State v. Vinod @ Dantla

* I~ THE HIGH COURT UF DELHI AT NEW DELHI + CRIMI~AL APPEAL NO. 460/2012 Reserved on: 16th OCTOBER, 2012 % Date of Decision: 19th NOVEMBER, 2012 VINOD @ DANTLA ..... Appellant Through Mr. R.M. Tulail, Mr. Farooq Chaudhary & Mr. Vishal Raj SehijpaJ, Advocates. Versus STATE ..... Respondent Through Ms. Richa Kapoor, APP [or the State. DEATH SE~TENCE REFERENCE NO. 112012 STATE ..... Appellant Through Ms. Richa Kapoor, APP for the State. Versus VINOD @ DANTLA ..... Respondent Through Mr. R.M. Tufail, Mr. Farooq Chaudhary & Mr. Vishal Raj Schijpal, Advocates. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE S.P.GARG SANJIV KHAN~A, J: CRL.M.A. NO. 4974/2012 The present order will dispose of the application under Section 7A orthe Juvenile Justice (Care and Protection of Children) Act, 2000 (Act, for short) read with Rule 12 of the Juvenile Justice CRLA 1\0, aoO/20l2 & DeJlh Sel1lcncc ReIerence !'\o, 1 ~(l11 Page I of20 \\ (Care and Protection of Children) Rules, 2009 (Rules, for short). The application has been filed by Vinod @ Danna, who has been convicted under Section 363, 376, 377, 302 and 201 of the Indian Penal Code, 1860 (IPC, for short). lIe was sentenced to death for the olIence under Section 302 IPC, life imprisonment for the offence under Section IPC and various periods of rigorous imprisonment for offences under Section 377, 363 JPC etc. Sentence of fine has also been imposed, including fine of Rs.50,000/- for the offence under Section 302 IPC. . 2 . After liling of the present application, vide order dated 15 th oJ May, 2012, an inquiry was directed to be conducted by the trial court, to ascertain the age of the appellant at the time of the offence. Trial court records were transmitted and it was directed that the trial court should record statement of the relevant witnesses, including appcllant's relatives, and secure documentary and other evidence. It was left open to the trial court to ask for medical examination, mcluding ossification test, to ascertain the age.

¶3Mr. Gurdecp Singh, Additional Sessions Judge-IU, who is also the author of the impugned judgment. has submitted the inquiry report. In the concluding paragraph, he has recorded his opinion that the appellant was aged about 17 years on the date of occurrence. In other words, he has observed that the appellant herein was a CRLA-No. 46012012 & Death Sentence Reference No.1 2011 Page:2 of20 -.~~--­ juvenile, on the date when the offence was committed, and accordingly has to be treated and dealt with under the Act and the proceedings before the Criminal Courts, under lPC and CLP.C. are vitiated and bad.

¶4After the copy of the report was received, along with the evidence and material, the same was circulated and made available to the counsel for the appellant and the State. We have also heard the learned counsel to determine and decide whether the report should be accepted, and accordingly the conviction and sentence set aside and the matter be referred to the Juvenile Justice Board ror adjudication, under the Act.

¶5It is an accepted position that the appellant has not been to any school. It is also accepted that the appellant docs not have date of birth certificate issued by the Municipal Corporation etc. Appcllant's sisters Rani (CW-l), Madhu (CW-2) and Sunita (CW-3) have appeared and stated thai they were three sisters and two brothers. One brother Kamal expired in Ihe year 1995. Sunita lCW­ 3) is the eldest. Madhu and Rani are the second eldest and the third eldest. The appellant Vinod is youngest and was younger than the deceased brother Kamal. CW-1 got married in the year 1991 and at the time of marriage she was less than 18 years of age. She has a daughter aged about 20 years, who was born in the year 1992. CRLA. :"Jo. 460-":'w12 & Death Sentence Reference 't'-,'o. I 2012 Pag~ 3 of 20 Vinod was about 1 Yz years of age at the time of marriage. Madhu, (CW-2) has stated that Rani is about 2 Y2 years younger to her and she too got married in the year 1991, three months prior to the marriage of Rani. She has five children, the eldest being one 20 years of age and the youngest one being 10 years. IIer age in the election card is 29 years as on 1" January, 2008. Age of Rani Devi, as mentioned in the election card. is 31 years as on 1,I January, 2008. It is, therefore, clear that the age given in the election cards of Rani (CW-l) and Madhu (CW-2) is mere estimation and cannot be treated as conclusive. However, it is apparent that they got married in thc year J991 and the first child was born in the year 1992. Second child of Madhu (CW-2) was born in the year 1994.

¶6Sunita (CW-3) is the elder sister and, as per the voter lD card. her age as on I" January, 2008 is 33 years. Shc has stated that she does not remember the age at the time of her marriage. None of them has been to schooL Her eldest daughter, Komal was aged about III years old. The appellant Vinod was born after her marrIage. She did not remember the year of marriage of Rani and .\1adhu, (CW-I and CW-2) as she did not attend their marriage. Her children did not have birth certificate. The appellant was about two years of age when Kamal expired. This statement, it is apparent, is a guess and does not correlate with the statements orCW-l and CW-2 CIU.A No. -160,2012 & DeOlh Sentence Reference :-':0. I 2012 II (hat the appellant was about 1 Y2 years of age in 1991. However, it reflects that the appellant was a small child when Kamal died. She recollected that Kamal had expired after Rani's marriage bccause she remembered that she had gone to the village, to meet hcr mother, on his death.

¶7It is clear, from the aforesaid evidence, that CW -I, CW-2 and CW-3 cannot clearly and affirmatively state and spccify the year of birth ofthc appellant. CW-I and CW-2 have given thc year of their marriage which is supported by the date of birth certificates of their childrcn. That they got married at a vcry young age is cstablished and proved. This conclusion by itself cannot help us to firmly conclude the date of birth of the appellant. CW-J or CW -2 are interested witnesses. As noticed below, Rule 12 mandates and requires an "objective" inquiry and statement of relatives have been discounted and not treated as the primary evidence on whieh a firm conclusion can be drawn. At the same time. it cannot be denied that only relatives or persons known to the delinquent will have inlimnation regarding the date of birth.

¶8The inquiry report states that the appellant's father died long back. The appellant's mother had also expircd in the year 2009. This is not disputed and questioned. CRLA. No. <t60<!012 & Death Sentence Reference 1''';0. I ::012 Page 5 of20

¶9Section 7 A ofthe Act states that when a claim ofjuvenility is raised before a court or the court is of the opinion that the accused person was juvenile, on the date of the commission of the offence, the court shall make an inquiry and take such evidence, as may be necessary. Evidence is not to be taken on affidavit. The claim of juvenility has to be determined as per the provisions of the Act and the Rules made thereunder. The Rule 12 reads as under: "Rule

¶12Procedure to be followed in determination of Agc.-

(I) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvellllity or otherwise of the juvenile or the chId or as the case may be the juvenile in conflict with law. prima facie on 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 contlicl with law, the age dcte~ination inquiry shall be conducted by the court or the Board or, as the case may be. the Committee by seeking evidence by obtaining ­

(a)

(i) the matriculation or equivalent certificates, if available; and in the absence whereol;

(ii) the dale of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat; CRL A. 'So. 460"2012 & Denth Sentence Reference i-Jo. I 1tH2 Pug\..' 6 of20

(b) and only in the absence ot either ti), (ii) or

(iii) of clause (a) above. the medical opinion will be sought from a duly constituted Medical Board. which will declare the age of the juvenile or child. In case exact assessment orlhe age cannot be done, the Court or the Board or, as the case may be. the Committee. for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and. while passing orders in slich case shall. after taking into consideratIOn such evidence as may be available. or the medical opinion, as the case may be. record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), Oil, (iii) or in the absence whereof. clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in contlict with law,

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below ]8 years on the date of oftence. on the basis of any of the conclusive proof specified in sub-rule (3). the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to slich juvenile or the person concerned,

(5) Save and except where, further inquiry or otherwise is required. inter alia, in terms of section 7 A, section 64 of the Act and these rules, no fUlther inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub­ rule (3) 0 f this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined 1I1 accordance with the provlsions contained 1I1 subrule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conniet with law," C}{L.A. No. 460/2012 & Death Sentence Reference ~o. 1 2012

¶10Sub-rule (3) of Rule 12 is relevant and postulates that the age detennination inquiry shall endeavour to seek the following evidence:

(i) Matriculation or equivalent certificate, if available; and in the absence thereof;

(ii) Date of birth certificate from the school first attended other than the play school; and in the absence thereof;

(iii) Birth certificate given by a corporation/municipal authority/panchayat.

¶11In the present case, none of the three certificates is available and, therefore, clause (b) to Rule 12(3) is applicable. The said clause postulates that, in the absence of the certificates, opinion can be sought from a duly constituted medical board which is required to declare the age of the juvenile or child. In case exact assessment of age cannot be done, for reasons to be recorded, if it is considered necessary, benefit of one year on the lower side can be given. Thus, the Court or the board may determine the age after stating reasons, so recorded, and while doing so can give benefit, on the lower side, within margin of one year. The court, while passing said order, can take into consideration such evidence as may be available and also the medical opinion. To this extent and for this purpose we can take CRLA No. 460:1011 & Death Sente-ncc Reference ~o 1 :!:() 12 Pog" S of20 into consideration the statement ofCW-l to CW-3. In the absence of the three certificates, the opinion formed by the Court is to be the conclusive proof of the age of the child or juvenile in con Diet with law.

¶12In Om Prakash v. State of Rajasthan & Another, (2012) 5 SCC 20 I the Supreme Court observed that the courts have to be sensitive while dealing with juveniles but caution and care should be taken that a person who commits a grave and heinous offence does not escape the rigors of the normal criminal law under the guise that he was a minor at the time of offence. No one should be allowed to abuse the statutory protection while ensuring that the benefit of benevolent legislation, i.e., the Act, is fully provided and given to the juveniles. The Supreme Court observed that doubtful and debatable evidence in the form of school admission records should not be accepted and medical evidence has to be given due weightage. Referring to this judgment, learned Additional Public Prosecutor has relied upon the following paragraph:­ "23. However, we reiterate that we may not be misunderstood so as to infer that even if an accused is clearly below the age of 18 years on the date of commission of offence, should not be granted protection or treatment available to a juvenile under the Juvenile Justice Act ifa dispute regarding his age had been raised but was fina!ly resolved on scrutiny of evidence. What is meant to be emphasized is that where the courts cannot clearly infer in spite of available evidence un record that the accused IS a CRLA. ~o_ 460 12011 & Death Sentence Reference ~o I 2012 Page 9 of20 juvenile or the said plea appear to have been raiscd mcrely to create a mist or a smokescreen so as to hide his real age in order 10 shield Ihe accused on the plea ofhis minority, the attempt cannot be allowed to succeed so as to subvert or dupe the cause of justice. Drawing parallel between the plea of minority and Ihe plea of alibi, it may be worthwhile to stale that il is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and canoot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planed design of the accLlsed committing the offence which indicates more towards the matured skill of an accused than that of , an innocent child, then m the absence of rellable documentary evidence in support of the age of the accused. medical evidence indicating thaI the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile 1ustice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offcnce committed by him. Thc benefit of benevolent legislation under the Juvenile Justiec Act obviously will offer protection to a genuine child accused/ juvenile who does nol put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading 10 further ambiguity. cannot be relied upon in preference to the medical evidence for assessing the age ofthe accused." CRLA No. 460:2012 & Death Sentence Reference No.1 2012 Page 1001'20

¶13In this judgment reference was made 10 Ram Dev Chauhan v. State ofAssam, (2001) 5 SCC 714 in which it has been observed as under:­ "24. .. ....Of course the doctors estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the Court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence 0 f all other acceptable material, if such opinion points to a reasonable possibility regarding the range of his agc, it has certainly to bc considered. "

¶14In Ashwini Kumar Saxena v. State of Madhya Pradesh. (Criminal Appeal No. 1403/2012), Section 7A of the Act and Rule 12 were examined and elucidated and it has been obscrved:­ "37. We have come across several cases in which tnal courts have examined a large number of witnesses on either side including the conduct of ossification test and caning for odontology report. even in cases, where matriculation or equivalent certificate. the date of birth certificate irom the \.. school last attended, the birth celtificatc given by a y " corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry 011 detailed probe which is totally unwarranted.

38. XXXXX

39. XXXXX

¶40We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having eN!..A :-.Jo. 460:'20l2 & Death Sentence Reference :\0. I :::Oi2 PagL' I J 01'10 2\ perused the same produced by the principal of school and having noticed the fact that the appellant was born on 24.10.1990, what prompted the Court not to accept that admission register produced by the principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private pa!1y, which is evident fTOm the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of bi!1h entered in the School Admission Register. We are of the view the above document produced by the principal of the school conclusively shows that the date of birth was

24.10.1990 hence section 12(3)(a)(i)(ii) has been fully satisfied.

41. XXXX

¶42Legislature and the Rlile making authority in their wisdom have in categorical terms explained , } how to proceed with the age detcrmmatioll inquiry. Fu!1her, Rule 12 has also fixed a time limited of thirty days to detennine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his/her age on lower side within the margin of one year."

¶15In this decision, reference was made to Babloo Parsi v. State ofJharkhand and Another, (2008) 13 SCC 133 wherein it has been held that where an accused has failed to produce evidence/certificate in support of the claim, medical evidence can be called for. Medical evidence as to the age of the person, though a useful factor, was not conclusive and has to be considered with other cogent factors. [n the said case, the order of the High Court was set aside and the matter was remitted to the Chief Judicial Magistrate, heading the CRL i\, No. 460.'2012 & Death Sentcnc...: Refcrcl1re ~o. I 2011 Pag..: 120[10 Board, to re-detennine the age. Reference was also made to Shah Nawaj v. State of Uttar Pradesh and Another, (20 II) 13 SCC 751 wherein, while examining the scope of Rule 12, it was stated that the datc of birth entered in the mark sheet was valid evidence so also thc school leaving certificate. It was reiterated and held that medical opinion should be only sought when the certificates under clause (a) to Rule 12(3) are not available. 10th

¶16Earlier by order dated November, 2009, in Criminal Appeal No. 1193 of 2006, titled Abuzar Hossain v. State of West Bengal, two Judges of the Supreme Court, noticing discordance in the approach to matters on the question ofjuvenility, made reference to a larger Bench. The reference was decided on 10th October, 2012, where three Judges of the Supreme Court examined the provisions of the Act and the Rule 12-A. Reference was made to several earlier decisions and it has been held as under:­ "25. The amendment in 2000 Act by the Amendment Act, 2006, particularly, introduction of Section 7 A and subsequent introduction of Rule 12 in the 2007 Rules, was sequel to the Constitution Bench decision of this Court in Pratap Singh 1'. State 01 Jharkhand alld Another (2005) 3 sec 551. In flari Ram I. Slare (2009) 13 sec 211, a t\\"o­ Judge Bench of this Court extensively considered the scheme of 2000 Act, as amended by 2006 Amendment Act. With regard to sub-rules (4) and

(5) of Rule 12, this Court observed as fbllows: "27. Sub-rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a CKLA. ~o. 46012012 & Death Sentence Reference j\;o. I 2012 Page 13 af20 juvenile or child in conflict with law is found to be less than 18 years on the date of otIence all the basis of any proof specified in sub-rule (3) the court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further inquiry is to be conducted by the court or Board after examming and obtaining any other documentary proof referred to in sub­ rule (3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7-A when a claim ofjuvenility is raised."

¶26This Court observed that the scheme of the 2000 Act was to give children, who have, for some reason or the other, gone astray, to realize their mistakes, rehabilitate themselves and rebuild their lives and become useful citizens of the society, instead of degenerating into hardened criminals. In paragraph 59 of the Report, the Court held as under: "59. The law as now crystallised on a conjoint reading of SectIOns 2(k), 2(1). 7-A. 20 and 49 rcad with Rules 12 and 98, places beyond all doubt that all persons who were below the age of 18 years on the date of commission of the offence even prior to 1-4-200 I, would be treated as juveniles, even if the claim of juvenility was raised after they had attained the age of 18 years on or before the date of commencement of the Act and were undergoing sentence upon being convicted. "

¶27The Coun observed in Ilari Ram that often parents of children, who come from nlral backgrounds, are not aware ofthe actual date of birth of a child, but relate the same to some event which might have taken place simultaneously, In sneh a situation, the Board and the Courts will have to take recourse to the procedure laid down in Rule 12." CRL A No_ 460:2012 & Deuth Sentence Reference ]\;0. 2012 rage J4 of20

¶17However, we may note III the said case thc mam and the principal issue was when and in what circumstances the court will initiate an inquiry when a claim or plea of juvenility is raised. It has been observed that prima facie there should be some reason and ground for initiation of inquiry and accordingly the legal position has been summarized as under: "36. Now, we summarise the position which is as under:

(i) A claim ofjuvenility may be raised at any stage even after final disposal ofthe case. It may be raised for the first time before this Court as well after final disposal of the casc. The delay ill raising the claim ofjuvenility cannot be a ground for rejecllol1 of such claim. The claim of juvenility can be raised in appeal even if 110t pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appealcollft.

(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy thc court that an inquiry into the claim of juvcniltty is nccessary. Initial burden has to be discharged by the person who claims juvenility.

(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece ofevidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall dclinitc1y be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitatmg [mther enquiry under Rule 12. The statement recorded under Section 3 13 of the Code is too tentative and may not by itself be sufflcient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of tbe documents like the school leaving certilicate or the voters' list, etc. obtained after conVIction would depend on the facts and circumstances of each case CR L A. :-..lo. 460 1012 & Death Sentence Reference 1\0. I 2011 Page 15 of20 and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in litendra Singh

(2010) 13 sec 523 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an mquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7 A and order an enquiry for determination of the age ofthe delinquent.

(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to detennine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into detemlination of age of the delinquent.

(v) The court where the plea ofjuvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hypcr­ technical approach and the persons who are entitled (0 get benefits of 2000 Act get such benefits. The courts should not be unnecessarily mf]ucnced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised."

¶18TS. Thakur, J, in his judgment has added and made observations on para 36(iv) quoted above, i,e" whether and why affidavits of relatives can be taken consideration for directing an lI1qUlry. (,RLA No. 460·2012 & De(lth Sentence Reference ,,"0. I 2012 Page 16 of20

¶19In the present case, the appellant was examined by a Board of three doctors appointed by the Medical Superintendent, Deen Dayal Upadhyay Hospital. The report is dated 41h August, 2012. The appellant, it was observed, was a person of average built 5.2 inches in height in weighing 45 Kgs. His dental examination was conducted and it was opined that he was not less than 17 years of age but his upper age could not be decided or affirmed on the basis of dental examination. His skelton survey was done by way of X rays and it has been opined that the appellant's bony age was between 22 to 25 years, as on the date of the report. We notice that as many as eight X rays have been taken before the said opinion has been given. Dr. Rakesh Kumar, CMO, DDU Hospital as DW-4 had produced the original report with the eight X rays. The examination was carried out by a Physician and a Radiologist. lIe has stated that the variation on the lower side was not possible as, while calculating the age, the margin of error has been taken into consideration. The /-( report is also signed by Dr. Rakesh Kumar (DW-4).

¶20The offence in question was eommitted, as per the . . 1 ili prosecutlOn verSIOn, on 4 August. 2007. Ifwe go by the medical opinion, the appellant on the said date could be between the age of 17 years to 20 years of age. Thus, the appellant could be a juvenile or less than 18 years of age, when the alleged offence was CRLA. No" 460:'20}:: & Death Sentence Reference ~o. 1 2012 Page 170["20 committed. In these circumstances, it will be appropriate to refer to the statements oreW-I, eW-2 and eW-3, quoted above. eW-I and ew-2 have stated that they got married in the year 1991 and this appears to be correct, in view of the date or birth certificates of their children. eW-I's first child was born in the year 1992 and CW-2's second ehild was born in the year 1994. CW-I and CW-2 have stated that, at the time of their marriage, the appellant was about 1 :;2 years old, i.e., the appellant would have been born in the year 1989­

¶90This also appears to be correct as it has come on record from the (. statements of CW-l, CW-2 and CW-3 that they were five siblings and the appellant is the youngest. The age gap between the five children it appears was between 2 to 4 years. CW-l and CW-2 were apparcntly married at a young age, as their children are fairly old. CW-I has a child, 20 years old, and eW-2 has also a child, about 20 years, while the youngest daughter of CW -2 is about 10 years old. The age ofCW-l and CW-2 does not appear to be very old, though • it is not possible to ascertain their exact age. CW'3's statement corroborates and shows that CW -1 and CW -2 have stated true and correct facts as recollected by them. These statements when juxtaposed and co-related with the ossification test report is a strong indicator and proof that the appellant was a juvenile on the date of the offence. Medical CRLA. No 460:'2012 & De~lh Sentence Reference ~o, : 2012 Page 1 S of20 evidence and oral evidence endorse and authenticate the aforesaid finding, 21, In Arnit Das v. State ofBihar, (2000) 5 see 488 it has been held that while detetmining the age of an accused, for the purpose of finding/deciding whether he was a juvenile or not, a hyper-technical approach should not be adopted. If two views arc possible, then the court should lean in favour of the holding that the accused IS a juvenile, This principle should be applied in borderline cases. The decision in Arnit Das's case is prior to 2006 and has been over ruled in Pratap Singh v. State ofJharkhand, (2005) 3 see 204 inter alia holding that the age of the accused, on the date of commission of the offence, is relevant and not the date when offender is produced in the court. However, as observed in Ashwani Kumar Saxena (supra), the observations in Amit Das v. State of Bihar (supra) on other aspect is a binding precedent. 22, In view of the aforesaid factual position, we accept the application and hold that the appellant was a juvenile, on the date of commission of offence. Accordingly, the conviction and sentence of the appellant is set aside. The appellant will be dealt with in accordance with the provisions of the Act. The proceedings are accordingly forwarded to the Juvenile Justice Board. In the present case, keeping in view the nature of offence and other allegations, we CRI.;\ No. 460'1012 & Death Sentcnce Reference No, 1 "012 ///