Dr.(Smt.)Rakhee Sharma vs Union Of India

The applicant has filed this Criminal Revision under Section 53 of Juvenile Justice (Care & Protection of Children) Act, 2000 (for brevity, the ''Act'') read with Section 397/401 of Code of Criminal Procedure, 1973 (CrPC) against the order dated 16.11.2013, passed by Second Additional Sessions Judge, Sabalgarh district Morena in Sessions Trial No. 110/2013, whereby the application filed by the applicant regarding claim of juvenility has been rejected.

Brief facts of the case are that Crime No. 494/2012 under Sections 147, 148, 302 and 307 read with Section 149 of IPC was registered against the applicant at Police Station Kailaras for the incident which occurred on 12.11.2012. The applicant was arrested on 19.12.2012 and the age of applicant was mentioned above 18 years in the arrest memo. The mother of the applicant moved an application under Sections 49, 6(2), 4 and 2-K of the Act before the Second Additional Sessions Judge, Sabalgarh District Morena for and claimed the applicant juvenile at the time of incident and prayed that his case be tried by the appropriate authority which was rejected by the impugned order.

Learned counsel for the applicant submits that the impugned order is contrary to law. The trial Court has not properly appreciated the evidence and material available on record. The court below has committed grave illegality in discarding the evidence, which was otherwise a conclusive proof to show that the actual date of birth of the applicant is 5.3.1995, which was wrongly mentioned as 3.3.1994 in the scholar register of Saraswati Shishu Mandir, Kailaras. He submits that the trial court has erred in coming to the conclusion rejecting the claim of juvenility of the applicant without seeking the medical opinion of a duly constituted medical board and considering the fact that the mother of the applicant has made assertion that there is indeed discrepancy so far as the date of birth of the applicant is concerned in the scholar register of the school. The trial Court has failed to consider primary evidence adduced to prove the date of birth by the applicant, hence, it is prayed that the impugned order be set aside.

Learned counsel appearing on behalf of respondent No.1 supported the impugned order and submitted that in view of the provision of Section 12(3) of the Act, the impugned order does not warrant any interference, hence, prayed for dismissal of the revision application.

I have considered the submissions advanced by the parties and perused the record.

Before coming to the controversy involved in the matter, it would be useful to reproduce Section 12 of the Act, which is as under:- "12. 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 marking 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 cs may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and sent him to be 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 -

(1) (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 the 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 Committed, 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.

(4) If the age of the juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule(3), the Court or the Board or as the case may be the committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save the except where, further inquiry or otherwise is required, inter alia in terms of Section 7 -A, Section 6-4 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

In the case of Abuzar Hossain alias Gulam Hossain vs. State of West Bengal, AIR 2013 SC 1020, the Hon''ble Apex Court has summarised the for determining the juvenility of an accused. In para 39.3 of the judgment, it has been held as under:- "39.3 As to what materials would prima facie satisfy the Court and/or are sufficient for discharging the initial burden cannot be catalogued nor can if be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the Court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and / or acceptability of the documents like the school leaving certificate or the voters'' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima case accepted or rejected. In Akbar Sheikh (AIR 2009 SC (supp) 1638 and Pawan (2009 AIR SCW 2171) these documents were not found prima facie credible while in Jitendra Singh (AIR 2011 SC (Cri) 51) the documents viz. School leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant''s age. If such documents prima facie inspire confidence of the Court, the Court may act upon such documents for the purpose of Section 7-A and order an enquiry for determination of the age of the delinquent"

Ramjilal Tyagi (AW-3) and Premwati (AW-5) stated in their statement that the applicant was born on 5.3.1995. He was admitted in class-1 in Saraswati Shishu Mandir, Kailaras, thereafter in class-5th, he was got admitted in Chaudhary Memorial School, Kailaras. In the scholar register of Saraswati Shishu Mandir, Kailaras, the date of birth of the applicant has been mentioned as 3.3.1994 and as per mark sheet of 5th class, his date of birth is 5.3.1994. From the admission form, Ex.A/2, it appears that it was filled in by the elder brother of the applicant, namely, Omprakash although father of the applicant Ramjilal Tyagi in his cross-examination stated that his wife Premwati went to get the applicant admitted in Saraswati Shishu Mandir, Kailaras but Premwati in her cross-examination has denied this fact. The elder brother of the applicant, Omprakash has not been examined by the applicant, therefore, it is not clear that on what basis he had entered the date of birth of the applicant as 3.3.1994 on the admission form of Saraswati Shishu Mandir, Kailaras.

Ram Kumar Dwivedi (AW-2), the Principal of Saraswati Shishu Mandir Kailaras, stated that he produced the admission form of the applicant, Ex.A/2, and scholar register of the school, Article ''B'', and entry at serial No. 173, Ex.A/3 dated 20.8.1999, which reflected the date of birth of the applicant to be 3.3.1994.

The next document, which is essential for adjudication of the case in hand is admission register maintained by Chaudhary Memorial School, Kailaras, to which the applicant migrated for pursuing studies from class-5thth. The entry at serial No.906 reflects the name of the applicant and corresponding column indicates the date of birth to be 5.3.1994. In this regard, the statement of Lakhan Singh (AW-3) points at transfer certificate as the basis of recording the said date of birth.

On the face of the aforementioned documents, the statements of Ramjilal Tyagi (AW-3) and Premwati (AW- 5) to the extent they relate to actual date of birth of the applicant, lose significance as their claim about the date of birth of the applicant being 5.3.1995 is not backed by any cogent evidence. In fact for the same reason, the assertion by them that they made efforts for correction in date of birth after finding the wrong mention of date of birth in class-5th mark sheet, is rendered unreliable. To the contrary, the statement of applicant records his admission about mentioning of 5.3.1994 as his date of birth in class-8th and Intermediate mark sheets.

On cumulative consideration of these circumstances, this Court is of the considered opinion that the court below has not committed any error warranting interference by this Court. The proposition sought to be established by the applicant that his date of birth is 5.3.1995 is defeated as the credible material brought on record indicates otherwise, which has been discussed in preceding paragraphs. The offence is alleged to have been committed on 12.11.2012. Thus, on the date of offence applicant Rishiraj was above 18 years of age, hence, he was not a juvenile.

Consequently, the revision application being devoid of any merit is hereby dismissed.