RAM VIJAY SINGH versus STATE OF UTTAR PRADESH CRIMINAL APPEAL NO. 175 OF 2021 FEBRUARY 25, 2021 on 25 February 2021

SUPREME COURT REPORTS

[2021] 1 S.C.R.

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RAM VIJAY SINGH

v.

STATE OF UTTAR PRADESHCRIMINAL APPEAL NO. 175 OF 2021FEBRUARY 25, 2021

B[ROHINTON FALI NARIMAN, HEMANT GUPTA ANDB. R. GAVAI, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015:Importance/reliability of ossification test – When a person is around18 years of age, the ossification test can be said to be relevant fordetermining the approximate age of a person in conflict with law –CHowever, when a person is around 40-55 years of age, the structureof bones cannot be helpful in determining the age – When theossification test cannot yield trustworthy and reliable results, suchtest cannot be made a basis to determine the age of the personconcerned on the date of incident – Therefore, in the instant case,Din the absence of any reliable trustworthy medical evidence to findout age of the appellant, the ossification test conducted in year2020 when the appellant was 55 years of age cannot be conclusiveto declare him as a juvenile on the date of the incident i.e.20.07.1982.

Juvenile Justice (Care and Protection of Children) Act, 2015:EDetermination of age – As per the Scheme of the Act, when it isobvious to the Committee or the Board, based on the appearance ofthe person, that the said person is a child, the Board or Committeeshall record observations stating the age of the Child as nearly asmay be without waiting for further confirmation of the age –FTherefore, the first attempt to determine the age is by assessing thephysical appearance of the person when brought before the Boardor the Committee – It is only in case of doubt, the process of agedetermination by seeking evidence becomes necessary – At that stage,when a person is around 18 years of age, the ossification test canbe said to be relevant for determining the approximate age of aGperson in conflict with law.

Juvenile Justice (Care and Protection of Children) Act, 2015:Conviction of appellant under s.302 r/w s.34 IPC – Appellant raisedplea of juvenility – In support thereof, he relied on an order passedby High Court in 1982 granting bail to him on the basis of report ofHradiologist that the age of appellant at the time of incident was between 15-1/2-17-1/2 years – Plea of juvenility raised before thiscourt on the basis of said order of High Court – Held: The medicalreport in support of the bail order is not available – Such ordergranting bail cannot be conclusive determination of age of theappellant – It was an interim order of bail pending trial but in theabsence of a medical report, it cannot be conclusively held that theappellant was juvenile on the date of the incident – Apart from thatan application was submitted by the appellant himself for obtainingan Arms Licence prior to the date of the incident – In suchapplication, he had given his date of birth as 30.12.1961 whichmade him 21 years of age on the date of the incident i.e. 20.7.1982– The Court is not precluded from taking into consideration anyother relevant and trustworthy material to determine the age as allthe three eventualities mentioned in sub-section (2) of s.94 of theAct are either not available or are not found to be reliable andtrustworthy – Since there was such document signed by the appellantmuch before the date of occurrence, therefore, he cannot be treatedto be juvenile on the date of incident.

Juvenile Justice: Plea of juvenility – Held: Can be raised atany stage even after finality of the proceedings before SupremeCourt.

Penal Code, 1860: s.302 r/w s.34 – The oral evidence alongwith the statement of the doctor (PW-4) suggested that the injurieson the head of the deceased were caused by a blunt weapon – Theblunt weapon as deposed by the eyewitness was the lathi in thehands of the appellant – Lathi may be common article with thevillagers but the use of lathi as a weapon of offence is a finding offact recorded by the Courts below – As per the postmortem report,the deceased suffered multiple injuries which showed attack by morethan one person – The nature of injuries also showed that hard andblunt object as well as sharp edged weapons were used to inflictinjuries – It was the appellant who was armed with Lathi whereasthe other convicted accused was armed with Axe – The incisedwound suffered by the deceased was possible with an Axe – As perthe report, there were sufficient number of injuries caused by anAxe and Lathi on the person of the deceased – Trial court as well asthe High Court had appreciated the entire evidence to return a findingof guilt against the appellant – No interference with the order ofconviction.

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AWitness: A part statement of a witness can be believed eventhough some part of the statement may not be relied upon by thecourt – The maxim Falsus in Uno, Falsus in Omnibus is not the ruleapplied by the courts in India.

Witness: Number of witnesses, relevance – It is not necessaryfor the prosecution to examine all the witnesses who might haveBwitnessed the occurrence – It is the quality of evidence which isrelevant in criminal trial and not the quantity.

Dismissing the appeal, the Court

HELD: 1.1 There is no dispute that the plea of juvenilitycan be raised at any stage even after finality of the proceedingsCbefore this Court. Section 7-A of the Juvenile Justice (Care andProtection of Children) Act, 2000 contemplated that whenever aclaim of juvenility is raised before any Court, the Court shall makean inquiry and take such evidence as may be necessary. In termsof the provisions of the 2000 Act, the Juvenile Justice (Care andDProtection of Children) Rules, 2007 have been framed. Rule 12of the Rules contemplates a procedure to be followed fordetermination of age. The 2000 Act has been repealed by theJuvenile Justice (Care and Protection of Children) Act, 2015.Section 9(2) of the Act is the analogous provision to Section 7-Aof the 2000 Act. The procedure for determining the age is nowEpart of Section 94 of the Act which was earlier part of Rule 12 ofthe Rules.[Paras 7, 8][573-G-H; 574-C-E]

1.2 A perusal of Rule 12(3)(b) of the Rules shows that inthe absence of documents as mentioned in clause (i), (ii) or (iii),the medical opinion will be sought from a duly constituted MedicalFBoard, which will declare the age of the juvenile or child. It wasfurther provided that in case wherein the exact assessment ofthe age cannot be done, the Court or the Juvenile Justice Board,if considered necessary, give benefit to the child or juvenile byconsidering his/her age on lower side within the margin of oneyear. However, Section 94 of the Act does not have anyGcorresponding provision of giving benefit of margin of age. [Para9][575-E-G]

1.3 Admittedly, in the present case, there is no Date of BirthCertificate from the school or matriculation or equivalentcertificate or a Birth Certificate given by a Corporation orHMunicipal Authority or Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine the age by an ossificationtest or any other latest medical age determination test conductedon the orders of the Committee or the Board comes into play.[Para 10][575-G-H; 576-A]

2.1 The medical report in support of the bail order passedby High Court in 1982 is not available. Such order granting bailcannot be conclusive determination of age of the appellant. Itwas an interim order of bail pending trial but in the absence of amedical report, it cannot be conclusively held that the appellantwas juvenile on the date of the incident. [Para 13][578-F]

2.2 As per the Scheme of the Act, when it is obvious to theCommittee or the Board, based on the appearance of the person,that the said person is a child, the Board or Committee shallrecord observations stating the age of the Child as nearly as maybe without waiting for further confirmation of the age. Therefore,the first attempt to determine the age is by assessing the physicalappearance of the person when brought before the Board or theCommittee. It is only in case of doubt, the process of agedetermination by seeking evidence becomes necessary. At thatstage, when a person is around 18 years of age, the ossificationtest can be said to be relevant for determining the approximateage of a person in conflict with law. However, when the person isaround 40-55 years of age, the structure of bones cannot be helpfulin determining the age. [Para 15][579-A-C]

2.3 When the ossification test cannot yield trustworthy andreliable results, such test cannot be made a basis to determinethe age of the person concerned on the date of incident. Therefore,in the absence of any reliable trustworthy medical evidence tofind out age of the appellant, the ossification test conducted inyear 2020 when the appellant was 55 years of age cannot beconclusive to declare him as a juvenile on the date of the incident.Apart from the said fact, there is an application submitted by theappellant himself for obtaining an Arms Licence prior to the dateof the incident. In such application, he has given his date of birthas 30.12.1961 which would make him of 21 years of age on thedate of the incident i.e. 20.7.1982. The Court is not precludedfrom taking into consideration any other relevant and trustworthymaterial to determine the age as all the three eventualitiesmentioned in sub-section (2) of Section 94 of the Act are either A

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Anot available or are not found to be reliable and trustworthy. Sincethere is a document signed by the appellant much before thedate of occurrence, therefore, the appellant cannot be treated tobe juvenile on the date of incident as he was more than 21 yearsof age as per his application submitted to obtain the Arms Licence.[Paras 15, 16][579-D-H]B

3.1 A part statement of a witness can be believed eventhough some part of the statement may not be relied upon by thecourt. The maxim Falsus in Uno, Falsus in Omnibus is not therule applied by the courts in India. Therefore, merely because aprosecution witness was not believed in respect of anotherCaccused, the testimony of the said witness cannot be disregardedqua the present appellant. Still further, it is not necessary for theprosecution to examine all the witnesses who might havewitnessed the occurrence. It is the quality of evidence which isrelevant in criminal trial and not the quantity. Therefore, non-examination of brother of the deceased cannot be said to be ofDany consequence. [Paras 18, 19][580-C; 581-D-E]

3.2 The oral evidence along with the statement of the doctor(PW-4) suggest that the injuries on the head of the deceasedwere caused by a blunt weapon. The blunt weapon as deposed bythe eyewitness is the lathi in the hands of the present appellant.ELathi may be common article with the villagers but the use oflathi as a weapon of offence is a finding of fact recorded by theCourts below. As per the postmortem report, the deceasedsuffered multiple injuries which shows attack by more than oneperson. The nature of injuries also shows that hard and bluntFobject as well as sharp edged weapons were used to inflict injuries.It is the appellant who was armed with Lathi whereas the otherconvicted accused was armed with Axe. The incised woundsuffered by the deceased was possible with an Axe. As per thereport, there are sufficient number of injuries caused by an Axeand Lathi on the person of the deceased. However, the trial courtGas well as the High Court had appreciated the entire evidence toreturn a finding of guilt against the appellant. [Paras 21-23][582-D-G]

Abuzar Hossain alias Gulam Hossain v. State of WestBengal (2012) 10 SCC 489 : [2012] 9 SCR 244; Arjun H

Panditrao Khotkar v. Kailash Kushanrao Gorantyaland Ors. (2020) 7 SCC 1; Ilangovan v. State of T.N.(2020)10 SCC 533 – relied on.

Case Law Reference

[2012] 9 SCR 244relied onPara 9(2020) 7 SCC 1 relied onPara 15(2020) 10 SCC 533relied onPara 18

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 175 of 2021.

From the Judgment and Order dated 22.04.2020 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 2102 of 1983.

Gopal Sankarnarayanan, Sr. Adv., Pranav Sachdeva, JatinBhardwaj, Sudesh Kumar Singh, Ms. Neha Rathi, Ankit Goel, R. K.Gupta, Abhinav Kaushik, Advs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

Leave granted.

1. The present appeal has been preferred against the order dated22.4.2020 passed by the High Court of Judicature at Allahabad. Videthe said order, the appeal filed by the appellant against his conviction foran offence under Section 302 read with Section 34 of the Indian PenalCode, 1860[1] 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.20.7.1982. In support of plea of juvenility, the appellant relied upon familyregister maintained by the Panchayat, Aadhaar Card and an order passedby the High Court in the year 1982. In the said order, the High Court hadgranted bail on the basis of the report of the Radiologist that the age ofthe appellant at that time was between 15½ - 17½ years. The appellanthas further stated that he had moved criminal miscellaneous applicationraising a claim of him being a juvenile at the time of commission ofoffence before the High Court but the said application was not decidedand the appeal has been dismissed on merits.

3. Keeping in view the said assertion raised by the appellant, thisCourt passed the following order on 20.7.2020:

1 For short, the ‘IPC’

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

Adjourned.

Liberty to mention.”

4. It is thereafter, the High Court had sought the report of theCMedical Board. Such Medical Board consisting of five doctors comprisedof (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M. andAssociated Hospitals, Lucknow, (2) Dr. Mausami Singh, AdditionalProfessor, Forensic Medicine & Texicology, (3) Dr. Garima Sehgal,Associate Professor, Department of Anatomy, (4) Prof. Pavitra Rastogi,DDepartment of Periodontology, King George’s Medical University and(5) Dr. Sukriti Kumar, Assistant Professor, Department of Radiodiagnosis,KGMU, UP, Lucknow. The Medical Board, in its report submitted on8.9.2020 to the High Court opined that the age of the appellant is between40-55 years. The State and the informant objected to the report. Further,there was also a mention of a single barrel gun granted to the appellantEon 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 itsorder to this Court stating that the appellant was juvenile on the date ofcommission of the offence. The conclusions drawn by the High Courtreads thus:F“43. We were impressed by aforesaid submission at the first flushparticularly in the light of observations made in Mukarrab & Ors.v. State of Uttar Pradesh[2]wherein the Court rejected the agedetermination report prepared by All India Institute of MedicalSciences (AIIMS) New Delhi, but upon deeper scrutiny, we doGnot find any force in this submission. The facts in Mukarrab’scase were very clinching which is not the case here. In the presentcase, except for the fact that accused-appellant was issued a gunlicense 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 cannottake the place of proof. Perusal of the objections filed by informantdoes not indicate the grounds on which the member of the MedicalBoard is sought to be examined and secondly, no such materialhas been appended along with the objections filed by informanton the basis of which prima facie we could feel satisfied tosummon a member of Medical Board. We accordingly, negatethe submission urged by learned counsel for informant to summona member of Medical Board for cross-examination.

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

5. This Court on 13.1.2021 directed the learned Advocateappearing for the State to produce all original documents with regard tothe Gun Licence in question. In pursuance of the said direction, theState filed an application submitted on behalf of the appellant to seek theArms Licence. In Column 2 of the application, the appellant has providedhis date of birth as 30.12.1961. Such application was filed on or around21.12.1981 wherein a police report was submitted on 28.3.1982 statingthat no criminal case was registered against the appellant. It is on thatbasis, the application for Arms Licence was processed and the AreaMagistrate approved the grant of Licence. The Arms Licence was hencegranted on 24.7.1982, that is after the date of incident.

6. With this factual background, the question of juvenility of theappellant as on the date of incident, i.e., 20.7.1982 is required to beexamined.

7. There is no dispute that the plea of juvenility can be raised atany stage even after finality of the proceedings before this Court. In thepresent case, the appellant has raised the plea of juvenility before the AB

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AHigh Court vide Criminal Miscellaneous Application No. 382916 of 2015.This Court in a judgment reported as Abuzar Hossain alias GulamHossain v. State of West Bengal[3]held as under:

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

8. Section 7-A of the Juvenile Justice (Care and Protection ofChildren) Act, 2000[4] contemplated that whenever a claim of juvenility israised before any Court, the Court shall make an inquiry and take suchevidence as may be necessary. In terms of the provisions of the 2000Act, the Juvenile Justice (Care and Protection of Children) Rules, 2007[5]Dhave been framed. Rule 12 of the Rules contemplates a procedure to befollowed for determination of age. The 2000 Act has been repealed bythe Juvenile Justice (Care and Protection of Children) Act, 2015[6]. Section9(2) of the Act is the analogous provision to Section 7-A of the 2000Act. The procedure for determining the age is now part of Section 94 ofEthe Act which was earlier part of Rule 12 of the Rules. Section 94 of theAct reads thus:

“Section 94. Presumption and determination of age

(1) Where, it is obvious to the Committee or the Board, based onthe appearance of the person brought before it under any of theFprovisions of this Act (other than for the purpose of giving evidence)that the said person is a child, the Committee or the Board shallrecord such observation stating the age of the child as nearly asmay be and proceed with the inquiry under section 14 or section36, as the case may be, without waiting for further confirmationGof the age.

3 (2012) 10 SCC 489

4 For short, the ‘2000 Act’

5 For short, the ‘Rules’

H6 For short, the ‘Act’

(2) In case, the Committee or the Board has reasonable groundsfor doubt regarding whether the person brought before it is a childor not, the Committee or the Board, as the case may be, shallundertake the process of age determination, by seeking evidenceby obtaining-

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

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

(iii) and only in the absence of (I) and (ii) above, age shall bedetermined by an ossification test or any other latest medical agedetermination test conducted on the orders of the Committee orthe Board:

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

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

9. The judgment in Abuzar Hossain considered Section 7-A ofthe Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of theRules shows that in the absence of documents as mentioned in clause(i), (ii) or (iii), the medical opinion will be sought from a duly constitutedMedical Board, which will declare the age of the juvenile or child. It wasfurther provided that in case wherein the exact assessment of the agecannot be done, the Court or the Juvenile Justice Board, if considerednecessary, give benefit to the child or juvenile by considering his/her ageon lower side within the margin of one year. However, it is to be notedthat Section 94 of the Act does not have any corresponding provision ofgiving benefit of margin of age.

10. Admittedly, in the present case, there is no Date of BirthCertificate from the school or matriculation or equivalent certificate or aBirth Certificate given by a Corporation or Municipal Authority orPanchayat. Therefore, clause (iii) of Section 94(2) of the Act to determinethe age by an ossification test or any other latest medical age determination A

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Atest conducted on the orders of the Committee or the Board comes intoplay.

11. Mr. Gopal Sankaranarayanan, learned senior counsel appearedon behalf of the appellant, argued that the accused was given bail by theHigh Court keeping in view his age as 15½ - 17½ years in the year 1982.BTherefore, the appellant has to be treated as a juvenile in the light of thesaid order. It was contended that even considering the maximum age as55 years as per the Medical Report now submitted, the appellant wouldstill be less than 18 years on the date of incident. It was also argued thatprocedure as contained in Rule 12(3)(b) of the Rules is now part ofSection 94 of the Act. Therefore, once the statute has provided ossificationCtest as the basis of determining juvenility, the findings of such ossificationtest cannot be ignored.

12. Mr. Goel, on the contrary, argued that procedure as providedunder Rule 12(3)(b) of the Rules is not materially different from thatcontained in the Statute. In fact, the discretion given to the Court toDlower the age by one year in the Rules has been omitted. He furtherrelied upon a judgment of this Court in Mukarrab wherein it has beenheld that the Courts have observed that the evidence afforded byradiological examination is a useful guiding factor for determining theage of a person but the evidence is not of a conclusive and incontrovertibleEnature and is subject to a margin of error. Medical evidence as to theage of a person though a very useful guiding factor is not conclusive andhas to be considered along with other circumstances. It was further heldthat the ossification test cannot be regarded as conclusive when theappellants have crossed the age of thirty years which is an importantfactor to be taken into account as age cannot be determined with precision.FIt was held as under:

“26. Having regard to the circumstances of this case, a blind andmechanical view regarding the age of a person cannot be adoptedsolely on the basis of the medical opinion by the radiologicalexamination. At p. 31 of Modi’s Textbook of MedicalGJurisprudence and Toxicology, 20th Edn., it has been stated asfollows:

“In ascertaining the age of young persons radiograms of any ofthe main joints of the upper or the lower extremity of both sides ofthe body should be taken, an opinion should be given according to H

the following Table, but it must be remembered that too muchreliance should not be placed on this Table as it merely indicatesan average and is likely to vary in individual cases even of thesame province owing to the eccentricities of development.”

Courts have taken judicial notice of this fact and have alwaysheld that the evidence afforded by radiological examination is nodoubt a useful guiding factor for determining the age of a personbut the evidence is not of a conclusive and incontrovertible natureand it is subject to a margin of error. Medical evidence as to theage of a person though a very useful guiding factor is not conclusiveand has to be considered along with 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 ossificationtest is not the sole criteria for age determination. Following BablooPasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 :(2009) 3 SCC (Cri) 266] and Anoop Singh cases [State ofM.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri)208], we hold that ossification test cannot be regarded as conclusivewhen it comes to ascertaining the age of a person. More so, theappellants herein have certainly crossed the age of thirty yearswhich is an important factor to be taken into account as age cannotbe determined with precision. In fact in the medical report of theappellants, 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 studyof wrist ossification for age estimation in paediatric group in CentralRajasthan”, which reads as under:

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

[Ref.: Gray H. Gray’s Anatomy, 37th Edn., Churchill LivingstoneEdinburgh London Melbourne and New York: 1996; 341-342]; A careful examination of teeth and ossification at wrist joint providevaluable data for age estimation in children.

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[Ref.: Parikh C.K. Parikh’s Textbook of MedicalJurisprudence and Toxicology, 5th Edn., Mumbai Medico-LegalCentre Colaba: 1990; 44-45]; A

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Variations in the appearance of centre of ossification at wrist jointshows influence of race, climate, diet and regional factors.Ossification centres for the distal ends of radius and ulna consistentwith present study vide article “A study of wrist ossification forage estimation in paediatric group in Central Rajasthan” byDr Ashutosh Srivastav, Senior Demonstrator and a team of otherdoctors, Journal of Indian Academy of Forensic Medicine (Jiafm),2004; 26(4). ISSN 0971-0973].

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29. In the present case, their physical, dental and radiologicalexaminations were carried out. Radiological examination of skull(AP and lateral view), sternum (AP and lateral view) and sacrumD(lateral view) was advised and performed. As per the medicalreport, there was no indication for dental x-rays since both theaccused were much beyond 25 years of age. Therefore, the agedetermination based on ossification test though may be useful isnot conclusive. An x-ray ossification test can by no means be soinfallible and accurate a test as to indicate the correct number ofEyears and days of a person’s life.”

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13. We do not find any merit in the arguments advanced by theappellant. The medical report in support of the bail order is not available.Such order granting bail cannot be conclusive determination of age ofthe appellant. It was an interim order of bail pending trial but in theFabsence of a medical report, it cannot be conclusively held that theappellant was juvenile on the date of the incident.

14. We find that the procedure prescribed in Rule 12 is notmaterially different than the provisions of Section 94 of the Act todetermine the age of the person. There are minor variations as the Rule12(3) (a)(i) and (ii) have been clubbed together with slight change in thelanguage. Section 94 of the Act does not contain the provisions regardingbenefit of margin of age to be given to the child or juvenile as wasprovided in Rule 12(3)(b) of the Rules. The importance of ossificationtest has not undergone change with the enactment of Section 94 of the G

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Act. The reliability of the ossification test remains vulnerable as wasunder Rule 12 of the Rules.

15. As per the Scheme of the Act, when it is obvious to theCommittee or the Board, based on the appearance of the person, thatthe said person is a child, the Board or Committee shall record observationsstating the age of the Child as nearly as may be without waiting forfurther confirmation of the age. Therefore, the first attempt to determinethe age is by assessing the physical appearance of the person whenbrought 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 ossificationtest can be said to be relevant for determining the approximate age of aperson in conflict with law. However, when the person is around 40-55years of age, the structure of bones cannot be helpful in determining theage. This Court in Arjun Panditrao Khotkar v. Kailash KushanraoGorantyal and Ors.[7] held, in the context of certificate required underSection 65B of the Evidence Act, 1872, that as per the Latin maxim, lexnon cogit ad impossibilia, 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 personconcerned on the date of incident. Therefore, in the absence of anyreliable trustworthy medical evidence to find out age of the appellant,the ossification test conducted in year 2020 when the appellant was 55years of age cannot be conclusive to declare him as a juvenile on thedate of the incident.

16. Apart from the said fact, there is an application submitted bythe appellant himself for obtaining an Arms Licence prior to the date ofthe incident. In such application, he has given his date of birth as30.12.1961 which would make him of 21 years of age on the date of theincident i.e. 20.7.1982. The Court is not precluded from taking intoconsideration any other relevant and trustworthy material to determinethe age as all the three eventualities mentioned in sub-section (2) ofSection 94 of the Act are either not available or are not found to bereliable and trustworthy. Since there is a document signed by the appellantmuch before the date of occurrence, therefore, we are of the opinionthat the appellant cannot be treated to be juvenile on the date of incidentas he was more than 21 years of age as per his application submitted toobtain the Arms Licence.

7 (2020) 7 SCC 1

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A17. On merits, the argument of the appellant was that GirendraSingh, the brother of the deceased, was not examined by prosecutionthough as per Ram Naresh Singh (PW-1), he was walking few stepsbehind the deceased. It was further argued that as per PW-1 Ram NareshSingh, Dhruv Singh had used Barchhi as lathi, though the first versionwas that Dhruv had used Barchhi. The argument was that Ram NareshBSingh (PW-1) has been disbelieved qua the role of Dhruv Singh andhence cannot be relied upon in determining the role of the appellant.

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A

18. We do not find any merit in the arguments raised by the learnedcounsel for the appellant. A part statement of a witness can be believedeven though some part of the statement may not be relied upon by theCcourt. The maxim Falsus in Uno, Falsus in Omnibusis not the ruleapplied by the courts in India. This Court recently in a judgment reportedas Ilangovan v. State of T.N.[8]held that Indian courts have always beenreluctant to apply the principle as it is only a rule of caution. It was heldas under:-D“11.The counsel for the appellant lastly argued that once thewitnesses had been disbelieved with respect to the co-accused,their testimonies with respect to the present accused must also bediscarded. The counsel is, in effect, relying on the legal maxim“falsus in uno, falsus in omnibus”, which Indian courts have alwaysbeen reluctant to apply. A three-Judge Bench of this Court, as farEback as in 1957, in Nisar Ali v. State of U.P. [Nisar Ali v. Stateof U.P., AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point asfollows: (AIR p. 368, paras 9-10)

“9. It was next contended that the witnesses had falsely implicatedQudrat Ullah and because of that the court should have rejectedFthe testimony of these witnesses as against the appellant also.The well-known maxim falsus in uno, falsus in omnibus wasrelied upon by the appellant. The argument raised was that becausethe witnesses who had also deposed against Qudrat Ullah by sayingthat he had handed over the knife to the appellant had not beenbelieved by the courts below as against him, the High Court shouldGnot have accepted the evidence of these witnesses to convict theappellant. This maxim has not received general acceptance indifferent jurisdictions in India nor has this maxim come tooccupy 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 maybe disregarded and not that it must be disregarded. OneAmerican author has stated:

‘… the maxim is in itself worthless; first in point of validity … andsecondly, in point of utility because it merely tells the jury whatthey 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 practicepernicious….’ [Wigmore on Evidence, Vol. III, Para 1008]

10. The doctrine merely involves the question of weight ofevidence which a court may apply in a given set ofcircumstances but it is not what may be called “a mandatoryrule of evidence”.”

(emphasis supplied)

This principle has been consistently followed by this Court, mostrecently in Rohtas v. State of Haryana [Rohtas v. State ofHaryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] and needsno reiteration.”

19. Therefore, merely because a prosecution witness was notbelieved in respect of another accused, the testimony of the said witnesscannot be disregarded qua the present appellant. Still further, it is notnecessary for the prosecution to examine all the witnesses who mighthave witnessed the occurrence. It is the quality of evidence which isrelevant in criminal trial and not the quantity. Therefore, non-examinationof Girendra Singh cannot be said to be of any consequence.

20. The other accused, who was convicted apart from the appellantis Shiv Vijay Singh, was armed with an axe. Dr. Shyam Mohan Krishna(PW-4) has conducted the postmortem examination and reported thefollowing 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 backnear occipital region on back of left ear.

4. Contusion 2 cm. x 1 cm. on left side of frontal region of scalpabove 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.

ABC

D

E

F

G

H

A7. 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 upperpart oblique.

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

11. Abrasion left side of chest lower part ant. aspect 5 cm. x 4cm.

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 aspectCoblique.

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 lowerpart near Inj. no. 11.”D

21. The oral evidence along with the statement of Dr. ShyamMohan Krishna (PW-4) suggest that the injuries on the head of thedeceased were caused by a blunt weapon. The blunt weapon as deposedby the eyewitness is the lathi in the hands of the present appellant. Lathimay be common article with the villagers but the use of lathi as a weaponEof offence is a finding of fact recorded by the Courts below.

22. As per the postmortem report, the deceased suffered multipleinjuries which shows attack by more than one person. The nature ofinjuries also shows that hard and blunt object as well as sharp edgedweapons were used to inflict injuries. It is the appellant who was armedFwith Lathi whereas the other convicted accused Shiv Vijay Singh wasarmed with Axe. The incised wound suffered by the deceased was possiblewith an Axe. As per the report, there are sufficient number of injuriescaused by an Axe and Lathi on the person of the deceased.

23. However, the learned trial court as well as the High Court hadGappreciated the entire evidence to return a finding of guilt against theappellant.

24. Therefore, we do not find any merit in the present appeal. Thesame is hereby dismissed.

HDevika Gujral