Bashan Skhem Kharsahnoh vs State Of Meghalaya

W. Diengdoh, J

Vide Order dated 16.09.2019, the learned Special Judge (POCSO), Shillong has taken note of an enquiry report of the Juvenile Justice Board, the subject matter of the enquiry was to ascertain the actual age of the accused/petitioner herein, so as to enable the Court to either try his case by itself or if he is found to be below 18(eighteen) years, to be forwarded to the Juvenile Justice Board. The reason for preferring the matter of age determination before the Juvenile Justice Board is that the Baptism certificate and School certificate of the accused/petitioner shows that he was born on 02.06.1999, while the ossification test proved that he was between 17 to 18 years. The Learned Special Judge on being convinced that the accused/petitioner was 18 years 3 months and 7 days on the date of his arrest, that is, 17.09.2017 has treated the accused/petitioner as an adult and charge sheet was accordingly filed before the Special Court POCSO.

Being aggrieved and dissatisfied with the impugned order dated 16.09.2019 referred to above, the petitioner has approached this Court with this petition under Section 482 Cr.P.C. seeking to invoke the inherent power of this Court to correct what has been termed as an abuse of the process of law.

Before proceeding further, the background of the case as could be seen from the petition in hand, as well as from the records of the Trial Court is that an FIR dated 16.09.2017 was lodged by one Smti Iohsuklang L. Marbaniang who has informed the Officer-In-Charge, Madanriting P.S that in the month of February 2017, the accused/petitioner took advantage of her minor sister who is about 14(fourteen) years for which she took her sister to the PHC, Smit and then requested the police to do the needful.

Accordingly, Madanriting P.S. Case No 90(09) 2017 under Section 5(n)/6 POCSO Act was registered and investigation followed and the accused/petitioner was arrested on 17.09.2017 and was sent to custody on the strength of the Court's Order. In due course, the I/O filed the charge sheet No. 48/2020 dated 21.07.2020 and has reported that a prima facie case under Section 5(n)/6 of the POCSO Act is found well established against the accused/petitioner and he was sent before the Special Court (POCSO) for trial.

It also transpired that in course of investigation, the age of the accused was the subject matter of determination, for which the documentary evidence in the form of his Baptism Certificate dated 19.09.2017 issued by the Parish Priest, St. Joseph's Parish, Laitkor, Shillong and the Transfer Certificate dated 26.07.2017 of R.C.L.P. School Lamlyer was placed before the Court and vide order dated 06.10.2017, the Juvenile Justice Board, Shillong was directed to conduct an enquiry for determination of the age of the accused/petitioner. Accordingly, the JJB embarked on the process to ascertain the age and the documentary evidence, that is the Baptism Certificate and Transfer Certificate was proved through the authority who has issued the same.

However, vide Order dated 28.11.2017, the JJB has thought it fit to send the accused/petitioner for Ossification test by a Board of Medical and Health Officers, Civil Hospital, Shillong to determine his age. On being examined by the Dental Surgeon, the clinical findings shows that the dental age of the accused/petitioner is below 16(sixteen) years and on being referred to the Radiology department, the Radiologist after examination, has come to a finding that the radiological bone age is between 17 to 18 years.

It is this reference of the Radiologist that has convinced the learned Special Judge to come to a conclusion that the age of the accused/petitioner as on the date of arrest was 18 years 3 months and 7 days.

Heard Ms. A.D. Syiem learned counsel for the petitioner who has submitted that the learned Special Court has erred in coming to the conclusion that the petitioner was above 18(eighteen) years of age at the time of arrest, which decision was based on the enquiry report filed by the Principal Magistrate, JJB, Shillong wherein, according to the learned Special Judge, the age of the petitioner was determined as 18 years 3 months and 7 days on the date of arrest.

The learned counsel has further submitted that the learned Special Judge has not considered the documentary proof of age of the petitioner as well as the report of the Dental Surgeon who has come to a finding that the age of the petitioner was below 16(sixteen) years, however only on the findings of the Radiologist who has concluded that the age of the petitioner was between 17 to 18 years, the presumption is drawn that he is above 18(eighteen) years.

Again, Ms. Syiem has submitted that even if the age of 18 years 3 months and 7 days is taken, the same could not be counted from the date of arrest, but should be counted from the date of the alleged occurrence, which is sometime in February, 2017 and his date of birth being 02.06.1999, then he would have been less than 18(eighteen) years.

To buttress her contention, Ms. Syiem has referred to the textbook of Medical Jurisprudence and Toxicology by Bai Bahadur Jaising P. Modi, sixth edition at page 32 where under the heading 'Age', it is said that:-

"3. Age- The principal means which enable one to form a fairly accurate opinion about the age of an individual are teeth, height and weight, ossification of bones and minor signs......."

The case of Darga Ram Alias Gunga v. State of Rajasthan: (2015) 2 SCC 775, paragraph 17 was also cited by the learned counsel for the petitioner to submit that the determination of age should be reckon from the date of the occurrence and not from the date of arrest.

Finally, Ms. Syiem has submitted that in the light of the argument advanced, it would be a miscarriage of justice, if the matter is allowed to proceed before the learned Special Judge, (POCSO) Court and the petitioner should be tried as a juvenile and accordingly, this Court be pleased to set aside the impugned order and to pass necessary direction in this regard.

Mr. K. Khan, learned Sr. Public Prosecutor has raised only one issue in opposition to this petition, that is whether this Court can come to any contrary findings in the light of the findings on facts by the Board consisting of medical experts who have carried out the medical examination in due procedure and have come to the conclusion as indicated in the respective reports and as such, the conclusion arrived at by the learned Special Judge is not off the mark and the impugned order suffers from no infirmity. The same be upheld it is submitted.

On consideration of the submission made, this Court without adverting to the facts and circumstances of the said criminal case before the learned Special Judge, POCSO, Shillong is conscious of the fact that the only issue to be decided in this petition is whether, after ascertaining the age of the petitioner herein, the learned Special Judge is correct in pegging the same with reference to the date of arrest of the said petitioner, which is in the month of September 2017 and not from the date of the alleged occurrence which is in the month of February, 2017?

As far as the process of age determination is concerned, there are mainly two ways or two methods to be adopted by the Committee or the Juvenile Justice Board, the first one is by proving the same through documentary evidence such as, the birth certificate or the school certificate and the second is by ossification test or any other latest medical age determination test. The legal provision to enable the above to be carried out is Section 94 of the Juvenile Justice Act, 2015 which has prescribed the steps to be taken for age determination as indicated above.

It is apparent from the records that, on being directed by the learned Special Judge, POCSO vide order dated 06.10.2017, the Juvenile Justice Board, Shillong has embarked on the process to determine the age of the petitioner by causing the Baptism Certificate and the School Transfer Certificate to be proved by the competent authorities, that is the Parish Priest and the Headmistress of the School respectively. Though there is no adverse finding as to the stated date of birth given as 02.06.1999, yet the JJB has further resorted to direct for ossification test of the petitioner by a Board of Medical and Health Officers, Civil Hospital, Shillong to determine his age.

It is again noticed that as per direction of the JJB, the petitioner was subjected to medical test, particularly dental and radiology test. The result of the dental test placed the approximate age of the petitioner at 16(sixteen) years and the ossification test placed his age at about 17 to 18 years. It is therefore seen that the learned Special Judge has come to the conclusion that the date of birth of the petitioner was 02.06.1999, as on calculation, on the date of arrest, his age was stated to be 18 years 3 months and 7 days.

Now there is no quarrel as to the age of the petitioner as determined by the documentary proof as well as medical evidence. Though medical evidence will not be able to pin point the exact date of birth, the general approach is that the age as determined may vary plus minus two years, which means that the petitioner might as well be 16 years(sixteen) on the date of examination.

Be that as it may, in this instant case, the issue is entirely different. The learned Special Judge has calculated the age from the date of arrest, whereas the date of occurrence is said to be in the month of February, 2017. It is also well settled that determination of age has to be counted from the date of occurrence and not from the date of arrest, example if an accused is absconding, by the time he is arrested, it may take months or years and as such, if the issue of determination of age is to be considered, then the correct approximate may not be arrived at.

The case of Darga Ram Alias Gunga v. State of Rajasthan (supra) cited by the learned counsel for the petitioner is also relevant in this regard.

At paragraph 17 of the same, the Hon'ble Supreme Court has held as under:

"17. The general rule about age determination is that the age as determined can vary plus minus two years but the Board has in the case at hand spread over a period of six years and taken a mean to fix the age of the appellant at 33 years. We are not sure whether that is the correct way of estimating the age of the appellant. What reassures us about the estimate of age is the fact that the same is determined by a Medical Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion must get the respect it deserves. That apart, even if the age of the appellant was determined by the upper extremity limit i.e. 36 years the same would have been subject to variation of plus minus 2 years meaning thereby that he could as well be 34 years on the date of the examination. Taking his age as 34 years on the date of the examination he would have been 18 years, 2 months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12 (3)(b) (supra) which would then bring him to be 17 years and 2 months old, therefore, a juvenile."

Again, in this case, if the age as on the date of occurrence is taken, given the date of birth of the petitioner as 02.06.1999, then in the month of February, 2017 he will be about 17 years 8 months, thereby making him a juvenile at the relevant point of time.

Thus in consideration of the findings and observations made above, this Court is of the opinion that the petitioner has been able to make out a case to ensure that justice is not only done but seen to be done, the learned Special Judge, having failed to consider material and relevant legal issues and has come to a wrong finding, as far as placing the age of the petitioner/accused at the time of arrest and not at the time of occurrence is concerned. The impugned order is therefore liable to be set aside and quashed.

In the final analysis, this petition succeeds and is accordingly allowed. The learned Principal Magistrate, Juvenile Justice Board, Shillong is hereby directed to take up the case of the petitioner and to proceed in accordance with law.

Petition disposed of. No cost.

Registry is directed to send back the Lower Court case record to the concerned Court.