Noor Jahan @ Haseena and Others vs State NCT of Delhi

Crl. M.(Bail) No. 468/2012

This application has been premised on a plea of juvenility set up by appellant No. 3 Imran Khan s/o Abdul Waheed. Appellant No. 3 was charged with commission of offence u/s 302 of the Indian Penal Code with regard to an incident occurred on 8th October, 2008. Appellant No. 3 has set up a plea in this application that his date of birth is 17th June, 1991 and, therefore, his age as on the date of incident was about 17 years and 4 months. In this regard, reliance has been placed on a copy of a certificate issued by the Government of Uttar Pradesh on 11th February, 2011. Learned APP for the State submits that this document has been issued on the information submitted by the mother of the appellant during the pendency of the appeal and, therefore, does not deserve any credence. The State has relied on an extract of a register purporting to be an extract from the record maintained by the Nagar Nigam Prathmik Vidyalaya, Johari Pur-II, Delhi -110 094 where appellant No. 3 was alleged to have studied between 10th April, 1996 to 3rd April, 2001 certifying that the appellant was born on 1st April, 1990. This entry in the extract of a register is also based on no contemporaneous municipal record but on the information allegedly given by the mother of the appellant. The extract records that the information was so given by the lady who was working as a labourer. In this background, we found it wholly unsafe to rely either on the document furnished by the appellant or the extract of the record placed before this court by the State. The appellant had been produced before this Court and his physical appearance also justified that medical examination before assessment of his age be effected. Accordingly, on 16th July, 2012, we had directed the medical examination of the appellant.

Pursuant thereto, a report dated 31st July, 2012 has been submitted before us by the Board of three doctors, namely, Dr. G.S. Pradhan, (Department of Radiology), Dr. Monika Kalkar, (MAIDS) and Dr. Sreenivas M. (Department of Forensic Medicine) of Lok Nayak Jai Prakash Hospital. As per this report, doctors have closely examined the petitioner as well as his x-ray. After scrutiny of the dental, radiological and physical examination of the appellant, the Board of Doctors has opined that the age of the appellant is between 22 to 25 years on the date of the his medical examination.

In terms of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, giving the one year margin on the lower side of the age as opined on the medical examination, the appellant would be below the age of 18 years as on 8th October, 2008 which is the date of the incident. The appellant would thus be covered under the definition of juvenility within the meaning of the expression u/s 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 as on the date of the offence entitling him to the benefit of the statutory provisions.

We are informed that the applicant stands incarcerated since 16th October, 2008 and has already been in jail for a period of J years and 10 months. Given our finding on the age of the appellant No. 3 on the date of the offence and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, the appellant No. 3 cannot remain incarcerated any further.

In view of the above, we direct as follows:- The appellant shall be set at liberty by the Jail Authorities.

This application is allowed in the above terms.