Ram Vijay Singh v. State of Uttar Pradesh Criminal Appeal No. 175 of 2021 February 25, 2021
HEMANT GUPTA, J.
Leave granted.
1. The present appeal has been preferred against the order dated
22.4.2020 passed by the High Court of Judicature at Allahabad. V ide
the said order, the appeal filed by the appellant against his conviction for
an offence under Section 302 read with Section 34 of the Indian Penal
Code, 18601 was dismissed.
2. Before this Court, the appellant filed an application for bail,
inter alia, on the ground that he was juvenile on the date of incident i.e.
20.7.1982. In support of plea of juvenility, the appellant relied upon family
register maintained by the Panchayat, Aadhaar Card and an order passed
by the High Court in the year 1982. In the said order, the High Court had
granted bail on the basis of the report of the Radiologist that the age of
the appellant at that time was between 15½ - 17½ years. The appellant
has further stated that he had moved criminal miscellaneous application
raising a claim of him being a juvenile at the time of c ommission of
offence before the High Court but the said application was not decided
and the appeal has been dismissed on merits.
3. Keeping in view the said assertion raised by the appellant, this
Court passed the following order on 20.7.2020:
1 For short, the ‘IPC’
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
“Having heard Shri Pranav Sachdeva, learned counsel for the
petitioner, for some time, we are of the view that the miscellaneous
application that was filed in 2015 raising the claim of the petitioner’s
juvenility at the time of the office which has still not been decided,
be decided within a period of four weeks from today by the High
Court and if possible, judgment on the same be delivered within
two weeks thereafter.
Adjourned.
Liberty to mention.”
4. It is thereafter, the High Court had sought the report of the
Medical Board. Such Medical Board consisting of five doctors comprised
of (1) Professor A.A. Mehdi, Chief Medical Superintendent, G.M. and
Associated Hospitals, Lucknow, (2) Dr. Mausami Singh, Addition al
Professor, Forensic Medicine & Texicology, (3) Dr. Garima Sehg al,
Associate Professor, Department of Anatomy, (4) Prof. Pavitra Rastogi,
Department of Periodontology, King George’s Medical University and
(5) Dr. Sukriti Kumar, Assistant Professor, Department of Radiodiagnosis,
KGMU, UP, Lucknow. The Medical Board, in its report submitted on
8.9.2020 to the High Court opined that the age of the appellant is between
40-55 years. The State and the informant objected to the report. Further,
there was also a mention of a single barrel gun granted to the appellant
on 24.7.1982, a couple of days after the occurrence of the incident.
However, the High Court on the basis of the medical report submitted its
order to this Court stating that the appellant was juvenile on the date of
commission of the offence. The conclusions drawn by the High Court
reads thus:
“43. We were impressed by aforesaid submission at the first flush
particularly in the light of observations made in Mukarrab & Ors.
v. State of Uttar Pradesh 2 wherein the Court rejected the age
determination report prepared by All India Institute of Me dical
Sciences (AIIMS) New Delhi, but upon deeper scrutiny, we do
not find any force in this submission. The facts in Mukarra b’s
case were very clinching which is not the case here. In the present
case, except for the fact that accused-appellant was issued a gun
license on 24.7.1982 which is after the date of occurrence i.e.
20.7.1982, nothing else has been brought on record. The same
2 (2017) 2 SCC 210
573
may create a suspicion. But suspicion howsoever strong cannot
take the place of proof. Perusal of the objections filed by informant
does not indicate the grounds on which the member of the Medical
Board is sought to be examined and secondly, no such material
has been appended along with the objections filed by informant
on the basis of which prima facie we could feel satisf ied to
summon a member of Medical Board. We accordingly, negate
the submission urged by learned counsel for informant to summon
a member of Medical Board for cross-examination.
44. Having dealt with the conflicting claims of the parti es, the
swinging circumstances of the case and the law as laid down
Mukarrab and Others (Supra), we find that the medical report
dated 18.9.2020 is worthy of acceptance, wherein the age of
accused-appellant-2 Ram Vijai Singh has been determined as 40-
55 years on date. The occurrence took place on 20.7.1982 i.e. 38
years ago. When age of accused-appellant-2 Ram Vijai Singh is
determined on all hypothetical calculations i.e. (55-38=17 years)
(40-38= 2 years) and taking the average of difference betw een
maximum and minimum age i.e. 48-38 = 10 years, then the age of
accused-appellant-2 Ram Vijai Singh falls below 17 years.”
5. This Court on 13.1.2021 directed the learned Adv ocate
appearing for the State to produce all original documents with regard to
the Gun Licence in question. In pursuance of the said directio n, the
State filed an application submitted on behalf of the appellant to seek the
Arms Licence. In Column 2 of the application, the appellant has provided
his date of birth as 30.12.1961. Such application was filed on or around
21.12.1981 wherein a police report was submitted on 28.3.1982 stating
that no criminal case was registered against the appellant . It is on that
basis, the application for Arms Licence was processed a nd the Area
Magistrate approved the grant of Licence. The Arms Licence was hence
granted on 24.7.1982, that is after the date of incident.
6. With this factual background, the question of juvenility of the
appellant as on the date of incident, i.e., 20.7.1982 is required to be
examined.
7. There is no dispute that the plea of juvenility can be raised at
any stage even after finality of the proceedings before this Court. In the
present case, the appellant has raised the plea of juve nility before the
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
[HEMANT GUPTA, J.]
High Court vide Criminal Miscellaneous Application No. 382916 of 2015.
This Court in a judgment reported as Abuzar Hossain alias Gulam
Hossain v. State of West Bengal3 held as under:
“39.1. A claim of juvenility may be raised at any stage even after
the final disposal of the case. It may be raised for the f irst time
before this Court as well after the final disposal of the case. The
delay in raising the claim of juvenility cannot be a gr ound for
rejection of such claim. The claim of juvenility can be raise d in
appeal even if not 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 the appeal court.”
8. Section 7-A of the Juvenile Justice (Care and Protecti on of
Children) Act, 20004 contemplated that whenever a claim of juvenility is
raised before any Court, the Court shall make an inquiry and take such
evidence as may be necessary. In terms of the provisions of the 2000
Act, the Juvenile Justice (Care and Protection of Children) Rules, 20075
have been framed. Rule 12 of the Rules contemplates a procedure to be
followed for determination of age. The 2000 Act has been repealed by
the Juvenile Justice (Care and Protection of Children) Act, 20156. Section
9(2) of the Act is the analogous provision to Section 7-A of the 2000
Act. The procedure for determining the age is now part of Section 94 of
the Act which was earlier part of Rule 12 of the Rules. Section 94 of the
Act reads thus:
“Section 94. Presumption and determination of age
(1) Where, it is obvious to the Committee or the Board, based on
the appearance of the person brought before it under any of t he
provisions of this Act (other than for the purpose of giving evidence)
that the said person is a child, the Committee or the Board shall
record such observation stating the age of the child as ne arly as
may be and proceed with the inquiry under section 14 or section
36, as the case may be, without waiting for further confirmation
of the age.
3 (2012) 10 SCC 489
4 For short, the ‘2000 Act’
5 For short, the ‘Rules’
6 For short, the ‘Act’
575
(2) In case, the Committee or the Board has reasonable grounds
for doubt regarding whether the person brought before it is a child
or not, the Committee or the Board, as the case may be, s hall
undertake the process of age determination, by seeking evidence
by obtaining-
(i) the date of birth certificate from the school, or the matriculation
or equivalent certificate from the concerned examination Board,
if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a mun icipal
authority or a panchayat;
(iii) and only in the absence of (I) and (ii) above, age shall be
determined by an ossification test or any other latest medical age
determination test conducted on the orders of the Committee or
the Board:
Provided such age determination test conducted on the order of
the Committee or the Board shall be completed within fifteen
days from the date of such order.
(3) The age recorded by the Committee or the Board to be the
age of person so brought before it shall, for the purpose of this
Act, be deemed to be true age of that person.”
9. The judgment in Abuzar Hossain considered Section 7-A of
the Act and Rule 12 of the Rules. A perusal of Rule 12(3)(b) of the
Rules shows that in the absence of documents as mentioned in clau se
(i), (ii) or (iii), the medical opinion will be sought from a duly constituted
Medical Board, which will declare the age of the juvenile or child. It was
further provided that in case wherein the exact assessment of the age
cannot be done, the Court or the Juvenile Justice Board, if conside red
necessary, give benefit to the child or juvenile by considering his/her age
on lower side within the margin of one year. However, it is to be noted
that Section 94 of the Act does not have any corresponding provision of
giving benefit of margin of age.
10. Admittedly, in the present case, there is no Date of Birth
Certificate from the school or matriculation or equivalent certificate or a
Birth Certificate given by a Corporation or Municipal Authority or
Panchayat. Therefore, clause (iii) of Section 94(2) of the Act to determine
the age by an ossification test or any other latest medical age determination
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
[HEMANT GUPTA, J.]
test conducted on the orders of the Committee or the Board comes into
play.
11. Mr. Gopal Sankaranarayanan, learned senior counsel appeared
on behalf of the appellant, argued that the accused was given bail by the
High Court keeping in view his age as 15½ - 17½ years in the year 1982.
Therefore, the appellant has to be treated as a juvenile in the light of the
said order. It was contended that even considering the maximum age as
55 years as per the Medical Report now submitted, the appellant would
still be less than 18 years on the date of incident. It was also argued that
procedure as contained in Rule 12(3)(b) of the Rules is now p art of
Section 94 of the Act. Therefore, once the statute has provided ossification
test as the basis of determining juvenility, the findings of such ossification
test cannot be ignored.
12. Mr. Goel, on the contrary, argued that procedure as provided
under Rule 12(3)(b) of the Rules is not materially different f rom that
contained in the Statute. In fact, the discretion given to th e Court to
lower the age by one year in the Rules has been omitted. H e further
relied upon a judgment of this Court in Mukarrab wherein it has been
held that the Courts have observed that the evidence afforded by
radiological examination is a useful guiding factor for determining the
age of a person but the evidence is not of a conclusive and incontrovertible
nature and is subject to a margin of error. Medical evidenc e as to the
age of a person though a very useful guiding factor is not conclusive and
has to be considered along with other circumstances. It was further held
that the ossification test cannot be regarded as conclusive when the
appellants have crossed the age of thirty years which is an i mportant
factor to be taken into account as age cannot be determined with precision.
It was held as under:
“26. Having regard to the circumstances of this case, a blind and
mechanical view regarding the age of a person cannot be adopted
solely on the basis of the medical opinion by the radiologica l
examination. At p. 31 of Modi’s Textbook of Medical
Jurisprudence and Toxicology , 20th Edn., it has been stated as
follows:
“In ascertaining the age of young persons radiograms of any of
the main joints of the upper or the lower extremity of both sides of
the body should be taken, an opinion should be given according to
577
the following Table, but it must be remembered that too much
reliance should not be placed on this Table as it merely indicates
an average and is likely to vary in individual cases even of the
same province owing to the eccentricities of development.”
Courts have taken judicial notice of this fact and have alw ays
held that the evidence afforded by radiological examination is no
doubt a useful guiding factor for determining the age of a person
but the evidence is not of a conclusive and incontrovertible nature
and it is subject to a margin of error. Medical evidence as to the
age of a person though a very useful guiding factor is not conclusive
and has to be considered along with other circumstances.
27. In a recent judgment, State of M.P. v. Anoop Singh, (2015)
7 SCC 773 : (2015) 4 SCC (Cri) 208], it was held that the ossification
test is not the sole criteria for age determination. Following Babloo
Pasi [Babloo Pasi v. State of Jharkhand , (2008) 13 SCC 133 :
(2009) 3 SCC (Cri) 266] and Anoop Singh cases [State of
M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri)
208], we hold that ossification test cannot be regarded as conclusive
when it comes to ascertaining the age of a person. More s o, the
appellants herein have certainly crossed the age of thirty y ears
which is an important factor to be taken into account as age cannot
be determined with precision. In fact in the medical report of the
appellants, it is stated that there was no indication for dental x-
rays since both the accused were beyond 25 years of age.
28. At this juncture, we may usefully refer to an article “A study
of wrist ossification for age estimation in paediatric group in Central
Rajasthan”, which reads as under:
“There are various criteria for age determination of an individual,
of which eruption of teeth and ossification activities of bones are
important. Nevertheless age can usually be assessed more
accurately in younger age group by dentition and ossification along
with epiphyseal fusion.
[Ref.: Gray H. Gray’s Anatomy, 37th Edn., Churchill Livingstone
Edinburgh London Melbourne and New York: 1996; 341-342];
A careful examination of teeth and ossification at wrist joint provide
valuable data for age estimation in children.
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
[HEMANT GUPTA, J.]
[Ref.: Parikh C.K. Parikh’s Textbook of Medical
Jurisprudence and Toxicology, 5th Edn., Mumbai Medico-Legal
Centre Colaba: 1990; 44-45];
***
Variations in the appearance of centre of ossification at wrist joint
shows influence of race, climate, diet and regional factors.
Ossification centres for the distal ends of radius and ulna consistent
with present study vide article “A study of wrist ossification for
age estimation in paediatric group in Central Rajast han” by
Dr Ashutosh Srivastav, Senior Demonstrator and a team of other
doctors, Journal of Indian Academy of Forensic Medicine (Jiafm),
2004; 26(4). ISSN 0971-0973].
29. In the present case, their physical, dental and radiologica l
examinations were carried out. Radiological examination of skull
(AP and lateral view), sternum (AP and lateral view) and sacrum
(lateral view) was advised and performed. As per the medi cal
report, there was no indication for dental x-rays since both the
accused were much beyond 25 years of age. Therefore, the age
determination based on ossification test though may be useful is
not conclusive. An x-ray ossification test can by no means be so
infallible and accurate a test as to indicate the correct number of
years and days of a person’s life.”
13. We do not find any merit in the arguments advanced by the
appellant. The medical report in support of the bail order is not available.
Such order granting bail cannot be conclusive determination of age o f
the appellant. It was an interim order of bail pending tri al but in the
absence of a medical report, it cannot be conclusively held that the
appellant was juvenile on the date of the incident.
14. We find that the procedure prescribed in Rule 12 is not
materially different than the provisions of Section 94 of the Act to
determine the age of the person. There are minor variations as the Rule
12(3) (a)(i) and (ii) have been clubbed together with slight change in the
language. Section 94 of the Act does not contain the provisions regarding
benefit of margin of age to be given to the child or juveni le as was
provided in Rule 12(3)(b) of the Rules. The importance of ossification
test has not undergone change with the enactment of Section 94 of the
579
Act. The reliability of the ossification test remains vuln erable as was
under Rule 12 of the Rules.
15. As per the Scheme of the Act, when it is obvious to the
Committee or the Board, based on the appearance of the person, th at
the said person is a child, the Board or Committee shall record observations
stating the age of the Child as nearly as may be witho ut waiting for
further confirmation of the age. Therefore, the first attempt to determine
the age is by assessing the physical appearance of the pers on when
brought before the Board or the Committee. It is only in case of doubt,
the process of age determination by seeking evidence becomes necessary.
At that stage, when a person is around 18 years of age, the ossification
test can be said to be relevant for determining the approximate age of a
person in conflict with law. However, when the person is around 40-55
years of age, the structure of bones cannot be helpful in determining the
age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao
Gorantyal and Ors.7 held, in the context of certificate required under
Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex
non cogit ad impossibilia, law does not demand the impossible. Thus,
when the ossification test cannot yield trustworthy and reliable results,
such test cannot be made a basis to determine the age of the person
concerned on the date of incident. Therefore, in the absence of an y
reliable trustworthy medical evidence to find out age of the appe llant,
the ossification test conducted in year 2020 when the appellant was 55
years of age cannot be conclusive to declare him as a juve nile on the
date of the incident.
16. Apart from the said fact, there is an application submitted by
the appellant himself for obtaining an Arms Licence prior to the date of
the incident. In such application, he has given his date of birth as
30.12.1961 which would make him of 21 years of age on the date of the
incident i.e. 20.7.1982. The Court is not precluded from taking into
consideration any other relevant and trustworthy material to determine
the age as all the three eventualities mentioned in sub- section (2) of
Section 94 of the Act are either not available or ar e not found to be
reliable and trustworthy. Since there is a document signed by the appellant
much before the date of occurrence, therefore, we are of the opinion
that the appellant cannot be treated to be juvenile on the date of incident
as he was more than 21 years of age as per his application submitted to
obtain the Arms Licence.
7 (2020) 7 SCC 1
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
[HEMANT GUPTA, J.]
17. On merits, the argument of the appellant was that Girendra
Singh, the brother of the deceased, was not examined by prose cution
though as per Ram Naresh Singh (PW-1), he was walking few st eps
behind the deceased. It was further argued that as per PW-1 Ram Naresh
Singh, Dhruv Singh had used Barchhi as lathi, though the first version
was that Dhruv had used Barchhi. The argument was that Ram Naresh
Singh (PW-1) has been disbelieved qua the role of Dhruv Singh and
hence cannot be relied upon in determining the role of the appellant.
18. We do not find any merit in the arguments raised by the learned
counsel for the appellant. A part statement of a witness can be believed
even though some part of the statement may not be relied upon by t he
court. The maxim Falsus in Uno, Falsus in Omnibus is not the rule
applied by the courts in India. This Court recently in a judgment reported
as Ilangovan v. State of T.N.8 held that Indian courts have always been
reluctant to apply the principle as it is only a rule of caution. It was held
as under:-
“11.The counsel for the appellant lastly argued that once the
witnesses had been disbelieved with respect to the co-acc used,
their testimonies with respect to the present accused must also be
discarded. The counsel is, in effect, relying on the legal ma xim
“falsus in uno, falsus in omnibus”, which Indian courts have always
been reluctant to apply. A three-Judge Bench of this Court, as far
back as in 1957, in Nisar Ali v. State of U.P. [Nisar Ali v. State
of U.P., AIR 1957 SC 366 : 1957 Cri LJ 550] held on this point as
follows: (AIR p. 368, paras 9-10)
“9. It was next contended that the witnesses had falsely implicated
Qudrat Ullah and because of that the court should have rejected
the testimony of these witnesses as against the appellant also.
The well-known maxim falsus in uno, falsus in omnibus was
relied upon by the appellant. The argument raised was that because
the witnesses who had also deposed against Qudrat Ullah by saying
that he had handed over the knife to the appellant had not been
believed by the courts below as against him, the High Court should
not have accepted the evidence of these witnesses to convict the
appellant. This maxim has not received general acceptance in
different jurisdictions in India nor has this maxim come to
occupy the status of a rule of law. It is merely a rule of caution.
8 (2020)10 SCC 533
581
All that it amounts to is that in such cases the testimony may
be disregarded and not that it must be disregarded . One
American author has stated:
‘… the maxim is in itself worthless; first in point of validity … and
secondly, in point of utility because it merely tells the jury what
they may do in any event, not what they must do or must not do,
and therefore, it is a superfluous form of words. It is also in practice
pernicious….’ [Wigmore on Evidence, Vol. III, Para 1008]
10. The doctrine merely involves the question of weight of
evidence which a court may apply in a given set of
circumstances but it is not what may be called “a mandatory
rule of evidence ”.”
(emphasis supplied)
This principle has been consistently followed by this Court, most
recently in Rohtas v. State of Haryana [Rohtas v. State of
Haryana, (2019) 10 SCC 554 : (2020) 1 SCC (Cri) 47] and needs
no reiteration.”
19. Therefore, merely because a prosecution witness was n ot
believed in respect of another accused, the testimony of the said witness
cannot be disregarded qua the present appellant. Still further, it is not
necessary for the prosecution to examine all the witnesses who might
have witnessed the occurrence. It is the quality of evidence w hich is
relevant in criminal trial and not the quantity. Therefore, non-examination
of Girendra Singh cannot be said to be of any consequence.
20. The other accused, who was convicted apart from the appellant
is Shiv Vijay Singh, was armed with an axe. Dr. Shyam Mohan Krishna
(PW-4) has conducted the postmortem examination and reported the
following injuries:
“1. Contusion 4 cm. x 2 cm. on back of left ear on temporal region.
2. Contusion 4 cm. x 1 cm. on left side below Inj. no. 1 oblique.
3. Lacerated wound 3 cm. x 1 cm. x bone deep placed on back
near occipital region on back of left ear.
4. Contusion 2 cm. x 1 cm. on left side of frontal region of scalp
above left Eye brow.
5. Contusion 2 cm. x 2 cm. on middle of left Eye brow.
6. Contusion 4 cm. x 2 cm. at chin.
RAM VIJAY SINGH v. STATE OF UTTAR PRADESH
[HEMANT GUPTA, J.]
7. Contusion 6 cm. x 2 cm. on left side of neck, oblique in middle.
8. Contusion 5 cm. x 2 cm. on apex of left shoulder.
9. Incised wound 6 cm. x 2 cm. bone deep on left cheek upper
part oblique.
10. Incised wound 4 cm. x 2 cm. bone deep placed on left cheek
below Inj. no. 9.
11. Abrasion left side of chest lower part ant. aspect 5 cm . x 4
cm.
12. Contusion 3 cm. x 1 cm. on left axilla on anterior axillary fold.
13. Contusion 8 cm. x 2 cm. on left upper arm on lateral aspe ct
oblique.
14. Incised wound 5 cm. x 2 cm. on dorsum of left wrist in middle.
15. Abrasion 10 cm. x 8 cm. on back left side upper part.
16. Contusion 6 cm. x 2 cm. oblique on left side of chest lower
part near Inj. no. 11.”
21. The oral evidence along with the statement of Dr. Shyam
Mohan Krishna (PW-4) suggest that the injuries on the hea d of the
deceased were caused by a blunt weapon. The blunt weapon as deposed
by the eyewitness is the lathi in the hands of the present appellant. Lathi
may be common article with the villagers but the use of lathi as a weapon
of offence is a finding of fact recorded by the Courts below.
22. As per the postmortem report, the deceased suffered multiple
injuries which shows attack by more than one person. The nature of
injuries also shows that hard and blunt object as well as sha rp edged
weapons were used to inflict injuries. It is the appellant who was armed
with Lathi whereas the other convicted accused Shiv Vijay Singh was
armed with Axe. The incised wound suffered by the deceased was possible
with an Axe. As per the report, there are sufficient number of injuries
caused by an Axe and Lathi on the person of the deceased.
23. However, the learned trial court as well as the High Court had
appreciated the entire evidence to return a finding of guil t against the
appellant.
24. Therefore, we do not find any merit in the present appeal. The
same is hereby dismissed.
Devika Gujral Appeal dismissed.