Ram Vijay Singh vs State Of U.P.

RAM VIJAY SINGH .....APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH .....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

Leave granted.

1. The present appeal has been preferred against the order dated

22.4.2020 passed by the High Court of Judicature at Allahabad.

Vide the said order, the appeal filed by the appellant against his

conviction for an offence under Section 302 read with Section 34

of the Indian Penal Code, 18601 was dismissed.

2. Before this Court, the appellant filed an application for bail, inter

alia, on the ground that he was juvenile on the date of incident i.e.

1 For short, the ‘IPC’

1 20.7.1982. In support of plea of juvenility, the appellant relied

upon family register maintained by the Panchayat, Aadhaar Card

and an order passed by the High Court in the year 1982. In the

said order, the High Court had granted bail on the basis of the

report of the Radiologist that the age of the appellant at that time

was between 15½ - 17½ years. The appellant has further stated

that he had moved criminal miscellaneous application raising a

claim of him being a juvenile at the time of commission of offence

before the High Court but the said application was not decided and

the appeal has been dismissed on merits.

3. Keeping in view the said assertion raised by the appellant, this

Court passed the following order on 20.7.2020:

“Having heard Shri Pranav Sachdeva, learned counsel for the petitioner, for some time, we are of the view that the miscellaneous application that was filed in 2015 raising the claim of the petitioner’s juvenility at the time of the office which has still not been decided, be decided within a period of four weeks from today by the High Court and if possible, judgment on the same be delivered within two weeks thereafter.

Adjourned.

Liberty to mention.”

4. It is thereafter, the High Court had sought the report of the Medi-

cal Board. Such Medical Board consisting of five doctors comprised

of (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M.

and Associated Hospitals, Lucknow, (2) Dr. Mausami Singh, Addi-

2 tional Professor, Forensic Medicine & Texicology, (3) Dr. Garima Se-

hgal, Associate Professor, Department of Anatomy, (4) Prof. Pavitra

Rastogi, Department of Periodontology, King George’s Medical Uni-

versity and (5) Dr. Sukriti Kumar, Assistant Professor, Department

of Radiodiagnosis, KGMU, UP, Lucknow. The Medical Board, in its

report submitted on 8.9.2020 to the High Court opined that the

age of the appellant is between 40-55 years. The State and the in-

formant objected to the report. Further, there was also a mention

of a single barrel gun granted to the appellant on 24.7.1982, a

couple of days after the occurrence of the incident. However, the

High Court on the basis of the medical report submitted its order

to this Court stating that the appellant was juvenile on the date of

commission of the offence. The conclusions drawn by the High

Court reads thus:

“43. We were impressed by aforesaid submission at the first flush particularly in the light of observations made in Mukarrab & Ors. v. State of Uttar Pradesh2 wherein the Court rejected the age determination report prepared by All India Institute of Medical Sciences (AIIMS) New Delhi, but upon deeper scrutiny, we do not find any force in this submission. The facts in Mukarrab's case were very clinching which is not the case here. In the present case, except for the fact that accused-appellant was issued a gun license on 24.7.1982 which is after the date of occurrence i.e. 20.7.1982, nothing else has been brought on record. The same may create a suspicion. But suspicion howsoever strong cannot take the place of proof. Perusal of the objections filed by informant does not indicate the grounds on which the member of the Medical Board is sought to be examined and secondly, no such material has been

2 (2017) 2 SCC 210

3 appended along with the objections filed by informant on the basis of which prima facie we could feel satisfied to summon a member of Medical Board. We accordingly, negate the submission urged by learned counsel for informant to summon a member of Medical Board for cross-

examination.

44. Having dealt with the conflicting claims of the parties, the swinging circumstances of the case and the law as laid down Mukarrab and Others (Supra), we find that the medical report dated 18.9.2020 is worthy of acceptance, wherein the age of accused-appellant-2 Ram Vijai Singh has been determined as 40-55 years on date. The occurrence took place on 20.7.1982 i.e. 38 years ago. When age of accused-appellant-2 Ram Vijai Singh is determined on all hypothetical calculations i.e. (55-38=17 years) (40-38= 2 years) and taking the average of difference between maximum and minimum age i.e. 48-38 = 10 years, then the age of accused-appellant-2 Ram Vijai Singh falls below 17 years.”

5. This Court on 13.1.2021 directed the learned Advocate appearing

for the State to produce all original documents with regard to the

Gun Licence in question. In pursuance of the said direction, the

State filed an application submitted on behalf of the appellant to

seek the Arms Licence. In Column 2 of the application, the appel-

lant has provided his date of birth as 30.12.1961. Such application

was filed on or around 21.12.1981 wherein a police report was

submitted on 28.3.1982 stating that no criminal case was regis-

tered against the appellant. It is on that basis, the application for

Arms Licence was processed and the Area Magistrate approved

the grant of Licence. The Arms Licence was hence granted on

24.7.1982, that is after the date of incident.

4

6. With this factual background, the question of juvenility of the ap-

pellant as on the date of incident, i.e., 20.7.1982 is required to be

examined.

7. There is no dispute that the plea of juvenility can be raised at any

stage even after finality of the proceedings before this Court. In

the present case, the appellant has raised the plea of juvenility be-

fore the High Court vide Criminal Miscellaneous Application No.

382916 of 2015. This Court in a judgment reported as Abuzar

Hossain alias Gulam Hossain v. State of West Bengal3 held

as under:

“39.1. A claim of juvenility may be raised at any stage even after the final disposal of the case. It may be raised for the first time before this Court as well after the final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in the appeal court.”

8. Section 7-A of the Juvenile Justice (Care and Protection of Children)

Act, 20004 contemplated that whenever a claim of juvenility is

raised before any Court, the Court shall make an inquiry and take

such evidence as may be necessary. In terms of the provisions of

the 2000 Act, the Juvenile Justice (Care and Protection of Children)

3 (2012) 10 SCC 489 4 For short, the ‘2000 Act’

5 Rules, 20075 have been framed. Rule 12 of the Rules contem-

plates a procedure to be followed for determination of age. The

2000 Act has been repealed by the Juvenile Justice (Care and Pro-

tection of Children) Act, 20156. Section 9(2) of the Act is the analo-

gous provision to Section 7-A of the 2000 Act. The procedure for

determining the age is now part of Section 94 of the Act which was

earlier part of Rule 12 of the Rules. Section 94 of the Act reads

thus:

“Section 94. Presumption and determination of age

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

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

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

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (I) and (ii) above, age shall

5 For short, the ‘Rules’ 6 For short, the ‘Act’

6 be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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

9. The judgment in Abuzar Hossain considered Section 7-A of the

Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the

Rules shows that in the absence of documents as mentioned in

clause (i), (ii) or (iii), the medical opinion will be sought from a duly

constituted Medical Board, which will declare the age of the juve-

nile or child. It was further provided that in case wherein the exact

assessment of the age cannot be done, the Court or the Juvenile

Justice Board, if considered necessary, give benefit to the child or

juvenile by considering his/her age on lower side within the margin

of one year. However, it is to be noted that Section 94 of the Act

does not have any corresponding provision of giving benefit of

margin of age.

10. Admittedly, in the present case, there is no Date of Birth Certifi-

cate from the school or matriculation or equivalent certificate or a

Birth Certificate given by a Corporation or Municipal Authority or

7 Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to de-

termine the age by an ossification test or any other latest medical

age determination test conducted on the orders of the Committee

or the Board comes into play.

11. Mr. Gopal Sankaranarayanan, learned senior counsel appeared on

behalf of the appellant, argued that the accused was given bail by

the High Court keeping in view his age as 15½ - 17½ years in the

year 1982. Therefore, the appellant has to be treated as a juvenile

in the light of the said order. It was contended that even consider-

ing the maximum age as 55 years as per the Medical Report now

submitted, the appellant would still be less than 18 years on the

date of incident. It was also argued that procedure as contained in

Rule 12(3)(b) of the Rules is now part of Section 94 of the Act.

Therefore, once the statute has provided ossification test as the

basis of determining juvenility, the findings of such ossification

test cannot be ignored.

12. Mr. Goel, on the contrary, argued that procedure as provided un-

der Rule 12(3)(b) of the Rules is not materially different from that

contained in the Statute. In fact, the discretion given to the Court

to lower the age by one year in the Rules has been omitted. He

further relied upon a judgment of this Court in Mukarrab wherein

it has been held that the Courts have observed that the evidence

8 afforded by radiological examination is a useful guiding factor for

determining the age of a person but the evidence is not of a

conclusive and incontrovertible nature and is subject to a margin

of error. Medical evidence as to the age of a person though a very

useful guiding factor is not conclusive and has to be considered

along with other circumstances. It was further held that the ossifi-

cation test cannot be regarded as conclusive when the appellants

have crossed the age of thirty years which is an important factor

to be taken into account as age cannot be determined with preci-

sion. It was held as under:

“26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:

“In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development.”

Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with

9 other circumstances.

27. In a recent judgment, State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

28. At this juncture, we may usefully refer to an article “A study of wrist ossification for age estimation in paediatric group in Central Rajasthan”, which reads as under:

“There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.

[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York:

1996; 341-342];

A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.

[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico- Legal Centre Colaba: 1990; 44-45];

10 ***

Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article “A study of wrist ossification for age estimation in paediatric group in Central Rajasthan ” by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].

29. In the present case, their physical, dental and radiological examinations were carried out. Radiological examination of skull (AP and lateral view), sternum (AP and lateral view) and sacrum (lateral view) was advised and performed. As per the medical report, there was no indication for dental x-rays since both the accused were much beyond 25 years of age. Therefore, the age determination based on ossification test though may be useful is not conclusive. An x-ray ossification test can by no means be so infallible and accurate a test as to indicate the correct number of years and days of a person's life.”

13. We do not find any merit in the arguments advanced by the appel-

lant. The medical report in support of the bail order is not avail-

able. Such order granting bail cannot be conclusive determination

of age of the appellant. It was an interim order of bail pending

trial but in the absence of a medical report, it cannot be conclu-

sively held that the appellant was juvenile on the date of the inci-

dent.

14. We find that the procedure prescribed in Rule 12 is not materially

different than the provisions of Section 94 of the Act to determine

11 the age of the person. There are minor variations as the Rule 12(3)

(a)(i) and (ii) have been clubbed together with slight change in the

language. Section 94 of the Act does not contain the provisions re-

garding benefit of margin of age to be given to the child or juve-

nile as was provided in Rule 12(3)(b) of the Rules. The importance

of ossification test has not undergone change with the enactment

of Section 94 of the Act. The reliability of the ossification test re-

mains vulnerable as was under Rule 12 of the Rules.

15. As per the Scheme of the Act, when it is obvious to the Committee

or the Board, based on the appearance of the person, that the said

person is a child, the Board or Committee shall record

observations stating the age of the Child as nearly as may be

without waiting for further confirmation of the age. Therefore, the

first attempt to determine the age is by assessing the physical

appearance of the person when brought before the Board or the

Committee. It is only in case of doubt, the process of age

determination by seeking evidence becomes necessary. At that

stage, when a person is around 18 years of age, the ossification

test can be said to be relevant for determining the approximate

age of a person in conflict with law. However, when the person is

around 40-55 years of age, the structure of bones cannot be help-

ful in determining the age. This Court in Arjun Panditrao

12 Khotkar v. Kailash Kushanrao Gorantyal and Ors. 7 held, in

the context of certificate required under Section 65B of the Evi-

dence Act, 1872, that as per the Latin maxim, lex non cogit ad im-

possibilia, law does not demand the impossible. Thus, when the

ossification test cannot yield trustworthy and reliable results, such

test cannot be made a basis to determine the age of the person

concerned on the date of incident. Therefore, in the absence of

any reliable trustworthy medical evidence to find out age of the

appellant, the ossification test conducted in year 2020 when the

appellant was 55 years of age cannot be conclusive to declare him

as a juvenile on the date of the incident.

16. Apart from the said fact, there is an application submitted by the

appellant himself for obtaining an Arms Licence prior to the date

of the incident. In such application, he has given his date of birth

as 30.12.1961 which would make him of 21 years of age on the

date of the incident i.e. 20.7.1982. The Court is not precluded

from taking into consideration any other relevant and trustworthy

material to determine the age as all the three eventualities men-

tioned in sub-section (2) of Section 94 of the Act are either not

available or are not found to be reliable and trustworthy. Since

there is a document signed by the appellant much before the date

of occurrence, therefore, we are of the opinion that the appellant

7 (2020) 7 SCC 1

13 cannot be treated to be juvenile on the date of incident as he was

more than 21 years of age as per his application submitted to ob-

tain the Arms Licence.

17. On merits, the argument of the appellant was that Girendra Singh,

the brother of the deceased, was not examined by prosecution

though as per Ram Naresh Singh (PW-1), he was walking few steps

behind the deceased. It was further argued that as per PW-1 Ram

Naresh Singh, Dhruv Singh had used Barchhi as lathi, though the

first version was that Dhruv had used Barchhi. The argument was

that Ram Naresh Singh (PW-1) has been disbelieved qua the role

of Dhruv Singh and hence cannot be relied upon in determining

the role of the appellant.

18. We do not find any merit in the arguments raised by the learned

counsel for the appellant. A part statement of a witness can be be-

lieved even though some part of the statement may not be relied

upon by the court. The maxim Falsus in Uno, Falsus in Omnibus is

not the rule applied by the courts in India. This Court recently in a

judgment reported as Ilangovan v. State of T.N.8 held that

Indian courts have always been reluctant to apply the principle as

it is only a rule of caution. It was held as under:-

“11. The counsel for the appellant lastly argued that once the witnesses had been disbelieved with respect to the co- accused, their testimonies with respect to the present

8 (2020)10 SCC 533

14 accused must also be discarded. The counsel is, in effect, relying on the legal maxim “falsus in uno, falsus in omnibus”, which Indian courts have always been reluctant to apply. A three-Judge Bench of this Court, as far back as in 1957, in Nisar Ali v. State of U.P. [Nisar Ali v. State of U.P., AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point as follows: (AIR p. 368, paras 9-10)

“9. It was next contended that the witnesses had falsely implicated Qudrat Ullah and because of that the court should have rejected the testimony of these witnesses as against the appellant also. The well-known maxim falsus in uno, falsus in omnibus was relied upon by the appellant.

The argument raised was that because the witnesses who had also deposed against Qudrat Ullah by saying that he had handed over the knife to the appellant had not been believed by the courts below as against him, the High Court should not have accepted the evidence of these witnesses to convict the appellant. This maxim has not received general acceptance in different jurisdictions in India nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. One American author has stated:

‘… the maxim is in itself worthless; first in point of validity … and secondly, in point of utility because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore, it is a superfluous form of words. It is also in practice pernicious….’ [ Wigmore on Evidence, Vol. III, Para 1008]

10. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called “a mandatory rule of evidence”.” (emphasis supplied)

This principle has been consistently followed by this Court, most recently in Rohtas v. State of Haryana [Rohtas v. State of Haryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] and needs no reiteration.” 15

19. Therefore, merely because a prosecution witness was not believed

in respect of another accused, the testimony of the said witness

cannot be disregarded qua the present appellant. Still further, it is

not necessary for the prosecution to examine all the witnesses

who might have witnessed the occurrence. It is the quality of evi-

dence which is relevant in criminal trial and not the quantity.

Therefore, non-examination of Girendra Singh cannot be said to be

of any consequence.

20. The other accused, who was convicted apart from the appellant is

Shiv Vijay Singh, was armed with an axe. Dr. Shyam Mohan

Krishna (PW-4) has conducted the postmortem examination and

reported the following injuries:

“1. Contusion 4 cm. x 2 cm. on back of left ear on temporal region.

2. Contusion 4 cm. x 1 cm. on left side below Inj. no. 1 oblique.

3. Lacerated wound 3 cm. x 1 cm. x bone deep placed on back near occipital region on back of left ear.

4. Contusion 2 cm. x 1 cm. on left side of frontal region of scalp above left Eye brow.

5. Contusion 2 cm. x 2 cm. on middle of left Eye brow.

6. Contusion 4 cm. x 2 cm. at chin.

16 7. Contusion 6 cm. x 2 cm. on left side of neck, oblique in middle.

8. Contusion 5 cm. x 2 cm. on apex of left shoulder.

9. Incised wound 6 cm. x 2 cm. bone deep on left cheek upper part oblique.

10. Incised wound 4 cm. x 2 cm. bone deep placed on left cheek below Inj. no. 9.

11. Abrasion left side of chest lower part ant. aspect 5 cm.

x 4 cm.

12. Contusion 3 cm. x 1 cm. on left axilla on anterior axillary fold.

13. Contusion 8 cm. x 2 cm. on left upper arm on lateral aspect oblique.

14. Incised wound 5 cm. x 2 cm. on dorsum of left wrist in middle.

15. Abrasion 10 cm. x 8 cm. on back left side upper part.

16. Contusion 6 cm. x 2 cm. oblique on left side of chest lower part near Inj. no. 11.”

21. The oral evidence along with the statement of Dr. Shyam Mohan

Krishna (PW-4) suggest that the injuries on the head of the de-

ceased were caused by a blunt weapon. The blunt weapon as de-

posed by the eyewitness is the lathi in the hands of the present

17 appellant. Lathi may be common article with the villagers but the

use of lathi as a weapon of offence is a finding of fact recorded by

the Courts below.

22. As per the postmortem report, the deceased suffered multiple in-

juries which shows attack by more than one person. The nature of

injuries also shows that hard and blunt object as well as sharp

edged weapons were used to inflict injuries. It is the appellant

who was armed with Lathi whereas the other convicted accused

Shiv Vijay Singh was armed with Axe. The incised wound suffered

by the deceased was possible with an Axe. As per the report,

there are sufficient number of injuries caused by an Axe and Lathi

on the person of the deceased.

23. However, the learned trial court as well as the High Court had

appreciated the entire evidence to return a finding of guilt against

the appellant.

24. Therefore, we do not find any merit in the present appeal. The

same is hereby dismissed.

.............................................J. (ROHINTON FALI NARIMAN)

18 .............................................J. (HEMANT GUPTA)

.............................................J. (B.R. GAVAI)

NEW DELHI;

FEBRUARY 25, 2021.

19