Almost three years after a minor was raped by her Facebook friend, an inquiry ordered by the Delhi High Court following impassioned pleas of the rape victim challenging the juvenility of the accused has led to the Juvenile Justice Board (JJB) reversing its findings and concluding that the accused was a major at the time of the offence.
The inquiry was conducted by the board comprising Principal Magistrate Arul Varma, and members S Chakoborti and Md. Pervez from November 2, 2018, to February 22, 2019. Concluding that the documents were taken on face value, it reversed the December 8, 2016 finding of the Board that the accused was a juvenile considering his date of birth recorded in the school records.
The accused allegedly befriended the victim on Facebook. On November 8, 2016, she met the accused, who kidnapped and intoxicated her and then raped her in a car in Northwest Delhi's Bawana. The accused then dumped her and she somehow managed to reach home.
A complaint was lodged at the Bawana police station. The Investigating Officer (IO) first told the board that the accused was a major but then changed her stand and produced photocopies of documents from a school said to be first attended by the accused.
On December 8, 2016, the JJB concluded that the accused was a juvenile as his date of birth was July 21, 1999, relying solely on his school records.
All this while, the victim had been challenging the claim of the accused that he was a juvenile at the time of the commission of the offence, with her counsel Prashant Manchanda and Sandeep Kaushik stressing that the school records were not based on any foundational documents.
When the board upheld his claim of juvenility, she moved the Delhi High Court which directed the board to hold a proper inquiry to determine the age of the accused.
Which document to rely on
During the inquiry, the board was faced with the task of deciding whether it should rely on the school records of the accused which showed his date of birth as July 21, 1999, or his birth certificate procured from the municipal corporation which recorded his age to be August 21, 1997.
The counsel of the child in conflict with law (CCL) vehemently argued that the age of the CCL has been arrived at in accordance with Section 94 of the JJ Act. It was contended that if the school records are in order, then the board cannot look into the municipal records to determine the age of the CCL.
On the other hand, advocates Prashant Manchanda and Sandeep Kaushik, appearing for the victim girl, pleaded that it would be a travesty of justice unless all documents pertaining to the age proof of the CCL are perused by the board while adjudicating upon an age determination inquiry.
They asserted that the accused was not a CCL as is explicit from a bare perusal of the records of the municipal corporation which shows the date of his birth as August 21, 1997. They also argued that if school records were based on no foundational documents or bogus documents, then reliance ought not to be placed on them by the board.
The board noted that the SC has laid down in a catena of judgments that the board should not indulge in a roving inquiry while embarking on age determination quest as is held in Ashwani Kumar Saxena vs State of MP.
"The leitmotif discernible from the judgments on Rule 12 (3) of JJ Act imply that following sequence has to be adhered to while conducting age inquiry. Firstly the date of birth certificate from the school or the matriculation certificate. In the absence of whereof we can peruse the birth certificate given by the MCD. and finally in the absence, if the above, age shall be determined by conducting an ossification test," it said.
Documents taken at face value
The board noted that when the law was applied to the facts of the present case, the age of the CCL was consistent in school records, be it the school where he studied till the sixth standard or the school where he studied 7th, 8th or 9th Standard before his name was struck off due to long absence.
As far as matriculation certificate was concerned, there was no witness from a regular school as the CCL had applied through NIOS to study Class 10th.
The board noted that the school records showed his date of birth as July 21, 1999, but the documents were taken at face value.
"The documents were taken at their face value without a detailed examination of the testimony if the witnesses and without delving into the factum if the foundational documents being placed on record i.e. before the school authorities."
It said the SC itself has held in Ashwani Kumar's case that if the board is of the opinion that the age documents are fabricated and manipulated, then credence should not be given to them when it said that "only in cases where the documents are found to be fabricated or manipulated, the court, the JJ board or the committee need to go for medical report for age determination".
It then ventured to inquire whether the school records have been manipulated.
It noted that "the CCL was admitted in class I without any foundational document and in the subsequent classes, his date of birth was recorded merely on the basis of school leaving certificate. In class I, his date of birth was given by his father and mother as July 21, 1999. No affidavit or other documents was filed in this regard. Thus it is explicit that no foundational document was ever given by parents of the CCL at any stage to any of the school authorities".
It then examined the birth certificate produced from the MCD, which recorded correctly the name of the parents of the CCL and his place of birth. The Sub-Registrar (Birth and Death, MCD Office) also testified that he had verified the copy of the birth certificate on the basis of online/digital record and manual birth and death register pertaining to the year 1997. He also deposed that the uncle of accused had informed the authorities about the birth of the CCL.
"This leads to irresistible conclusion that the said birth certificate is of none other that the CCL," said the board.
"A reasonable doubt is not an imaginary, trivial or a merely possible doubt but a fair doubt based upon reason and common sense. Common sense tells us that birth certificate of a person cannot be made before his birth. It is wholly inconceivable to believe that the birth certificate of the CCL was prepared two years before his birth. Further, on the aspect of filing of foundational documents, the witness clearly explained that before the year 2004, entries were made on the basis of oral intimation. Having thus established that the said birth certificate is a genuine document, it is perplexing to note that the parents of the CCL did not produce the said document at the time of applying for admission of… in class I or at any time thereafter. This raises serious doubt on the correctness of the date of birth proof of … as reflected in the school records," it said.
Relying on Parag Bhati's case, the board held that willful concealment of birth certificate issued by the MCD tantamounts to manipulation and held that "the date of birth of… mentioned in the school records is not accepted by us as his true date of birth".
A new school of thought is blooming in juvenile jurisprudence
The board went on to say, "We often read old cases because they are instructive of the legal process and present well written classical examples of rule-fact analysis. There are a plethora of judgments which reiterate the rule that the benefit of doubt must go to the accused/ offender. However, in Juvenile jurisprudence a the new school of thought is blooming. In this context the judgment of Parag Bhati's (Parag Bhati vs State of Uttar Pradesh) case serves as a beacon for us to follow especially the following extracts:
"The benefit of principle of benevolent legislation attached to the JJ 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".
Holding that the accused was more than 18 years of age on the date of commission of offence and declaring him not to be a child in conflict with Law as per the Juvenile Justice (Care & Protection of Children) Act, 2015, the board referred the matter to the Chief Judicial Magistrate, Rohini.