Prakash Rai @ Jyoti Prakash Vs. State of Bihar  INSC 349 (4 March 2008)
S.B. Sinha & V.S. Sirpurkar CRIMINAL APPEAL NO 440 OF 2008 [Arising out of SLP (Crl.) No. 4082 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. Appellant herein is said to be a delinquent juvenile. He was accused of
commission of an offence under Section 302 of the Indian Penal Code for killing
one of his school mates. He is said to have stabbed the deceased several times.
The incident took place on 12.05.2000. His age was estimated at about 17 years
as on the said date by the learned Magistrate before whom he was produced. At that point of time, the Juvenile Justice Act, 1986 (for short "the
1986 Act") was in force. In terms of the provisions of the 1986 Act,
"juvenile" meant a boy who had not attained the age of sixteen years. The Juvenile Justice (Care and Protection of Children) Act, 2000 (for short
"the 2000 Act") came into force with effect from 1.04.2001. "Juvenile" has been defined in the 2000 Act to mean a person who
has not completed eighteen years of age. Section 16 of the 2000 Act, as it
stood then, provides for a non-obstante clause prohibiting imposition of
sentence to death or life imprisonment or commitment to person in default of
payment of fine or in default of furnishing security, on a delinquent juvenile.
3. Section 20 of the 2000 Act, as it stood then, reads as under: "20. Special provision in respect of pending cases .Notwithstanding
anything contained in this Act, all proceedings in respect of a juvenile pending
in any court in any area on the date on which this Act comes into force in that
area, shall be continued in that court as if this Act had not been passed and
if the court finds that the juvenile has committed an offence, it shall record
such finding and instead of passing any sentence in respect of the juvenile,
forward the juvenile to the Board which shall pass orders in respect of that
juvenile in accordance with the provisions of this Act as if it had been
satisfied on inquiry under this Act that a juvenile has committed the
4. For examining the claim of the appellant that he was a juvenile as on the
date of commission of the offence, two medical boards were constituted. The first medical board which examined him on 24.04.2001, opined his age to
be between 18 to 19 years. The second medical board which was constituted on
29.06.2001 also opined similarly.
5. Before the learned ACJM, Buxar, some documents were also produced.
However, the same were not taken into consideration by the courts below.
6. By an order dated 21.04.2005, the learned Additional Sessions Judge
[FTC], Buxar held:
"On 29.06.2001 the Medical Board was constituted under the Chairmanship
of the Civil Surgeon, Buxar in which Jyoti Prakash was adjudged to be between
18 and 19 years. The board conducted ossification test and found the place of
moustache to be black and also found the ancillary and Public Hair to be
developed and on radiological findings the right wrist, right elbow and the
chest appeared to be developed.
The medical board on 24.04.2001 has also adjudged the age of the accused
Jyoti Prakash Rai to be between 18 and 19 years of age. The incident is dated
12.05.2000 and the medical board was constituted on 24.04.2001, which was after
11 months and 12 days from the date of occurrence.
If by the date of occurrence and also the finding of the medical board of 19
years when 11 months and 12 days are subtracted then the age of the accused is
more than 18 years. The New Act of 2000 and also the judgment of the Hon'ble
Supreme Court would be applicable only in the condition when on 01.04.2001 the
age of the petitioner has not crossed 18 years.
As per the findings of the medical board the petitioner on 01.04.2001 was
around 18 years 10 months and 19 days old. The Counsel for the petitioner has
prayed that the case be sent to the Special Court. In respect of this there is
a clear direction of the Hon'ble Supreme Court that under Section 25 that if
there is a clear direction of the court that a juvenile offender has committed a
crime then only the child offender will be sent before the Board. In light of
the above mentioned facts there is no occasion to abide by the directions of
the Hon'ble Supreme Court, which is not applicable in the present case."
7. Before the High Court, it was inter alia rightly contended that the
decision of this Court in Arnit Das v. State of Bihar [(2000) 5 SCC 488] which
had laid down the law that the age of the juvenile should be determined as on
the date of his production before the Court and not on the date of commission
of offence has been overruled by a Constitution Bench of this Court in Pratap
Singh v. State of Jharkhand [(2005) 3 SCC 551].
In the impugned judgment, the High Court held:
"7. According to the submission of learned Advocate of the petitioner,
the first medical board was constituted on 24.4.2001 and on that date and board
was of the opinion that the petitioner was aged between 18-19 years. He
submitted that if the age of the petitioner is taken as 18 years on 24.4.2001
then on 1.4.2001, he was definitely below 18 years [i.e. 23 days less in 18
Likewise, the second medical board was constituted on 29.6.2001 and on that
date also the board assessed his age as 18-19 years and, therefore, if the
minimum age of the petitioner is taken as 18 years on 29.6.2001, the net result
will be that the petitioner was less than 18 years on 1.4.2001 i.e. [two months
twenty eight days less in attaining eighteen years].
8. I am of the view that this will not be the proper way of computing the
age of petitioner and the proper way to assess the age of the petitioner will
be that his age should be fixed in between 18- 19 years on the date of
examination, according to which the age of the petitioner comes to 18 years 5
months 8 days on 1.4.2001 when he for the first time appeared before the
medical board on 29.6.2001. Thus, the net result is that on 1.4.2001 the
petitioner was definitely above 18 years of age and not below 18 years of
8. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the
appellant, would submit that the courts below committed a serious illegality
insofar as they failed to take into consideration that on 12.05.2000, the age
of the appellant having been determined to be 17 years, inevitably his age as
on 1.04.2001 would be less than 18 years. It was furthermore submitted that
Arnit Das (supra) being no longer a good law, the learned Trial Judge should
have proceeded to determine the issue keeping in view the minimum age
determined by the Medical Board. Reliance in this behalf has been placed on an
unreported decision of this Court in Bihar State Electricity Board v.
Bihar Power Workers Union & Ors [Civil Appeal No. 420 of 2001 decided on
6.03.2002] wherein it has been held:
"The High Court is of the view that age determined by the Medical Board
cannot be accurate and, therefore, it finds that it would be appropriate to
extend the benefit of the lesser age determined by the Medical Board. We do not
think that that view of the High Court should be upset. The view of the appellant
Board that it should be only average of the maximum and minimum age, cannot be
quite accurate, if in fact, the employee is of the lesser age as determined by
the Medical Board. In that view, the policy adopted by the appellant Board
cannot be stated to be without any fault. In that view of the matter, the
interference by the High Court is justified, in the circumstances of the case.
The appeal is therefore dismissed."
9. The 2000 Act is indisputably a beneficial legislation. Principles of
beneficial legislation, however, are to be applied only for the purpose of
interpretation of the statute and not for arriving at a conclusion as to
whether a person is juvenile or not. Whether an offender was a juvenile on the
date of commission of the offence or not is essentially a question of fact
which is required to be determined on the basis of the materials brought on
records by the parties. In absence of any evidence which is relevant for the
said purpose as envisaged under Section 35 of the Indian Evidence Act, the same
must be determined keeping in view the factual matrix involved in each case.
For the said purpose, not only relevant materials are required to be
considered, the orders passed by the court on earlier occasions would also be
10. A medical report determining the age of a person has never been
considered by the courts of law as also by the medical scientists to be
conclusive in nature. After certain age it is difficult to determine the exact
age of the person concerned on the basis of ossification test or other tests.
This Court in Vishnu v. State of Maharashtra [(2006) 1 SCC 283], opined:
"20. It is urged before us by Mr Lalit that the determination of the
age of the prosecutrix by conducting ossification test is scientifically proved
and, therefore, the opinion of the doctor that the girl was of 18-19 years of
age should be accepted.
We are unable to accept this contention for the reasons that the expert
medical evidence is not binding on the ocular evidence. The opinion of the
Medical Officer is to assist the court as he is not a witness of fact and the
evidence given by the Medical Officer is really of an advisory character and
not binding on the witness of fact.
11. In the aforementioned situation, this Court in a number of judgments has
held that the age determined by the doctors should be given flexibility of two
years on either side.
In a case of this nature, thus, where the delinquent was examined by two
different medical boards, who on two different dates have reached the identical
opinion, viz, the age of the appellant between 18 and 19 years, and, thus,
resulting in two different conclusions, a greater difficulty arises for the
court to arrive at a correct decision. For the said purpose, the court may
resort to some sort of hypothesis, as no premise is available on the basis
whereof a definitive conclusion can be arrived at.
12. It is in the aforementioned situation, we are of the opinion that the
test which may be applied herein would be to take the average of the age as
opined by both the medical boards. Even applying that test, the age of the
appellant as on 01.04.2001 would be above 18 years.
We, however, hasten to add that we have taken recourse to the said method
only for the purpose of this case and we do not intend to lay down any general
proposition of law in this behalf As indicated hereinbefore, in so doing, we
have also taken into consideration the fact that the appellant had filed
documents in support of his claim that he was a juvenile but the same were found
to be forged and fabricated which is itself a factor to show that he was making
attempts to obtain a benefit to which he might not have been entitled to.
13. Applicability of the 2000 Act in relation to a juvenile who has
committed an offence prior to coming into force of the 2000 Act came up for
consideration before a Constitution Bench of this Court in Pratap Singh
(supra). It was opined:
"31. Section 20 of the Act as quoted above deals with the special
provision in respect of pending cases and begins with a non obstante clause.
The sentence "notwithstanding anything contained in this Act, all
proceedings in respect of a juvenile pending in any court in any area on the
date on which this Act came into force" has great significance. The
proceedings in respect of a juvenile pending in any court referred to in
Section 20 of the Act are relatable to proceedings initiated before the 2000
Act came into force and which are pending when the 2000 Act came into force.
The term "any court" would include even ordinary criminal courts. If
the person was a "juvenile"
under the 1986 Act the proceedings would not be pending in criminal courts.
They would be pending in criminal courts only if the boy had crossed 16 years
or the girl had crossed 18 years. This shows that Section 20 refers to cases
where a person had ceased to be a juvenile under the 1986 Act but had not yet
crossed the age of 18 years then the pending case shall continue in that court
as if the 2000 Act has not been passed and if the court finds that the juvenile
has committed an offence, it shall record such finding and instead of passing
any sentence in respect of the juvenile, shall forward the juvenile to the
Board which shall pass orders in respect of that juvenile."
It was furthermore observed:
"36 . We, therefore, hold that the provisions of the 2000 Act would be
applicable to those cases initiated and pending trial/inquiry for the offences
committed under the 1986 Act provided that the person had not completed 18
years of age as on 1- 4-2001."
It was concluded:
"37. The net result is:
. .. ..
( b ) The 2000 Act would be applicable in a pending proceeding in any
court/authority initiated under the 1986 Act and is pending when the 2000 Act
came into force and the person had not completed 18 years of age as on
14. Reliance placed by Mr. Rai on the unreported decision in Bihar State
Electricity Board (supra) is misplaced. Therein a policy decision had been
taken. The correctness of the said policy decision was in question having
regard to the determination of the age by a medical board. The High Court was
of the view that the age determined by the medical board cannot be accurate. It
was, therefore, not a case where any law was laid down.
15. The court has to determine the age keeping in view a large number of
factors. It is in that context it was opined in Birad Mal Singhvi v. Anand
Purohit [1988 Supp SCC 604]:
"To render a document admissible under Section 35, three conditions
must be satisfied, firstly, entry that is relied on must be one in a public or
other official book, register or record; secondly, it must be an entry stating
a fact in issue or relevant fact;
and thirdly, it must be made by a public servant in discharge of his
official duty, or any other person in performance of a duty specially enjoined
by law. An entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but the entry regarding the
age of a person in a school register is of not much evidentiary value to prove
the age of the person in the absence of the material on which the age was
16. In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], this Court observed:
"32 . The age of a person in an election petition has to be determined
not only on the basis of the materials placed on record but also upon taking
into consideration the circumstances attending thereto. The initial burden to
prove the allegations made in the election petition although was upon the
election petitioner but for proving the facts which were within the special
knowledge of the respondent, the burden was upon him in terms of ..."
17. In Ravinder Singh Gorkhi vs. State of U.P [(2006) 5 SCC 584], it was
held :- "21. Determination of the date of birth of a person before a court
of law, whether in a civil proceeding or a criminal proceeding, would depend
upon the facts and circumstances of each case. Such a date of birth has to be
determined on the basis of the materials on records. It will be a matter of
appreciation of evidence adduced by the parties.
Different standards having regard to the provision of Section 35 of the
Evidence Act cannot be applied in a civil case or a criminal case."
It was furthermore held :- "38. The age of a person as recorded in the
school register or otherwise may be used for various purposes, namely, for
obtaining admission; for obtaining an appointment; for contesting election;
registration of marriage; obtaining a separate unit under the ceiling laws;
and even for the purpose of litigating before a civil forum e.g. necessity of
being represented in a court of law by a guardian or where a suit is filed on
the ground that the plaintiff being a minor he was not appropriately
represented therein or any transaction made on his behalf was void as he was a
minor. A court of law for the purpose of determining the age of a party to the
lis, having regard to the provisions of Section 35 of the Evidence Act will
have to apply the same standard. No different standard can be applied in case
of an accused as in a case of abduction or rape, or similar offence where the
victim or the prosecutrix although might have consented with the accused, if on
the basis of the entries made in the register maintained by the school, a
judgment of conviction is recorded, the accused would be deprived of his
constitutional right under Article 21 of the Constitution, as in that case the
accused may unjustly be convicted.
39. We are, therefore, of the opinion that until the age of a person is
required to be determined in a manner laid down under a statute, different
standard of proof should not be adopted. It is no doubt true that the court
must strike a balance. In case of a dispute, the court may appreciate the
evidence having regard to the facts and circumstances of the case. It would be
a duty of the court of law to accord the benefit to a juvenile, provided he is
one. To give the same benefit to a person who in fact is not a juvenile may
cause injustice to the victim. In this case, the appellant had never been
serious in projecting his plea that he on the date of commission of the offence
was a minor. He made such statement for the first time while he was examined
under Section 313 of the Code of Criminal Procedure.
40. The family background of the appellant is also a relevant fact. His
father was a "Pradhan" of the village. He was found to be in
possession of an unlicensed firearm. He was all along represented by a lawyer.
The court estimated his age to be 18 years. He was tried jointly with the other
He had been treated alike with the other accused.
On merit of the matter also the appellant stands on the same footing as the
other accused. The prosecution has proved its case. In fact no such plea could
be raised as the special leave petition of the persons similarly situated was
dismissed when the Court issued notice having regard to the contention raised
by him for the first time that he was a minor on the date of occurrence."
18. In Jitendra Ram v. State of Jharkhand [(2006) 9 SCC 428], this Court
"20. We are, however, not oblivious of the decision of this Court in
Bhola Bhagat v. State of Bihar wherein an obligation has been cast on the court
that where such a plea is raised having regard to the beneficial nature of the
socially oriented legislation, the same should be examined with great care. We
are, however, of the opinion that the same would not mean that a person who is
not entitled to the benefit of the said Act would be dealt with leniently only
because such a plea is raised. Each plea must be judged on its own merit.
Each case has to be considered on the basis of the materials brought on
records." It was held :
"22. We, therefore, are of the opinion that the determination of the
age of the appellant as on the date of the commission of the offence should be
done afresh by the learned Sessions Judge."
19. Appellant herein had produced a large number of documents to prove his
age purported to be as on the date of commission of the crime. The genuineness
of the school certificate and the horoscope had been questioned. The school certificate produced by the appellant was found to be forged and
fabricated and as a matter of fact a criminal case was directed to be
instituted against the Head of the Institution.
20. The court, therefore, had no other option but to determine the age on
the basis of the Medical Reports. Both the medical reports dated 24.04.2001 and
29.06.2001 opined the age of the appellant between 18 and 19 years. In terms of
first medical report, the age of the appellant came to be 18 years 5 months 8
days and in terms of the second medical report, it came to be between 18 and 19
years. The High Court opined that the appellant on 1.04.2001 was definitely
above 18 years of age and not below 18 years of age.
21. The courts have considered this aspect of the matter on earlier occasions
also. If, thus, on the basis of several factors including the fact that school
leaving certificate and the horoscope produced by the appellant were found to
be forged and fabricated and having regard to two medical reports the courts
below have found the age of the appellant as on 1.04.2001 to be above 18 years,
we are of the opinion that no exception thereto can be taken.
22. For the reasons aforementioned, there is no merit in this appeal which
is dismissed accordingly.