Zakir Hussain Vs the State of Assam

This is an application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter to be referred as the “Act of 2000”) seeking re-assessment of the age of the

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applicant/accused through medical test for the reason of the applicant/accused having never attended the school nor he being registered with any public body and there being no existing certificate of age in favour of the applicant/accused.

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2. To buttress his claim of juvenility, the applicant/ accused has relied on the statement of his father as DW-3 at the trial that he was born on the day of Bohag Bihu in the year 2001 and that he himself, while getting his statement recorded under Section 313 of the Cr.PC, disclosed his age to be 18 years on 21.07.2018.

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3. We have heard Mr. A.K. Bhuyan, learned Advocate for the applicant/accused; Mr. Z. Kamar, learned Amicus and Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam for respondent No.1.

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4. The claim of the applicant/accused is sought to be contested by Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam and Mr. Z. Kamar, learned Amicus on the ground that there are no credible material available on record to support the claim of the applicant/ accused that he was less than 18 years of age on the day of the occurrence. They contend that the entire claim of the applicant/ accused is based on bald assertions. They, in unison, submit that the provision of law is being misused by the applicant/accused as a delaying tactics. That apart, it has been urged that Bohag Bihu is not a precise date but only a festival and the testimony of one of the parents would not have the that element of reliability for it to be accepted as an exfacie truth.

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Mr. Kamar has further argued that any statement made under

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Section 313 of the Cr.PC cannot be read as an evidence in favour of the applicant/accused having made that statement, particularly with respect to his assertion about his age.

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5. The afore-noted grounds, the learned Advocates contesting the application, submit is also required to be seen in the context of a much belated claim, though not barred under law. The Courts, it has been argued, must remain alive to the possibility of fabrication and an attempt by the accused to use this provision of law as a shield to escape punishment.

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6. We have examined the records of this case to the extent of determining whether the application made by the applicant/accused for constituting a Medical Board for assessing his age. While doing so, we have adverted to the evidence of PWs-7 and 13 and have seen material Exhibit-I, the certificate of the school which records the applicant’s date of birth as 08.05.1999. The evidence of PWs-7 and 13 are not very specific with respect to the applicant/accused being same Zakir Hussain .

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7. At this stage, we also deem it appropriate to list the legal position with respect to such claims - post conviction.

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8. It is almost cadit quaestio that the claim of juvenility could be raised at any stage even after disposal of the case, but for making a claim with regard to juvenility after conviction, there is a requirement of the claimant producing some material which would prima facie satisfy the Court that an enquiry into the claim of juvenility is necessary and the initial burden in that regard has to be discharged by the person who

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claims juvenility.

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9. The oral assertion of the parents of the applicant/accused or his own declaration under Section 313 of the Cr.PC may not be sufficient for initiating an enquiry/medical enquiry for assessing the age of the applicant/accused, but, then, equally important is the caution by the Supreme Court that a Court, before which the claim of juvenility is raised for the first time, should be guided by the objectives of the Act of 2000 and be alive to the position that the beneficent and salutary provisions contained in the Act of 2000 are not defeated by the Court’s technical approach and persons, who are entitled to get benefits of the Act of 2000, gets such benefits.

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10. In Vinod Katara -Vs- State of Uttar Pradesh :: (2023) 15 SCC 210 , the Supreme Court, while culling out the principles applicable in cases of claim of juvenility post conviction, has postulated that if one were to adopt a wooden approach, one could say nothing sort of a certificate, whether from the school or a municipal authority would satisfy the Court’s conscience before directing an enquiry. But, then directing an enquiry is not the same thing as declaring the accused to be a juvenile. The standard of proof required is different for both. In the former, the Court simply records a prima facie conclusion. In the latter, the Court makes a declaration on evidence, which it scrutinizes and accepts only if it is worthy acceptance.

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11. The approach, the Supreme Court clarifies, at the stage of directing the enquiry has to be more liberal lest there could be an avoidable miscarriage of justice.

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12. Weighing the afore-noted ground in that perspective, we are of the view, especially keeping in mind the laconic evidence of PWs-7 and 13, that there ought to be a medical examination of the applicant/ accused for assessing his age.

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13. We, thus, direct for constitution of a Medical Board and the Members of the Board to be named by the Superintendent of the Gauhati Medical College & Hospital within a period of 1(one) week from the date of production of a certified copy of this order and the applicant/accused be subjected to a medical/ossification test for assessing his age and for which the applicant/accused shall be produced from jail before such Board on the day appointed by the Board. The Board, so constituted, shall give its opinion within 3(three) weeks of its constitution, which shall be transmitted to this Court through the Superintendent of the Gauhati Medical College & Hospital.

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14. The application stands allowed to the extent indicated above.

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15. The connected death reference and the appeal shall be listed for final determination after the receipt of the opinion of the Medical Board on 23.04.2026 .

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JUDGE CHIEF JUSTICE

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Zakir Hussain v. the State of Assam

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Zakir Hussain v. the State of Assam

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