RISHIPAL SINGH SOLANKI versus STATE OF UTTAR PRADESH & ORS. on 18 November 2021

[2021] 12 S.C.R. 502

SUPREME COURT REPORTS

[2021] 12 S.C.R.

ARISHIPAL SINGH SOLANKI

v.

STATE OF UTTAR PRADESH & ORS.

(Criminal Appeal No.1240 of 2021)

BNOVEMBER 18, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDB. V. NAGARATHNA, JJ.]

Juvenile Justice (Care and Protection of Children) Act, 2015– Claim of juvenility – Determination of age – MatriculationCCertificate – Respondent no.2-accused along with others was allegedto have attacked the appellant and his family causing death of hisfather and uncle – Application filed by respondent no.2, throughhis mother/natural guardian before the Juvenile Justice Board fordeclaring the respondent no.2 as a juvenile delinquent – AppellantDsought medical test of respondent no.2 to ascertain his true age,application dismissed – Respondent no.2 was declared a juveniledelinquent – Appellant’s appeal before District and Sessions Judgewas dismissed – Criminal Revision before the High Court was alsorejected – On appeal, held: Respondent no.2’s date of birth asrecorded in the school admission records, as well as the matriculationEcertificate are the same i.e., 25.09.2004 – Date of the incident was05.05.2020 – The mark-sheet pertaining to the matriculation ofrespondent no.2, issued by the concerned Board, gives rise to apresumption that he was less than 16 years of age on the date ofincident – Moreover, the letter dtd. 22.07.20 of the AdministrativeFOfficer, Regional Office, Intermediate Education Council, UP,(Meerut) also authenticated the date of birth of respondent no.2 as25.09.2004 – No contra evidence to the documents produced byrespondent no.2 have been produced by the appellant – Order ofthe High Court sustaining the judgement of the District & SessionsCourt as well as of the JJ Board, not differed from – Evidence Act,G1872 – s.35 – Juvenile Justice (Care and Protection of Children)Act, 2000 – Juvenile Justice (Care and Protection of Children) Rules,2007 – r.12 – Penal Code, 1860 – ss.147-149, 323, 307, 302, 34.

Juvenile Justice (Care and Protection of Children) Act, 2015– Evidence Act, 1872 – s.35 – Application filed for declaration thatH

respondent no.2 was a juvenile delinquent was supported withCertificate-cum-Marks Sheet of the High School issued by theconcerned Board stating that the date of birth of respondent no.2was 25.09.2004 – Admission forms were relied upon to prove thatthe respondent’s date of birth mentioned in the said documents arein consonance with the date of birth indicated in the matriculationcertificate – Plea of appellant that the genuineness of the saiddocuments was in grave doubt and thus could not have been reliedupon in support of claim of juvenility – Held: In the instant case,admittedly, there is no other document indicating the date of birthof the respondent no.2 contrary to what has been indicated in thematriculation certificate – There is no discrepancy in the date ofbirth.

Juvenile Justice (Care and Protection of Children) Act, 2015– Determination of age – Evidence – School records – EvidenceAct, 1872 – s.35 – Held: When the determination of age is on thebasis of evidence such as school records, it is necessary that thesame would have to be considered as per s.35 inasmuch as anypublic or official document maintained in the discharge of officialduty would have greater credibility than private documents – Anydocument in consonance with public documents, such asmatriculation certificate, could be accepted by the Court or the JJBoard provided such public document is credible and authentic asper s.35 and other provisions.

Juvenile Justice (Care and Protection of Children) Act, 2015– ss.94, 9(2), (3) – Juvenile Justice (Care and Protection of Children)Act, 2000 – ss.7A, 49 – Juvenile Justice (Care and Protection ofChildren) Rules, 2007 – r.12 – Determination of age – Differencein the procedure – Discussed.

Juvenile Justice (Care and Protection of Children) Act, 2015– Claim of juvenility – Held: A claim of juvenility may be raised atany stage of a criminal proceeding, even after final disposal of thecase – A delay in raising the claim of juvenility cannot be a groundfor rejection of such claim – It can also be raised for the first timebefore Supreme Court – A hyper-technical approach should not beadopted when evidence is adduced on behalf of the accused insupport of the plea that he was a juvenile – If two views are possible ABC

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Aon the same evidence, the court should lean in favour of holdingthe accused to be a juvenile in borderline cases.

Juvenile Justice (Care and Protection of Children) Act, 2015– ss.9, 94 – Determination of juvenility – Held: When the issue ofjuvenility arises before a Court, it would be u/sub-section (2) andB(3) of s.9 but when a person is brought before a Committee or JJBoard, s.94 applies – Further, if the JJ Board has reasonable groundsfor doubt regarding whether the person brought before it is a childor not, the Board shall undertake the process of age determinationby seeking evidence – Age recorded by the JJ Board to be the ageCof the person so brought before it shall, for the purpose of the 2015Act, be deemed to be true age of that person – Hence, the degree ofproof required in such a proceeding before the JJ Board, when anapplication is filed seeking a claim of juvenility when the trial isbefore the concerned criminal court, is higher than when an inquiryis made by a court before which the case regarding the commissionDof the offence is pending.

Juvenile Justice (Care and Protection of Children) Act, 2015– s.94 – Presumption of juvenility – Juvenile Justice (Care andProtection of Children) Rules, 2007 – r.12 – Held: When a claim forEjuvenility is raised, the burden is on the person raising the claim tosatisfy the Court to discharge the initial burden – However, thedocuments mentioned in r.12(3)(a)(i), (ii), and (iii), 2007 Rules orsub-section (2) of s.94, shall be sufficient for prima facie satisfactionof the Court – On the basis of the aforesaid documents apresumption of juvenility may be raised – However, said presumptionFis not conclusive proof of the age of juvenility and may be rebuttedby contra evidence.

Juvenile Justice (Care and Protection of Children) Act, 2015– Absence of documents mentioned in s.94(2), determination of age– Held: Ossification Test cannot be the sole criterion for ageGdetermination – A mechanical view regarding the age of a personcannot be adopted solely on the basis of medical opinion byradiological examination – Such evidence is not conclusive evidencebut only a very useful guiding factor to be considered in the absenceof documents mentioned in s.94(2).H

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1.1 On repeal of JJ Act, 2000 and on theenforcement of JJ Act, 2015, the procedure to be followed whena claim of juvenility is raised before any court, other than a Boardis stipulated under section 9(2)&(3). There is no correspondingRule to determine juvenility akin to Rule 12 of the JJ Rules,2007. On the other hand, under section 94 of the JJ Act, 2015, apresumption is raised that when a person is brought before theJJ Board or the Child Welfare Committee (‘Committee’) (otherthan for the purpose of giving evidence) and the said person is achild, the JJ Board or the Committee shall record suchobservation stating the age of the child as nearly as may be, andproceed with the inquiry under section 14 or 20 section 36, asthe case may be, without waiting for further confirmation of theage. But where the said Board or the Committee has reasonablegrounds for doubt regarding whether the person brought beforeit is a child or not, the JJ Board or the Committee, as the casemay be, shall undertake the process of age determination byseeking evidence by obtaining - (i) the date of birth certificatefrom the school, or the matriculation or equivalent certificate fromthe concerned examination Board, if available; and in the absencethereof; (ii) the birth certificate given by a corporation or amunicipal authority or a panchayat; (iii) and only in the absenceof (i) and (ii) above, age shall be determined by an ossificationtest or any other latest medical age determination test conductedon the orders of the Committee or the Board. Under section 7Aof JJ Act, 2000 which was inserted by an amendment with effectfrom 22.08.2006, provision was made to claim juvenility bycontending that the accused person was a juvenile on the date ofcommission of the offence and in such a case, on the evidencetaken on record, a finding regarding the age of such person hadto be recorded by the court, other than a JJ Board. The claim forjuvenility could be raised before any Court and at any stage, evenafter the final disposal of a case and such claim had to bedetermined in terms of the said Act and the rules madethereunder. If the Court found a person to be a juvenile on thedate of commission of offence under sub-section (1) of section7A of the JJ Act, 2000, it had to forward the juvenile to the JJ

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ABoard for passing appropriate orders and the sentence, if any,passed by a Court would not have any effect. However, under theJJ Act, 23 2015, a provision corresponding to section 7A of theJJ Act, 2000, is in the form of sub-section 2 of section 9 of thesaid Act. [Paras 21-23][521-D; 522-A-F; 523-F-H; 524-A]

B1.2 The difference in the procedure under the twoenactments could be discerned as under:

(i) As per JJ Act, 2015 in the absence of requisite documentsas mentioned in Sub-section (2) of Section 94(a) and (b), there isprovision for determination of the age by an ossification test orCany other medical age related test to be conducted on the ordersof the Committee or the JJ Board as per Section 94 of the saidAct; whereas, under Rule 12 of the JJ Rules, 2007, in the absenceof relevant documents, a medical opinion had to be sought from aduly constituted Medical Board which would declare the age ofthe juvenile or child.D

(ii) With regard to the documents to be provided asevidence, what was provided under Rule 12 of the JJ Rules, 2007has been provided under sub- section 2 of section 94 of the JJAct, 2015 as a substantive provision.

E(iii) Under Section 49 of the JJ Act, 2000, where it appearedto a competent authority that a person brought before it was ajuvenile or a child, then such authority could, after making aninquiry and taking such evidence as was necessary, record afinding as to the juvenility of such person and state the age ofsuch person as nearly as may be. Sub-section (2) of Section 49Fstated that no order of a competent authority shall be deemed tohave become invalid merely by any subsequent proof that theperson in respect of whom the order had been made is not ajuvenile and the age recorded by the competent authority to bethe age of person so brought before it, for the purpose of the Act,Gbe deemed to be the true age of that person.

But, under Section 94 of the JJ Act, 2015, which also dealswith presumption and determination of age, the Committee orthe JJ Board has to record such observation stating the age ofthe child as nearly as may be and proceed with the inquiry withoutwaiting for further confirmation of the age. It is only when theH

Committee or the JJ Board has reasonable grounds for doubtregarding whether the person brought before it is a child or not,it can undertake the process of age determination, by seekingevidence. Sub-section (3) of Section 94 states that the agerecorded by the Committee or the JJ Board to be the age of thepersons so brought before it shall, for the purpose of the Act, bedeemed to be the true age of that person. Thus, there is a finalityattached to the determination of the age recorded and it is onlyin a case where reasonable grounds exist for doubt as to whetherthe person brought before the Committee or the Board is a childor not, that a process of age determination by seeking evidencehas to be undertaken. [Paras 25-27][524-E-F; 525-A-E]

1.3 (i) A claim of juvenility may be raised at any stage of acriminal proceeding, even after a final disposal of the case. Adelay in raising the claim of juvenility cannot be a ground forrejection of such claim. It can also be raised for the first timebefore this Court.

(ii) An application claiming juvenility could be made eitherbefore the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, itwould be under sub-section (2) and (3) of section 9 of the JJ Act,2015 but when a person is brought before a Committee or JJBoard, section 94 of the JJ Act, 2015 applies.

(iib) If an application is filed before the Court claimingjuvenility, the provision of sub-section (2) of section 94 of the JJAct, 2015 would have to be applied or read along with sub-section(2) of section 9 so as to seek evidence for the purpose of recordinga finding stating the age of the person as nearly as may be.

(iic) When an application claiming juvenility is made undersection 94 of the JJ Act, 2015 before the JJ Board when thematter regarding the alleged commission of offence is pendingbefore a Court, then the procedure contemplated under section94 of the JJ Act, 2015 would apply. Under the said provision ifthe JJ Board has reasonable grounds for doubt regarding whetherthe person brought before it is a child or not, the Board shallundertake the process of age determination by seeking evidence AB

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Aand the age recorded by the JJ Board to be the age of the personso brought before it shall, for the purpose of the JJ Act, 2015, bedeemed to be true age of that person. Hence the degree of proofrequired in such a proceeding before the JJ Board, when anapplication is filed seeking a claim of juvenility when the trial isbefore the concerned criminal court, is higher than when anBinquiry is made by a court before which the case regarding thecommission of the offence is pending (vide section 9 of the JJAct, 2015).

(iii) That when a claim for juvenility is raised, the burden ison the person raising the claim to satisfy the Court to dischargeCthe initial burden. However, the documents mentioned in Rule12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJAct, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shallbe sufficient for prima facie satisfaction of the Court. On the basisof the aforesaid documents a presumption of juvenility may beDraised.

(iv) The said presumption is however not conclusive proofof the age of juvenility and the same may be rebutted by contraevidence let in by the opposite side.

(v) That the procedure of an inquiry by a Court is not theEsame thing as declaring the age of the person as a juvenile soughtbefore the JJ Board when the case is pending for trial before theconcerned criminal court. In case of an inquiry, the Court recordsa prima facie conclusion but when there is a determination of ageas per sub-section (2) of section 94 of 2015 Act, a declaration isFmade on the basis of evidence. Also the age recorded by the JJBoard shall be deemed to be the true age of the person broughtbefore it. Thus, the standard of proof in an inquiry is differentfrom that required in a proceeding where the determination anddeclaration of the age of a person has to be made on the basis ofevidence scrutinised and accepted only if worthy of suchGacceptance.

(vi) That it is neither feasible nor desirable to lay down anabstract formula to determine the age of a person. It has to be onthe basis of the material on record and on appreciation of evidenceadduced by the parties in each case.H

(vii) A hyper- technical approach should not be adoptedwhen evidence is adduced on behalf of the accused in support ofthe plea that he was a juvenile.

(viii) If two views are possible on the same evidence, thecourt should lean in favour of holding the accused to be a juvenilein borderline cases. This is in order to ensure that the benefit ofthe JJ Act, 2015 is made applicable to the juvenile in conflictwith law. At the same time, the Court should ensure that the JJAct, 2015 is not misused by persons to escape punishment afterhaving committed serious offences.

(ix) That when the determination of age is on the basis ofevidence such as school records, it is necessary that the samewould have to be considered as per Section 35 of the IndianEvidence Act, inasmuch as any public or official documentmaintained in the discharge of official duty would have greatercredibility than private documents.

(x) Any document which is in consonance with publicdocuments, such as matriculation certificate, could be acceptedby the Court or the JJ Board provided such public document iscredible and authentic as per the provisions of the IndianEvidence Act viz., section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for agedetermination and a mechanical view regarding the age of a personcannot be adopted solely on the basis of medical opinion byradiological examination. Such evidence is not conclusiveevidence but only a very useful guiding factor to be consideredin the absence of documents mentioned in Section 94(2) of theJJ Act, 2015. [Para 29][535-A-H; 536-A-H; 537-A-D]

1.4 The JJ Board, Baghpat, by its order dated 14.09.2020dismissed the application seeking medical examination ofrespondent no.2 herein and there is nothing produced to showthat the same has been set aside. According to the JJ Board, thematriculation certificate issued by the concerned Board indicatedthe date of birth as 25.09.2004 and it is only in the absence ofsuch a document that determination of age had to be by ossificationtest or any other latest medical age determination test. In the AB

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Ainstant case, since the certificate of the matriculation Board wasavailable, it was unnecessary for orders for medical test ofrespondent no.2. By order dated 11.11.2020, the JJ Boarddeclared respondent no.2 as a juvenile delinquent in Case CrimeNo.116 of 2020 for offences under sections 147, 148, 149, 323,307, 302 and 34 of the IPC P.S. Singhawali Ahir, District Baghpat.BThe aforesaid order has been sustained by the District andSessions Court as well as the High Court by holding that section94 of the JJ Act, 2015 had been complied with in the instant caseinasmuch as the matriculation or equivalent certificate from theconcerned Examination Board had indicated the date of birth ofCrespondent no.2 to be 25.09.2004. Therefore, Sub-section 2 ofSection 94 of the JJ Act, 2015 applies as there were no reasonableground to doubt the said document. In the absence of there beingany evidence to negate the same, the criminal revision wasdismissed. This is on the strength of Subsection (3) of Section 94of the JJ Act, 2015 which is a deeming provision. Though theDlearned counsel for the appellant emphasized that the signaturesof respondent no.2 on the admission forms of class 1 and class 8are identical and it could not be so on the admission form of class1 as he was only four and half years old when he was admitted toclass 1. But the fact remains that in 2019, when respondent no.2Ecompleted his class 10, his date of birth has been shown as25.09.2004 in the matriculation certificate. Hence, respondentno.2 was only about 15 years of age on the date of incident, and inany case he was less than 16 years of age. In the absence of therebeing any rebuttal evidence brought on record by the appellantherein, even if the documents seeking admission to class 1 andFclass 8 are discredited or eschewed, the fact remains that themark-sheet pertaining to the matriculation of respondent no.2,issued by the concerned Board, gives rise to a presumption thathe was less than 16 years of age on the date of incidenti.e.05.05.2020. [Paras 37, 39-42][539-B-C, E-H; 540-A-D]G1.5 A photocopy of the High School marksheet of accusedrespondent no.2 with Gazette year 2019, Roll No.0485064 year2019, in respect of which a letter of verification beingNo.R.O.I.E.C./records/4016 dated 22.07.2020, received from theOffice of the Administrative Officer, Regional Office, Intermediate H

Education Council, Uttar Pradesh (Meerut) also authenticatedthe date of birth of accused respondent no.2 as 25.09.2004.Moreover, the said matriculation certificate has been issued bythe concerned Board. Further, the date of birth as recorded inthe school admission records, as well as the matriculationcertificate are the same namely, 25.09.2004. The incidentoccurred on 05.05.2020. Thus respondent no.2 was only 15 years7 months of age on the date of the incident which in any case isless than 16 years of age. In the instant case, admittedly, there isno other document indicating the date of birth of the secondrespondent contrary to what has been indicated in thematriculation certificate. A discrepancy in the date of birth doesnot arise herein. No contra evidence to the documents producedby the second respondent have been produced by the appellantherein. In the circumstances, this court is not inclined to differfrom the order of the High court which sustained the judgment ofthe District & Sessions Court as well as of the JJ Board in thiscase. [Paras 44, 46][540-G-H; 541-A-B; 541-D-E]

Sanjeev Kumar Gupta vs. State of Uttar Pradesh & Anr.(2019) 12 SCC 370 : [2019] 9 SCR 735 – distinguished.

1.6 Section 94 of the JJ Act, 2015 raises a presumptionregarding juvenility of the age of the child brought before the JJboard or the Committee. But in case the Board or Committeehas reasonable grounds for doubt about the person brought beforeit is a child or not, it can undertake the process of determinationof age by seeking evidence. Thus, in the initial stage apresumption that the child brought before the Committee or theJJ Board is a juvenile has to be drawn by the said authorities.The said presumption has to be drawn on observation of the child.However, the said presumption may not be drawn when theCommittee or the Board has reasonable grounds for doubtregarding the person brought before it is a child or not. In such acase, it can undertake the process of age determination by theevidence. The age recorded by the Committee or the Board tobe the age of the person so brought before it shall for the purposeof the JJ Act, 2015 be deemed to be the true age of the person.The deeming provision in sub-section (3) of section 94 of the JJ

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AAct, 2015 is also significant inasmuch as the controversy or thedoubt regarding the age of the child brought before the Committeeor the JJ Board is sought to be set at rest at the level of the JJBoard or the Committee itself. [Paras 47, 48][541-F-H;542-C-D]

BBabloo Pasi v. State of Jharkhand (2008) 13 SCC133 : [2008] 14 SCR 161; State of M.P. V. Anoop Singh(2015) 7 SCC 773 : [2015] 6 SCR 960; Ashwani KumarSaxena v. State of Madhya Pradesh (2012) 9 SCC750 : [2012] 10 SCR 540; Arnit Das v. State of Bihar(2000) 5 SCC 488 : [2000] 1 Suppl. SCR 69; JitendraCRam v. State of Jharkhand (2006) 9 SCC 428 : [2006]1 Suppl. SCR 286; Bhola Bhagat & others v. State ofBihar (1997) 8 SCC 720 : [1997] 4 Suppl. SCR 711;Jabar Singh v. Dinesh and another (2010) 3 SCC 757: [2010] 3 SCR 353; State of Madhya Pradesh v. AnoopDSingh (2015) 7 SCC 733; Ram Vijay Singh vs. State ofUttar Pradesh 2021 CriLJ 2805 – relied on.

RISHIPAL SINGH SOLANKI v. STATE OF UTTAR PRADESH& ORS.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1240 of 2021.

From the Judgment and Order dated 12.03.2021 of the High Courtof Judicature at Allahabad in Criminal Revision No.430 of 2021.

Anupam Dwivedi, Pradeep Kumar Dwivedi, Sandeep KumarDwivedi, Satyam Pandey, Vishweshwar Mishra, Vikash Kumar Sinha,Rakesh Mishra, Advs. for the Appellant.

Sharan Thakur, AAG, Sarvesh Singh Baghel, Shantanu Singh,Saurabh Trivedi, S. C. Tripathi, Advs. for the Respondents.

The Judgment of the Court was delivered by NAGARATHNA J.

1. The appellant has preferred this appeal against the impugnedorder dated 12.03.2021 passed by the High Court of Judicature atAllahabad in Criminal Revision No.430 of 2021 whereby the High Courtrejected the aforesaid criminal revision filed against the judgment andorder dated 04.01.2021 passed by the Additional District and SessionsJudge, Special Judge POCSO Act (Exclusive Court), Baghpat, UttarPradesh,dismissing the Criminal Appeal No.27 of 2020. The said criminalappeal was filed against the order dated 11.11.2020 passed by the PrincipalMagistrate, Juvenile Justice Board, Baghpatallowing the MiscellaneousCase No.16 of 2020 arising out of Case Crime No.116 of 2020 undersections 147, 148, 149, 323, 307, 302 and 34 of the Indian Penal Code(for short, the ‘IPC’), Police Station at Singhawali Ahir, District Baghpat,Uttar Pradesh, and declaring the accused – Nishant Solanki @ Nishu(respondent no.2 herein) as a juvenile delinquent.

2. Succinctly stated, the facts are that, in an incident that occurredon 05.05.2020 at around 4:00 pm, inter alia, respondent no.2 – NishantSolanki @ Nishu (hereinafter referred to as ‘Nishant’) along with otheraccusedarealleged to have attacked upon the appellant and his familycausing serious injuries as well as death of appellant’s father BhopalSingh, who was declared ‘brought dead’ by the doctor on the same dayi.e. 05.05.2020 and his uncle Kaluram,who died on 09.05.2020 due togrievous injuries sustained by him in the aforesaid incident.

3. Nishant, through his mother/natural guardian-respondent no.3herein, filed an application being Miscellaneous Case No.16/2020 beforethe Juvenile Justice Board (hereinafter referred to as the ‘JJ Board’), A

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ABaghpat, praying therein that the respondent no.2/accused viz., Nishant,be declared as a juvenile delinquent. Evidence was let in on the saidapplication through respondent no.3 who is the mother and naturalguardian of Nishant. On coming to know about the same, the appellanthereinentered appearance in the said proceeding through his counseland filed an application dated 20.07.2020 under Section 311 of the CodeBof Criminal Procedure (for short, the ‘Cr.P.C.’) seeking permission ofthe JJ Board to cross-examinerespondent no.3. The appellant hereinwas permitted to do so on 22.07.2020, on which date the application wasposted for further cross-examination of the mother of Nishant.On thesaid date, respondent no.3 was further cross-examined by the appellant.C

4. Another witness, Manoj Kumar, Principal, Sardar VallabhbhaiPatel Higher Secondary School, Shajarpur, Kaidna, District Baghpat,was also examined as DW-2 on 10.08.2020 and subsequently, SurendraKumar Saini, Principal, Sarvoday Public School, Khindora, DistrictBaghpat, was examined as DW-3.D5. The police also filed a charge-sheet under Sections 147, 148,149, 323, 307, 302 and 34 of the IPC against all the accused includingrespondent no.2 – Nishant on 22.07.2020.

6. In the said proceedings, an application was filed on 09.09.2020before the JJ Board for medical test of respondent no.2 Nishant toEascertain his actual and true age. By order dated 14.09.2020, the saidapplication was dismissed and the matter was ordered to be posted on23.09.2020 for hearing on the issue of determination of age of therespondent no.2 – Nishant.

7. Being aggrieved by the rejection of the application datedF09.09.2020 seeking medical test of respondent no.2 - Nishant, theappellant herein filed a criminal revision before the District and SessionsJudge, Baghpat and an application being Transfer Application (Criminal)No.158/2020 before the High Court praying, inter alia, for the transferof proceedings in Miscellaneous Case No.16/2020 pending before theGJJ Board, Baghpat, to some other JJ Board of the State.

8. During the pendency of the aforesaid proceedings before theHigh Court, the JJ Board, Baghpat vide order dated 11.11.2020 allowedthe application being Misc. Case No.16/2020 filed by respondent no.3mother of Nishant and declared Nishant as a juvenile delinquent. Assailingthe said order, the appellant filed an appeal being Criminal Appeal No.27H

of 2020 under section 101 of the Juvenile Justice (Care and Protectionof Children) Act, 2015 (hereinafter referred to as the ‘JJ Act, 2015’)before the District and Sessions Judge, Baghpat. The said Court dismissedthe said appeal by its judgment dated 04.01.2021 against which theappellant filed a Criminal Revision No.430 of 2021 before the High Court.The said criminal revision was alsorejected by the High Court videimpugned order dated 12.03.2021. Being aggrieved of the same, theappellant has filed the present appeal by special leave before this Court.

9. We have heard Mr. Anupam Dwivedi, learned counsel for theappellant, Mr. Sharan Thakur, learned Additional Advocate General forthe respondent – State of Uttar Pradesh, and Mr. Saurabh Trivedi,learned counsel for respondent nos.2 and 3 and perused the record.

10. Mr. Dwivedi, learned counsel for the appellant contended thatrespondent no.2 has been accused of committing grave offences undersections 147, 148, 149, 323, 307, 302 and 34 of the IPC along with otherco-accused, but respondent no.2 has filed an application claiming juvenilityand the same has been allowed erroneously by the JJ Board at Baghpatwhich order has been sustained by the appellate court as well as theHigh Court. It was contended that there are contradictions in the evidenceof the witnesses examined on behalf of the accused-respondent no.2,particularly, his mother with regard to his date of birth which is stated tobe 25.09.2004 but the same has not been established in accordance withlaw. The School Admission Form (Annexure P-11) was produced asEx.A-8 to show that the same was signed by respondent no.2 Nishantwhen he was purportedly four years of age. Ex.A-9 (Annexure P-12) isstated to be a document signed by respondent no.2 Nishant when hewastwelve years of age.He submitted that the signatures on both thesedocuments are identical. Hence, the genuineness of the said documentsis in grave doubt and the same could not have been relied upon in supportof the claim of juvenility made by respondent no.2 herein.

11. In Ex.A-8, our attention was drawn to Column No.15 requiringthe Aadhaar number of the student to be filled, to contend that the saidform is said to have been submitted on 02.07.2009 seeking admission ofrespondent no.2.That in July 2001 the requirement of furnishing UID/Aadhaar number could not arise at all as it was issued for the first timeto a resident of Nandurbar, Maharashtra only on 29.09.2010. It wasurged thatEx.A-8 (Annexure P-11) is a got up document in order tomisrepresent the age of respondent no.2 and thereby claim the benefit AB

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Aof juvenility. It was further contended that if in the year 2009, respondentno.2 sought admission to the Class 1 when he was less than five yearsof age, then, after a period of five years only, he could not have soughtadmission to Class 8.There is no explanation as to how he could havesought admission to Class 8 only after five years of seeking admission toClass 1. It was also submitted that DW-3, Principal of the primary schoolBduring his cross-examination admitted that the signature of Nishant onthe admission forms of class 1 and class 8 are identical. Hence it wascontended that it is doubtful as to how an infant, who was aged aboutfour years,(if really the date of birth of respondent no.2 was 25.09.2004,)could have signed his name on the school admission form when he soughtCadmission to class 1. It was contended that such a signature is forged asno child who is four years of age would have been able to sign his nameon the school admission form and secondly, could not have also soughtadmission to class 1 at that age.

12. It was contended that the JJ Board has not appreciated theDlegislative intent behind section 94 of the JJ Act, 2015 by declaring thatmatriculation certificate is a conclusive document for determining theage of the juvenile irrespective of other material discrepancies in theoral testimony of the witnesses or other documents being produced.Insupport of the said submissions, reliance was placed on Parag Bhativs. State of Uttar Pradesh – (2016) 12 SCC 744; Sanjeev KumarEGupta vs. State of Uttar Pradesh & Anr. – (2019) 12 SCC 370; andAbuzar Hossain vs. State of West Bengal–(2012) 10 SCC 489.

13. It was further contended that in the aforesaid cases, the claimof juvenility of the accused was rejected due to discrepancies in theevidence, notwithstanding the fact that as per the matriculationFcertificateissued to the accused therein, they were juveniles. In otherwords, it was contended that the age shown in the matriculation certificatecannot be accepted on its face value if there is other evidence whichcontradicts the same. It was hence contended that the impugned orderof the High Court,judgment of the appellate court and order passed byGthe JJ Board, Baghpat, may be set aside and the application filed onbehalf of the respondent no.2-Nishant may be dismissed.

14. Mr. Sharan Thakur, learned additional Advocate General forthe State of Uttar Pradesh, supported the contentions of learned counselfor the appellant and submitted that the matriculation certificate reliedHupon by respondent no.2 cannot be accepted as the accompanying document, though the age of Nishant indicated in the matriculationcertificate coincides with theage indicated in Ex-A8 and A9. It wascontended that these documents cannot be accepted on their face valueas the said exhibits could not have borne the signature of Nishant. Theyare also not in consonance with the age at which Nishant would havebeen admitted to school and completed his matriculation. Therefore, itwas contended that the orders impugned namely, the order of the HighCourt as well as the orders of the learned District Judge and the JJBoard may be set aside.

15. Mr. Saurabh Trivedi, learned counsel for respondent nos.2and 3, contended that Nishant was born on 25.09.2004 and on the dateof the incident i.e.05.05.2020, he was a minor being only 15 years and 8months of age.That initially, he studied in a private school in the villageand was admitted to class 1 in 2009; he passedclasses 6, 7, and 8 fromSarvoday Public Junior High School, Village Khindoda, District Baghpatand got a school transfer certificate on 31.03.2017 wherein his date ofbirth was shown as 25.09.2004; that Nishant joined Sardar Vallabh BhaiPatel Higher Secondary School, Khanjarpur Khaidar, District Baghpat,on 04.07.2017 and completed his High School and cleared the Boardexamination with 85% marks.The U.P. State Board of SecondaryEducation issued a High School Certificate on completion of BoardExamination for Class 10 showing his date of birth as 25.09.2004.Therefore, on the date of the incident i.e.05.05.2020, respondent no.2was a juvenile and hence the JJ Board as well the High Court haverightly appreciated the case of respondent no.2-Nishant and allowed hisapplication claiming juvenility. It was contended that the matriculationcertificate or the certificate issued by the Board conducting the saidexamination (Annexure P-15) is sufficient proof of the age of the juvenileas per the requirements of JJ Act, 2015.Reliance was placed on AshwaniKumar Saxena vs. State of M.P. – (2012) 9 SCC 750, to contend thatthe matriculation certificate is a document on which full reliance couldbe placed for determination of the age of the juvenile accused. Hence,there is no merit in this appeal.

16. It was further submitted that the appellant cannot seekossification test of respondent no.2 for the purpose of determination ofhis age as the same is not conclusive for the purpose of determination ofthe age vide Babloo Pasi vs. State of Jharkhand – (2008) 13 SCC133 and State of M.P. vs. Anoop Singh – (2015) 7 SCC 773.

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17. It was urged that the appellant has not been successful innegating the case of respondent no.2 Nishant, who, being a juvenile onthe date of the incident is entitled to all protection under the provisions ofthe JJ Act, 2015. It was submitted that there is no merit in the appeal andthe same may be dismissed.

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B18. The JJ Act, 2015 is a sequel to the Juvenile Justice (Care andProtection of Children) Act, 2000 (hereinafter referred to as the ‘JJ Act,2000’) which has since been repealed. Under the JJ Act, 2000, anamendment was made by Act33 of 2006 with effect from 22.8.2006under which section 7A of was inserted which reads as under:

C“7A. Procedure to be followed when claim of juvenility is raisedbefore any court.—

(1) Whenever a claim of juvenility is raised before any court or acourt is of the opinion that an accused person was a juvenile onthe date of commission of the offence, the court shall make anDinquiry, take such evidence as may be necessary (but not anaffidavit) so as to determine the age of such person, and shallrecord 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 courtEand it shall be recognised at any stage, even after final disposal ofthe case, and such claim shall be determined in terms of theprovisions contained in this Act and the rules made thereunder,even if the juvenile has ceased to be so on or before the date ofcommencement of this Act.

(2) If the court finds a person to be a juvenile on the date ofcommission of the offence under sub-section (1), it shall forwardthe juvenile to the Board for passing appropriate orders and thesentence, if any, passed by a court shall be deemed to have noeffect.”

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Section 49 of the said Act reads as under:G

“49. Presumption and determination of age.-(1) Where it appearsto a competent authority that person brought before it under anyof the provisions of this Act (otherwise than for the purpose ofgiving evidence) is a juvenile or the child, the competent authorityshall make due inquiry so as to the age of that person and for that H

purpose shall take such evidence as may be necessary (but notan affidavit) and shall record a finding whether the person is ajuvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to havebecome invalid merely by any subsequent proof that the person inrespect of whom the order has been made is not a juvenile or thechild, and the age recorded by the competent authority to be theage of person so brought before it, shall for the purpose of thisAct, be deemed to be the true age of that person.”

19. Rule 12 of the Juvenile Justice (Care and Protection of Children)Rules, 2007 (hereinafter referred to as the ‘JJ Rules, 2007’) prescribedthe procedures for determination of age. Rule 12 reads as under –

“12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict withlaw, the court or the Board or as the case may be the Committeereferred to in Rule 19 of these rules shall determine the age ofsuch juvenile or child or a juvenile in conflict with law within aperiod of thirty days from the date of making of the applicationfor that purpose.

(2) The Court or the Board or as the case may be the Committeeshall decide the juvenility or otherwise of the juvenile or the childor as the case may be the juvenile in conflict with law, prima facieon the basis of physical appearance or documents, if available,and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict withlaw, the age determination inquiry shall be conducted by the courtor the Board or, as the case may be, the Committee by seekingevidence by obtaining - (a) (i) the matriculation or equivalent certificates, if available;and in the absence whereof;

(ii) the date of birth certificate from the school (other than aplay school) first attended; and in the absence whereof;

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

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A(b) and only in the absence of either (i), (ii) or (iii) of clause (a)above, the medical opinion will be sought from a duly constitutedMedical Board, which will declare the age of the juvenile orchild. In case exact assessment of the age cannot be done, theCourt or the Board or, as the case may be, the Committee, forthe reasons to be recorded by them, may, if consideredBnecessary, give benefit to the child or juvenile by consideringhis/her age on lower side within the margin of one year.

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and, while passing orders in such case shall, after taking intoconsideration such evidence as may be available, or the medicalopinion, as the case may be, record a finding in respect of his ageand either of the evidence specified in any of the clauses (a)(i),(ii), (iii) or in the absence whereof, clause (b) shall be the conclusiveproof of the age as regards such child or Ihe juvenile in conflictwith law.

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(4) If the age of a juvenile or child or the juvenile in conflict withDlaw is found to be below 18 years on the date of offence, on thebasis of any of the conclusive proof specified in sub-rule (3), theCourt or the Board or as the case may be the Committee shall inwriting pass an order stating the age and declaring the status ofjuvenility or otherwise, for the purpose of the Act and these rulesEand a copy of the order shall be given to such juvenile or theperson concerned.

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(5) Save and except where, further inquiry or otherwise is required,inter alia, in terms of section 7A, section 64 of the Act and theserules, no further inquiry shall be conducted by the court or theFBoard after examining and obtaining the certificate or any otherdocumentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to thosedisposed of cases, where the status of juvenility has not beendetermined in accordance with the provisions contained in sub-Grule (3) and the Act, requiring dispensation of the sentence underthe Act for passing appropriate order in the interest of the juvenilein conflict with law.”

20. Rule 12 of the JJ Rules, 2007 deals with the procedure to befollowed in determination of age. The juvenility of a person in conflictwith law had to be decided prima facie on the basis of physical appearance,H

or documents, if available. But an inquiry into the determination of ageby the Court or the JJ Board was by seeking evidence by obtaining : (i)the matriculation or equivalent certificates, if available and in the absencewhereof; (ii) the date of birth certificate from the school (other than aplay school) first attended; and in the absence whereof; (iii) the birthcertificate given by a corporation or a municipal authority or a panchayat.Only in the absence of either (i), (ii) and (iii) above, the medical opinioncould be sought from a duly constituted Medical Board to declare theage of the juvenile or child. It was also provided that while determinationwas being made, benefit could be given to the child or juvenile byconsidering the age on lower side within the margin of one year. If ajuvenile in conflict with law was found to be below 18 years, an orderhad to be passed declaring the status of the juvenility by the Court. Thesaid procedure was also applicable to dispose offcases where the statusof the juvenility had not been determined in accordance with the Act andthe Rules made thereunder.

21. On repeal of JJ Act, 2000 and on the enforcement of JJ Act,2015, the procedure to be followed when a claim of juvenility is raisedbefore any court, other than a Board is stipulated under section 9(2)&(3).The same reads as under –

“2) In case a person alleged to have committed an offence claimsbefore a court other than a Board, that the person is a child orwas a child on the date of commission of the offence, or if thecourt itself is of the opinion that the person was a child on the dateof commission of the offence, the said court shall make an inquiry,take such evidence as may be necessary (but not an affidavit) todetermine the age of such person, and shall record a finding onthe matter, stating the age of the person as nearly as may be:

Provided that such a claim may be raised before any court and itshall be recognised at any stage, even after final disposal of thecase, and such a claim shall be determined in accordance withthe provisions contained in this Act and the rules made thereundereven if the person has ceased to be a child on or before the dateof commencement of this Act.

(3) If the court finds that a person has committed an offence andwas a child on the date of commission of such offence, it shallforward the child to the Board for passing appropriate orders and A

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Athe sentence, if any, passed by the court shall be deemed to haveno effect.”

There is no corresponding Rule to determine juvenility akin toRule 12 of the JJ Rules, 2007.

22. On the other hand,under section 94 of the JJ Act, 2015, aBpresumption is raised that when a person is brought before the JJ Boardor the Child Welfare Committee (‘Committee’ for short) (other than forthe purpose of giving evidence) and the said person is a child, the JJBoard or the Committee shall record such observation stating the age ofthe child as nearly as may be, and proceed with the inquiry under sectionC14 orsection 36, as the case may be, without waiting for furtherconfirmation of the age. But where the said Board or the Committeehas reasonable grounds for doubt regarding whether the person broughtbefore it is a child or not, the JJ Board or the Committee, as the casemay be, shall undertake the process of age determination by seekingevidence by obtaining -D

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

(ii) the birth certificate given by a corporation or a municipalEauthority 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 medicalage determination test conducted on the orders of theCommittee or the Board.

FProvided such age determination test conducted on the order ofthe Committee or the Board shall be completed within fifteen days fromthe date of such order. The age recorded by the Committee or the Boardto be the age of person so brought before it shall, for the purpose of theAct, be deemed to be the true age of that person. For immediate referencesection 94 of JJ Act, 2015 is extracted as under:G

“94. Presumption and determination of age.-(1) Where, it is obviousto the Committee or the Board, based on the appearance of theperson brought before it under any of the provisions of this Act(other than for the purpose of giving evidence) that the said personis a child, the Committee or the Board shall record such observation H

stating the age of the child as nearly as may be and proceed withthe 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 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 –

a) 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;

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

c) 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 the true age of that person.

23. Under section 7A of JJ Act, 2000 which was inserted by anamendment with effect from 22.08.2006, provision was made to claimjuvenility by contending that the accused person was a juvenile on thedate of commission of the offence and in such a case, on the evidencetaken on record, a finding regarding the age of such person had to berecorded by the court, other than a JJ Board. The claim for juvenilitycould be raised before any Court and at any stage, even after the finaldisposal of a case and such claim had to be determined in terms of thesaid Act and the rules made thereunder. If the Court found a person tobe a juvenile on the date of commission of offence under sub-section (1)of section 7A of the JJ Act, 2000, it had to forward the juvenile to the JJBoard for passing appropriate orders and the sentence, if any, passed bya Court would not have any effect. However, under the JJ Act, 2015, a AB

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Aprovision corresponding to section 7A of the JJ Act, 2000, is in the formof sub-section 2 of section 9 of the said Act, which has been extractedabove.

24. Further, unlike section 49 of JJ Act, 2000, section 94 of JJ Act,2015 provides for presumption and determination of age if the JuvenileBJustice Board or the Committee has reasonable grounds to doubt whetherthe person brought before it is a child or not. It shall undertake the processof determination of age by seeking evidence such as:

(i) the date of birth certificate from the school, or the matriculationor equivalent certificate from the concerned examination Board,Cif available; and in the absence thereof;(ii) the birth certificate given by a corporation or a municipalauthority or a panchayat; and

(iii) only in the absence of (i) and (ii) above, age shall be determinedby an ossification test or any other latest medical age determinationDtest conducted on the orders of the Committee or the Board.25. The difference in the procedure under the two enactmentscould be discerned as under:

(i) As per JJ Act, 2015 in the absence of requisite documents asmentioned in Sub-section (2) of Section 94(a) and (b), there isEprovision for determination of the age by an ossification test orany other medical agerelated test to be conducted on the ordersof the Committee or the JJ Board as per Section 94 of the saidAct; whereas, under Rule 12 of the JJ Rules, 2007, in the absenceof relevant documents, a medical opinion had to be sought from aFduly constituted Medical Board which would declare the age ofthe juvenile or child.

(ii) With regard to the documents to be provided as evidence,what was provided under Rule 12 of the JJ Rules, 2007 has beenprovided under sub-section 2 of section 94 of the JJ Act, 2015 asGa substantive provision.

(iii) Under Section 49 of the JJ Act, 2000, where it appeared to acompetent authority that a person brought before it was a juvenileor a child, then such authority could, after making an inquiry andtaking such evidence as was necessary, record a finding as to theHjuvenility of such person and state the age of such person as nearly

as may be. Sub-section (2) of Section 49 stated that no order of acompetent authority shall be deemed to have become invalid merelyby any subsequent proof that the person in respect of whom theorder had been made is not a juvenile and the age recorded by thecompetent authority to be the age of person so brought before it,for the purpose of the Act, be deemed to be the true age of thatperson.

26. But, under Section 94 of the JJ Act, 2015, which also dealswith presumption and determination of age, the Committee or the JJBoard has to record such observation stating the age of the child asnearly as may be and proceed with the inquiry without waiting for furtherconfirmation of the age. It is only when the Committee or the JJ Boardhas reasonable grounds for doubt regarding whether the person broughtbefore it is a child or not, it can undertake the process of age determination,by seeking evidence.

27. Sub-section (3) of Section 94 states that the age recorded bythe Committee or the JJ Board to be the age of the persons so broughtbefore it shall, for the purpose of the Act, be deemed to be the true ageof that person. Thus, there is a finality attached to the determination ofthe age recorded and it is only in a case where reasonable grounds existfor doubt as to whether the person brought before the Committee or theBoard is a child or not, that a process of age determination by seekingevidence has to be undertaken.

28. The relevant decisions on the provisions under considerationcould be referred to at this stage:

(a) In the case of Ashwani Kumar Saxena v. State of MadhyaPradesh - (2012) 9 SCC 750, this Court opined that underSection 7A of JJ Act, 2000 obligated the Court to make aninquiry and not an investigation or trial under the Code ofCriminal Procedure. The Court stated its opinion in thefollowing words :

“34……..There may be situations where the entry madein the matriculation or equivalent certificates, date ofbirth certificate from the school first attended and eventhe birth certificate given by a corporation or a municipalauthority or a panchayat may not be correct. But court,Juvenile Justice Board or a committee functioning under A

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(b) the JJ Act is not expected to conduct such a rovingenquiry and to go behind those certificates to examinethe correctness of those documents, kept during thenormal course of business. Only in cases where thosedocuments or certificates are found to be fabricated ormanipulated, the court, the Juvenile Justice Board or thecommittee need to go for medical report for agedetermination.”

Reference could also be made to another decision of thisCourt in the case of Abuzar Hossain alias Gulam Hossainv. State of West Bengal - (2012) 10 SCC 489, wherein ithas been summarized as under:

“39.1. A claim of juvenility may be raised at any stageeven after the final disposal of the case. It may be raisedfor the first time before this Court as well after the finaldisposal of the case. The delay in raising the claim ofjuvenility cannot be a ground for rejection of such claim.The claim of juvenility can be raised in appeal even ifnot pressed before the trial Court and can be raised forthe first time before this Court though not pressed beforethe trial Court and in the appeal Court.

39.2. For making a claim with regard to juvenility afterconviction, the claimant must produce some materialwhich may prima facie satisfy the Court that an inquiryinto the claim of juvenility is necessary. Initial burdenhas to be discharged by the person who claims juvenility.

39.3. As to what materials would prima facie satisfy theCourt and/or ae sufficient for discharging the initialburden cannot be catalogued nor can it be laid down asto what weight should be given to a specific piece ofevidence which may be sufficient to raise presumptionof juvenility but the documents referred to in Rules12(3)(a) (i) to (iii) shall definitely be sufficient for primafacie satisfaction of the Court about the age of thedelinquent necessitating further enquiry under Rule 12.The statement recorded 22-10-2021 (Page 6 of 12) underSection 313 of the Code is too tentative and may not by

itself be sufficient ordinarily to justify or reject the claimof juvenility. The credibility and/or acceptability of thedocuments like the school leaving certificate or the voterslist, etc. obtained after conviction would depend on thefacts and circumstances of each case and no hard-and-fast rule can be prescribed that they must he prima facieaccepted or rejected. In Akbar Sheikh - (2009) 7 SCC415 and Pawan - (2009) 15 SCC 259, these documentswere not found prima facie credible while in JitendraSingh - (2010) 13 SCC 523 the documents viz., schoolleaving certificate, marksheet and the medical reportwere treated sufficient for directing an inquiry andverification of the appellant’s age. If such documents,prima facie,inspire confidence of the Court, the Courtmay act upon such documents for the purposes ofSection 7-A and order an enquiry for determination ofthe age of the delinquent.

39.4. An affidavit of the claimant or any of the parentsor a sibling or a relative in support of the claim ofjuvenility raised for the first time in appeal or revision orbefore this Court during the pendency of the matter orafter disposal of the case shall not be sufficient justifyingan enquiry to determine the age of such person unlessthe circumstances of the case are so glaring that satisfythe judicial conscience of the Court to order an enquiryinto determination of the age of the delinquent.

39.5. The Court where the plea of juvenility is raised forthe first time should always be guided by the objectivesof the 2000 Act and be alive to the position that thebeneficent and salutary provisions contained in the 2000Act are not defeated by the hyper technical approachand the persons who are entitled to get benefits of the2000 Act shall get such benefits. The Courts should notbe unnecessarily influenced by any general impressionthat in schools the parents/guardians understate the ageof their wards by one or two years for future benefits orthat age determination by medical examination is notvery precise. The matter should be considered prima AB

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528SUPREME COURT REPORTS

facie on the touchstone of preponderance of probability.39.6. Claim of juvenility lacking in credibility or frivolousclaim of juvenility or patently absurd or inherentlyimprobable claim of juvenility must be rejected by theCourt at the threshold whenever raised.”

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B(c)In Arnit Das v. State of Bihar - (2000) 5 SCC 488, thisCourt observed that while considering the question as todetermination of the age of an accused for the purpose ofascertaining whether he is a juvenile or not, a hyper-technicalapproach should not be adopted while appreciating theevidence adduced in support of the plea that he was aCjuvenile and, if two views may be possible, the Court shouldlean in favour of holding the accused to be a juvenile inborderline cases. This is because the Act being a welfarelegislation, Courts should be zealous to see that a juvenilederives full benefits of the provisions of the Act but at theDsame time it is also imperative for the Courts to ensure thatthe protection and privileges under the Act are not misusedby unscrupulous persons to escape punishment for havingcommitted serious offences.

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(d) In Jitendra Ram v. State of Jharkhand - (2006) 9 SCCE428, this Court has sounded a note of caution on the earlierobservations made by it in the case of Bhola Bhagat &others v. State of Bihar - (1997) 8 SCC 720, whereinitwas observed that an obligation has been cast on the Courtthat where such a plea is raised having regard to thebeneficial nature of the socially oriented legislation, the sameFshould be examined with great care. This Court referringto its decision in Bhola Bhagat (supra) observed as follows:

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“20. …We are, however, of the opinion that the samewould not mean that a person who is not entitled to thebenefit of the said Act would be dealt with leniently onlybecause such a plea is raised. Each plea must be judgedon its own merit. Each case has to be considered on thebasis of the materials brought on records.”

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The aforesaid observations were made in the context ofwhat had been stated in Bhola Bhagat vs. State of Bihar– (1997) 8 SCC 720 which is extracted as under:

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“18. Before parting with this judgment, we would like toreemphasis that when a plea is raised on behalf of anaccused that he was a “child” within the meaning of thedefinition of the expression under the Act, it becomesobligatory for the court, in case it entertains any doubtabout the age as claimed by the accused, to hold aninquiry itself for determination of the question of age ofthe accused or cause an enquiry to be held and seek areport regarding the same, if necessary, by asking theparties to lead evidence in that regard. Keeping in viewthe beneficial nature of the socially oriented legislation,it is an obligation of the court where such a plea is raisedto examine that plea with care and it cannot fold its handsand without returning a positive finding regarding thatplea, deny the benefit of the provisions of an accused.The court must hold an enquiry and return a findingregarding the age, one way or the other.”

(e) Further, in Jabar Singh v. Dinesh and another - (2010)3 SCC 757, this Court considered a situation wherein theentry of date of birth in the admission form of the schoolrecords or transfer certificates did not satisfy the conditionlaid down under Section 35 of the Evidence Act, i.e., thesaid entry was not in any public or official register and wasnot made either by a public servant, in the discharge of hisofficial duty or by any person in performance of a dutyspecially enjoined by the law of the country and thereforethe said evidence was not relevant for the purpose ofdetermining the age of the accused in the said case. In theaforesaid case, this Court set aside the order of the HighCourt in revision and confirmed the order of the trial Courtholding that the accused therein was a juvenile at the timeof the commission of the alleged offence.

(f) In Babloo Pasi Vs. State of Jharkhand and another -(2008) 13 SCC 133, this Court while dealing with theprovisions of JJ Act, 2000, observed as under:

“22. it is well settled that it is neither feasible nor desirableto lay down an abstract formula to determine the age ofa person. The date of birth is to be determined on the A

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basis of material on record and on appreciation ofevidence adduced by the parties. The medical evidenceas to the age of a person, though a very useful guidingfactor, is not conclusive and has to be considered alongwith other cogent evidence.

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23. It is true that in Arnit Das v. State of Bihar thisCourt has, on a review of judicial opinion, observed thatwhile dealing with a question of determination of theage of an accused, for the purpose of finding out whetherhe is a juvenile or not, a hyper-technical approach shouldnot be adopted while appreciating the evidence adducedon behalf of the accused in support of the plea that he B

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was a juvenile and if two views may be possible on thesame evidence, the court should lean in favour of holdingthe accused to be a juvenile in borderline cases. We arealso not oblivious of the fact that being a welfarelegislation, the courts should be zealous to see that ajuvenile derives full benefits of the provisions of the Actbut at the same time it is also imperative for the courtsto ensure that the protection and privileges under theAct are not misused by unscrupulous persons to escapepunishments for having committed serious offences.”

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(g) In State of Madhya Pradesh v. Anoop Singh - (2015) 7SCC 733, it was observed that the ossification test is notthe sole criterion for determination of date of birth, whenbirth certificate and middle school certificate are available.It was observed that the High court was not right inFpresuming that the prosecutrix, therein, was more than 18years of age at the time of the incident. There was adifference of two days in the date of birth mentioned in thebirth certificate and the middle school certificate but thesame was held to be a minor discrepancy. In that case, itGwas held that prosecutrix was below 16 years of age at thedate of the incident and set aside the judgment passed bythe High Court.

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(h) Sanjeev Kumar Gupta vs. State of Uttar Pradesh andanother - (2019) 12 SCC 370, is a judgment authored byone of us (Hon’ble Dr.D.Y. Chandrachud, J.), wherein the H

credibility and authenticity of the matriculation certificatefor the purpose of determination of the age under Section-7A of the JJ Act, 2000, came up for consideration. In thesaid case, the JJ Board had rejected the claim of juvenilityand this Court confirmed the decision of the JJ Boardrejecting the claim of juvenility by setting aside the judgmentof the High Court. In the said case, it was observed thatthe records maintained by the CBSE were purely on thebasis of the final list of the students forwarded by the SeniorSecondary School where the second respondent therein hadstudied from class 5 to 10, and not on the basis of any otherunderlying document. On the other hand, there was clearand unimpeachable evidence of date of birth which hadbeen recorded in the records of another school which thesecond respondent therein had attended till class 4 and whichwas supported by voluntary disclosure made by the accusedtherein while obtaining both, Aadhaar Card and drivinglicense. It was observed that the date of birth reflected inthe matriculation certificate could not be accepted asauthentic or credible. In the said case, it was held that thedate of birth of the second respondent therein was17.12.1995 and that he was not entitled to claim juvenilityas the date of the alleged incident was 18.08.2015.

In the said case, the judgment of this Court in Ashwani KumarSaxena (supra) and Abuzar Hossain (supra) were considered and itwas noted that the decision in Abuzar Hossain was rendered threedaysafter the decision in Ashwani Kumar Saxena, and in AbuzarHossain, which was a three- Judge Bench decision, it was observedthat the credibility and acceptability of the documents, including the schoolleaving certificate, would depend on the facts and circumstances of eachcase and no hard and fast rule as such could be laid down in that regard.

It was observed in Abuzar Hossain (supra) by Hon’ble T.S.Thakur J., as then the learned Chief Justice was,that directing an inquiryis not the same thing as declaring the accused to be a juvenile. In theformer, the Court simply records a prima facie conclusion, while adeclaration is made on the basis of evidence. Hence, the approach atthe stage of directing an inquiry has to be more liberal lest, there ismiscarriage of justice. The standard of proof required is different for AB

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Aboth. In the former, the Court simply records the prima facie conclusion.It would eventually depend on how the Court evaluates such materialfor a prima facie conclusion and the Court may or may not direct aninquiry.In the latter, the Court makes a declaration on evidence that itscrutinises and accepts such evidence only if it is worthy of acceptance.His Lordship further observed as under:B

“The Court would, therefore, in each case weigh the relevantfactors, insist upon filing of better affidavits if the need so arises,and even direct, any additional information considered relevantincluding the information regarding the age of the parents, the ageof siblings and the like, to be furnished before it decides on aCcase-to-case basis whether or not an enquiry under Section 7-Aought to be conducted. It will eventually depend on how the courtevaluates such material for a prima facie conclusion that the courtmay or may not direct an enquiry.”

(i) In case of Parag Bhati (Juvenile through LegalDGuardian-Mother-Smt. Rajini Bhati v. State of UttarPradesh and another – (2016) 12 SCC 744,both theaforesaid judgments were considered and this Courtobserved as under:

“34.It is no doubt true that if there is a clear andEunambiguous case in favour of the juvenile accused thathe was a minor below the age of 18 years on the date ofthe incident and the documentary evidence at least primafacie proves the same, he would be entitled to the specialprotection under the JJ Act. But when an accusedFcommits a grave and heinous offence and thereafterattempts to take statutory shelter under the guise of beinga minor, a casual or cavalier approach while recordingas to whether an accused is a juvenile or not cannot bepermitted as the Courts are enjoined upon to performtheir duties with the object of protecting the confidenceGof common man in the institution entrusted with theadministration of justice.

35. The benefit of the principle of benevolent legislationattached to the JJ Act would thus apply to only suchcases wherein the accused is held to be a juvenile onHthe basis of at least prima facie evidence regarding his

minority as the benefit of the possibilities of two viewsin regard to the age of the alleged accused who isinvolved in grave and serious offence which hecommitted and gave effect to it in a well-planned mannerreflecting his maturity of mind rather than innocenceindicating that his plea of juvenility is more in the natureof a shield to dodge or dupe the arms of law cannot beallowed to come to his rescue. (Emphasis added) Fromthe above decision, it is clear that the purpose of JuvenileJustice Act, 2000 is not to give shelter to the accused ofgrave and heinous offences.

36. It is settled position of law that if the matriculationor equivalent certificates are available and there is noother material to prove the correctness of date of birth,the date of birth mentioned in the matriculation certificatehas to be treated as a conclusive proof of the date ofbirth of the accused. However, if there is any doubt or acontradictory stand is being taken by the accused whichraises a doubt on the correctness of the date of birththen as laid down by this Court in Abuzar Hossain, anenquiry for determination of the age of the accused ispermissible which has been done in the present case.”

(j) In the judgment rendered by Hon’ble Hemant Gupta, J., inRam Vijay Singh vs. State of Uttar Pradesh – 2021 CriLJ2805, itwas observed that the ossification test is not thesole criterion of age determination and a blind andmechanical view regarding the age of the person cannot beadopted solely on the basis of medical opinion by radiologicalexamination. Though, radiological examination is a usefulguiding factor for determining the age of a person, theevidence is not of a conclusive and incontrovertible natureand it is subject to a margin of error. Medical evidence asto the age of a person, though a very useful guiding factor,is not conclusive and has to be considered along with othercircumstances. The relevant paragraphs of the said judgmentare extracted as under:

“14. We find that the procedure prescribed in Rule 12 isnot materially different than the provisions of Section AB

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94 of the Act to determine the age of the person Thereare minor variations as the Rule 12(3)(a)(i) and (ii) havebeen clubbed together with slight change in the language.Section 94 of the Act does not contain the provisionsregarding benefit of margin of age to be given to thechild or juvenile as was provided in Rule 12(30(b) of theRules. The importance of ossification test has notundergone change with the enactment of Section 94 ofthe Act. The reliability of the ossification test remainsvulnerable as was Under Rule 12 of the Rules.

15. As per the Scheme of the Act, when it is obvious tothe Committee or the Board, based on the appearanceof the person, that the said person is a child, the Boardor Committee shall record observations stating the ageof the Child as nearly as may be without waiting forfurther confirmation of the age. Therefore, the firstattempt to determine the age is by assessing the physicalappearance of the person when brought before the Boardor the Committee. It is only in case of doubt, the processof age determination by seeking evidence becomesnecessary. At that stage, when a person is around 18years of age, the ossification test can be said to berelevant for determining the approximate age of a personin conflict with law. However, when the person is around40-55 years of age, the structure of bones cannot behelpful in determining the age. This Court in ArjunPanditraoKhotkar v. Kailash KushanraoGorantyal andOrs. (2020) 7 SCC 1 held, in the context of certificaterequired under Section 65B of the Evidence Act, 1872,that as per the Latin maxim, lex non cogitadimpossibilia,law does not demand the impossible. Thus, when theossification test cannot yield trustworthy and reliableresults, 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 trustworthymedical evidence to find out age of the appellant, theossification test conducted in year 2020 when theappellant was 55 years of age cannot be conclusive todeclare him as a juvenile on the date of the incident.”

29. What emerges on a cumulative consideration of the aforesaidcatena of judgments is as follows:

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(i) A claim of juvenility may be raised at any stage of a criminalproceeding,even after a final disposal of the case. A delayin raising the claim of juvenility cannot be a ground forrejection of such claim. It can also be raised for the firstBtime before this Court.

(ii) An application claiming juvenility could be made either beforethe Court or the JJ Board.

(iia)When the issue of juvenility arises before a Court, it wouldbe under sub-section (2) and (3) of section 9 of the JJ Act,2015 but when a person is brought before a Committee orJJ Board, section 94 of the JJ Act, 2015 applies.

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(iib)If an application is filed before the Court claiming juvenility,the provision of sub-section (2) of section 94 of the JJ Act,2015 would have to beapplied or read along with sub-section(2) of section 9 so as to seek evidence for the purpose ofrecording a finding stating the age of the person as nearlyas may be.

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(iic) When an application claiming juvenility is made undersection 94 of the JJ Act, 2015 before the JJ Board whenEthe matter regarding the alleged commission of offence ispending before a Court, then the procedure contemplatedunder section 94 of the JJ Act, 2015 would apply. Underthe said provision if the JJ Board has reasonable groundsfor doubt regarding whether the person brought before it isFa child or not, the Board shall undertake the process of agedetermination by seeking evidence and the age recordedby the JJ Board to be the age of the person so broughtbefore it shall, for the purpose of the JJ Act, 2015, be deemedto be true age of that person. Hence the degree of proofrequired in such a proceeding before the JJ Board, whenGan application is filed seeking a claim of juvenility when thetrial is before the concerned criminal court, is higher thanwhen an inquiry is made by a court before which the caseregarding the commission of the offence is pending (videsection 9 of the JJ Act, 2015).

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536SUPREME COURT REPORTS

A(iii)That when a claim for juvenility is raised, the burden is onthe person raising the claim to satisfy the Court to dischargethe initial burden. However, the documents mentioned inRule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 madeunder the JJ Act, 2000 or sub-section (2) of section 94 of JJAct, 2015, shall be sufficient for prima facie satisfaction ofBthe Court. On the basis of the aforesaid documents apresumption of juvenility may be raised.

(iv) The said presumption is however not conclusive proof ofthe age of juvenility and the same may be rebutted by contraevidence let in by the opposite side.C

(v) That the procedure of an inquiry by a Court is not the samething as declaring the age of the person as a juvenile soughtbefore the JJ Board when the case is pending for trial beforethe concerned criminal court. In case of an inquiry, the Courtrecords aprima facie conclusion but when there is aDdetermination of age as per sub-section (2) of section 94 of2015 Act, a declaration is made on the basis of evidence.Also the age recorded by the JJ Board shall be deemed tobe the true age of the person brought before it. Thus,thestandard of proof in an inquiry is different from that requiredEin aproceeding where the determination and declaration ofthe age of a person has to be made on the basis of evidencescrutinised and accepted only if worthy of such acceptance.

(vi) That it is neither feasible nor desirable to lay down anabstract formula to determine the age of a person. It has tobe on the basis of the material on record and on appreciationFof evidence adduced by the parties in each case.

(vii) This Court has observed that a hyper-technical approachshould not be adopted when evidence is adduced on behalfof the accused in support of the plea that he was a juvenile.

(viii) If two views are possible on the same evidence, the courtGshould lean in favour of holding the accused to be a juvenilein borderline cases. This is in order to ensure that the benefitof the JJ Act, 2015 is made applicable to the juvenile inconflict with law. At the same time, the Court should ensurethat the JJ Act, 2015 is not misused by persons to escapeHpunishment after having committed serious offences.

(ix) That when the determination of age is on the basis ofevidence such as school records, it is necessary that thesame would have to be considered as per Section 35 of theIndian Evidence Act, inasmuch as any public or officialdocument maintained in the discharge of official duty wouldhave greater credibility than private documents.

(x) Any document which is in consonance with publicdocuments, such as matriculation certificate, could beaccepted by the Court or the JJ Board provided such publicdocument is credible and authentic as per the provisions ofthe Indian Evidence Act viz., section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for agedetermination and a mechanical view regarding the age ofa person cannot be adopted solely on the basis of medicalopinion by radiological examination. Such evidence is notconclusive evidence but only a very useful guiding factor tobe considered in the absence of documents mentioned inSection 94(2) of the JJ Act, 2015.

30. Bearing in mind the aforesaid position of law, the same couldbe applied to the facts of the present case. It is noted that in the FIRdated 05.05.2020, the name of respondent no.2 has been written asNishuand it has been stated that Nishu S/o Bhushan and other accusedwere carrying a Farsa (battle-axe), lathi and balkaties (cane-knives)and attacked the complainant/ appellant herein and the members of hisfamily (Annexure P-1).

31. An application being Misc. Case No.16/2020 filed on behalfof respondent no.2 Nishant before the JJ Board, Baghpat, was for adeclaration that respondent no.2 was a juvenile delinquent and that hewas approximately 15 years 8 months of age on the date of commissionofthe alleged offences i.e. 05.05.2020. No such application was filed beforethe competent Sessions Court.

32. Be that as it may. In support of the aforesaid application,Certificate-cum-Marks Sheet of the High School issued by the Board ofHigh School and Intermediate Examination U.P., was produced statingthat the date of birth of respondent no.2 Nishant was 25.09.2004andthat he had passed the High School Examination held in February, 2019.The said certificate is dated 27.04.2019.

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A33. It was stated by the mother of respondent no.2 that birthcertificate of respondent no.2 was not sought after his birth; that whenthe father of respondent no.2 sought admission in class 1 in SarvodayPublic School, Khindora, District Baghpat, no document in respect ofbirth was given at the time of admission in the school. The date of birthwas mentioned orally.That respondent no.2 Nishant studied in SarvodayBPublic School upto Class 8 and thereafter, he was admitted in anotherschool viz., Sardar Vallabhbhai Patel Higher Secondary School, Shajarpur,Kaidna, District Baghpat for class 9.The mother of respondent no.2 inher cross examination has reiterated that the date of birth of respondentno.2 was orally mentioned at the time of admission of respondent no.2-CNishant in class 1 at Sarvoday Public School and no document in supportthereof was submitted in the school.

34. DW-2 Manoj Kumar, Principal, Sardar Vallabhbhai PatelHigher Secondary School, Shajarpur, Kaidna, District Baghpat, stated inhis deposition that respondent no.2 Nishant was admitted to class 9 onD04.07.2017 and a transfer certificate recording the date of birth ofrespondent no.2 as 25.09.2004 was submitted and the same was enteredin the school records. All the admission forms had to be signed by thestudents and the guardians but the transfer certificate from the previousschool was not verified.E35. Annexure P-11 is a copy of the Admission Application Formof SarvodayPublic School, Khindora, Baghpat, which is in Hindi, whereinrespondent no.2 has signed. Annexure P-12 is a copy of the applicationform dated 03.04.2014 seeking admission to class 8. It is contended bylearned counsel for respondents that ona comparison of the signaturesof respondent no.2 on Annexure P-11 and Annexure P-12, it is notedFthat the signature on Annexure P-11 was made in the year 2009, whereas,the signature on Annexure P-12 was made in the year 2014and they aresimilar. Further, it is not possible for a child seeking admission to class 1to sign his name on the admission form.

36. DW-3 Surendra Kumar Saini, Principal, Sarvoday PublicGSchool, Khindora, Baghpat, has stated that respondent no.2 Nishant wasalittle above four years of age at the time of admission in class 1; that nophotograph of Nishant was affixed on the admission form nor was anydocument of the previous school of Nishant submitted; that Nishant studiedin Sarvoday Public School from class 1 toclass 8 andafter passing classH5, admission form for class 6 had to be filled but the same was not available in the file. He further stated that the admission form dated03.04.2014 which was duly signed by Nishant and his father was availableon record and pertained to class 8. He also admitted that the signatureof Nishant on admission forms of class 1 and class 8 are identical but thesaid admission forms are not fabricated.

37. The JJ Board, Baghpat, by its order dated 14.09.2020 dismissedthe application seeking medical examination of respondent no.2-Nishantherein and there is nothing produced to show that the same has been setaside.According to the JJ Board, the matriculation certificate issued bythe concerned Board indicated the date of birth as 25.09.2004 and it isonly in the absence of such a document that determination of age had tobe by ossification test or any other latest medical age determination test.In the instant case, since the certificate of the matriculation Board wasavailable, it was unnecessary for orders for medical test of Nishant.

38. Subsequently, the JJ Board by its order dated 11.11.2020allowed the application of respondent no.1 being Misc. Case No.16/2020 filed on behalf of respondent no.2-Nishant. The JJ boardobservedthat letter dated 22.07.2020 issued by the Office of the AdministrativeOfficer, Regional Office, Intermediate Education Council, Meerut, UP,revealed that the date of birth of accused Nishant had rightly beenrecorded as 25.09.2004 in the High School mark-sheet. The date of theincident was 05.05.2020. Hence respondent no.2 Nishant was 15 yearsand 8 months of age as on the date of the incident.

39. By order dated 11.11.2020, the JJ Board declared respondentno.2 Nishant as a juvenile delinquent in Case Crime No.116 of 2020 foroffences under sections 147, 148, 149, 323, 307, 302 and 34 of the IPCP.S. Singhawali Ahir, District Baghpat.

40. The aforesaid order has been sustained by the District andSessions Court as well as the High Court by holding that section 94 ofthe JJ Act, 2015 had been complied with in the instant case inasmuch asthe matriculation or equivalent certificate from the concerned ExaminationBoard had indicated the date of birth of respondent no.2 Nishant to be25.09.2004. Therefore, Sub-section 2 of Section 94 of the JJ Act, 2015applies as there were no reasonable ground to doubt the said document.Inthe absence of there being any evidence to negate the same, the criminalrevision was dismissed. This is on the strength of Sub-section (3) ofSection 94 of the JJ Act, 2015 which is a deeming provision.

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A41. Though Mr. Dwivedi, learned counsel for the appellant,emphasized that the signatures of respondent no.2-Nishant on theadmission forms of class 1 and class 8 are identical and it could not be soon the admission form of class 1 as Nishant was only four and half yearsold when he was admitted to class 1.But the fact remains that in 2019,when Nishant completed his class 10, his date of birth has beenshownBas 25.09.2004 in the matriculation certificate.Hence, respondent no.2was only about 15 years of age on the date of incident, and in any casehe was less than 16 years of age.

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42. In the absence of there being any rebuttal evidence broughton record by the appellant herein,even if the documents seeking admissionCto class 1 and class 8 are discredited or eschewed, the fact remains thatthe mark-sheet pertaining to the matriculation of Nishant, issued by theconcerned Board, gives rise to a presumption that Nishant was less than16 years of age on the date of incident i.e.05.05.2020. Moreover, theletter dated 22.07.2020 of the Administrative Officer, Regional Office,DIntermediate Education Council, UP, reveals his age as 25.09.2004.

43. There are two considerations which would distinguish thejudgment in Sanjeev Kumar Gupta. Firstly, in Sanjeev Kumar Gupta,this Court held that, though, there was no underlying documentcorroborating the CBSE record maintained on the basis of final list ofEthe document forwarded by the secondary school, there was clear andunimpeachable evidence of date of birth which had been recorded in therecords of the school which the second respondent therein had attendedtill class 4 and which was supported by voluntary disclosure made by theaccused therein while obtaining both Aadhaar Card and Driving Licence.

F44. In the instant case, Ex- P-11 and 12 have been relied upon toprove that the date of birth of respondent no. 2 mentioned in the saiddocuments are in consonance with the date of birth indicated in thematriculation certificate. Although, learned counsel for the respondentscontended that Ex- P-11 and 12 cannot be relied upon, the fact remainsthat a photocopy of the High School marksheet of accused Nishant withGGazette year 2019, Roll No.0485064 year 2019, in respect of which aletter of verification being No.R.O.I.E.C./records/4016 dated 22.07.2020,received from the Office of the Administrative Officer, Regional Office,Intermediate Education Council, Uttar Pradesh (Meerut) alsoauthenticated the date of birth of accused Nishant as 25.09.2004.

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Moreover, the said matriculation certificate has been issued by theconcerned Board. Further, the date of birth as recorded in the schooladmission records, as well as the matriculation certificate are the samenamely, 25.09.2004. The incident occurred on 05.05.2020. Thusrespondent no.2 was only 15 years 7 months of age on the date of theincident which in any case is less than 16 years of age.

45. Secondly, in Sanjeev Kumar Gupta, the High Court hadreversed the findings of the Sessions Judge on the basis of thematriculation certificate by holding the said certificate would haveprecedence over any other document. The same was reversed by thisCourt as the Aadhaar Card, Voter’s ID and Eighth standard marksheetindicated the date of birth of the second respondent therein as 27.12.1995whereas, matriculation certificate indicated the date of birth as 17.12.1998.And, according to the medical report, it was opined that the secondrespondent was nineteen years of age on 09.11.2016, when the allegedoffences were said to have committed by him in the said case.

46. But in the instant case, admittedly, there is no other documentindicating the date of birth of the second respondent contrary to whathas been indicated in the matriculation certificate. Thus, such adiscrepancy in the date of birth does not arise herein. No contra evidenceto the documents produced by the second respondent have been producedby the appellant herein. In the circumstances, we are not inclined todiffer from the order of the High court which sustained the judgment ofthe District &Sessions Court as well as of the JJ Board in this case.

47. Section 94 of the JJ Act, 2015 raises a presumption regardingjuvenility of the age of the child brought before the JJ board or theCommittee. But in case the Board or Committee has reasonable groundsfor doubt about the person brought before it is a child or not, it canundertake the process of determination of age by seeking evidence.Thus, in the initial stage a presumption that the child brought before theCommittee or the JJ Board is a juvenile has to be drawn by the saidauthorities. The said presumption has to be drawn on observation of thechild. However, the said presumption may not be drawn when theCommittee or the Board has reasonable grounds for doubt regarding theperson brought before it is a child or not. In such a case, it can undertakethe process of age determination by the evidence which can be in theform of:

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A(i) Date of birth certificate from the school or the matriculationcertificate from the concerned board, if available or in theabsence thereof;

(ii) The birth certificate given by a corporation or by a municipalauthority or a panchayat and in the absence of the above; B

(iii) Age has to be determined by an ossification test or anyother medical age determination test conducted on the ordersof the committee or the board.

48. The age recorded by the Committee or the Board to be theage of the person so brought before it shall for the purpose of the JJ Act,C2015 be deemed to be the true age of the person. The deeming provisionin sub-section (3) of section 94 of the JJ Act, 2015 is also significantinasmuch as the controversy or the doubt regarding the age of the childbrought before the Committee or the JJ Board is sought to be set at restat the level of the JJ Board or the Committee itself.

D49. In the circumstances, we find no merit in the instant appealand the same is dismissed.

50. Pending interlocutory applications, if any, stand disposed.

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Divya Pandey

Appeal dismissed.

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