4 min readNew DelhiNov 17, 2022 02:28 AM IST
First published on: Nov 16, 2022 at 11:22 AM IST
The Supreme Court on Wednesday held that an accused, declared a juvenile in the case of the gangrape and murder of an eight-year-old nomadic girl in Kathua in J&K in 2018, was an adult at the time of the offence and should, therefore, be tried as one.
The bench of Justices Ajay Rastogi and J B Pardiwala said there were “discrepancies in the certificates on record disclosing the date of birth of” the accused which showed him as a juvenile, and hence it would rely on the medical report which stated he could have been between 19 and 23 years at the time of the incident in January 2018.
The judgement, authored by Justice Pardiwala, said “the Kathua rape case involved the abduction, gang rape and murder of an eight year-old Muslim girl by name ‘X’ by six Hindu men and the respondent herein (claiming to be a juvenile) in January 2018”.
In June 2019, a court in Pathankot, where the trial was transferred, sentenced three accused to life imprisonment and three former police personnel to five years imprisonment for destruction of evidence. A seventh accused was acquitted and the eighth was to be tried as a juvenile.
The bench of Justices Rastogi and Pardiwala also expressed concern over the “rising rate of juvenile delinquency” in the country and said this “makes us wonder whether the (Juvenile Justice) Act, 2015 has subserved its object”.
“We have started gathering an impression that the leniency with which juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes,” the bench said, leaving it to the “Government to consider whether its enactment of 2015 has proved to be effective or something still needs to be done in the matter before it is too late in the day”.
It said though “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. In the absence of all other acceptable materials, if such opinion of the experts points to a reasonable possibility regarding the range of his age, the Court must consider the same in the interest of justice”.
The Chief Judicial Magistrate, Kathua, and the High Court of Jammu and Kashmir had held that the accused was a juvenile on the basis of dates recorded by the Executive Officer, Municipal Committee, Hiranagar, in April 2004 which showed the date of birth of the accused as October 23, 2002.
Appealing against the HC order, the then State of J&K said there was no cogent, clear and convincing documentary evidence on record to suggest or indicate that the respondent was born on October 23, 2002.
Agreeing, the Supreme Court said, “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. 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”.
In January 2018, an eight-year-old girl belonging to a nomadic community was allegedly abducted, gangraped and murdered by six persons. 
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