Apex court slams misuse of leniency for minor accused

New Delhi, April 14 (IANS) No accused should be allowed to wrongly seek leniency under the guise of being a minor, the Supreme Court has said, slamming a trial court for allowing a rape accused to face a court for juvenile delinquents as there was ambiguity over his age in school records.

The apex court said the statutory protection provided to minors should not be allowed to be misused by accused and trial courts should take into account the medical opinion on the age of an accused in case there was ambiguity about his date of birth in school records.

Vijay Kumar, a Rajasthan resident who allegedly raped a minor in 2007, was allowed by the trial court to be tried under benevolent legislation Juvenile Justice (Care and Protection of Children) Act, 2000. His co-accused was convicted in a normal criminal court.

The apex court said trial courts, while deciding such an issue, must record conclusive findings supporting their decision.

"In a situation when the school record itself is not free from ambiguity and (does not) conclusively prove the minority of the accused, medical opinion cannot be allowed to be overlooked or treated to be of no consequence," Justice G.S. Singhvi and Justice G.S. Misra said in their judgment Friday.

The court said this while setting aside a Rajasthan High Court judgment delivered Aug 19, 2010, directing the trial of Vijay Kumar by regular court.

The high court upheld the trial court's decision to allowed Vijay Kumar face trial under the Juvenile Justice (Care and Protection of Children) Act, 2000 in a court for minor delinquents.

While permitting the trial of Vijay Singh in a court for minors, the trial judged did not record its finding supporting its decision on his age.

Vijay Kumar, along with one Subhash Bishnoi, allegedly raped a 13-year-old girl May 23, 2007. Subhash Bishnoi was tried, convicted and sentenced by the regular trial court.

Speaking for the apex court bench, Justice Misra said: "When an accused commits a grave and heinous offence and thereafter attempts to take 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."

"We are under constraint to observe that this will have to be discouraged if the evidence and other materials on record fail to prove that the accused was a juvenile at the time of the commission of the offence," the court said.

"Juvenile Justice Act which is certainly meant to treat a child accused with care and sensitivity, offering him a chance to reform and settle into the mainstream of society, the same cannot be allowed to be used as a ploy to dupe the course of justice while conducting trial and treatment of heinous offences," Justice Misra said.

"This would clearly be treated as an effort to weaken the justice dispensation system and hence cannot be encouraged," the judgment said.

"Thus, in a circumstance where the trial court itself could not arrive at a conclusive finding regarding the age of the accused, the opinion of medical experts based on X-ray and ossification test will have to be given precedence over the shaky evidence based on school records," the judgment said.

Though there was no certain evidence about Vijay Kumar being a juvenile, yet the trial court, without recording any definite findings, allowed his trial by the juvenile justice court, the apex court said assailing trial court order and high court upholding it.

The decision of the trial court was upheld by the high court, prompting the victim's father to move the apex court.

"While the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority," the judgment said.

Under such circumstances, the "medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused", Justice Misra said.

Vijay Kumar and his father failed to prove that he was a minor at the time of the offence and hence could not have been granted the benefit of the Juvenile Justice Act which undoubtedly was a benevolent legislation, the court said.

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