23. However, we reiterate that we may not be
misunderstood so as to infer that even if an accused is
clearly below the age of 18 years on the date of commission
of offence, should not be granted protection or treatment
available to a juvenile under the Juvenile Justice Act if a
dispute regarding his age had been raised but was finally
resolved on scrutiny of evidence. What is meant to be
emphasized is that where the courts cannot clearly infer in
spite of available evidence on record that the accused is a
juvenile or the said plea appear to have been raised merely
to create a mist or a smokescreen so as to hide his real age
in order to shield the accused on the plea of his minority,
the attempt cannot be allowed to succeed so as to subvert
or dupe the cause of justice. Drawing parallel between the
plea of minority and the plea of alibi, it may be worthwhile
to state that it is not uncommon to come across criminal
cases wherein an accused makes an effort to take shelter
under the plea of alibi which has to be raised at the first
instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary
principle that an innocent man may not have to suffer
injustice by recording an order of conviction in spite of his
plea of alibi. Similarly, if the conduct of an accused or the
method and manner of commission of the offence
indicates an evil and a well planned design of the accused
committing the offence which indicates more towards the
matured skill of an accused than that of an innocent child,
then in the absence of reliable documentary evidence in
support of the age of the accused, medical evidence
indicating that the accused was a major cannot be allowed
to be ignored taking shelter of the principle of benevolent
legislation like the Juvenile Justice Act, subverting the
course of justice as statutory protection of the Juvenile
Justice Act is meant for minors who are innocent law
breakers and not accused of matured mind who uses the
plea of minority as a ploy or shield to protect himself from
the sentence of the offence committed by him. The benefit
of benevolent legislation under the Juvenile Justice Act obviously will JUDGMENToffer protection to a genuine child accused/juvenile who does not put the court into any
dilemma as to whether he is a juvenile or not by adducing
evidence in support of his plea of minority but in absence of
the same, reliance placed merely on shaky evidence like
the school admission register which is not proved or oral
evidence based on conjectures leading to further ambiguity,
cannot be relied upon in preference to the medical evidence
for assessing the age of the accused.
24. While considering the relevance and value of the
medical evidence, the doctor’s estimation of age although is
not a sturdy substance for proof as it is only an opinion,
such opinion based on scientific medical test like
ossification and radiological examination will have to be
treated as a strong evidence having corroborative value
while determining the age of the alleged juvenile accused. In
the case of Ramdeo Chauhan Vs. State of Assam (supra), the
learned judges have added an insight for determination of
this issue when it recorded as follows:-
“Of course the doctor’s estimate of age is not a
sturdy substitute for proof as it is only his
opinion. But such opinion of an expert cannot be
sidelined in the realm where the Court gropes in
the dark to find out what would possibly have
been the age of a citizen for the purpose of
affording him a constitutional protection. In the
absence of all other acceptable material, if such
opinion points to a reasonable possibility
regarding the range of his age, it has certainly to
be considered. ”
The situation, however, would be different if the academic
records are alleged to have been with held deliberately to
hide the age of the alleged juvenile and the authenticity of
the medical evidence is under challenge at the instance of
the prosecution. In that event, whether the medical
evidence should be relied upon or not will obviously depend
on the value of the evidence led by the contesting parties.
25. In view of the aforesaid discussion and analysis
based on the prevailing facts and circumstances of the case,
we are of the view that the Respondent No.2 Vijay Kumar
and his father have failed to prove that Respondent No.2
was a minor at the time of commission of offence and hence
could not have been granted the benefit of the Juvenile Justice Act which undoubtedly is a benevolent legislation
but cannot be allowed to be availed of by an accused who
has taken the plea of juvenility merely as an effort to hide
his real age so as to create a doubt in the mind of the courts
below who thought it appropriate to grant him the benefit of
a juvenile merely by adopting the principle of benevolent
legislation but missing its vital implication that although
the Juvenile Justice Act by itself is a piece of benevolent
legislation, the protection under the same cannot be made
available to an accused who in fact is not a juvenile but
seeks shelter merely by using it as a protective umbrella
or statutory shield. We are under constraint to observe that
this will have to be discouraged if the evidence and other
materials on record fail to prove that the accused was a
juvenile at the time of commission of the offence. Juvenile
Justice Act which is certainly meant to treat a child accused
with care and sensitivity offering him a chance to reform
and settle into the mainstream of society, the same cannot
be allowed to be used as a ploy to dupe the course of justice while conducting JUDGMENTtrial and treatment of heinous offences. This would clearly be treated as an effort to weaken the
justice dispensation system and hence cannot be
encouraged.
26. We therefore deem it just and appropriate to set
aside the judgment and order passed by the High Court as
also the courts below and thus allow this appeal.
Consequently, the accused Vijay Kumar, S/o Joga Ram
shall be sent for trial before the court of competent
jurisdiction wherein the trial is pending and not to the
Juvenile Court as pleaded by him. We order accordingly.
(G.S. Singhvi)
(Gyan Sudha Misra)
New Delhi, April 13, 2012