Akhilesh @ Ramesh vs State of U.P. & Anr.

Kashi Nath Pandey, J.—Heard learned Counsel for the revisionist, I.N. Pandey and the learned Additional Government Advocate for the State.

Akhilesh @ Ramesh son of Sri Akhilesh @ Ramesh v. State of U.P. & Anr. Sewa Lal has filed this revision against order dated 2992008 passed by Additional Sessions Judge (Fast Track Court No. 2), Bhadohi in Session Trial No. 124AA/01 State v. Akhilesh @ Ramesh, in which learned Sessions Judge rejected the application of the revisionist in case crime No. 134 of 2001 under Sections 302/201, I.P.C. for declaring him juvenile.

It is argued that according to the medical report on the date of incident the age of the revisionist was 17 years 4 months and 5 days but it is noted that the incident is of 2001 whereas in 1999 the revisionist was a voter representing himself to be a major person, where as the Medical Board''s report is dated 1811 2008 in which his age has been concluded to be 25 years plus minus two years. Whereas the question of schools certificate is concerned, there is contradiction, in High School certificate his date of birth has been mentioned to be 131985, whereas in Primary School certificate his date of birth has been mentioned to be 961984. Even according to the medical report he was at the verge of attaining the age of majority, therefore, combined effect of all the evidence, the learned lower Court reached to the conclusion that on the date of incident he was not juvenile but was major. The conclusion drawn by the learned lower Court is based on reasonable ground and substantive evidence, therefore, it cannot be said to be perverse. If the revisionist is representing himself to be a voter in 1999 representing himself to be major, he is barred by principle of estoppel to claim otherwise after being implicated an accused in an offence punishable under Section 302/201, I.P.C. but this is one aspect of the case.

According to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007:

"Procedure to be followed in determination of age.(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in Jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be the Committee by seeking evidence by obtaining

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, it considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year,

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),(ii),(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

Section 397, Criminal Procedure Code calling for records to exercise powers of revision.(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."

Thus, sitting in revision, the Court can examine the record of any proceeding for the purpose of satisfying itself as to correctness, legality or propriety of any finding.

The learned lower Court has given more importance to the voter list of 1999, in which the revisionist has been shown as voter representing himself to be major. The learned lower Court ignored the school certificate on the ground that there is difference in date of birth of Primary School certificate and High School certificate. The Court can take notice of the fact that as there is tendency of the guardian while getting the admission of his ward to show him younger than his actual age. This is also tendency of the villagers to represent their family members as major for the sake of increasing the numbers of voters of his family. Although there is difference in date of birth of Primary School certificate and High School certificate, but either of the two if accepted, shows the revisionist to be minor at the date of incident i.e. 2332001 and even medical report is in its support, thus, Primary School certificate, High School certificate and medical certificate are in favour of, holding the revisionist as juvenile on the date of incident i.e. on 2332001. Whereas the forth evidence voter list is against him showing him to be major in 1999 election, thus, where two views are possible, which is in favour of the juvenile should be preferred. On the basis of above evidence and discussions, it is more appropriate to declare him as juvenile on the date of the incident although Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 does not impose any restriction on the power of the lower Court to enquire and reach to a just conclusion according to its discretion. But considering the facts of the present case the propriety demands that the learned lower Court should have declared the revisionist as juvenile on the date of incident, accordingly the revision deserves to be allowed. The revision is allowed. The order dated 2992008 passed by Additional Session Judge (Fast Track Court No. 2), Bhadohi in Sessions Trial No. 124A of 2001, State v. Akhilesh @ Ramesh, is set aside. He is declared to be juvenile on date of incident i.e. on 2332001.

Revision allowed.