Dhanaji Ramchandra Surwase vs State of Maharashtra

A.S. Oka, J.—The present Appeal is preferred by the Accused Nos. 1 and 2 for challenging the judgment and order dated 15th September, 2004 under which the Appellants have been convicted for the offences punishable u/s 302 read with Section 34 and Section 324 read with Section 34 and Section 341 read with Section 34 of the Indian Penal Code. The second Appellant (second Accused) filed Criminal Application No. 1224 of 2012 raising a contention that he was a juvenile in conflict with law as defined u/s 2(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the said Act"). The contention raised in the Application on the basis of the School Leaving Certificate is that the date of birth of the second Appellant is 4th August, 1986. The learned counsel appearing for the Applicant relied upon the record of the school such as General Register, School Leaving Certificate, etc. We may note here that under the order dated 11th March, 2010 passed by this Court, the second Appellant was allowed to lead evidence before the Trial Court on the issue of his date of birth. The learned counsel appearing for the Applicant has invited our attention to the evidence of the witnesses examined by the Applicant on the basis of a liberty granted by this Court. She submitted that the school record has been prepared on the basis of the information supplied by the father of the second Appellant on 9th June, 1992 which discloses the date of birth of the second Appellant as 4th August, 1986. She also invited our attention to the order dated 14th August, 2012 passed by this Court and pointed out that on the basis of the said order, the first Appellant who is the father of the second Appellant has been examined as a witness to prove the date of birth. Her submission is that the evidence of the first Appellant proves that he supplied information to the school authority on 9th June, 1992 disclosing the date of birth of the second Appellant as 4th August, 1986. The learned counsel, therefore, submitted that as the date of the incident is 11th November, 2002, on that date, the second Appellant was a juvenile in conflict with law.

The learned APP invited our attention to the birth register maintained by the Village Panchayat and submitted that there is overwriting in the date of birth and someone has tried to convert the year of birth from 1984 to 1986. The submission is that the birth register maintained by the Gram Panchayat has been tampered.

We have given careful consideration to the submissions. The inquiry as regards the date of birth was required to be held as per Section 7(A) of the said Act. The procedure for holding the inquiry has been laid down in the Juvenile Justice (Care and Protection of Children) Rules, 2007. Sub-rule (3) of Rule 12 is material which lays down that for determining the age, an inquiry shall be conducted by the Court by seeking evidence by obtaining three documents specified in Clause (a) of Sub-section (3) thereof. The first document is the matriculation or equivalent certification and the second document is the date of birth certificate from the school (other than a play school) first attended, and only in the absence of these two documents that the birth certificate given by the Corporation or Panchayat is required to be obtained.

In the present case, the Applicant has relied upon the school leaving certificate issued by the School which discloses the date of his birth as 4th August, 1986.

In this behalf, it will be necessary to make a reference to the evidence of Sunanda Annu Swam, who was working as a Head Mistress in the Zilla Parishad Primary School where the second Appellant was admitted. She produced general register, admission form and the school leaving certificate of the second Appellant. She stated that the date of birth of the second Appellant recorded therein was 4th August, 1986. She also produced application form filled in by the first Appellant at the time of securing admission to the second Appellant to the concerned school. She also produced extract of general register maintained by the school. In the cross-examination, she stated that the date of birth mentioned as 4th August, 1986 on the admission form was in the handwriting of the then Head Master. She stated that the date written by the then Head Master is on the basis of the disclosure made by the guardian of the concerned student. At this stage, a reference will have to be also made to the evidence of Witness No. 4 Shivaji Ramchandra Salunkhe examined by the second Appellant. He stated that he was at the relevant time working in the Zilla Parishad Primary School where the second Appellant was a student. He identified his handwriting on the original form as well as his signature. He also identified the signature of the guardian of the second Appellant. He stated that the entry in the general register was made on the basis of the original admission form. He proved the entry in the general register by stating that the same was in his handwriting.

In the evidence of the first Appellant, the father of the second Appellant, it is stated that the date of birth of the second Appellant is 4th August, 1986. He stated that on 2nd June, 1982, his daughter was born and the second Appellant is the second issue. He stated that on 7th June, 1988, the second son was born. He stated that the dates of birth of the children are not registered in the office of grampanchayat.

The conjoint reading of the evidence of the three witnesses shows that at the time of securing admission to the school, the father of the second Appellant, on 9th June, 1992 disclosed the date of birth of the second Appellant as 4th August, 1986. As on that date, he had no reason to make any false or incorrect statement as regards the date of birth of the second Appellant. On the basis of the said form which was the basic document, the entry of the same date of birth was made in the General Register maintained by the school and that is how the same date of birth is reflected in the School Leaving Certificate.

Therefore, there is no reason to doubt the genuineness of the Application form dated 9th June, 1992 which has been duly proved. Therefore, the School Leaving Certificate, the contents of which are duly proved, is a document covered by Sub-clause (ii) of Clause (a) of Sub-Rule (3) of Rule 12 of the said Rules. Sub-clause (iii) provides that the birth certificate issued by the Panchayat can be taken into consideration only in absence of date of birth certificate from the school which was first attended by the Accused.

It is, therefore, not necessary to go into the question whether there is overwriting in the date of birth in the birth register maintained by the Village Panchayat. We may note that the contention of the learned counsel appearing for the second Appellant is that in fact by overwriting, the year 1986 has been converted into the year 1984.

Therefore, by relying upon the documents specified in Sub-clause (ii) of Clause (a) of Sub-Rule (3) of Rule 12 of the said Rules, a finding will have to be recorded that the date of birth of the second Appellant is 4th August, 1986. Therefore, on the date of commission of the alleged offence he was is a juvenile in conflict with law. The date of commission of the alleged offence is 11th November, 2002.

Learned counsel appearing for the second Appellant pointed out that the second Appellant has already undergone the sentence for more than eight years which is reflected from the record.

In normal course, after finding that the Accused was a juvenile, he is required to be forwarded to the Board for passing appropriate order. However, perusal of the provisions of the said Act and in particular Section 15 shows that at highest the Board could have penalized the second Appellant by detaining him for a maximum period of three years. Therefore, no purpose will be served by sending the second Appellant to the Board. Therefore, without disturbing the conviction, the order of sentence imposed on the second Appellant will have to be set aside. Hence, we pass the following order:

ORDER:

(a) Criminal Application No. 1224 of 2012 is allowed;

(b) Though the order of conviction is confirmed, the substantive sentence imposed on Shri Dhanaji Ramchandra Surwase is quashed and set aside;

(c) The second Appellant shall be forthwith set at liberty unless he is required in connection with other cases;

(d) Criminal Appeal will proceed only as far as the first Appellant is concerned;

(e) The Appeal shall be added to the final hearing board to be notified in the week commencing from 22nd October, 2012.