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Supreme Court Clarifies Age Determination Under JJ Act: School Records Trump Medical Opinion.

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CASE TITLE – Vinod Katara v. State of U.P

CASE NUMBER – Writ Petition (CRL.) No(S). 121 OF 2022

DATED ON – 05.03.2024

QUORUM – Justice B.R. Gavai & Justice Sandeep Mehta

 

FACTS OF THE CASE

The petitioner herein was arraigned as an accused for the offence of murder committed on 10th September, 1982. The petitioner along with three co-accused was convicted by the trial Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter being referred to as ‘IPC’) vide judgment dated 6th January, 1986 and were sentenced to undergo rigorous imprisonment for life. The convicts including the petitioner herein preferred Criminal Appeal No. 133 of 1986 before the Allahabad High Court. During the pendency of appeal, the sentence awarded to the petitioner by the trial Court was suspended and he was released on bail. The said appeal came to be rejected vide judgment dated 4th March, 2016 and the conviction of the petitioner and the sentence awarded to him by the trial Court were affirmed. The petitioner was taken into custody after the dismissal of the appeal by the High Court. The High Court of Judicature at Allahabad, while considering a PIL bearing Crl.(PIL) Misc. W.P. No. 855 of 2012, vide order dated 24th May, 2012 directed the Juvenile Justice Board(s) (hereinafter being referred to as the ‘Board’) in the State of Uttar Pradesh to hold enquiries for determination of age of the convicts who were languishing in jail wherein the possibility was felt that the convict might have been a juvenile at the time of incident. Pursuant to the said order of the High Court, the petitioner herein who was at the relevant point of time lodged in District Jail, Mathura was subjected to examination by a Medical Board on 10th December, 2021. The Medical Board conducted X-rays of the skull and sternum of the petitioner and gave an opinion that on the date of the report, the petitioner herein was around 56 years of age. Based on the said report of the Medical Board, the petitioner has preferred the instant writ petition claiming that he was around 15 years of age on the date of the incident i.e. 10th September, 1982. An inquiry in pursuance was conducted by the learned Additional District and Sessions Judge, Court No. 5, Agra who had forwarded a report dated 21st October, 2022 opining that from the contemporaneous evidence placed during the inquiry, the date of birth of the petitioner was 2nd July, 1960 and he was major on the date of the incident.

 

ISSUE

Whether there is substantial evidence to prove that the accussed/petitioner was a major when he committed the crime and should he be convicted as such.

 

CONTENTIONS BY THE APPELLANT

The Learned Counsel appearing for the petitioner vehemently and fervently contended that the conclusions drawn by the learned Additional District and Sessions Judge in the report dated 21st October, 2022 that it would not be possible to determine the age of the accused accurately based on the X-ray examination is unsustainable in light of the earlier medical report dated 10th December, 2021 wherein the Medical Board has given a pertinent opinion that the age of the petitioner as on the said date was around 56 years. He vehemently contended that the attendance register/school record on which the learned Additional District and Sessions Judge placed implicit reliance is not a reliable piece of evidence because the concerned Principal of the school neither verified the documents nor was he examined in evidence. He contended that as per Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter being referred to as the ‘JJ Act’), where contemporaneous reliable school record is not available, the Court can place reliance either on other documentary evidence or in absence thereof, the Medical Board’s opinion based on X-ray examination can be taken into account to determine the age of the person claiming juvenility.

 

CONTENTIONS BY THE RESPONDENT

The Learned AAG vehemently opposed the submissions advanced by the learned counsel for the petitioner and urged that the inquiry report had been submitted by the learned Additional District and Sessions Judge, as a consequence of direction given by the Supreme Court, and such inquiry report is based on detailed process of collection of evidence and analysis thereof. He submitted that the inquiry officer, i.e., the learned Additional District and Sessions Judge, after minute appreciation and evaluation of the evidence has categorically found that the date of birth of the petitioner as entered in the contemporaneous school record was 2nd July, 1960, which is the actual date of birth of the petitioner and as a consequence, the petitioner does not deserve the relief claimed for.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court after having minutely perused the inquiry report and the evidence led during the inquiry, were of the opinion that the conclusions drawn by the learned Additional District and Sessions Judge that the actual date of birth of the accused petitioner is 2nd July, 1960 and the opinion of the Medical Board that estimation of age based on X-ray examination becomes uncertain after 25 years is apropos and deserves to be accepted. They stated that Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas ossification test has been kept at the last rung to be considered, only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat. In the wake of the above discussion, The Hon’ble Supreme Court found no merit in the writ petition which was then dismissed as such.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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Reversal of Reversal: Supreme Court Acquits Accused After Faulty Appeal Process; Upholds Trial Court’s Decision.

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CASE TITLE – Babu Sahebagouda Rudragoudar & Ors. v. State Of Karnataka

CASE NUMBER – Criminal Appeal No. 985 of 2010

DATED ON – 19.04.2024

QUORUM – Justice Sandeep Mehta & Justice B.R. Gavai

 

FACTS OF THE CASE

The complainant, Chanagouda (PW-1) owns agricultural lands and a house in the village, Babanagar, Bijapur, Karnataka. It is alleged by the prosecution that in the morning of 19th September, 2001, the deceased Malagounda, son of the complainant, along with labourers/servants Revappa (PW-2), Siddappa (PW-3), Hiragappa (PW-4) and Suresh (PW-5) had gone to put up a bund (check dam) in their land. The work continued till 3.30 p.m. and thereafter, the four servants (PW-2, PW-3, PW-4 and PW-5), along with the deceased Malagounda and the complainant(PW-1) proceeded to the village. They had reached near the land of one Ummakka Kulkarni at about 4.00 pm, where A-1, A-2, A-3 and A-4 suddenly came around and exhorted that the way the complainant party had murdered Sangound, they would take revenge upon the members of the complainant party in the same manner. A-1 holding a jambai, A-2 holding an axe, A-3 holding a sickle and A-4 holding an axe, belaboured Malagounda, as a result of which he fell down. The assailants thereafter threatened the complainant(PW-1) that if he tried to intervene, he too would meet the same fate as his son. Fearing for his own life, the complainant(PW-1) ran away and hid behind the bushes in order to avoid being beaten by the accused. After sunset, the complainant(PW-1) returned to the village and narrated about the incident to his family members. A written complaint of this incident came to be submitted by the complainant(PW-1) at Tikota Police Station on 20th September, 2001 at 4.00 am in the morning whereupon FIR(Exhibit P-10) was registered and investigation commenced. After conclusion of investigation, a charge sheet came to be filed against the appellants(A-1, A-2, A-3) and other accused(A-4, A-5 and A-6) for the offences punishable under Sections 143, 147, 148, 506(2) and Section 302 read with Section 149 IPC in the Court of jurisdictional Magistrate. Upon hearing the arguments advanced by the prosecution and the defence counsel and after thoroughly appreciating the evidence available on record, the trial Court proceeded to hold that the prosecution could not prove the charges levelled against the accused beyond all manner of doubt and acquitted all the six accused vide judgment dated 23rd July, 2005. The State preferred an appeal under Section 378(1) read with 378(3) CrPC challenging the acquittal of the accused. The learned Division Bench of High Court of Karnataka partly allowed the said appeal vide judgment dated 14th September, 2009 and while reversing the acquittal of the accused A-1, A-2 and A-3 as recorded by the trial Court, convicted and sentenced them to life imprisonment and a Rs.50,000 fine for each of the convicts.

 

ISSUE

Whether the Learned Division Bench of the Karnataka High Court was justified in overturning the Trial Court’s Decision.

 

CONTENTIONS BY THE APPELLANTS

The Learned counsel representing the appellants urged that the view taken by the High Court in reversing the acquittal of the appellants recorded by the trial Court by a well-reasoned judgment is totally contrary to the settled principles laid down by the same Court regarding scope of interference in an appeal against acquittal. It was also contended that neither the disclosure statements nor the recovery memos bear the signatures/thumb impressions of the accused and hence, the recoveries cannot be read in evidence or attributed to the accused/appellants. He also stated that the acquittal can be reversed only if the findings recorded by the trial Court are found to be patently illegal or perverse or if the only view possible on the basis of the evidence available on record points towards the guilt of the accused. If two views are possible, the acquittal recorded by the trial Court should not be interfered with unless perversity or misreading of evidence is reflected from the judgment recording acquittal. The Learned counsel further urged that the learned Division Bench of the High Court, while rendering the judgment reversing acquittal of the appellant barely referred to the findings on the basis of which the trial Court had acquitted the accused by extending them the benefit of doubt. Rather, the High Court went on to record its own fresh conclusions after re-appreciation of the evidence and hence, the impugned judgment deserved to be set aside.

 

CONTENTIONS BY THE RESPONDENT

The learned counsel appearing for the respondent State vehemently and fervently opposed the submissions advanced by learned counsel for the appellants. He urged that learned Division Bench of the High Court, while considering the appeal against acquittal, thoroughly reappreciated the evidence available on record and arrived at an independent and well considered conclusion that the depositions of the eye witnesses PW-1, PW-2, PW-4, PW-6 and PW-15 were convincing and did not suffer from any significant contradictions or infirmities so as to justify the decision of the trial Court in discarding their evidence and acquitting the accused of the charges. He stated that the so called contradictions and discrepancies highlighted by the trial Court in the evidence of the eyewitnesses for doubting their evidentiary worth are trivial and insignificant and acquittal of accused as recorded by the learned trial Court disregarding the testimony of the eyewitnesses is based on perverse and unacceptable reasoning. Learned counsel thus urged that the High Court was perfectly justified in reversing the acquittal of the accused appellants by the impugned judgment which does not require interference in this appeal.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court after going through the impugned judgement of a Division Bench of the Karnataka High Court stated that none of the essential mandates governing an appeal against acquittal were adverted to by the learned Division Bench which proceeded to virtually decide the appeal as a first Court on independent appreciation of evidence and recorded its own findings to hold the accused appellants(A-1, A-2 and A-3) guilty of the charge under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life, and thus, on the face of record, the judgment of the High Court causing interference with the acquittal of the accused appellants as recorded by the trial Court is contrary to the principles established by law. They were of the firm opinion that neither the disclosure memos were proved in accordance with law nor the recovery of the weapons from open spaces inspire confidence and were wrongly relied upon by the High Court as incriminating material so as to reverse the finding of the acquittal recorded by the trial Court, and also stated that that the view taken by the trial Court in the judgment dated 23rd July, 2005 recording acquittal of accused is a plausible and justifiable view emanating from the discussion of the evidence available on record, and that the trial Court’s judgment does not suffer from any infirmity or perversity. Hence, the High Court was not justified in reversing the well-reasoned judgment of the trial Court and that the impugned judgment dated 14th September, 2009 rendered by the High Court could be not be sustained and was reversed, and held that the accused/appellants were hereby acquitted of all the charges.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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The Kerala High Court upholds the Conviction of Father under the POCSO Act for Sexually Assaulting his 9 year old Daughter

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Case title – Stephen VS State of Kerala

Case no. – CRL.A No. 138 OF 2017

Decision on – March 05, 2024

Quoram – Justice P.B. Suresh Kumar & Justice Johnson John

Facts of the case

The appellant in the instant case is none other than the father of the victim. The accusation against the accused was that he penetrated his penis into the mouth of the victim who was aged 9 years then and threatened her of death, if she discloses the same to anyone.

The Special Court took cognizance of the matter and observed that when the accused was questioned on the incriminating evidence he denied the same and maintained that he has been falsely implicated in the case, with a view to avoid him at the instance of his wife, who maintains an illicit relationship with another. The Court did not find a case fit for acquittal and when called upon for evidence, the accused failed to adduce the same. Hence, the Court convicted and sentenced him to imprisonment and to pay fine for the offences punishable under Section 5(n) read with Section 6 and Section 9(n) read with Section 10 of the POCSO Act, 2012 and Section 506 Part 2 of the IPC.

Submissions on behalf of the Appellant

The Learned Counsel for the accused submitted that the there is no evidence in the case to prove the alleged act of penetrative sexual assault except the evidence tendered by PW2 and further contended that the same was not trustworthy.

He contended that even if the arguendo is accepted the sentence imposed on the accused is grossly disproportionate to the gravity of the offence alleged and pleaded the Court to rectify the same.

Issue

Whether the conviction of the accused and the sentence imposed on him are sustainable in law?

Court’s Analysis and Judgement

The Court examining the statements given by PW1(mother of the victim) and PW2(victim) observed that both of them stood by their statements and there were no instances to doubt the veracity of evidence tendered by them.

The Court noted that the evidence of the victim was the only thing on record to determine the case and it is a settled law that the evidence of the victim of a sexual assault can be the sole basis of a conviction. However, relying on the decision in Rai Sandeep v. State (NCT of Delhi) the Court pointed out that in order to base a conviction solely on the evidence of the rape victim, such evidence shall be of a sterling quality.

The Court observed that the evidence tendered by the victim in the case satisfies the requirement of a sterling witness and therefore, affirmed the decision of the Special Court. The Court also upheld the charges framed against the accused and the punishment imposed on him by the Special Court.

The Kerala High Court, thereby, rejected the appeal of an accused and convicted him under POCSO Act for committing aggravated penetrative sexual assault on his nine-year-old daughter.

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Judgement Reviewed by – Keerthi K

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