Ashwani Kumar Saxena vs State of Madhya Pradesh

M.A. Siddiqui, J.—This revision has been preferred being aggrieved by the Order dated 12.2.2009 passed in Criminal Appeal No. 15/2009 by which Ist Addl. Sessions Judge, Chhatarpur rejected the appeal by affirming the order passed by Chief Judicial Magistrate, Chhatarpur dated 1.1.2009 in Criminal Case No. 2468/2008 whereby the prayer of Petitioner being Juvenile has been rejected.

According to revision, the incident took place on 19.10.2008 under the jurisdiction of Police Station-Civil Lines, District-Chhatarpur where Darbal Yadav had succumbed to his life, consequently offence punishable under Sections 307, 302/34 read with Section 25/27 of Arms Act was registered vide Crime No. 349/2008. In that case Petitioner was main accused with two other persons, namely, Jitendra Awasthy and Ashish Tiwari. The matter was investigated and challan was filed, undisputed fact is that Petitioner has been punished in Sessions Trial No. 28/09 by Ist Addl. Sessions Judge, Chhatarpur along with other accused persons treating him to be an adult man against which he has filed Criminal Appeal No. 1134/2009 which is pending in this Court.

The contention of Petitioner is that he is a Juvenile and his date of birth is 24.10.90 so he was minor by five days to complete the age of 18 years on the day of incident. The police has wrongly shown his age more than 18 years so he agitated against it and moved proceeding before Chief Judicial Magistrate, Chhatarpur, who after full enquiry wrongly held on 1.1.09 that age of Petitioner was more than 18 years. Against which an appeal was preferred before Sessions Judge, Chhatarpur and case was heard by Ist Addl. Sessions Judge, Chhatarpur who has also on 12.02.09 rejected the appeal holding the accused-Petitioner to be an Adult. Against this appeal, this criminal revision has been preferred by the accused-Petitioner.

We have heard both the sides and perused the original record of Sessions Trial and concerned record.

From a perusal of original record, it is very much clear that an enquiry u/s 7A of The Juvenile Justice (Care & Protection of Children) Act, 2000 has been made by learned Chief Judicial Magistrate, Chhatarpur in which father of applicant Ram Mohan Saxena , Dr. R.P. Gupta, Dr. S.K. Sharma and Savitri Saxena, mother of Petitioner, have been examined as Court witnesses. The version of Ram Mohan Saxena (CW.1) and Savitri Saxena (CW.4) was that the date of birth of Ashwani Saxena is 24.10.1990 and firstly he was admitted, in Jyoti English School in Ist Class. By Ram Mohan Saxena, mark sheet of Petitioner of 5th Class vide Ex.P/1 was exhibited. Dr. R.P. Gupta (CW.2) has conducted age identification by X-ray, etc. and found that epiphysis of wrist, elbow, knee and iliac crest was fused . The doctor was of the opinion that he was more than 20 years on 14.11.08 and he gave report vied Ex.P/5. Dr. S.K. Sharma (CW.3), Medical Officer, District Hospital, Chhatarpur, on the same day, i.e. 14.11.08 conducted the teeth test of Petitioner for age identification. The doctor found that all 32 teeth were there including all wisdom teeth, so age of Ashwani was more than 21 years. Dr. R.P. Gupta (CW.2) and Dr. S.K. Sharma (CW.3) have been cross-examined by the counsel for Petitioner. Though Dr. R.P. Gupta stated that there might be margin of 3 years on both side, but Dr. S.K. Sharma (CW.3) has categorically denied such margin and he was of the firm opinion that wisdom teeth never erupt before the age of 17 and may be completed up to the age of 21 and since all four wisdom teeth were found erupted so he found that the age of Petitioner was more than 21 years.

Learned Chief Judicial Magistrate on the ground that original admission form and admission register were not called by the Petitioner so in absence of primary evidence, the date of birth according to school certificate was not proved, learned CJM has relied on various authorities in his Order dated 1.1.2009.

According to Birad Mal Singhvi Vs. Anand Purohit, Apex Court held that the entries in scholar''s register and secondary school examination records have no evidentiary value to prove age of a candidate in absence of evidence of any person on whose information the date of birth had been entered in the school records. The entry contained in the admission form or in the scholar''s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. In the present case, though the parents have been examined, but no evidence regarding the basis of date of birth was given by them and original admission form has not been called, so the learned CJM has rightly come to the conclusion that the Petitioner was not a minor.

According to Ravinder Singh Gorkhi Vs. State of U.P., the Apex Court held that u/s 35 of Evidence Act regarding School Leaving Certificate headmaster of school stating that he had no personal knowledge as to birth date, register maintained by the school were not produced, second copy of school leaving certificate was produced and not its original copy, claim of accused on the basis of school leaving certificate that he was 16 years of age at the time of commission of offence and should not be sentenced for life imprisonment by giving him benefit under U.P. Children Act was disallowed. It has been further held by the Apex Court that school leaving certificate which was not issued by person who was in school at time when person was admitted therein cannot be relied upon.

Another type of evidence which was placed before learned CJM was of horoscope for which reasonings of concoction have been given. Learned CJM found that as per scientific examination the age of applicant was more than 18 years and horoscope was recently prepared, so he dismissed the claim of Petitioner.

According to Devendra Singh v. State of M.P. 1998 (II) MPJR 56 a Single Bench of this Court held that the school register cannot be treated to be conclusive for determination of age because there is tendency in the parents to under state the age or sometimes to enhance the age and question relating to age cannot be decided without any enquiry. In the present case a valid enquiry has been conducted by the learned CJM, and has reached to the possible conclusion.

The order passed by the CJM on 1.1.2009 was challenged before Ist Addl. Sessions Judge through Criminal Appeal No. 15/2009 and learned Ist ASJ vide judgment dated 12.02.2009 by giving reasons that another criminal case u/s 376 IPC was also pending consideration against the applicant, but no such plea of applicant being Juvenile was taken by the applicant in that case and Appellant has not produced the original admission form, dismissed the appeal filed by the Petitioner.

Learned Counsel for Petitioner has submitted that as on 29.7.2009 a challan against Petitioner under Sections 341, 323, 294, 506 Part-II was produced before the Juvenile Court in which it was mentioned that date of birth of Petitioner was 24.10.90 and cognizance was taken against him. For this learned Deputy Advocate General appearing for the State has submitted that no enquiry was done by the Juvenile Court and the challan filed by the police was accepted in normal course. The enquiry was properly conducted by the learned CJM in present case before passing Order dated 1.1.2009. Learned Counsel for the Petitioner has also submitted that since the school register was called by learned ASJ before the judgment so compliance of calling of original record was fulfilled. But here it is pertinent to note that with the register the original admission form was not called, the original admission form was the primary evidence which has not been produced. The onus was upon the Petitioner to prove his date of birth that he was below the age of 18 years at the time of alleged incident, is not discharged by Petitioner.

Undisputely, this is a revision and revision can be entertained only on the point of jurisdiction or on the error apparent on the face of record resulting in miscarriage of justice. None of these grounds are there in this revision. There is concurrent finding of two Courts below which has been arrived at after valid enquiry based on scientific test that applicant was not Juvenile. In our opinion, rightly he has not been extended the benefit of The Juvenile Justice (Care & Protection of Children) Act, 2000.

As per above discussion, we find no illegality, irregularity or any perversity in the order of learned CJM passed on 1.1.2009 and confirmed by Ist ASJ, Chhatarpur in appeal.

Resultantly, we find no force in this revision, same is dismissed.