Remanded

Saddam Husain v. State of U.P. and Another

Allahabad HC23 Nov 2022CRLR/3578/2021

Case brief

AI extract

What is this about?

In this criminal revision challenging an order declaring the accused a juvenile, the High Court held that the medical report was sketchy and incomplete. Quoting precedents, the Court emphasized that medical evidence is not conclusive under Section 7A of the Juvenile Justice Act. The order was set aside, and the matter was remanded for a fresh inquiry with oral evidence.

What did the court decide?

The order dated 09.03.2021 was set aside and the matter was remanded to the Trial Court for fresh determination and inquiry.

Saddam Husain Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2022)

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Court No. - 91 Case :- CRIMINAL REVISION No. - 3578 of 2021 Revisionist :- Saddam Husain Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Mohammad Waseem Counsel for Opposite Party :- G.A.,Ved Mani Sharma

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Rajesh Kumar Verma holding brief of Sri Mohammad Waseem, learned counsel for the revisionist, Sri O.P. Mishra, learned AGA for the State and Sri Ved Mani Sharma, learned counsel for the respondent no. 2.

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This criminal revision has been filed on behalf of the informant challenging the order dated 09.03.2021, by which, the accused, who is being represented by his mother-respondent no. 2 in the present case, was adjudged a juvenile.

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The facts giving rise to this revision is as below:-

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The accused was being tried in Sessions Trial No. 874 of 2016 (State vs. Arif and others) which arose out of Crime No. 713 of 2016 under Sections 302, 504 IPC, Police Station-Baradari, District-Bareily; at the maturity of trial, after recording of the statement of the accused under Section 313 Cr.P.C., an application was moved on his behalf stating that on the date of incident, he was less than 16 years of age and that his whole family is illiterate and accused never studied in any school, therefore, his age may be determined by ordering for his medical examination; the accused was medically examined by a Medical Board constituted by the C.M.O. and he was found aged about 19 years on the date of medical examination i.e., 15.01.2021; on the basis of this medical opinion, impugned order was passed declaring him as juvenile on the date of occurrence.

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The contention of the revisionist is that the medical report does not mention about the fusion of all epiphysis of upper and lower extremities; there is no mention of other medical facts which could have indicated his age; the certificate issued by the C.M.O., is not only incomplete as it lacks other relevant details including the physical features, the opinion as to ossification centres for the distal ends of radius and ulna and other factors; hence, the medical report cannot be relied upon. It is also contended that the accused should be examined by some other Board as there is shown an inclination towards the juvenile in view of fact that medical report is bereft of material particulars, which could have otherwise indicated his real age.

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Heard both the sides and perused the papers. In this case, the date of occurrence is 18.08.2016, therefore, the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 shall apply, which prescribes a procedure to be followed when claim of juvenility is raised before any court is Section 7A of the Act is as below:-

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"(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

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(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.]"

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In Mukarrab and Others vs. State of U.P., (2017) 2 SCC 210 , the opinion of Medical Board for determination of age was considered. It was observed therein that:-

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"26. xxxxxxxxxx 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 page 31 of Modi's Text Book of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:

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"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 other circumstances."

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This opinion has also been given that the age estimation should not be based entirely on X-ray of a single joint or bone. A number of factors including race, gender, nutritional status etc influence the age of appearance and fusion of epiphysis. This opinion given by Modi was referred to in Habeas Corpus Writ Petition No. 1160 of 2019 (Kiranpal @ Kinna vs. State of U.P. and 2 Others) dated 10.06.2021. In the same case an extract from Modi's Text Book on Page 216 was also quoted which is as below:-

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"The four middle pieces of the sternum, which constitute its body, fuse with one another from below upwards, between 14 and 25 years of age . The xiphoid unites with the body at about the 40th year of age, while the manubrium rarely unites with the body, except in old age. Singh et al. studied the time of fusion of mesosternum with manubrium and xiphoid process in the population of Punjab, Haryana and Chandigarh. They examined the sterna of 524 males and 228 females at the time of postmortems. It was observed that the fusion between mesosternum and manubrium began in the age group of 10-14 years

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(males, 40%) and 15-17 years (females, 16.66%). The fusion between mesosternum and xiphoid process commenced at 18-20 years (both genders) and complete fusion was observed in 21-25 years age group. They concluded that neither the fusion of mesostenum with manubrium nor with xiphoid process is useful to estimate age if a subject is above 18-20 years of age".

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In Ashwani Kumar Saxena vs State Of M.P.; 2012 (9) SCC 750, the scope of Section 7-A of the Juvenile Justice Act, 2000 was examined, the Apex Court observed that the statutory provisions oblige the Court to make an inquiry under the Juvenile Justice Act regarding age of the accused on the date of the incident.

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In Abuzar Hossain alias Gulam Hossain vs. State of West Bengal; 2012 (10) SCC 489, this opinion was given that directing an enquiry is not the same thing as declaring the accused to be a juvenile. This observation was given in the light of the words "physical appearance" occurring in Rule 12 (2) of the Rules, 2007 and a very important observation was also made that the standard of proof required is different for both the stages. In the former, the Court simply records a prima facie conclusion. In the latter, the Court makes a declaration on evidence that it scrutinises and accepts only if it is worthy of such acceptance.

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In this view of the matter, the Court cannot put a blind faith on the report of the Medical Board. In this case, the medical report appears to be sketchy and incomplete. The medical evidence as to the age of the person though very useful but is not a conclusive and has to be considered in conjunction with other circumstances and oral testimony, as may be available as has been held in Mukarrab's case (supra) and several others.

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It is quite clear that this provision enjoins upon the court a responsibility to undertake an inquiry and take such evidence as may be necessary (not an affidavit) so as to determine the age of such person. It may be noted that when the court is enjoined to inquire into a matter, it is expected that the court shall embark on the path of inquiry in a pro-active manner. It is not at all expected from the court that it will sit like a mute spectators and shall filter through only the papers/evidence, which have been placed before it.The court cannot remain unconcerned and rely on papers even if they are wholly inadequate to bring forth any concrete result.

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In my view, the court should have called upon the parents of the accused or any other witnesses which in its discretion could have given best evidence as regard to his age. The court should also have critically examined the medical opinion as given by the Board and should have examined the expert witness as

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regard the determination of age, based on ossification test or medical opinion, especially, in the circumstances when a serious objection has been raised against the medical opinion by the informant. This fact cannot be brushed off lightly that the plea of juvenility has been raised at a very mature stage of the case. In my view, the matter of determination of age, as per provisions of Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, needs to be remanded for fresh hearing and determination after giving both the sides proper opportunity. The court concerned shall give due importance to the observations of this Court and shall also take oral evidence. It may call for supplementary medical report as regard to fusion of other epiphysis, if it seemed desirable in discretion of the court concerned.

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The order dated 09.03.2021 is set aside and the matter is remanded for fresh determination accordingly.

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Order Date :- 23.11.2022 Vik/-

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Digitally signed by VIKRAM GUPTA Date: 2022.11.24 17:21:46 IST Reason: Location: High Court of Judicature at Allahabad

Saddam Husain v. State of U.P. and Another

Case brief

What is this about?

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Saddam Husain v. State of U.P. and Another

Case brief

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