Darshan Singh vs State of U.P. and Another

Satish Chandra Agarwal, J.—This revision u/s 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ''Act'') is directed against the order dated 26.4.2013 passed by Sessions Judge, Rampur in Criminal Appeal No. 10 of 2013 as well as order dated 20.2.2013 passed by Juvenile Justice Board, Rampur (hereinafter referred to as the ''Board'') in Crime No. 1563 of 2011, State v. Raju & others, u/s 302 IPC, P.S. Bilaspur, District-Rampur, whereby opposite party No. 2, Mandeep Singh was declared to be a juvenile in conflict with law. Heard Sri. Varinder Singh, learned counsel for the revisionist, learned AGA for the State and Sri. R.K. Mishra, learned counsel for opposite party No. 2.

The facts are that opposite party No. 2, Mandeep Singh is an accused in the aforesaid crime. He is alleged to have committed murder of his uncle, Gurmeet Singh on 3.11.2011 at about 1.30 p.m. by fire arm injury. The FIR was lodged by Darshan Singh father of the victim on the same day at 2.45 p.m. naming opposite party No. 2, Jogendra Singh and Raju. An application Was filed by Smt. Baljinder Kaur, mother of opposite party No. 2 stating therein that according to the school records of Gurunanak Inter College, Bilaspur, the date of birth of his son Mandeep is 1.2.1995 and at the time of incident, he was aged about 16 years and 10 months. It was prayed that Mandeep be declared as juvenile on the date of incident.

Objections against the application wore filed by Smt. Saranjeet Kaur, wife of the deceased and also by Darshan Singh, father of the deceased stating therein that Mandeep was born in February, 1993 and he never studied in Gurunanak Inter College. The school certificate is forged. The opposite party No. 2 received entire education from National Public School, Bilaspur. It was also stated by Darshan Singh that Mandeep claiming himself to be an adult, applied in form No. 6 for being considered as a voter and his name was accordingly registered as a voter according to Section 29-C of U.P. Panchayat Raj Act.

During enquiry, the Board examined E.W. 1 Santokh Singh Khalsa, the Principal of Gurunanak Inter College, E.W. 2 Baljinder Kaur and E.W. 3 Jane Alam, Secretary Village Panchayat Ramnagar. On behalf of the complainant and the wife of the deceased, two persons E.D.W. 1 Amar Pal Yadav and E.D.W.2 Smt. Charanjeet Kaur were examined.

The Principal of Gurunanak Inter College, Bilaspur stated that according to the school records, Mandeep was admitted in the school on 5.7.2004 in class-VI on the basis of an affidavit and the date of birth 1.2.1995 was recorded in the school records on the basis of affidavit. Opposite party No. 2 studied in his school upto class-DC and after failing in class-IX, he remained absent and T.C. was issued on 11.1.2012.

E.D. 2 Smt. Baljinder Kaur, the mother of opposite party No. 2 stated that Mandeep was born in 1995. E.D. 3 Jane Alam, Secretary Village Panchayat stated that according to Family Register, the date of birth of Mandeep is 1.2.1995.

The opposite party No. 2 was also subjected to examination by Medical Board constituted by C.M.O., Rampur and according to Medical Report dated 28.6.2012, the age of opposite party No. 2 was found to be about 22 years.

The Board considering the evidence available on record in the form of copy of scholar register of Gurunanak Inter College, held the date of birth of opposite party No. 2 to be 1.2.1995 and consequently, declared him to be a juvenile. Criminal appeal preferred by the complainant was dismissed by learned Sessions Judge.

It is submitted by learned counsel for the revisionist that the Board has not conducted an enquiry into the question of juvenility of opposite party No. 2 in a proper manner and the opposite party No. 2 has been declared to be a juvenile simply on the basis of school entries of class VI to class-IX recorded in Gurunanak Inter College, Bilaspur, which was made on the basis of affidavit given by father of opposite party No. 2. No evidence was laid to show as to where opposite party No. 2 studied in class I to class V and Gurunanak Inter College not being the school first attended, the date of birth recorded in such school could not have been relied upon as per Rule 12 (3) of Juvenile Justice (Care and Protection of Children) Act, 2007 (hereinafter referred to as the ''Rules, 2007''). It was further submitted that entries in the family register cannot be deemed to be correct as there is no evidence to show as to when this entry was made. Moreover, the date of birth of two elder sisters of opposite party No. 2 namely, Pawandeep Kaur and Malkeet Kaur have been recorded as 1.1.1994 and 2.1.1994 and, therefore, these entries could not be said to be correct. Two sisters of opposite party No. 2 cannot take birth in an interval of 24 hours only.

Per contra, learned counsel for opposite party No. 2 submitted that the Board as well as learned Sessions Judge have properly appreciated the evidence lead by the parties and on the basis of school records came to the conclusion that the date of birth of opposite party No. 2 is 1.2.1995 and he was a juvenile on the date of incident and this finding does not suffer from any error or illegality and, therefore, this Court is not required to interfere in the matter.

Section 7A of the Act provides as under:--

7A. Procedure to be followed when claim of juvenility is raised before any court. (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence if any, passed by a court shall be deemed to have no effect.

Rule 12 (3) of Rules, 2007 provides as under:--

(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, if 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.

According to section 7A, whenever a question of juvenility is raised on behalf of the accused, the court shall hold an enquiry into question of juvenility of the accused and shall take all such evidence as may be necessary to determine the age of the accused as merely (sic) as may be. To hold an enquiry into a question of juvenility of an accused, does not amount to criminal trial but the court must take an active part in the enquiry and must not act simply as a referee between two litigating factions. When the copy of the school register of Gurunanak Inter College Bilaspur was filed to show the date of birth of opposite party No. 2 to be 1.2.1995, it also came to the knowledge of the Board that the opposite party No. 2 was admitted in this school on 5.7.2004 in class-VI and the date of birth was recorded in the college on the basis of an affidavit of father of opposite party No. 2. Father of opposite party No. 2 has not been examined during enquiry. Copy of affidavit filed by him is on paper No. 73 of the paper book (Annexure No. 6). Para No. 2 of this affidavit narrates that Mandeep Singh had passed class-V examination in the year 2003-2004 but no evidence was led on behalf of opposite party No. 2 to show in which school, he studied from class-I to class-V and no certificate from such school was filed.

Admittedly, opposite party No. 2 has not passed matriculation examination and, therefore, there is no matriculation or equivalent certificate to show his date of birth. In the absence of matriculation certificate, the date of birth recorded in the school first attended has to be taken into consideration. No documentary or oral evidence was led to show the date of birth recorded in the school first attended. It was the case of the complainant that opposite party No. 2 studied in village school. Even from the affidavit, it is apparent that opposite party No. 2 passed class-V examination in the year 2003-04. There was no difficulty in filing the documentary evidence regarding date of birth recorded in the school first attended but the same evidence appears to be deliberately withheld by opposite party No. 2. Even if no evidence was led on behalf of opposite party No. 2 to show his date of birth recorded in the school first attended, it was the duty of the Board to summon the relevant documents from the village school or the school where opposite party No. 2 studied from class I to class V and a decision regarding age of opposite party No. 2 could have been taken on that basis but the Board did not consider it proper to summon any such records or witnesses.

A person cannot be permitted to play hide and seek with the court. He cannot be permitted to claim juvenility on the basis of entries of class VI and withholding the records of class I to class V. According to Rule 12 (3), the entry in the school first attended is relevant and the entries in the subsequent school cannot be taken into consideration. Even family register does not appear to be correct if we look into the dates of birth of sisters of opposite party No. 2. According to medical opinion, the age of the opposite party No. 2 was about 22 years.

In the aforesaid circumstances, I have come to the conclusion that Board has not properly conducted enquiry as envisaged under the provisions of Juvenile Justice Act and matter has to be remanded for a fresh decision. The Sessions Court has also not considered this aspect of the matter. The revision is allowed. The impugned order dated 26.4.2013 passed by Sessions Judge, Rampur in Criminal Appeal No. 10 of 2013, Darshan Singh v. State of U.P. & another as well as order dated 20.2.2013 passed by Juvenile Justice Board, Rampur declaring opposite party No. 2 as juvenile are quashed and the matter is remanded to the Board for taking a fresh decision regarding juvenility of opposite party No. 2 after taking evidence regarding education of opposite party No. 2 from class I to class V. It shall be the duty of the opposite party No. 2 to assist the Board in all possible manner and to provide information regarding his school first attended etc. If such an information is not provided and information is withheld from the Board, the Board shall be at liberty to take decision on the basis of opinion of the Medical Board in accordance with Rule 12(3) of Rules 2007.