Kathua Gangrape: Medical Opinion Regarding Age Of Accused Cannot Be Brushed Aside- SC While Holding That Accused Be Tried As Adult
The Supreme Court on Wednesday held that one of the accused in the sensational gang rape and murder case of an eight-year-old nomadic girl in Kathua was not a juvenile. It now can be tried afresh as an adult for the alleged offence committed by him in connivance with the other seven accused.
The Bench of Justice Ajay Rastogi and Justice J.B. Pardiwala observed that the medical opinion regarding the age of the accused cannot be brushed aside in the absence of statutory proof of the same.
The Court held, "…the medical expert's estimate of age may not be a statutory substitute for proof and is only an opinion but such opinion of an expert should not be brushed aside or ignored when the Court itself is in doubt in regard to the age of a citizen claiming constitutional protection."
The Bench set aside the order of the Jammu and Kashmir and Ladakh High Court which had held that accused Shubham Sangra was a juvenile and hence be tried separately.
Justice J.B. Pardiwala while pronouncing the verdict observed, "The impugned order passed by the CJM, Kathua and the High Court is set aside. It is held that the respondent accused was not a juvenile at the time of commission of the offence and should be tried the way other co-accused were tried in accordance with the law. Law to take its own course."
The Court further also held that the guilt or the innocence of the accused shall be determined strictly on the basis of the evidence that may be led by the prosecution and the defence at the time of trial.
The issue dealt with by the Court was –
Whether the High Court committed any error in passing the impugned order.
Senior Advocate P.S. Patwalia appeared for the Appellant-State before the Apex Court.
The Court rejected the contention of the Respondent-accused that even if there are contradictions or discrepancies in the documentary evidence of record there is not a single date emerging on record on the basis of which it could be said that the respondent was major on the date of the alleged offence, terming it to be unreasonable.
The Bench in this context further added that it is not the correct way of looking at the core issue. The Court held that the correct way of looking at the core issue is to closely examine whether there is any cogent or convincing evidence as regards the correct date of birth of the Respondent-accused and after ascertaining the same, reach to an appropriate conclusion.
While referring to Section 8 of the Jammu and Kashmir Juvenile Justice Act, 2013, the Court observed, "The plain reading of Section 8 referred to above indicates that whenever a claim of juvenility is raised before any court or the court is of the opinion that the accused person was a juvenile on the date of the commission of the offence, then it is mandatory for the court to make an inquiry and in the course of such inquiry, the court may take such evidence as may be necessary, however, not an affidavit, so as to determine the age of such person."
The Court also held that 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 on the date of the incident and the documentary evidence at least prima facie establishes the same, he would be entitled to the special protection under the Juvenile Justice Act and thus further observed-
"However, when an accused commits a heinous and grave crime like the one on hand and thereafter attempts to take the 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 a common man in the institution entrusted with the administration of justice."
The Court held that the benefit of benevolent legislation attached to the Juvenile Justice Act would be extended to only such cases s wherein the accused is held to be a juvenile on the basis of at least prima facie evidence inspiring confidence regarding his minority.
The Court observed that the letter addressed by the Block Medical Officer, Hira Nagar to the Superintendent of Police, Jammu stating that no delivery took place in the name of Respondent's mother at the municipal hospital made the picture clear.
Thus, the Court held, "There is no good reason why we should overlook or ignore or doubt the credibility of the final opinion given by a team of five qualified doctors, one from the Department of Physiology, one from the Department of Anatomy, one from the Department of Oral Diagnosis, one from the Department of Forensic Medicine and one from the Department of Radio Diagnosis, all saying in one word that on the basis of the physical, dental and radiological examination, the approximate age of the respondent could be fixed between 19 and 23 years."
Thus, the Court held that order passed by the High Court affirming the CJM's order is not sustainable in law.
Expressing concern over the rising rate of juvenile delinquency in India, the Court held that the matter requires immediate attention and thus further observed –
"There is a school of thought, existing in our country that firmly believes that howsoever heinous the crime may be, be it single rape, gangrape, drug peddling or murder but if the accused is a juvenile, he should be dealt with keeping in mind only one thing i.e., the goal of reformation. The school of thought, we are taking about believes that the goal of reformation is ideal. The manner, in which brutal and heinous crimes have been committed over a period of time by the juveniles and still continue to be committed, makes us wonder whether the Act, 2015 has subserved its object."
The Court further held that the leniency that is shown towards juveniles in the name of the goal of reformation, is making them more and more involved in the commission of such heinous crimes.
While raising such a thought, the Court further added that it is for the Government to decide whether the enactment of 2015 has proved to be effective or whether something still needs to be done in the matter before it is too late in the day.
In light of these observations, the Court allowed the appeal and set aside the impugned order of the High Court.Cause Title - The State of Jammu & Kashmir (Now U.T. of Jammu & Kashmir) & Ors. v. Shubam Sangra