New Delhi: The Supreme Court on Wednesday ruled that Shubam Sangra, a key accused in the gang-rape and murder of an eight-year-old nomadic girl in J&K's Kathua in 2018, was not a minor at the time of the offence and should be tried as an adult.
A bench of Justices Ajay Rastogi and J.B. Pardiwala said: "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 bench said that the serious offence which accused is alleged to have committed and gave effect to it in a well-planned manner, reflecting his maturity of mind rather than innocence, indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, and cannot be allowed to come to his rescue.
It considered the medical board's report which estimated the age of the accused above 19 years at the time of commission of the crime.
The bench said as observed by this court in Ramdeo Chauhan alias Raj Nath (case), 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 range of his age, the court must consider the same in the interest of justice," said Justice Pardiwala, who authored the judgment on behalf of the bench.
The top court set aside the order passed by the chief judicial magistrate (CJM) of Kathua and the J&K High Court. "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," said the bench, in its 66-page judgment.
It declined to believe the birth certificate and school records which had established the juvenility of the accused. The bench said it is pertinent to note that nothing much has been said on behalf of the respondent accused in regard to the credibility of the medical report prepared by the Special Medical Board consisting of five medical experts.
"At the cost of repetition, the only argument is that ignore the medical report as there is proof of the date of birth to be found in the various documents on record. We have made ourselves very clear that the documents evidencing date of birth does not inspire any confidence and there is no other option but to fall back on the report of the Special Medical Board in the interest of justice," the court said.
The crime that the respondent accused has been charged with is heinous; its execution was vicious and cruel, by any stretch of imagination. "The entire crime was calculated and ruthless. This case captured the attention and indignation of the society across the country, more particularly, in the state of Jammu and Kashmir, as a cruel crime that raised alarm regarding safety within the community," said the bench.
However, the top court clarified that the guilt or 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 the trial.
In January 2018, the minor girl was kidnapped and raped in captivity in a small village temple after keeping her sedated for four days. She was later bludgeoned to death. In February 2020, the apex court stayed the proceedings before the Juvenile Justice Board (JJB) against Sangra.
The Jammu and Kashmir administration claimed the Jammu and Kashmir High Court had erroneously affirmed the order of a trial court holding the accused as a juvenile at the time of the offence in 2018.
In June 2019, a special court sentenced three accused to life imprisonment in the case. The accused were Sanji Ram, caretaker of the temple; Deepak Khajuria, a special police officer, and Parvesh Kumar.