Om Prakash Vs. State of
Rajasthan & ANR.
[Criminal Appeal No. of
2012 arising out of S.L.P. (CRL.) No. 2411/2011]
J U D G E M E N T
GYAN SUDHA MISRA, J.
1.
The
Judgment and order dated 19.08.2010 passed by the High Court of Rajasthan at
Jodhpur in SBCRR No.597 of 2009 is under challenge in this appeal at the
instance of the appellant Om Prakash who is a hapless father of an innocent
girl of 13 B= years who was subjected to rape by the alleged accused-Respondent
No.2 Vijay Kumar @ Bhanwroo who has been allowed to avail the benefit of protection
under Juvenile Justice (Care and Protection of Children) Act 2000, although the
courts below could not record a finding that he, in fact, was a juvenile since he
had not attained the age of 18 years on the date of incident. Hence this Special
Leave Petition in which leave has been granted after condoning the delay.
2.
Thus
the questions inter alia which require consideration in this appeal are:-
i.
whether
the respondent/accused herein who is alleged to have committed an offence of
rape under Section 376 IPC and other allied sections along with a co-accused who
already stands convicted for the offence under Section 376 IPC, can be allowed to
avail the benefit of protection to a juvenile in order to refer him for trial to
a juvenile court under the Juvenile Justice (Care and Protection of Children)
Act, 2000 (shortly referred to as the Juvenile Justice Act) although the trial
court and the High Court could not record a conclusive finding of fact that the
respondent-accused was below the age of 18 years on the date of the incident?
ii.
whether
the principle and benefit of benevolent legislation relating to Juvenile
Justice Act could be applied in cases where two views regarding determination of
the age of child/accused was possible and the so-called child could not be held
to be a juvenile on the basis of evidence adduced?
iii.
whether
medical evidence and other attending circumstances would be of any value and assistance
while determining the age of a juvenile, if the academic record certificates do
not conclusively prove the age of the accused ?
iv.
whether
reliance should be placed on medical evidence if the certificates relating to
academic records is deliberately with held in order to conceal the age of the accused
and authenticity of the medical evidence regarding the age is under challenge?
1.
2.
3.
Juvenile
Justice Act was enacted with a laudable object of providing a separate forum or
a special court for holding trial of children/juvenile by the juvenile court as
it was felt that children become delinquent by force of circumstance and not by
choice and hence they need to be treated with care and sensitivity while dealing
and trying cases involving criminal offence.
But when an accused
is alleged to have committed a heinous offence like rape and murder or any other
grave offence when he ceased to be a child on attaining the age of 18 years, but
seeks protection of the Juvenile Justice Act under the ostensible plea of being
a minor, should such an accused be allowed to be tried by a juvenile court or
should he be referred to a competent court of criminal jurisdiction where the
trial of other adult persons are held.
4.
The
questions referred to hereinbefore arise in this appeal under the facts and
circumstances emerging from the materials on record which disclose that the
appellant/complainant lodged a written report on23.5.2007 at about 1.00 p.m.
that his daughter Sandhya aged about 13 1/2years a student of class IX at
Secondary School Ghewada was called from the school by the accused Bhanwaru @ Vijay
Kumar, son of Joga Ramthrough her friend named Neetu on 23.2.2007 at about 1.00
p.m. in the afternoon. Neetu told Sandhya that Bhanwroo was in the Bolero vehicle
near the bus stand. Sandhya left the school after taking permission from the school
authorities and when she reached near the bus stand she did not find the Bolero
vehicle.
She therefore, made a
telephonic call to Bhanwruwho told her that he was standing at Tiwri Road ahead
of bus stand. She then noticed the Bolero vehicle on Tiwri Road, but she did not
find Neetu and when she enquired about Neetu, the accused Bhanwroo @ VijayKumar
son of Joga Ram misguided her and told her that Neetu had got down to go to the
toilet after which she was made to sit in the vehicle which was forcibly driven
towards Tiwri and after a distance of 3-4 Km., a person named Subhash Bishnoi
was also made to sit in the vehicle.
The vehicle was then
taken to a lonely place off the road where heinous physical assault of rape was
committed on her by Bhanwroo @ Vijay Kumarand Subhash Bishnoi. Since the victim
girl/the petitioners daughter resisted and opposed, she was beaten as a result of
which she sustained injuries on her thigh, hand and back. She was then taken towards
the village Chandaliya and she was again subjected to rape.
Bhanwru then received
a phone call after which Bhanwru and Subhash dropped her near the village
Ghewada but threatened her that in case she disclosed about this event to
anyone, she will be killed. Sandhya, therefore, did not mention about this incident
to anyone in the school but on reaching home, she disclosed it to her mother i.e.
the appellants/complainant swife who in turn narrated it to the appellant when he
came back to village from Jodhpur on 24.2.2007.
The appellant could not
take an immediate decision keeping in view the consequences of the incident and
called his brother Piyush from Jodhpur and then lodged a report with the P.S.
Osian on the basis of which a case was registered under Section 365,323 and 376
IPC bearing C.R.No. 40/2007 dated 25.2.2007. In course of the investigation,
the accused Bhanwru @ Vijay Kumar was arrested and in the arrest memo his name
was mentioned as Vijay Kumar @ Bhanwar Lal son of Joga Ram and his age has been
mentioned as 19 years.
After completion of the
investigation, it was found that the offences under Sections 363,366, 323 and
376 (2)(g) IPC were made out against the accused VijayKumar @ Bhanwar Lal, son
of Joga Ram Jat aged 19 years, Subhash son of Bagaram Bishnoi aged 20 years and
against Smt. Mukesh Kanwar @ Mugli @ Neetu aged 27 years and hence charge sheet
was submitted before the Judicial Magistrate, Osian. Vijay Kumar @ Bhanwar Lal and
Subhash were taken in judicial custody.
5.
An
application thereafter was moved on behalf of the accused Vijay Kumar @ Bhanwar
Lal before the Judicial Magistrate, Osian stating that he was a juvenile
offender and, therefore, he may be sent to the Juvenile Court for trial.
6.
Arguments
were heard on the aforesaid application by the concerned learned magistrate on 29.3.2007
and the learned magistrate allowed the application by his order dated
29.3.2007, although the Public Prosecutor contested this application relying upon
the police investigation and the medical report wherein the age of the accused was
recorded as 19 years. In the application, the stand taken on behalf of Vijay
Kumar was that in the school records, his date of birth was30.6.1990.
7.
However,
contents of this application clearly reveal that no dispute was raised in the
application on behalf of Vijay Kumar that the name of the accused Vijay Kumar
was only Vijay Kumar and not @ Bhanwar Lal. It was also not urged that the name
of accused Vijay Kumar has been wrongly mentioned in the police papers as Vijay
Kumar @ Bhanwar Lal nor in course of investigation it was evaer stated that the
case was wrongly registered in the name of accused Vijay Kumar @ Bhanwar Lal.
Without even raising
this dispute, the academic record of Vijay Kumar @ Bhanwar Lalwas produced whereas
according to the complainant the factual position is that the name of the
accused was Bhanwar Lal which was recorded in the Government Secondary School
Jeloo Gagadi (Osian) when he entered the school on 18.12.1993 and again on
22.4.1996 his name was entered in the school register wherein his date of birth
was recorded as 12.12.1988.
8.
The
complainant contested the age of the accused Vijay Kumar and it was submitted
that the accused Vijay Kumar had been admitted in the2nd Standard in some
private school known as Hari Om Shiksham Sansthan in Jeloo Gagadi (Osian) with
a changed name as Vijay Kumar and there the date of birth was mentioned as 30.6.1990
which was reflected in the subsequent academic records and on that basis the admission
card in the name of Vijay Kumar with date of birth as 30.6.1990 was mentioned in
the application for treating him as a juvenile.
9.
The
case then came up before the Additional Sessions Judge (Fast Tract No .I)
Jodhpur as Sessions Case No. 151/2007 on 3.10.2007. Shri Joga Ram, the father of
the accused moved an application under Section 49 of the Juvenile Justice (Care
and Protection of Children) Act,2000 stating that the date of birth of his son
was 30.6.1990 in his school administration record and, therefore, on the date of
incident i.e.23.02.2007, he was less than 18 years.
In this application
form dated3.10.2007, Joga Ram, father of the accused Vijay Kumar had himself stated
at three places i.e. title, para in the beginning and in the first part describing
the name of his son (accused) as Vijay Kumar @ Bhanwar Lalstating that his son
was born on 30.6.1990 at his house and he was first admitted in the school
named Hari Om Shikshan Sansthan, Jeloo Gagadi, Osian on 1.9.1997 in 2nd standard
and his son studied in this school from 1.9.1997 to 15.7.2007 from 2nd standard
and the transfer certificate dated 4.7.2007 was enclosed.
The said application
form had been signed by Joga Ram as father of the accused Vijay Kumar on which the
signature of the headmaster along with the seal was also there. In transfer certificate
the date of birth of the accused was also stated along with some other facts in
order to assert that Vijay Kumar was less than 18 years of age on the date of
the incident. But he had nowhere stated that he had anotherson named Bhanwru
who had died in 1995 and whose date of birth was12.12.1988.
He attempted to
establish that the accused Vijay Kumar is the younger son of Joga Ram and the
elder son Bhanwru had died in the year1995 and it was he whose date of birth
was 1988. He thus asserted that Vijay Kumar in fact was born in the year 1990 and
his name was not Bhanwrubut only Vijay Kumar. This part of the story was set up
by the father of the accused Joga Ram at a later stage when the evidence was
adduced.
10.
The
application filed on behalf of the accused Vijay Kumar was contested by the
complainant and both the parties led evidence in support of their respective
plea. The specific case of the complainant was that Bhanwru Lal and Vijay Kumar
in fact are one and the same person and Joga Ram has cooked up a story that he
had another son named Bhanwar Lal whose date of birth was 12.12.1988 and who later
expired in 1995. The complainant stated that as per the version of the father
of the accused if the deceased son Bhanwar Lal continued in the school up to
24.2.1996, the same was impossible as he is stated to have expired in 1995 itself.
According to the complainant Vijay Kumar and Bhanwar Lal are the names of the
same person who committed the offence of rape in the year 2007 and the defence
taken by the accused was a concocted story merely to take undue advantage of
the Juvenile Justice Act.
11.
After
taking into consideration the oral and documentary evidence, the Sessions Court
categorically concluded that in this case no definite clear and conclusive view
is possible keeping in view the evidence which has come on record with regard
to the age of the accused and both the views are clearly established and,
therefore, the view which is in favour of the accused is taken and the accused is
held to be a juvenile. The accused Vijay Kumar was accordingly declared to be a
juvenile and was directed to be sent to the Juvenile Justice Board for trial. This
order was passed by the Additional Sessions Judge (Fast TractNo.1) Jodhpur on
16.5.2009 in Sessions Case No. 151/2007.
12.
The
complainant-appellant thereafter assailed the order of theAdditional Sessions
Judge holding the respondent Vijay Kumar as a juvenile by filing a revision
petition before the High Court. The learned Judge hearing the revision observed
that a lot of contradictory evidence with regard to the age and identity of
Vijay Kumar @ Bhanwru has emerged and a lot of confusion has been created with regard
to the date of birth of accused Vijay Kumar @ Bhanwroo.
But the learned
single Judge was pleased to hold that the Additional Sessions Judge had
appreciated the evidence in the right perspective and he is not found to have erred
in declaring respondent No.2 Vijay Kumar @ Bhanwru to be a juvenile offender. He
has, therefore, rightly been referred to the Juvenile Justice Board for trial which
warrants no interference. The learned single Judge consequently dismissed the
revision petition against which the complainant filed this special leave
petition (Crl.) No. 2411/2011 which after grant of leave has given rise to this
appeal.
13.
Assailing
the orders of the courts below, learned counsel for the appellant has
essentially advanced twofold submissions in course of the hearing. He had
initially submitted that Vijay Kumar alias BhanwarLal, son of Joga Ram is the
same person and Vijay Kumar is the changed name of Bhanwar Lal whose correct
date of birth is 12.12.1988 and not30.6.1990 as stated by Joga Ram, father of
the accused. Hence, Vijay Kumar@ Bhanwar Lal was not a juvenile on the date of
commission of the offence.
14.
In
order to substantiate this plea, learned counsel for the appellant submitted
that in the application which was moved by Joga Ram, father of the accused,
before the Additional Sessions Judge under Section49 of the Juvenile Justice Act,
he has nowhere mentioned that he had two sons named Vijay Kumar and Bhanwar Lal
and that Bhanwar Lal had died in1995 whose date of birth was 12.12.1988 and his
other son Vijay Kumars date of birth was 30.6.1990. In fact, he himself had
mentioned his sons name as Vijay Kumar @ Bhanwru at more than one place in the
application and later has planted a story that he had twos once viz., Bhanwar
Lal and Vijay Kumar, and Bhanwar Lal whose date of birth was 12.12.1988 had already
died in the year 1995.
15.
Learned
counsel for the appellant further contended that the benefit of the principle of
benevolent legislation conferred on the Juvenile Justice Act, cannot be applied
in the present case as the courts below -specially the court of fact which is the
Additional Sessions Judge (Fast Track No.1) Jodhpur did not record a categorical
finding with regard to the date of birth of the respondent-accused and the aforesaid
principle can be applied only to a case where the accused is clearly held to be
a juvenile so as to be sent for trial by the juvenile court or to claim any
other benefit by the alleged juvenile accused.
Counsel for the Appellant
has relied upon the evidence of NAW-3 -Medical Jurist, who conducted
ossification test of the accused and opined before the court that the accused was
19 years of age and statement of NAW-1 Assistant Professor in Radiology who
opined before the court on 23.11.2007 that on the basis of the x-ray films, age
of the accused is above 18 years and below 20 years.
16.
Learned
counsel for the accused-respondent on his part contended that medical opinion could
be sought only when matriculation or equivalent certificate or date of birth certificate
from the school was not available and since in the present case the admission certificate
of the accused from the school record is available which states the date of
birth to be 30.6.1990, the school certificate ought to be allowed to prevail
upon the medical opinion.
17.
We
are unable to appreciate and accept the aforesaid contention of learned counsel
for the respondent since the age of the accused could not be proved merely on
the basis of the school record as the courts below in spite of its scrutiny
could not record a finding of fact that the accused, in fact, was a minor on
the date of the incident. Hence, in a situation when the school record itself is
not free from ambiguity and conclusively prove the minority of the accused,
medical opinion cannot be allowed to be overlooked or treated to be of no consequence.
In this context the
statement of NAW-3 Dr. Jagdish Jugtawat, the medical jurist who conducted the
ossification test of the accused and opined before the court that the accused was
19 years of age is of significance since its pecifically states that the
accused was not a juvenile on the date of commission of the offence. The statement
of NAW-1 Dr. C.R. Agarwal, Asstt. Professor in Radiology also cannot be
overlooked since he opined that on the basis of x-ray films, the age of the
accused is above 18 years and below 20 years.
Thus, in a
circumstance where the trial court itself could not arrive at a conclusive
finding regarding the age of the accused, the opinion of the medical experts
based on x-ray and ossification test will have to be given precedence over the
shaky evidence based on school records and a plea of circumstantial inference
based on a story set up by the father of the accused which prima facie is a
cock and bull story.
18.
It
is no doubt true that if there is a clear and unambiguous case in favour of the
juvenile accused that he was a minor below the age of 18 years on the date of
the incident and the documentary evidence at least prima facie proves the same,
he would be entitled for this special protection under the Juvenile Justice
Act.
But when an accused commits
a grave and heinous offence and thereafter attempts to take statutory shelter
under the guise of being a minor, a casual or cavalier approach while recording
as to whether an accused is a juvenile or not cannot be permitted as the courts
are enjoined upon to perform their duties with the object of protecting the confidence
of common man in the institution entrusted with the administration of justice.
Hence, while the courts
must be sensitive in dealing with the juvenile who is involved incases of
serious nature like sexual molestation, rape, gang rape, murder and host of
other offences, the accused cannot be allowed to abuse the statutory protection
by attempting to prove himself as a minor when the documentary evidence to
prove his minority gives rise to a reasonable doubt about his assertion of minority.
Under such circumstance,
the medical evidence based on scientific investigation will have to be given due
weight and precedence over the evidence based on school administration records
which give rise to hypothesis and speculation about the age of the accused. The
matter however would stand on a different footing if the academic certificates
ad school records are alleged to have been with held deliberately with ulterior
motive and authenticity of the medical evidence is under challenge by the
prosecution.
19.
In
the instant matter, the accused Vijay Kumar is alleged to have committed a
crime which repels against moral conscience as he chose a girl of 13 and a half
years to satisfy his lust by hatching a plot with the assistance of his accomplice
Subhash who already stands convicted and thereafter the accused has attempted
to seek protection under the plea that he committed such an act due to his innocence
without understanding its implication in which his father Joga Ram is clearly assisting
by attempting to rope in a story that he was a minor on the date of the
incident which is not based on conclusive evidence worthy of credence but is
based on a confused story as also shaky and fragile nature of evidence which
hardly inspires confidence.
It is hard to ignore that
when the Additional Sessions Judge in spite of meticulous scrutiny of oral and
documentary evidence could not arrive at a conclusive finding that he was
clearly a juvenile below the age of 18 years on the date of incident, then by
what logic and reasoning he should get the benefit of the theory of benevolent
legislation on the foothold of Juvenile Justice Act is difficult to comprehend
as it clearly results in erroneous application of this principle and thus we
find sufficient force in the contention of learned counsel for the appellant that
the benefit of the principle of benevolent legislation can be made applicable in
favour of only those delinquents who undoubtedly have been held to be a juvenile
which leaves no scope for speculation about the age of the alleged accused.
20.
We
therefore cannot overlook that the trial court as well as the High Court while
passing the impugned order could not arrive at any finding at all as to whether
the accused was a major or minor on the date of the incident and yet gave the
benefit of the principle of benevolent legislation to an accused whose plea of
minority that he was below the age of 18 years itself was in doubt. In such
situation, the scales of justice is required to be put on an even keel by insisting
for a reliable and cogent proof in support of the plea of juvenility specially
when the victim was also a minor.
21.
The
benefit of the principle of benevolent legislation attached to Juvenile Justice
Act would thus apply to only such cases wherein the accused is held to be a
juvenile on the basis of at least prima facie evidence regarding his minority as
the benefit of the possibilities of two views in regard to the age of the
alleged accused who is involved in grave and serious offence which he committed
and gave effect to it in a well planned manner reflecting his maturity of mind rather
than innocence indicating that his plea of juvenility is more in the nature of a
shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue.
Hence if the plea of juvenility
or the fact that he had not attained the age of discretion so as to understand
the consequence of his heinous act is not free from ambiguity or doubt, the said
plea cannot be allowed to be raised merely on doubtful school admission record
and in the event it is doubtful, the medical evidence will have to be given due
weightage while determining the age of the accused.
22.
Adverting
to the facts of this case we have noticed that the trial court in spite of the
evidence led on behalf of the accused, was itself not satisfied that the
accused was a juvenile as none of the school records relied upon by the
respondent-accused could be held to be free from doubt so as to form a logical
and legal basis for the purpose of deciding the correct date of birth of the accused
indicating that the accused was a minor/juvenile on the date of the incident.
This Court in several
decisions including the case of Ramdeo Chauhan @ Raj Nath vs. State of Assam, reported
in (2001) 5 SCC 714dealing with a similar circumstance had observed which adds
weight and strength to what we have stated which is quoted herein as follows :-
it is clear that the petitioner neither was a child nor near about the age of
being a child within the meaning of the Juvenile Justice Act or the Children
Act. He is proved to be a major at the time of the commission of the offence.
No doubt, much less a
reasonable doubt is created in the mind of the court, for the accused entitling
him to the benefit of a lesser punishment, it is true that the accused tried to
create a smoke screen with respect to his age. But such effort appear to have
been made only to hide his real age and not to create any doubt in the mind of
the court. The judicial system cannot be allowed to be taken to ransom by having
resort to imaginative and concocted grounds by taking advantage of loose
sentences appearing in the evidence of some of the witnesses particularly at
the stage of special leave petition.
The law insists on
finality of judgments and is more concerned with the strengthening of the judicial
system. The courts are enjoined upon to perform their duties with the object of
strengthening the confidence of the common man in the institution entrusted
with the administration of justice. Any effort which weakens the system and
shakes the faith of the common man in the justice dispensation system has to be
discouraged.
The above noted
observations no doubt were recorded by the learned Judges of this Court while considering
the imposition of death sentence on the accused who claimed to be a juvenile, nevertheless
the views expressed therein clearly lends weight for resolving an issue where
the court is not in a position to clearly draw an inference wherein an attempt is
made by the accused or his guardian claiming benefit available to a juvenile which
may be an effort to extract sympathy and impress upon the Court for a lenient treatment
towards the so-called juvenile accused who, in fact was a major on the date of
incident.
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 if a dispute regarding his age had been raised but was finally
resolved on scrutiny of evidence.
What is meant to be emphasized
is that where the courts cannot clearly infer in spite of available evidence on
record that the accused is a juvenile or the said plea appear to have been raised
merely to create a mist or a smokescreen so as to hide his real age in order to
shield the accused on the plea of his 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 the plea of alibi, it may be worthwhile to
state that it 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 cannot 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 planned design of the accused committing the offence which indicates
more towards the matured skill of an accused than that of an innocent child, then
in the absence of reliable documentary evidence in support of the age of the accused,
medical evidence indicating that 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 Justice 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 offence committed by him.
The benefit of benevolent
legislation under the Juvenile Justice Act obviously will offer protection to a
genuine child accused/juvenile who does not 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 to further ambiguity, cannot be relied upon in preference
to the medical evidence for assessing the age of the accused.
24.
While
considering the relevance and value of the medical evidence, the doctors
estimation of age although is not a sturdy substance for proof as it is only an
opinion, such opinion based on scientific medical test like ossification and
radiological examination will have to be treated as a strong evidence having
corroborative value while determining the age of the alleged juvenile accused.
In the case of Ramdeo Chauhan Vs. State of Assam (supra), the learned judges have
added an insight for determination of this issue when it recorded as follows:-
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
of all other acceptable material, if such opinion points to a reasonable possibility
regarding the range of his age, it has certainly to be considered.
The situation,
however, would be different if the academic records are alleged to have been
with held deliberately to hide the age of the alleged juvenile and the
authenticity of the medical evidence is under challenge at the instance of the prosecution.
In that event, whether the medical evidence should be relied upon or not will
obviously depend on the value of the evidence led by the contesting parties.
25.
In
view of the aforesaid discussion and analysis based on the prevailing facts and
circumstances of the case, we are of the view that the Respondent No.2 Vijay
Kumar and his father have failed to prove that Respondent No.2 was a minor at
the time of commission of offence and hence could not have been granted the
benefit of the Juvenile Justice Act which undoubtedly is a benevolent
legislation but cannot be allowed to be availed of by an accused who has taken
the plea of juvenility merely as an effort to hide his real age so as to create
a doubt in the mind of the courts below who thought it appropriate to grant him
the benefit of a juvenile merely by adopting the principle of benevolent
legislation but missing its vital implication that although the Juvenile
Justice Act by itself is a piece of benevolent legislation, the protection
under the same cannot be made available to an accused who in fact is not a juvenile
but seeks shelter merely by using it as a protective umbrella or statutory shield.
We are under
constraint to observe that this will have to be discouraged if the evidence and
other materials on record fail to prove that the accused was a juvenile at the
time of commission of the offence. Juvenile Justice Act which is certainly
meant to treat a child accused with care and sensitivity offering him a chance
to reform and settle into the mainstream of society, the same cannot be allowed
to be used as a ploy to dupe the course of justice while conducting trial and
treatment of heinous offences. This would clearly be treated as an effort to
weaken the justice dispensation system and hence cannot be encouraged.
26.
We
therefore deem it just and appropriate to set aside the judgment and order
passed by the High Court as also the courts below and thus allow this appeal. Consequently,
the accused Vijay Kumar, S/o Joga Ram shall be sent for trial before the court of
competent jurisdiction wherein the trial is pending and not to the Juvenile Court
as pleaded by him. We order accordingly.
……………………………………………..J
(G.S. Singhvi)
..……………………………………………J
(Gyan Sudha Misra)
New
Delhi,
April
13, 2012
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