereas when an accused commits a heinous
and grave crime and thereafter attempts to take the statutory shelter
under the guise of being a minor, a casual or cavalier approach
cannot be permitted while recording as to whether he is a juvenile
or not - There is no good reason to overlook or ignore or doubt
the credibility of the final opinion given by a team of five qualified
doctor - In the absence of all other acceptable materials, if opinion
of the experts points to a reasonable possibility regarding range of
his age, the Court must consider the same in the interest of justice -
In the instant case, the documents evidencing date of birth did not
inspire any confidence and there was no other option but to fall
[2022] 8 S.C.R. 349
349
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
back on the report of the Special Medical Board in the interest of
justice - The order passed by the High Court affirming the CJM's
order was not sustainable in law - Respondent accused was not
juvenile at the time of the commission of the offence and, therefore,
should be tried the way other co-accused were tried - Juvenile
Justice (Care and Protection of Children) Act, 2000 - ss.7A and 94
- Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013 - ss.8 and 48.
Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013: ss.8, 48 - Plain reading of s.8 of the Act, 2013
indicates that whenever a claim of juvenility is raised before any
court or the court is of the opinion that the accused person was a
juvenile on the date of the commission of the offence, then it is
mandatory for the court to make an inquiry and in the course of
such inquiry, the court may take such evidence as may be necessary,
however, not an affidavit, so as to determine the age of such person
- At the end of the inquiry, if the court finds a person to be a juvenile
on the date of commission of the offence under sub-section (1) of
s.8, then in such circumstance, the court is obliged in law to forward
the juvenile to the Juvenile Justice Board for passing appropriate
order and the sentence - s.48 talks about a competent authority,
whereas, s.8 is in respect to the court - However, what is relevant to
note is that in both the Sections the word 'shall' has been used.
Word and phrase: "May" - When Mandatory - It is a well
settled principle of interpretation that the word 'may' when used in
legislation by itself does not connote a directory meaning - If in a
particular case, in the interests of equity and justice it appears to
the court that the intent of the legislature is to convey a statutory
duty, then the use of the word 'may' will not prevent the court from
giving it a mandatory colour - Jammu and Kashmir

## Text

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THE STATE OF JAMMU & KASHMIR
(NOW U.T. OF JAMMU & KASHMIR) & Ors.
v.
SHUBAM SANGRA
(Criminal Appeal No. 1928 of 2022)
NOVEMBER 16, 2022
[AJAY RASTOGI AND J. B. PARDIWALA, JJ.]
Juvenile Justice: Jammu and Kashmir Juvenile Justice (Care
and Protection of Children) Rules, 2014: r.74 - Plea of Juvenility -
Kathua Rape Case - The Kathua rape case involved abduction,
gang rape and murder of an eight year-old girl by six men and the
respondent (claiming to be a juvenile) - Special Medical Board
opined the age of respondent as above 19 years - However, the
CJM, Kathua relied on the deposition of the Executive Officer,
Municipal Committee and the deposition of father of respondent
held that respondent was juvenile on date of the commission of the
offence - High Court upheld the order of CJM - Hence instant
appeal by State - Held: Sub rule (3) of r.74 provides that in the
absence of mentioned certificates or in the event of any
contradiction, the authority deciding the issue of age 'may' refer
the matter to duly constituted medical board - The word "may"
should be read as "shall" having regard to the very object of subrule (3) of r.74 - If there is a clear and unambiguous case in favour
of the juvenile accused that he was minor on the date of the incident
and the documentary evidence at least prima facie established the
same, he would be entitled to the special protection under the
Juvenile Justice Act - Whereas when an accused commits a heinous
and grave crime and thereafter attempts to take the statutory shelter
under the guise of being a minor, a casual or cavalier approach
cannot be permitted while recording as to whether he is a juvenile
or not - There is no good reason to overlook or ignore or doubt
the credibility of the final opinion given by a team of five qualified
doctor - In the absence of all other acceptable materials, if opinion
of the experts points to a reasonable possibility regarding range of
his age, the Court must consider the same in the interest of justice -
In the instant case, the documents evidencing date of birth did not
inspire any confidence and there was no other option but to fall
[2022] 8 S.C.R. 349
349
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
back on the report of the Special Medical Board in the interest of
justice - The order passed by the High Court affirming the CJM's
order was not sustainable in law - Respondent accused was not
juvenile at the time of the commission of the offence and, therefore,
should be tried the way other co-accused were tried - Juvenile
Justice (Care and Protection of Children) Act, 2000 - ss.7A and 94
- Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013 - ss.8 and 48.
Jammu and Kashmir Juvenile Justice (Care and Protection of
Children) Act, 2013: ss.8, 48 - Plain reading of s.8 of the Act, 2013
indicates that whenever a claim of juvenility is raised before any
court or the court is of the opinion that the accused person was a
juvenile on the date of the commission of the offence, then it is
mandatory for the court to make an inquiry and in the course of
such inquiry, the court may take such evidence as may be necessary,
however, not an affidavit, so as to determine the age of such person
- At the end of the inquiry, if the court finds a person to be a juvenile
on the date of commission of the offence under sub-section (1) of
s.8, then in such circumstance, the court is obliged in law to forward
the juvenile to the Juvenile Justice Board for passing appropriate
order and the sentence - s.48 talks about a competent authority,
whereas, s.8 is in respect to the court - However, what is relevant to
note is that in both the Sections the word 'shall' has been used.
Word and phrase: "May" - When Mandatory - It is a well
settled principle of interpretation that the word 'may' when used in
legislation by itself does not connote a directory meaning - If in a
particular case, in the interests of equity and justice it appears to
the court that the intent of the legislature is to convey a statutory
duty, then the use of the word 'may' will not prevent the court from
giving it a mandatory colour - Jammu and Kashmir Juvenile Justice
(Care and Protection of Children) Rules, 2014 - r.74.
 Allowing the appeal, the Court
HELD: 1. Sub-rule (3) of Rule 74, makes it abundantly clear
that in the absence of the certificates mentioned in sub clause (i)
to (iii) or in the event of any contradiction arising therefrom,
authority deciding the issue of age may refer the matter to a duly
constituted medical board which, in turn, would record its findings
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and submit to the Juvenile Justice Board. There are discrepancies
in the certificates on record disclosing the date of birth of the
respondent. There is no good reason why the matter should not
be referred to a duly constituted medical board which shall, in
turn, record its findings and submit to the Juvenile Justice Board.
The word "may" should be read as "shall" having regard to the
very object of sub-rule (3) of Rule 74. [Para 38][380-F-G; 381-BC]
2. The plain reading of Section 8 of the Act, 2013 indicates
that whenever a claim of juvenility is raised before any court or
the court is of the opinion that the accused person was a juvenile
on the date of the commission of the offence, then it is mandatory
for the court to make an inquiry and in the course of such inquiry,
the court may take such evidence as may be necessary, however,
not an affidavit, so as to determine the age of such person. At the
end of the inquiry, if the court finds a person to be a juvenile on
the date of commission of the offence under sub-section (1) of
Section 8, then in such circumstance, the court is obliged in law
to forward the juvenile to the Juvenile Justice Board for passing
appropriate order and the sentence. Section 48 talks about a
competent authority, whereas, Section 8 of the Act 2013, is in
respect to the court. However, what is relevant to note is that in
both the Sections i.e., Section 8 as well as Section 48 the word
'shall' has been used. [Paras 42 & 44][383-B-D; 383-H; 384-A]
3. It is no doubt true that if there is a clear and unambiguous
case in favour of the juvenile accused that he was a minor on the
date of the incident and the documentary evidence at least prima
facie establishes the same, he would be entitled to the special
protection under the Juvenile Justice Act. However, when an
accused commits a heinous and grave crime like the one on hand
and thereafter attempts to take the statutory shelter under the
guise of being a minor, a casual or cavalier approach while
recording as to whether an accused is a juvenile or not cannot be
permitted as the courts are enjoined upon to perform their duties
with the object of protecting the confidence of a common man in
the institution entrusted with the administration of justice. [Para
72][399-G-H; 400-A]
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
4. There is no good reason why this Court should overlook
or ignore or doubt the credibility of the final opinion given by a
team of five qualified doctors, one from the Department of
Physiology, one from the Department of Anatomy, one from the
Department of Oral Diagnosis, one from the Department of
Forensic Medicine and one from the Department of Radio
Diagnosis, all saying in one word that on the basis of the physical,
dental and radiological examination, the approximate age of the
respondent could be fixed between 19 and 23 years. Nothing much
has been said on behalf of the respondent accused in regard to
the credibility of the medical report prepared by the Special
Medical Board constituting of five medical experts. The only
argument is that ignore the medical report as there is proof of
the date of birth to be found in the various documents on record.
The documents evidencing date of birth does not inspire any
confidence and there is no other option but to fall back on the
report of the Special Medical Board in the interest of justice.
[Paras 74 & 77][400-G; 401-F-G]
Bachahan Devi v. Nagar Nigam, Gorakhpur (2008) 12
SCC 372 : [2008] 2 SCR 424; Rishipal Singh Solanki
v. State of U.P. (2022) 8 SCC 602; Parag Bhati v. State
of U.P., (2016) 12 SCC 744 : [2016] 2 SCR 1089- relied
on.
Ramdeo Chauhan alias Raj Nath v. State of Assam
(2001) 5 SCC 714 : [2001] 3 SCR 669; Ashwani Kumar
Saxena v. State of Madhya Pradesh (2012) 9 SCC 750
: [2012] 10 SCR 540; Darga Ram alias Gunga v. State
of Rajasthan (2015) 2 SCC 775 : [2015] 1 SCR 350;
Dhampur Sugar Mills Ltd. v. State of U.P. (2007) 8 SCC
338 : [2007] 10 SCR 245; Mukarrab v. State of Uttar
Pradesh (2017) 2 SCC 210 : [2016] 8 SCR 557;
Sanjeev Kumar Gupta v. State of Uttar Pradesh (2019)
12 SCC 370 : [2019] 9 SCR 735; Abuzar Hossain @
Gulam Hossain v. State of West Bengal (2012) 10 SCC
489 : [2012] 9 SCR 244; Ashwani Kumar Saxena v.
State of Madhya Pradesh (2012) 9 SCC 750 : [2012]
10 SCR 540; Babloo Pasi v. State of Jharkhand, (2008)
13 SCC 133 : [2008] 14 SCR 161; Arnit Das v. State
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of Bihar, (2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69;
Jitendra Ram alias Jitu v. State of Jharkhand, (2006) 9
SCC 428 : [2006] 1 Suppl. SCR 286; Om Prakash v.
State of Rajasthan (2012) 5 SCC 201 : [2012]5
SCR 237- referred to.
Case Law Reference
[2001] 3 SCR 669
referred to
Para 32
[2012] 10 SCR 540
referred to
Para 35
[2015] 1 SCR 350
referred to
Para 35
[2008] 2 SCR 424
relied on
Para 39
[2007] 10 SCR 245
relied on
Para 40
[2016] 8 SCR 557
referred to
Para 47
(2022) 8 SCC 602
relied on
Para 58
[2016] 2 SCR 1089
relied on
Para 58 (i)
[2019] 9 SCR 735
referred to
Para 58 (ii)
[2012] 9 SCR 244
referred to
Para 58 (iii)
[2012] 10 SCR 540
referred to
Para 58 (iv)
[2008] 14 SCR 161
referred to
Para 59 (v)
[2000] 1 Suppl. SCR 69
referred to
Para 58 (vi)
[2006] 1 Suppl. SCR 286
referred to
Para 58 (vii)
[2012] 5 SCR 237
referred to
Para 70
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1928 of 2022.
From the Judgment and Order dated 11.10.2019 of the High Court
of Jammu and Kashmir at Jammu in CRR No. 27 of 2018.
P. S. Patwalia, Sr. Adv., Shailesh Madiyal, Parth Awasthi, Vaibhav
Sabharwal, Vinayaka S. Pandit, Ms. Harshika Verma, Ms. Taruna
Ardhendumauli Prasad, Advs. for the Appellants.
Nitin Sangra, Mrs. Pragya Baghel, Advs. for the Respondent.
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA
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The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
"Rape is one of the most terrible crimes on earth and it happens
every few minutes. The problem with groups who deal with
rape is that they try to educate women about how to defend
themselves. What really needs to be done is teaching men not
to rape. Go to the source and start there."
- Kurt Cobain
1. This appeal is at the instance of the State of Jammu & Kashmir
(now U.T. of Jammu & Kashmir) and is directed against the order passed
by the High Court of Jammu & Kashmir at Jammu dated 11.10.2019 by
which the High Court rejected the Criminal Revision Application No. 27
of 2018 filed by the appellant State herein, thereby affirming the order
passed by the Chief Judicial Magistrate, Kathua dated 27.03.2018 holding
the respondent accused herein to be a juvenile on the date of the
commission of the alleged offence.
2. This litigation originates from the most unfortunate Kathua rape
case. The Kathua rape case involved the abduction, gang rape and murder
of an eight year-old Muslim girl by name 'X' by six Hindu men and the
respondent herein (claiming to be a juvenile) in January, 2018 in the
Rasana village near Kathua in Jammu & Kashmir. The victim belonged
to the nomadic Bakarwal community. She disappeared for a week before
her body was recovered by the villagers a kilometer away from the
village. In all eight individuals were arrested in connection with the ghastly
crime which includes the respondent herein. Since the respondent herein
claimed to be a juvenile, his trial was separated. The other six co-accused
were put to trial and vide the Judgment and Order dated 10.06.2019
passed by the trial court, six of the seven accused stood convicted and
one accused was acquitted. Three of those convicted were sentenced
to life imprisonment and remaining three to five years rigorous
imprisonment. The Special Investigation Team (SIT) was constituted to
probe into the entire matter and ultimately chargesheet came to be filed
against all the accused persons. The father of the victim namely 'Y'
lodged a complaint in the Hira Nagar Police Station stating that his daughter
had gone missing.
3. On 17.01.2018, the body of the victim was found and taken into
custody by the police. The body was sent for autopsy. The post-mortem
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was conducted by a team of doctors at the District Hospital, Kathua on
the same day. On 22.01.2018, investigation of the case was transferred
to the Crime Branch and Crime Headquarters.
4. The post-mortem revealed the presence of clonazepam in the
body of the deceased girl. The examination by the doctors found that the
deceased had been drugged which was sedative, before she was raped
and murdered. The forensic evidence suggested that she had been held
on several dates by Sanji Ram, one of the accused persons of the crime.
The strands of hair recovered from the temple matched those taken
from the deceased. The forensic examination stated that the deceased
had been raped multiple times by different men and that she had been
strangulated to death as well as hit on the head by a heavy stone.
5. The Delhi Forensic Science Laboratory analysed fourteen
packets of evidence containing vaginal swabs, hair strands, blood samples
of four accused, viscera of the deceased girl, the girl's frock and salwar,
simple clay and blood-stained clay. The vaginal swabs matched with the
DNA of the accused as did some other samples. The hair strands found
in the temple, where the deceased was raped, matched that of the girl
and the accused.
6. One of the accused persons namely Sanji Ram along with the
respondent herein was found to be the main accused in the case. He at
the relevant point of time was the priest of the family temple where the
incident allegedly took place. The respondent herein happens to be the
nephew of the Sanji Ram.
7. On 10.06.2019, six of the seven accused persons were found
to be guilty and one was acquitted. Sanji Ram, Deepak Khajuria and
Parvesh Kumar were sentenced to life imprisonment for 25 years with
a fine of Rs. One lakh each. The other three accused persons namely
Tilak Raj, Anand Dutta and Surinder Kumar were sentenced to five
years in jail for destroying crucial evidence in the case. Vishal Jangotra
S/o Sanji Ram came to be acquitted due to lack of evidence. The eighth
accused, who is yet to be tried claiming to be a juvenile at the time of
commission of the offence, is the respondent herein.
8. The specific case put up by the prosecution against the
respondent herein is contained in the chargesheet reads thus:
" ... He immediately rushed down stairs, took 3 Manars and
keys to Devisthan and told 'X ' that he had seen her horses.
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
He led her to jungle and also called accused Mannu who
was already waiting for his signal. Sensing some trouble the
victim tried to flee away. The JD stopped her by catching
hold of her neck and covered her mouth with one of his hands
and pushed her and she fell on the ground. Accused Mannu
held her legs and the JCL (respondent) administered Manars
one by one forcibly to the victim. The victim fell unconscious
and was raped by JCL...Later on, they took the girl and kept
her inside Devisthan under the table over two Chatayees
(plastic mats) and then covered her two Darees (cotton thread
Mats) ...
At about 8.30 a.m. the JCL again went to Devisthan and
administered 3 sedatives tablets to the girl while she was
unconscious with empty stomach ....
... The accused Vishal Jangotra @Shamma raped 'X'.
Thereafter, JCL also raped the girl in presence of the accused
Mannu. The investigation also revealed that after committing
the rape, JCL directed accused Vishal Jangotra @ Shmma
and accused Mannu to leave Devisthan. JCL again took out
03 tablets out of the strip which he had kept under a heap of
garbage near an electric pole outside the Devisthan and gave
the same to the girl and again covered here with mats and
dropped the utensil container in front of her in order to hide
her ...
During investigation it has been found that after distributing
Lohri to relatives in the evening JCL informed accused Sanji
Ram that he and accused Vishal Jangotra had committed gang
rape with 'X' inside Dev!sthan .... On the spot accused Deepak
Khajuria @Deepu told JCL to wait as he wanted to rape the
girl before she is killed. As such once again the little girl 'X'
was gang raped firstly by accused Deepal Khajuria @Deepu
and then by JCL. After committing the barbaric act of rape
on his left thigh and started applying force with his hands on
her neck in order to kill her. As accused Deepak Khajuria
@Deepu was unsuccessful in killing her another accused JCK
killed her by pressing his knees against her back and
strangulated the girl by applying force on both the ends of
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Chunni. Thereafter, accused JCL, in order to make sure that
the victim is dead, hit her twice on head with stone ...
... As per plan JCL along with accused Vishal Jangotra
@Shamma went to Devisthan. Accused Vishal Jangotra
@Shamma opened the door while JCL lifted the dead body
on his shoulder. The accused Vishal Jangotra @Shamma
locked the door and JCL disposed the dead body by throwing
it inside the jungle while accused Vishal Jangotra @Sham
ma was guarding outside bushes ... "
Further, in the Supplementary Charge Sheet dated 09-08-2018
it has been observed as under:-
... "During the course of investigation, it has already been
established that victim was administered sedatives by
accused during her captivity. Two tablets recovered on the
disclosure of Juvenile in conflict with law near Devsthan
Rasana were sent to forensic lab for analysis. The chemical
analysis report obtained thereof, revealed the present of
Clonazepam salt in the said tablets. To ascertain the effect
of sedatives 'Mannar' as well as Clonazepam on the victim
with empty stomach, the concerned expert (Professor and
Head, Pharmacology, GMC Jammu) has opined that the
sedative Clonazepam (Epitril 0.Smg) has the following
effects:- (1) Drowsiness, (2) Confusion, (3) Impaired, ( 4)
Coordination, (5) Slow reflexes, (6) Slowed or stopped
breathing, (7) Coma (loss of consciousness) and Death.
As per the final opinion of the expert "the peak
concentration of Clonazepam is achieved in the blood after
one hour to 1.5. hours of oral administration. Clonazepam
absorption from the enteral route is complete irrespective
of administered either with or without food". ..."
9. The crime that the respondent accused herein has been charged
with is heinous; its execution was vicious and cruel, by any stretch of
imagination. The entire crime was calculated and ruthless. This case
captured the attention and indignation of the society across the country,
more particularly, in the State of Jammu and Kashmir, as a cruel crime
that raised alarm regarding safety within the community.
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
10. Our adjudication in the present litigation is restricted to the
question whether the respondent was a juvenile on the date of commission
of the offence? It all started with the order dated 21.02.2018 passed by
the High Court of Jammu & Kashmir in the OWP No. 259 of 2018 with
M.P. No. 1 of 2018. The order reads thus:
"In compliance of the order dated 09.02.2018, Mr. W S Nargal,
learned Senior Additional Advocate General has produced
the copy of the status report. After hearing learned counsel
for the parties and from perusal of the status report, I deem it
appropriate to issue the following directions to the SIT:
1. That the SIT shall take steps for ascertaining the age of
Shubam Sangra within a period of 10 days from today by
Medical Board which shall be constituted by Principal,
Government Medical College, Jammu;
2. That the SIT shall also ascertain the whereabouts of Mannu
whose name is mentioned in paragraph 6 of the status report
and shall take steps for apprehending the aforesaid Mannu;
3. That the SIT shall also obtain the copy of the post mortem
report along with detailed questionnaire which has been
supplied by it to the doctors of the Boards conducting the
post mortem.
Let a fresh status report with regard to the aforesaid points
be filed within a period of two weeks from today.
Taking into account the fact that the part of the status report
dated 19.02.2018 has been published in daily newspaper,
namely, Greater Kashmir, in extensor and taking into account
the sensitivity of the matter as well as to ensure free and fair
trial, I deem it appropriate to direct that the proceeding of the
instant writ petition shall not be published in any newspaper.
List on 09.03.2018 at the bottom of the list.
11. In due compliance with the directions issued by the High Court
in its order referred to above, the Special Investigation Team vide its
letter dated 26.02.2018 requested the Principal, Government Medical
College, Jammu to constitute a medical board for the determination of
age of the respondent herein.
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12. The Principal and Dean of the Government Medical College,
Jammu constituted a Special Medical Board comprising the following
doctors:
13. The Special Medical Board constituted, as above, undertook
the medical examination of the respondent herein and gave its report
dated 03.3.2018 which reads thus:
AGE ESTIMATION REPORT
Name
SHUBHAM SANGRA @ SHUBOO Sex: MALE
S/o.
Sh. Om Parkash Sangra
Address Hiranagar, Ward No. 10, NP Rasana
Age as alleged by person/miscellaneous data 15 years
Brought by/Authority Dy SP Shwetamber Sharma
Standing Medical Board, No. GMC/2018/SMBd KPS - 125747
Court Case 12176 Dated 26/02/2016 Crime Branch Jammu.
Purpose of examination Assessment of age of Subham Sangra
Sd/-
 (Signature/Thumb Impression of Individual)
Marks of Identification: 1. Black mole above left angle of
mouth
2. Scar mark on right eyebrow
1. PHYSICAL EXAMINATION
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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[2022] 8 S.C.R.
(i) Height 5'3"
(ii) Weight 48 Kg
(ii) Built Average
(ii) Voice Masculine
(v) Secondary Sex Characters
Well developed
II. DENTAL EXAMINATION
Referred to Deptt of Oral Diagnosis IGGDC Jammu for dental
age estimation by Dr Satvinder Singh.
03/03/2018 -On Clinical examination, all permanent teeth
erupted except 18, 28, 38 & 48 on OPG (radiographic)
examination; 18 & 28 show V2 root formation approximately
38 & 48 show near complete root formation with open
(illegible). On the cavity this findings, the dental of patient is
of 19+ years.
III. RADIOLOGICAL EXAMINATION: Referred to Department
of Radio diagnose for X-rays for age estimation. Advised (1)
X-ray (Rt.) Humerus (Shoulder Jt) AP (2) X-ray Hip (Pelvis) -
AP (3) X-ray (RF) Knee Jt-AP (4) X-ray (Rt) Elbow Joint AP
Lat (5) X-ray (Rt) Hand & wrist- AP.
OPINION - reserved till the receipt of reports from IGGDC
Jammu and the Deptt of Radio diagnosis.
 Sd/-
 Sd/-
Dr. Mrityunjay
 Shivani Mehta
(Deptt of Physiology)
 (Deptt of Forensic Medicine)
 Sd/-
 Sd/-
 Sd/-
Dr. Jeevitesh Khuda Dr. Ashwani Dr. Satvinder
(Deptt of Radio (Deptt of Anatomy) (IGDDC Jammu)
Diagnosis)
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3/03/2018 FINAL OPINION - Received R/8" x 10" x four (4)
films reported by Dr. Jeevitesh Khoda with the opinionkeeping in view the above findings the age of the patient in
my opinion is between Nineteen to Twenty Three (19-23) years
of age.
FINAL OPINION - On the basis of Physical Dental &
Radiological Examination the approximate age of above
individual is above nineteen years (19 +)
 Sd/-
 Sd/-
 Sd/-
Dr. Mrityunjay
Dr. Ashwani
 Dr. Satvinder
(Deptt of Physiology) (Deptt of Anatomy) (Deptt of Oral
Diagnosis)
Sd/-
 Sd/-
Dr. Shivani Mehta
Dr. Jeevitesh Khuda
(Deptt of Forensic Medicine) (Deptt of Radio Diagnosis)"
14. The High Court thereafter passed an order dated 14.03.2018
in the OWP No. 259 of 2018 with M.P. No. 1 of 2018 which reads thus:
"When the matter was taken up today, learned Senior
Additional Advocate General submitted that despite request
being made to the Medical Superintendent, District Hospital
Kathua, till today, the post-mortem report has not been handed
over to the Investigating Officer. In view of the aforesaid
submission, the Medical Superintendent, District Hospital,
Kathua is directed to hand over the copy of the post-mortem
report as well as reply to the questionnaire to the officer
heading the Special Investigating Team within a period of
three days from the date of receipt of certified copy of the
order passed today.
With regard to the averments in para 7 of the status report
which has been filed on behalf of respondents 1 to 3, it is
submitted that the Special Investigating Team shall obtain the
warrant of arrest in respect of absconding accused, namely,
Sanjhi Ram and shall take all effective steps to arrest him
and shall interrogate him as well as other persons who are
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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related to the offences in question whose names have been
mentioned in para 7 of the status report. Let the aforesaid
exercise be carried out with three weeks from today.
Mr. Nargal, learned Sr. AAG further submitted that since the
matter is pending before this Court, the Chief Judicial
Magistrate, Kathua is not ascertaining the age of the accused,
namely, Shubam Sangra. In view of the aforesaid submissions
and taking into account the provisions contained under
Section 8 of the J and K Juvenile Justice (Care and Protection
of Children) Act, 2013 as well as Rule 74 of the Rules framed
under the Act, the Chief Judicial Magistrate, Kathua is directed
to ascertain the age of the accused, namely, Shubam Sangra
within a period of ten days from the date of receipt of certified
copy of the order passed today, without being influenced by
the report submitted to the District Medical Board.
List on 09.04.2018.
Let a copy of this Order be supplied to learned counsel for
the parties under the seal and signatures of the bench secretary
of this Court."
15. The Tehsildar of Hira Nagar vide his communication dated
14.03.2018 informed the Superintendent of Police, In-charge SIT Crime
Branch that the original record in respect of date of birth of the respondent
herein was not traceable. The letter of the Tehsildar dated 14.03.2018
reads thus:
"Government of Jammu & Kashmir Revenue Department
"OFFICE OF THE TEHSILDAR, EXECLJTIVE MAGISTRATE
1st CLASS, HIRANAGAR (Kathua)
The Dy. Superintendent of Police
SIT Member Crime Branch, J&K,
Jammu.
No. JC/232
Dated: 14.03.2018
Sub:-
Investigation of Case Fir No. 10/2018 u/s 363/302/
343/376/201/120- B RPC of P/S Hiranagar.
Ref:-
CB/FIR/10-2018/127 dated 13.03.2018
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R/Sir,
In reference to your office letter No.CB/FIR/10-2018/127
dated 13.03.2018 regarding the subject cited above.
In this context if is hereby submitted that original, record
pertaining to the order No. 22/JC dated 15.04.2004 issued
from this office in respect of date of birth of Shubam Sangra
S/o Om Parkash R/o Hiranagar is not traceable in this office.
Moreover, the old miscellaneous record has been dilapidated
for which undersigned is not in position to submit the original
record of the same.
Yours faithfully,
Sd/-
Gourav Sharma,
Tehsildar, Hiranagar"
16. The Block Medical Officer, Health & Family Welfare, Hira
Nagar by his communication dated 15.03.2018 informed the
Superintendent of Police, In-Charge SIT Crime Branch, Jammu &
Kashmir that the verification of the records available in the institution
reveals that no delivery in the name of Smt. Tripta Devi W/o Om Prakash,
mother of the respondent herein, had taken place on 23.10.2002. The
date of 23.02.2002 assumes significance as it is the case of the respondent
that he was born on 23.10.2002.
17. On 20.03.2018, the respondent herein preferred an application
in the Court of the CJM, Kathua under Section 8 of the Jammu and
Kashmir Juvenile Justice (Care and Protection of Children) Act, 2013
(for short, 'the Act, 2013') for determination of his claim as a juvenile.
18. The appellant State filed detailed objections to the aforesaid
application filed by the respondent herein under Section 8. The objections
read thus:
"a. On 12.01.2018 one Mohd. Yousuf S/o Sahib Din caste
Bakarwal R/o Rasana Mohara Plakh Phawara Tehsil
Hiranagar produced an application in Urdu before the P/S
Hiranagar stating therein that his daughter Miss Asifa Age 8
years had gone for grazing horses in the nearby forest on
10.01.2018. She was seen with the horses at about 14:00
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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hrs. At about 16:00 hrs, the horses returned back in the dera
but Asifa did not return. On this Mohd. Yousuf along with
others started search in the forest but Asifa could not be traced
out. He has the suspicion that some miscreants have
kidnapped his daughter. Consequently, Case FIR No. 10/2018
u/s 363 RPC was registered in P/S Hiranagar and section
302 and 343 RPC were added after recovery of the dead body
of the prosecutrix. The investigating officer of P/s Hiranagar,
on the basis of a secret information had apprehended a
Juvenile delinquent namely Shubam Sangra @ Chuboo on
19.01.2018 and was produced before the Ld. Chief Judicial
Magistrate Kathua on 20.01.2018 for seeking remand. The
investigation of the case was subsequently transferred to
Crime Branch Jammu vide PHQ order No. 374/2018 dated
22.01.2018 for further investigation. The case was formally
handed over to Crime Branch on 27.01.2018. During the
course of the investigation the offences u/s, 376, 201· and
120-B RPC came to be included.
b. The Ld. Chief Judicial Magistrate, Kathua has granted
remand for lodgment of Shubam Sangra @ Chuboo in
observation home R.S Pura, the details of which is as under:-
i. 20.01.2018 to 29.01.2018 =
10 days
11. 29.01.2018 to 03.02.2018 =
6 days
ill. 03.02.2018 tol2.03.2018=
10 days
iv. 12.02.2018 to 26.02.2018 =
15 days
v. 26.02.2018 to 12.03.2018 =
15 days
vi. 12.03.2018 to 22.03.2018 =
11 days
Total -
67 days, (62 days as per the calendar entries)
Apart from this, the Ld. Court of Chief Judicial Magistrate
Kathua vide order dated 30.01.2018, 05.02.2018, 19.02.2018
and 26.02.2018 has granted the custody of juvenile delinquent
Shubam Sangra for 3 days + 3 days + 3 days + 1day
respectively. This way, the juvenile was granted a total of 10
days police custody for the purpose of investigation. The
juvenile delinquent during the course of sustained questioning
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also admitted to have committed the offences of kidnapping,
rape and murder of deceased Asifa. Even as in the chain of
events, on the basis of statement of witnesses u/s 161 and
164-A Cr. PC and circumstantial evidence the offences u/s
363, 343, 302, 376, 120-B/RPC have been prima facie made
out against Shubam Sangra@ chuboo.
c. Moreover, during investigation it also transpired that the
Date of Birth Certificate of the Juvenile obtained from
Municipal Committee Hiranagar and the one obtained from
Modem Public Higher Secondary School Hiranagar were at
variance. In the mean time. the Hon'ble High Court on
21.02.2018 in OHP No. 259 of 2018 titled Mohd. Akhter Vs.
State had interallia passed the following direction:-
"SIT shall take steps for ascertaining the age of Shubam
Sangra within a period of 10 days from today by a Medical
Board to be which shall be constituted by Principal GMC
Jammu".
In compliance to the above direction of Hon'ble High Court
J&K Jammu, the Principal GMC Jammu was requested vide
this office letter No. CBJ/FIR/l0 2018/56 dated 26.02.2018
to constitute a Medical Board for determination of age in
respect of juvenile delinquent Shubam Sangra @ Chuboo. In
response to which, the Principal GMC Jammu constituted
board of doctors comprising of (i). Dr. Mrityinjay, department
of physiology (ii). Dr. Shivani Mehta, department of Forensic
Medicine (iii). Dr. Jeevitesh Khtida, department of Radio
Diagnosis (iv). Dr. Ashawani, department of Anatamy and (v).
Dr. Satvinder Singh, department of Indira Gandhi Govt. Dental
College Jammu (IGGDC). The board of doctors so constituted
examined the juvenile delinquent Shubam Sangra on
28.02.2018 and accordingly Principal GMC Jammu submitted
the opinion of the board vide letter No. GMC/2017 /SMVC/
court case/2209 dated 05.03.2018.
Final Opinion :-
On the basis of Physical, Dental and Radiological
examination the approximate age of above mentioned
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
& KASHMIR) v. SHUBAM SANGRA [J. B. PARDIWALA, J.]
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individual is above Nineteen years (19+). (The copy of the
Medical report is appended as Annexure A for reference).
d. On the basis of questioning from Juvenile delinquent
Shubam Sangra, statement of witnesses u/s 161 and 164-A
CrPC and circumstantial evidence accused persons namely
(i). Deepak Khajuria @ Deepu S/o Updesh Khajuria (ii).
Surinder Kumar S/o Sain Dass R/o Dhamiyal Hiranagar and
(iii). Parvesh Kumar @ Mannu S/o Ashok Kumar R/o Rasana
Hiranagar, (iv). VishalJangotra@ Shamma and (v). Sanji Ram
were arrested and put to sustained interrogation. The
investigation conducted so far reveals that the accused
De'epak Kumar Khajuria and the juvenile delinquent hatched
a criminal conspiracy with Sanji Ram S/o Des Raj R/o Rasana
for kidnapping, rape and murder of deceased Asifa, d/o Mohd.
Yousuf of village Rasana and in furtherance of this criminal
conspiracy the accused persons namely Surinder Kumar S/o
Sain Dass R/o Dhamiyal Hiranagar, Parvesh Kumar @ Mannu
S/o Ashok Kumar R/o Rasana Hiranagar and Vishal jangotra
@ Shamma became a part of the conspiracy as well as the
execution plan.
e. Further, during investigation it has also transpired that the
officers and officials of P/s Hiranagar were a part of the
criminal conspiracy as the clothes of deceased Asifa were
washed up in the premises of Police Station Hiranagar on
17.01.2018 before being sent to FSL for forensic examination.
On the basis confessional statements of accused persons, and
statement of witnesses uls 161 Cr. PC as well as other
circumstances HC Tilak Raj of P/S Hiranagar and S.I Anand
Dutta, the erstwhile I/O of instant case of P/s Hiranagar have
been arrested for disappearance of evidence, done with the
intention of screening out the offender from legal punishment.
Both the police officials are on police remand and lodged in
P/s Crime Branch Jammu.
f. That as per the opinion of Board of Doctors Shubam Sangra
@ Chuboo is above nineteen years of age and thus he is an
adult. Further it is submitted that in the writ petition titled
Mohd. Akhter Vs. State OWP No. 259 of 2018, pending
adjudication before the Hon'ble High Court of J&K, Jammu
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a detail status report reflecting the opinion of board of doctors
of GMC Jammu was filed before the Hon'ble court on
09.03.2018 in sealed cover for the perusal of the Hon'ble
High Court.
2. It is also relevant to submit before this Hon'ble Court that,
Tehsildar Hiranagar was requested vide office letter no. CB/
FIR/10-20181127 dated 13.03.2018 to provide the file
regarding issuance of order to executive officer Municipal
Committee Hiranagar for making the entry of date of birth in
respect of said Shubam Sangra in the record of Municipal
Committee. In response to the above communication, Tehsildar
Hiranagar vide letter no. JC/232 dated 14.03.2018 has
intimated that the file in question is not traceable in his office.
(The reply of Tehsildar is annexed for reference and marked
as Annexure -B).
3. Further it is also submitted that Executive officer of
Municipal Committee Hiranagar has made an entry in the
date of birth register of Municipal Committee in respect of
juvenile Shubam Sangra mentioning there in that the said
individual was born in Hiranagar Hospital. However,
contrary to this, in response to this office letter no. CB/FIR/
10-2018/135 dated 14.03.2018 the Block Medical Officer
Health and Family Welfare Hiranagar vide office letter No.
BMO/CHC/HGR/ Acctts/2214 dated 15.03.2018 has intimated
that on verification of records available in the institution it is
found that no delivery in the name of Smt. Tripata Devi w/o
Sh. Om Parkash R/o Hiranagar has taken place on
23.10.2002, which clearly indicates that the entry made by
Executing officer Municipal Committee Hiranagar is not
based on facts and even the order of the Tehsildar Hiranagar
for making the said entry has become doubtful. (Photocopy
of letter of BMO Hiranagar is annexed for reference and
marked as Annexure-C}.
4. That it is also relevant to place on record that the aforesaid
mentioned writ petition was listed before the Hon'ble court
of 14.03.2018 wherein the Hon'ble court after going through
the status report filed in the sealed cover was please to issue
the 3 directives, out of which the one pertaining to the issue
THE STATE OF JAMMU & KASHMIR (NOW U.T. OF JAMMU
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in hand was for the sake of reference is reproduced here in
under:-
"Taking into account the provisions contained under
Section 8 of the J&K ]uvenile]ustice (Care and Protection
of Children) Act; 2013 as well as Rule 74 of the Rules
framed under the Act; the Chief Judicial Magistrate Kathua
is directed to ascertain the age of the accused, namely,
Shubam Sangra with in a period of ten days from the date
of receipt of certified copy of the order passed today,
without being influenced by the report submitted by the
District Medical Board".
The certified copy of court order has already been sent to the
Ld. Court through CPO, vide letter no. CB/FIR/10-2018/154
dated 16.03.2018. However, another photocopy of the of the
court order is again annexed for reference, marked as
Annexure-D.
5. That in view of the aforementioned reply of the Tehsildar
Hiranagar as well as the Block Medical officer Health and
Family Welfare Hiranagar and coupled with the report of the
Medical Board, it is submitted that the applicant Shubam
Sangra @ Chuboo may not be declared as juvenile and rather
in view of the role played by him in the gruesome and dastardly
act as well as his conduct and behavior, forthcoming from
the investigation conducted so far, he is rather mature and
not a juvenile. Further it is also placed on record that the
date of arrest of the Shubam Sangra as per the CD file is
19.01.2018 and not 12.01.2018 as reflected in the
application.
In the light of the aforesaid submission it is humbly prayed
that the aforesaid application may kindly be rejected and the
applicant Shubam Sangra @ Chuboo S/o Om Parkash R/o
Ward No. 10 Hiranagar Np Village Rasana, Tehsil- Hiranagar
may kindly be declared as an adult or alternatively not a
juvenile, so that the investigation of instant case is finalized
on merits.
Superintendent of Police,
I/GSIT Crime Branch, J&K,
Jammu"
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19.