Gauhati High Court
Md Harmuj Ali @ Hurmuj Ali vs The State Of Assam And Anr on 12 August, 2025
Page No.# 1/6
GAHC010149672025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./802/2025
MD HARMUJ ALI @ HURMUJ ALI
S/O MD. MINUL HOQUE, VILL. 1 NO. JHARGAON/BHOLABARI, P.S.
KALAIGAON, DIST. UDALGURI, BTAD, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM.
2:KARIM ALI
S/O LATE ABDUL SEIKH
VILL. 1 NO. JHARGAON
P.O. RANIPUKHURI
P.S. KALAIGAON
DIST. UDALGURI
BTAD
ASSAM
PIN 78419
Advocate for the Petitioner : K RAHMAN, MR. SAIDUL ALOM,MR. N. ISLAM
Advocate for the Respondent : PP, ASSAM, MR. L GOGOI (R-2)
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 12.08.2025
1. Heard Mr. K. Rahman, learned counsel for the petitioner. Also heard Mr.
K. K. Das, learned Additional Public Prosecutor appearing for the State of Assam
Page No.# 2/6
as well as Mr. L. Gogoi, learned counsel for the respondent No. 2.
2. This application under Section 528 of the BNSS, 2023 has been filed by
the petitioner, namely, Md. Harmuj Ali @ Hurmuj Ali , impugning the order dated
11.06.2025, passed in Special (POCSO) Case No.55/2019 in Kalaigaon P.S. Case
No.73/2018, pending before the Court of learned Special Judge (POCSO),
Udalguri.
3. By the impugned order, the Trial Court has rejected the plea of
juvenility raised by the petitioner before the Trial Court.
4. The facts relevant for consideration of the instant criminal petition, in
brief, are that on 06.07.2018, the maternal uncle of the victim had lodged an
FIR before the Officer-in-charge of Kalaigaon Police Station, inter alia, alleging
that during the absence of any family members of the victim in her house, the
petitioner had committed rape on her. It is also alleged that the victim girl was
minor when the alleged offence was committed. After completion of the
investigation, charge-sheet was laid against the petitioner and one Julfikar Ali
under Sections 448/354B/34 of the Indian Penal Code read with Section 8 of the
POCSO Act, 2012. During pendency of the trial, the petitioner had filed a
Petition No. 1122/2025 before the Trial Court taking the plea of juvenility. In
support of the said plea, the petitioner had produced leaving/transfer certificate
of school, wherein his date of birth was shown as 29.03.2002. The Trial Court
conducted an enquiry during which the Headmaster of No. 1 Jhargaon
Hajichuba L.P. School was examined along with school register. However, the
Trial Court declined to rely on the evidence produced by the Headmaster and
rejected the plea of juvenility raised by the petitioner.
5. The learned counsel for the petitioner has submitted that the petitioner
Page No.# 3/6
was a juvenile when the alleged offence was committed. As the petitioner was
born on 29.08.2002 and the alleged offence was committed on 05.07.2018, the
learned counsel for the petitioner submits that the petitioner was of 16(sixteen)
years of age in the year 2018.
6. The learned counsel for the petitioner has submitted that if the Trial
Court was not convinced with the birth certificate produced by the petitioner, it
ought to have taken recourse to the procedure prescribed in Section 94(2) of
the Juvenile Justice (Care and Protection of Children) Act, 2015 by directing the
ossification test of the petitioner. He submits that as the petitioner has
discharged his initial burden of proving the plea of juvenility by producing the
school leaving certificate and as he is presently 22 years, even now the
ossification test may be directed for finding out his age at the time of
commission of alleged offence.
7. On the other hand, the learned Additional Public Prosecutor has
opposed the criminal petition filed by the petitioner. He has submitted that the
trial has already culminated and the Special (POCSO) Case No.55/2019 is
pending for delivery of judgment on 13.08.2025. He submits that at this belated
stage when the plea of the juvenility has been rejected by the Trial Court after
conducting an enquiry, the impugned order may not be interfered with. He
submits that the Trial Court has rightly declined to rely on the school leaving
certificate as the date of birth of the petitioner in the said school leaving
certificate was inserted merely on the oral version of his parents. No birth
certificate was produced by the parents at the time of taking admission in the
school.
8. The learned Additional Public Prosecutor has also submitted that the
Trial Court has also opined that by observing the petitioner, it can be held that
Page No.# 4/6
he was major at the time when the alleged offence was committed. He,
therefore, prays for dismissing this criminal petition.
9. Mr. L. Gogoi, learned counsel for the respondent No. 2 has also
opposed the criminal petition filed by the petitioner and had made submissions
similar to that of learned Additional Public Prosecutor.
10. I have considered the submissions made by the learned counsel for both
the sides and have gone through the materials available on record.
11. In the instant case, the petitioner apart from challenging the impugned
order has also raised a claim of being juvenile at the time of the alleged
commission of the crime (on 05.07.2018). Though, the said plea was dismissed
by the Trial Court, however, there is no dispute regarding the proposition of law
that the plea of juvenility may be raised at any stage.
12. Section 94 of the Juvenile Justice (Care and Protection of Children) Act,
2015 provides as follows:-
“94. Presumption and determination of age.–(1) Where, it is obvious to the
Committee or the Board, based on the appearance of the person brought before
it under any of the provisions of this Act (other than for the purpose of giving
evidence) that the said person is a child, the Committee or the Board shall record
such observation stating the age of the child as nearly as may be and proceed
with the inquiry under section 14 or section 36, as the case may be, without
waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt
regarding whether the person brought before it is a child or not, the Committee
or the Board, as the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining–
(i) the date of birth certificate from the school, or the matriculation or
equivalent certificate from the concerned examination Board, if available;
and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a
panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall be determined
Page No.# 5/6by an ossification test or any other latest medical age determination test
conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee
or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so
brought before it shall, for the purpose of this Act, be deemed to be the true age
of that person.
13. It is clear from the aforementioned provisions that while enquiring into
the age of the person/accused, the evidence for the said purpose may be
collected by obtaining (a) date of birth certificate from the school, (b) birth
certificate by Municipal Authority or Panchayat and (c) in absence of (a) and (b)
by an ossification test or other latest medical age determination test.
14. In the instant case, during the enquiry conducted by the Trial Court, the
school leaving certificate issued by the Headmaster of the school, where the
petitioner claims to have studied, was produced. However, the Trial Court after
examining the School Headmaster did not rely on the said evidence as it was
found that the date of birth was inserted in the said school leaving certificate on
the basis of oral information provided by the parents of the petitioner. The first
reasoning given by the Trial Court in the impugned order cannot be faulted with.
However, the second reasoning, i.e., by observing the petitioner (in the year
2025) the Trail Court opined that he was a major at the time of commission of
offence (in the year 2018) does not appear to be reasonable. If the Trial Court
doubted the school leaving certificate produced by the petitioner, and rightly so,
the Trial Court ought to have proceeded to the third option provided in Section
94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 i.e., it
ought to have ordered the determination of age of the petitioner by an
ossification test or other latest medical age determination test.
Page No.# 6/6
15. In view of the discussion made in the foregoing paragraphs, the Trial
Court is hereby directed to conduct further enquiry to determine the age/date of
birth of the petitioner according to the provision contained in 94(2)(iii) of the
Juvenile Justice (Care and Protection of Children) Act, 2015 by subjecting the
petitioner to an ossification test or other latest medical age determination test.
16. The Trial Court is directed to complete the further enquiry within a
month of the date of receipt of a copy of this order.
17. During the pendency of the said enquiry, the further proceeding of
Special (POCSO) Case No.55/2019 shall remain suspended.
18. After conclusion of further enquiry as directed by this Court, the Trial
Court shall proceed accordingly depending on its finding in the further enquiry
regarding ascertainment of age of the above named petitioner.
19. With the above observation, this criminal petition is hereby disposed of.
20. Let a copy of this order be furnished to the Trial Court for doing the
needful.
JUDGE
Comparing Assistant