Akram and Another vs State of Rajasthan

Shiv Kumar Sharma, J.—The petitioners have submitted instant misc. petition impugning the order dated August 2, 1997 of the learned Additional Sessions Judge. Sikar whereby the application of the petitioners purported to have been filed u/s 32 of the Juvenile Justice Act. 1986 (for short the Act), questioning the jurisdiction of the Court was dismissed and it was held that the petitioner were more than 16 years of age on the date of incident.

Brief resume of the facts is that the petitioners are facing the trial in sessions case No. 16/1996 under Sections 147, 148, 307, 326, 323 and 341 IPC. in the Court of learned Additional Sessions Judge, Sikar. The petitioners moved an application before the said Court with a request that proceedings may be dropped against them on the ground that on the alleged date of incident i.e., on September 14, 1994 they were less than 16 years of age. The date of birth of the petitioner Akram was January 7, 1980 whereas petitioner Lakhu @ Aklakh was born on December 9, 1978. Learned Additional Sessions Judge initiated inquiry and recorded the statements of Jishan Ali (AW. 1), Noor Mohd. (AW. 2), Dr. Shyam Sunder (AW. 3) and Dr. Yudhvar Singh (AW. 4). Transfer certificate and birth certificate respectively issued by the Head Master Naveen Vidhya Niketan, Sikar and Municipality Fatehpur as well as medical certificate in respect of the age of the petitioners were considered and after discussing the evidence the learned Court below dismissed the application of the petitioners and held that the petitioners were above sixteen years of age on the date of incident.

I have given my anxious consideration to the rival contentions and carefully perused the impugned order as well as the documents produced before me.

Mr. Anoop Dhand, learned Counsel appearing for the petitioner placed reliance on Narsingh v. State of Rajasthan ( 1997 Cri. L.R.815 (Raj.) Jitmohan Lohar Vs. State of Orissa, Umesh Chandra Vs. State of Rajasthan, and Balasaheb v. The State of Maharashtra 1994 Cr. L.J. 3044.

On the other hand, learned Public Prosecutor, Shri S.M Poddar, supported the impugned order and canvassed that in the facts and circumstances of the case, the learned Court below has rightly placed reliance on the medical reports.

At this juncture it will be useful to refer the definition of word juvenile''. Section 2(h) of the Act provides as under:

2(h) ''Juvenile'' means a boy who has hot attained the age of sixteen years or a girl who has not attained the age of eighteen years.

In the case on hand, on behalf of the petitioner Akram, Transfer certificate issued by the Head Master, Naveen Vidhya Niketan, Sikar was produced before the learned Court below showing his date of birth as 7.1.1980. On behalf of the petitioner Lakhu @ Akhlakh birth certificate issued by the Municipality Fatehpur dated 26.6.1996 was produced. In support of the contentions that the petitioners were less than 16 years of age on the date of occurrence Jishan Ali (AW. 1) and Noor Mohammed (AW. 2) were examined. Admittedly Jeeshan Ali is not the father of Akram. He is maternal uncle of the accused petitioner. He stated that he admitted accused Akram in Naveen Vidya Niketan on July 1, 1989 and his date of birth is Jan. 7. 1980. Whereas Noor Mohammed (AW. 2) Staled that he resides in front of the house of the petitioner Lakhu @ Aklakh and he does not know his date of birth. So far as the petitioner Lakhu is concerned there is no oral testimony to support his contention that he was less than 16 years of age on the date of occurrence.

I have myself perused the certified copy of the birth certificate issued on June 26, 1996 by the Municipality Fatehpur. A perusal of the said certificate goes to show that Jamila delivered a male child on 9.12.1978. The entry of the birth of said male child was entered for the first time on June 26, 1996 i.e., after the date of occurrence. Therefore no reliance can be placed on such certificate. Moreover it has not been brought on record that Jamila is the mother of petitioner Lakhu and she gave birth to only one male child. So it is difficult to believe that the said certificate relates to the petitioner Lakhu.

So far as transfer certificate issued in the name of Akram is concerned, there is an overwriting in the column of date of birth and this overwriting has not been explained. AW. 1 Jishan Ali has not stated that father or mother of petitioner Akram are not alive. Therefore the testimony of maternal uncle cannot be relied upon.

In Umesh Chandra v. State of Rajasthan (supra) their Lordships of the Supreme Court propounded that:

It could not be said that the admission forms as also the school''s register both of which were according to the evidence, maintained in due course of business were not admissible in evidence because they were not kept or made by any public officer, u/s 35, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. Therefore those documents would be admissible u/s 35 and Sections 73 and 74 would be irrelevant." in that case admission form Ex. D-1 was produced showing that Umesh Chandra was admitted in Class III in St. Teressa ''s Primary School Ajmer and in the admission from the date of birth of Umesh Chand was shown as 22.6.1957. The form was signed by Sister Stella who was the Headmistress. The form also contained the seal of the school. DW. Ratilal Mehta, who proved the admission form had clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents. The evidence of Ratilal Mehta was corroborated by the evidence of Sister Stella, who had also endorsed the fact of the date of birth having been mentioned in the admission form and had also clearly stated on oath that the form was maintained in the regular course and it was signed by her. Under those circumstances their Lordship of the Supreme Court were of the view that the admission form was admissible in evidence. In the case on hand admittedly no admission form was produced. Only transfer certificate of a private school was produced by the petitioner Akram in which overwriting in the column of date of birth is apparent.

In Narsingh v. Stale of Rajasthan (supra) (his Court indicated that the date of birth as given in the Board Certificate issued by the Board Examination should be preferred. The age as given by the medical doctor be taken as an opinion only.

In Jitmoham Lohar v. State (supra) it was observed that where there is difference of opinion between ossification test and school admission certificate, ossification test cannot be relied upon and documentary evidence should be preferred.

In Balasahed v. State of Maharashtra (supra) it was held that according to medical jurisprudence error in case of age based on ossification test my be of three years. The authorities cited by the learned Counsel are of no help under the facts and circumstances of this case. Neither the Board certificate has been produced by the petitioner nor their admission forms and the oral testimony is also not reliable. Under these circumstances the medical examination of the petitioners can only be looked into. The learned Court below after initiating the enquiry passed the impugned order and 1 see no illegality in the said order.

Consequently, the petition stands dismissed.