SUPREME COURT HOLDS THE KATHUA RAPE CASE ACCUSED NOT A JUVENILE BASED ON MEDICAL AND FORENSIC EVIDENCE IN THE ABSENCE OF LEGITIMATE BIRTH RECORDS
In a recent case of The State of Jammu & Kashmir (Now U.T. of Jammu & Kashmir) & Ors. Vs Shubam Sangra Criminal Appeal No. 1928 of 2022, a two Judge Bench of the Supreme Court comprising of Justice Ajay Rastogi and Justice J.B. Pardiwala passed a Judgment dated 16-11-2022 and held that the alleged Juvenile-Respondent-Accused in the unfortunate Kathua rape case, was indeed not a juvenile at the time of commission of the offence and should be tried the way the other co-Accused were tried in accordance with the law.
In this case, an 8-year old Muslim girl was raped and murdered by 6 Hindu men and the Respondent, Shubam Sangra, who claimed to be a juvenile at the time of commission of such heinous offence, in January 2018 near Kathua, Jammu & Kashmir. The 6 Accused were convicted by the Trial Court vide Judgment and Order dated 10-06-2019 and the 7th Accused was acquitted due to lack of evidence against him. The 8th Accused, who is the Respondent herein and claims to be a juvenile at the time of commission of the offence, is yet to be tried.
The Trial Court’s Order of Conviction was based on the investigation done by a Special Investigation Team (SIT) and the forensic examination which revealed that the minor girl was raped multiple times by the Accused persons including a priest of a temple where the said offence occurred and his nephew, who is the Respondent herein and later she was strangulated to death and was also hit hard on her head by a heavy stone by the Accused persons.
But the adjudication in the present case was only in respect of the 8th Accused / Respondent herein i.e. whether the Respondent was a juvenile on the date of commission of the offence and whether he should be tried the same manner as the other co-Accused had been tried by the Trial Court.
Trial Court and High Court Observations
i) That the High Court of Jammu & Kashmir in OWP No. 259 of 2018 had directed a SIT to take steps for determination of age of the Respondent by constituting a Medical Board by Principal, Government Medical College, Jammu and to submit a fresh status report, vide Order dated 21-02-2018. Accordingly, the Special Medical Board undertook the medical examination of the Respondent and submitted an Age Estimation Report dated 03-03-2018 to the District Medical Board. The said Report included his dental age estimation and radiological examination and thereby, concluded that the dental age of the Respondent was between 19 years and 23 years as on 03-03-2018.
ii) That the High Court in OWP No. 259 of 2018 passed an Order dated 14-03-2018 and further directed the Chief Judicial Magistrate, Kathua (CJM) under Section 8 of the J and K Juvenile Justice (Care and Protection of Children) Act, 2013 (JJ Act) as well as Rule 74 of the Rules framed thereunder, to ascertain the age of the Respondent, without being influenced by the aforesaid Age Estimation Report dated 03-03-2018 submitted to the District Medical Board:
iii) The Counsel for the State relied upon the Age Estimation Report dated 03-03-2018 to claim that the Respondent was not a juvenile at the time of commission of the offence. Further, as per the SIT, the Tehsildar of Hira Nagar vide Letter dated 14-03-2018 informed them that the original date of birth records of the Respondent was not traceable. Furthermore, the Block Medical Officer, Health and Family Welfare, Hira Nagar vide Letter dated 15-03-2018 also informed the SIT that they did not have the birth / delivery records in their Hospital in order to corroborate that the Respondent was born on 23-10-2002, as claimed by the Respondent.
iv) But the Respondent relied upon his father’s statement and the records produced by the Executive Officer, Municipal Committee Hiranagar, which depicted that the date of birth of the Respondent was 23-10-2002.
v) Thus, the Ld. CJM vide Order dated 27-03-2018 held that as the birth certificate records issued by the Municipal Committee, Hiranagar in favor of the Petitioner was found to be legitimate, hence, recourse to other modes of age determination such as Medical Report was not permitted, in view of Rule 74 framed under the JJ Act. Thus, it was held by Ld. CJM that, as per the birth certificate records, the age of the Respondent, as on the date of the said Order i.e. 27-03-2018, was 16 years.
vi) That, thereafter, the Appellate-State filed a Criminal Revision Application No. 27 of 2018 before the High Court against the Ld. CJM’s Order dated 27-03-2018, which was rejected vide Order dated 11-10-2019, thereby holding that the Respondent was a juvenile at the time of commission of offence in January 2018.
Aggrieved, the Appellate-State filed an Appeal before the Supreme Court against the High Court Order dated 11-10-2019. The Apex Court vide Judgment dated 16-11-2022 made the following observations:
- That as per Section 8 of the JJ Act (Procedure to be followed when claim of juvenility is raised before any court) and Section 48 of the JJ Act (Presumption and determination of age), when a claim of juvenility is raised before a court of law, it is mandatory for the court to conduct inquiry and take such evidence as is necessary to determine the age of the person and during the course of inquiry, if the court finds the person juvenile, then he has to be produced before the JJ Board for further orders.
- Further, if there are discrepancies / contradictions in the evidence placed on record depicting the date of birth of the person, then as per Rule 74 (3) (Determination of age) of the J & K Juvenile Justice (Care and Protection of Children) Rules 2014, the authority deciding the age issue may refer the matter to a duly constituted Medical Board, which would then record its findings and submit a report to the Juvenile Justice Board.
- That in the present case, the Supreme Court held that there were discrepancies in the materials produced on record with respect to the Respondent’s date of birth on the grounds that: (a) the birth certificate issued by the Municipal Committee, Hiranagar depicted his date of birth as 23-10-2002, (b) whereas, the birth certificate issued by Modern Public Higher Secondary School, Kathua, J and K depicted his date of birth as 23-10-2003. The said discrepancies were also brought to the attention of the Ld. CJM and the High Court, but both the Courts erred in overlooking such crucial discrepancies.
- That despite contradictions in the date of birth records, the Ld. CJM and the High Court disregarded the provisions of Rule 74 (3) of the J & K Juvenile Justice (Care and Protection of Children) Rules 2014 and ignored the Age Estimation Report dated 03-03-2018 submitted by the Special Medical Board, which concluded that the dental age of the Respondent was between 19 years and 23 years as on 03-03-2018 i.e. around the time of commission of the offence.
Thus, the Apex Court held that as the documents evidencing date of birth of the Respondent were not legitimate, hence, the credibility of the final opinion given by the team of five doctors vide the Age Estimation Report dated 03-03-2018 could not have been overlooked in the interest of justice. As a result, the Bench held that the Respondent was not a juvenile at the time of commission of the offence and should be tried the way the other co-Accused were tried in accordance with the law. Therefore, the Supreme Court allowed the Appeal and thereby, set aside the Ld. CJM’s Order dated 27-03-2018 and the High Court Order dated 11-10-2019.
In the recent past, heinous crimes such as rape of minor girls has become a trend. It is really sad to see that humans can come down to this level of depravity which is not even there in the animal kingdom. The above judgement of the Apex Court comes as relief to the parents of such minor girls who have not only been raped but also murdered. The Supreme Court’s observation regarding the determination of the person who claims to be a minor is so succinct and concise and leaves no room for doubt that such offenders cannot hide or take protection of being juvenile if medical evidence shows that the birth certificate is incorrect and the biological age of the offender is much more than what he claims. The punishment meted out to this offender brings relief not only to the unfortunate parents of the minor girl but also to society.
The Indian Lawyer
Sushila Ram Varma
Chief Consultant and Editor
The Indian Lawyer
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