Holding

Age determination under the Juvenile Justice Act must be based on documentary evidence, with medical opinion permissible only when such documents are unavailable, and the trial court's finding that the appellant was a juvenile on the date of the last incident is correct.

Summary

The appellant was accused of having sexual intercourse with the complainant on five to six occasions, allegedly on a false promise of marriage, the last of which occurred in August 2009. The trial court, relying on documentary evidence, held that the appellant was born on 19 October 1991 and was therefore a juvenile at the time of the last incident, directing the case to the Juvenile Justice Board. The High Court set aside this finding, remitting the matter for fresh consideration and directing a medical opinion to determine the appellant's age. On appeal, the Supreme Court reiterated that age determination under the Juvenile Justice Act must be based on available documentary evidence, and a medical examination is permissible only when such documents are absent. It further held that for a continuing offence under IPC s.376, it is sufficient to examine the appellant's age on the date of the last occurrence. Consequently, the Court found the High Court’s directions unwarranted and restored the trial court’s finding. The appeal was allowed, and the matter stood disposed as per the trial court’s order.

Issues considered

Whether age of an accused under the Juvenile Justice (Care and Protection of Children) Act can be determined solely on documentary evidence without a medical opinion.
Whether, for a continuing offence under IPC s.376, the juvenile status of the accused should be assessed on the date of the last alleged incident.
Whether the High Court erred in remitting the case for fresh consideration and directing a medical examination.

Legislation cited

Subjects

Juvenile Justice Actage determinationsexual assaultfalse promise of marriageIPC 376documentary evidencemedical opinioncontinuing offence

Judgment

(2017) I S.C.R. 278

A SRI GANESH
v.
STATE OF TAMIL NADU AND ANR.
(Criminal Appeal No. 39 of20l7) ·'
B JANUARY 06, 20 I 7
(PINAKI CHANDRA GHOSE AND
UDAY UMESH LALIT, JJ.]
Penal Code, 1860: s.376- Sexual intercourse on false promise
of marriage - Allegation of victim that the appellant-accused
c committed sexual intercourse 5-6 times on false promise ofmarriage'....
In her cross examination, victim gave last date of sexual intercourse
as August 2009 - Appellant took plea of being juvenile on that
date - Trial court after considering relevant material on record
declared the appellant to be juvenile on' the last date of incident -
D Revision petition of complainant allowed by High Court and matter
remitted to trial court 011 the ground that the trial court ought to
have considered the expert opinion obtained from a medical officer
to determine the age of accused - Held: The question of obtaining
medical opinion arises only if the documents are not available -
Trial court took into account the documentary evidence as
E
contemplated in the statutory provisions - Jn the face of the relevant
documentary e11ide11ce, there could be no medical examination to
ascertain the age '!(the appellant and as such the consequential
directions passed by the High Court were, completely unwarranted -
Trial court was therefore justified in going by the assertions made
F by the l'ictim in her cross examination and then considering whether
the appellant was juvenile on that date or not.
Allowing the appeal, the Court
HELD: 1. In the present case, the trial court took into
account the documentary evidence as contemplated in the
G statutory provisions and returned a finding that the date of birth
of the appellant was 19.10.1991. During tbe course of its
judgment, the High Court could not find such conclusion to be
vitiated on any ground. In the face of the relevant documentary
evidence, there could be no medical examination to ascertain
H the age of the appellant and as such the consequential directions
278
SRI GANESH v. STATE OF 1AMIL NADU AND ANR. 279

passed by tbe High Court w.ere completely unwarranted. Further, A
if the allegations of the prosecution are that' the offence under
Section 376 IPC was committed on more than one occasion, in
order to see whether the appellant was juvenile or not, it is enongh
to see if he was juvenile on the date when the last of such incidents
had occurred. The trial court was therefore justified in going by
B
the assertions made by the victim in her cross examination and
then considering whether the appellant was juvenile on that date
or not. The approach of the High Court in the present case was·
incorrect and completely misdirected. Even if the matter is
remanded back to the High Court for fresh consideration, it would
be an empty formality in the face of finding of faet rendered by c
the trial court. The view taken by· the trial court is restored. (Paras
11, 13 J [284-C-E, H; 285'A-Bj'
Ash~>ani Kunwr Saxe'!ay. S/qte of Madhya Pradesh
(2012) 9 SCC 750 : [20.12]
. I'-•
10 SCR 540 - relied on .
Karthi alias Karthick V. State of Tamil Nadu (2013) 12 D
SCC 710 : [20131 8 SCR 1012- distinguished.
Case Law Reference
[20121 10 SCR 540 relied on Para9
[20131 8 SCR 1012 distinguished Para9 E
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 39 of2017. · · ·
From the Order dated 13. I 0.2015 by the High Court of Judicature
at Madras in Criminal Revision No. 383 of2015.
F
A. Ramesh, Sr. Adv., R. Anand Padmanabhan, L. Arun, Ms.
Ananya Mukherjee (For Shashi Bhushan Kumar), Advs. fortheAppell;mt.
Aditya Kumar Choudhary, Velu Murugan, U. S. Dhindsa, Ms.
Namita Choudhary, Advs. for the Respondent.
The Judgment of the Court was delivered by G

UDAY UMESH LALIT, J. I. Leave .granted ..
2. This appeal by special leave challenges .the Judgment and
Order dated .13.l 0.2015 passed by the High Co.urtofMadras in Criminal
Revision Case No.383 of2015. In order to avoid any identification of H
280 SUPREME.COURT REPORTS [2017] 1 S.C.R.

A the victim, we have transposed the original respondent No. I namely, the
Complainant as respondent No.2 and the State is now shown as
respondent No. I in the matter.
3. Pursuant to complaint by the complainant, FIR vi de Crime
· No.5/2010 was initially registered under Sections 417 and 506(ii) IPC on
B 26.03.20 I 0 with Old Washermenpet Police Station, Chennai against the
appellant, his father, mother and uncle. After carrying out necessary
investigation, chargecsheet dated 18.11.20 I 0 was filed against the
appellant under Section 376 IPC and against his parents and unC!e under
Sections 417 read with 109 IPC and 506{ii) IPC. It was alleged thatthe
appellant had become friendly with the victim while they had reached
c 10+2 standard; that this fact was known to the family of the appellant
who treated the victim as their daughter-in-law; that the appellant had
committed sexual intercourse with the victim on 5 to 6 occasions; and
that the behavior of the family ofappellant later changed and they refused
to perfonn the marriage. It was alleged that the appellant thus committed
n offence under Section 376 !PC while his family members were guilty of
·offence under Sections 417 read with I 09 !PC and 506(ii) !PC .
. 4. Appropriate charges under the aforesaid Sections having been
framed, Criminal 0.P. No.9823 of 2011 was filed in the High Court
seeking quashing of those charges. The High Court by its Order dated
E 20.06.2012 quashed the charges as against the parents and uncle of the
appellant but dismissed the challenge raised by the appellant.
Consequently the trial proceeded only against the appellant for the
offence punishable under Section 376 IPC. On 18.09.2012, the victim
deposed before the trial court as PW-I. In her examination-in-Chief
she deposed:
F
" ...................! finnly believed that the accused and his
family will not leave me and our marriage would definitely
solemnize. After this the accused forced me and had intercourse
with me 5 to 6 times."

G The victim however in her examination in chief did not give any
probable period or time when the intercourse had last taken place. In
her cross-examination conducted on 06. I 0.2012, to a pointed query she
answered, "We had intercourse finally in August, 2009".
5. At that juncture, the cross-examination ofthe victim was stopped
and a plea ofjuvenility of the appellant was raised. It was submitted that
H
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 281
[UDAY UMESH LAUT, J.]

going by the assertions of the victim, the appellant was definitely a juvenile A
on the alleged dates of occurrence. Criminal M.P. No.10872 of2012
under Section 7A of the Juvenile Justice (Care and Protection of Children)
Act, 2000 (hereinafter referred to "the Act") was also filed praying that
the age of the appellant be determined in terms of the provisions of the
Act and the Rules framed thereunder. The complainant was also allowed
B
to make her submissions. After hearing the parties, the Court posted the
application for pronouncement of Orders on 04.12.2012. However, on
28.11.2012 an application under Section 216 ofCr.P.C. was filed by the
prosecution for adding charge under Section 41 7 against the appellant.
The request for addition of the charge was dismissed by the trial court
which order was affirmed by the High Court by its ·order dated c
15.02.2013. The complainant challenged the orderof the High Court by
filing SLP(Crl.)No. 1899 of2013 which was dismissed by this Court on
12.08.2014.
6. The trial court thereafter postponed the issue ofjuvenility to be
considered at the stage of final determination of the matter, which order D
was challenged by the appellant by filing petition under.Section 482 of
. Cr.P.C. The challenge was accepted by the High ,_<::ourt and by Order
dated 8.12.2014 it directed:
"The learned Ill Additional Sessions Judge shall "first decide the
claim ofjuvenility raised by the petitioner herein and then to proceed E
with further in accordance with law. At any rate, appropriate
decision on the claim ofjuvenility shall be made within a period of
30 days as provided in Rule SB of the Tamil Nadu Juvenile Justice
(Care and Protection of Children) Rules, 2001 from the date of
receipt of the records from the trial court."
F
7. The matter was then heard by the trial court which after
considering the relevant material on record.declared the appellant to. be
·juvenile in conflict with law under Section 7A of the Act. The trial court
found the date of birth of the appellant to be 19 .10.1991. Going by the
assertions made by the victim that the. sexual intercourse betweel) them
lastly occurred in the month ofAugust, 2009, the trial court found" that on G
the date of occurrence, the appellant was a juvenile. Concluding thus,
the trial court directed:
"29. Finally, this court allows the above Petition Crl.0.P.No. l 0872/
2012 and decides that the offender was a Juvenile on the date of
H
282 SUPREME COURT REPORTS [2017] l S.C.R.

A commission of offence.
30. As the offender on the date of occurrence of offence was a
juvenile, the present case can be decided only by the Juvenile
Board and this court orders transfer of the S.C.130/2011 to the
Juvenile Board."
B 8. The complainant being aggrieved, challenged the aforesaid
determination by filing Criminal Revision Case No.383 of2015 in the
High Court of Madras. The High Court by its Judgment and Order
dated 13.10.2015 allowed said criminal revision and remitted the matter
back to the trial court for fresh consideration. It was observed:
c "It is evident that the trial court has not determined the correct
age of the second respondent/accused or the date of occurrence
in the facts and circumstances of the case. The trial court also
did not take note of the fact that the offence alleged to have been
committed was a continuing offence. The trial court also did not
D consider the expert opinion obtained from a Medical Officer to
determine the age of the second respondent/accused. The trial
court has also not ascertained correctly the date on which the
first occurrence took place and the last occurrence committed by
the accused/second respondent herein. The trial court was carried
away by an admission made by the complainant during the course
E of cross-examination."
'
9. Appearing for the appellant in support of the appeal, Mr. A.
Ramesh, learned Senior Advocate submitted that the determination of
age of a juvenile has to be principally on the basis of documentary
evidence and only in the absence of such documentary evidence, medical
F opinion could be pressed into service. In his submission the High Court
was completely in error in setting aside the view taken by the trial court
and in remitting the matter for fresh consideration. Reliance was placed
on the judgment of this Court in Ashwani Kumar Saxena v. State of
Madhya Pradesh'. On the other hand, Mr. Aditya Kumar Choudhary,
G learned Advocate
. appearing for the complainant relied on decision . of
this Court in Kartlli alias Karthick v. State of Tamil Nada' and
submitted that the High Court was justified in remitting the matter for
fresh consideration.
1
(2012)9 sec 1so
'(2013) 12 sec 110
H
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 283
[UDAY UMESH LAUT, J.]

I 0. The law on the point is well settled and succinctly stated in A
Ashwani Kumar's. case (supra) where this Court after taking into
consideration relevant statutory provisions observed in paragraphs 32 to
34 as under:-
"32. "Age determination inquiry" contemplated under Section 7-
A of the Act read with Ruic 12 of the 2007 Rules enables the B
court to seek evidence and in that process, the court can obtain
the matriculation or equivalent certificates, if available. Only in
the absence of any matriculation or equivalent certificates, the
court needs to obtain the date of birth certificate from the school
first attended other than a play school. Only in the absence of
matriculation or equivalent certificate or the date of birth certificate c
from the school first attended, the court needs to obtain the birth
certificate given by-a corporation or a municipal authority or a
panchayat (not an affidavit but certificates or documents). The
question of obtaining medical opinion from a duly constituted
Medical Bo.ard arises only if the abovementioned documents are D
unavailable. In case exact assessment of the age cannot be done,
then the court, for reasons to be recorded, may, if considered
necessary, give the benefit to the child or juvenile by considering
his or her age on lower side within the margin of one year.
33. Once the court, following the abovementioned procedures, . E
passes an order, that order shall be the conclusive proof of the
age as regards such child or juvenile in conflict with law. It has
been made clear in sub-rule (5) of Rule 12 that no further inquiry
shall be conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof after
referring to sub-rule (3) of Rule 12. Further, Section 49 of the JJ F
Act also draws a presumption of the age ofthejuvenility on its
determination.
34. Age determination inquiry contemplated under the JJ Act and
the 2007 Rules has nothing to do with an enquiry under other
legislations, like entry in service, retirement, promotion, etc. There G
may be situations where the entry made in the matriculation or
equivalent certificates, date of birth certificate from the school
first attended and even the birth certificate given by a corporation
or a municipal authority or a panchayat may not be correct. But
court, Juvenile Justice Board or a committee functioning under H
284 SUPREME COURT REPORTS (2017] I S.CR.

A the JJ Act is not expected to conduct such a roving enquiry and to
go behind those certificates to ·examine the correctness of those
documents, kept during the normal course of business. Only in
cases where those documents or certificates are found to be
fabricated or manipulated, the court, the Juvenile Justice Board
or the committee need to go for medical report for age
B
determination."
IL In the present case the trial court took into account the
documentary evidence as contemplated in the statutory provisions and
returned a finding that the date of birth of the appellant was 19. l 0. 1991.
During the course of its judgment the High Court could not find such
c conclusion to be vitiated on any ground. In the face of the relevant
documentary evidence, there could be no medical examination to
ascertain the age of the appellant and as such the consequential directions
passed by the High Court were completely unwarranted. Further, ifthe
allegations of the prosecution are that the offence under Section 376
D IPC was committed on more than one occasion, in order to see whether
the appellant was juvenile or not, it is enough to see if he was juvenile on
the date when the last of such incidents had occurred. The trial court
wa~ therefore justified in going by the assertions made by the victim in
her cross examination and then considering whether the appellant was
juvenile on that date or not
E
12. The learned counsel for the respondent'l1owever relies on the
decision of this Court in Kart/ti (supra). In that case the accused had
·repeatedly engaged in consensual sexual intercourse with prosecutrix
on different dates on promises of marriage. After having found that the
promises were false, the prosecutrix had lodged a complaint asserting
...·r:
t· •''
F her exploitation on certain previous dates. While considering the delay
in reporting the matter to the Police, this Court found that it was only
after the accused had declined to marry the prosecutrix that a different
dimension came to be attached to their relationship and thus there was
. no delay in registration of FIR. The decision in Kart/ii (supra) stands on
G a completely different point and cannot be pressed into service to say
that because the appellant had refused to marry the victim, the date of
ihe offence under Section 376 would consequently change. The date of
the incident remaining constant, the principle in Kartl1i (supra) will be of
assistance only in getting over the aspect of delay in lodging the FIR.

H
13. We thus find that'the' approach of the High Court in the
SRI GANESH v. STATE OF TAMIL NADU AND ANR. 285
[UDAY UMESH LALIT, J.)

present case was incorrect and completely misdirected. Even if we A
were to remand the matter back to the High Court for fresh consideration,
in our view it would be an empty formality in the face of finding of fact
rendered by the trial court. We, therefore, allow this appeal and set
aside the Judgment and Order under appeal. The view taken by the trial
court is restored and the matter stands disposed of in terms of the
B
directions issued by the trial court as stated above.
14. The appeal is allowed in aforesaid terms.
Devika Gujral Appeal allowed.