Nihal vs State of U.P.

Hon''ble Kalimullah Khan, J.—Heard learned counsel for the applicant and the learned A.G.A. for the State and perused the record. This Criminal revision has been directed against the impugned judgment and order dated 18.10.11 passed by learned Sessions Judge, Pilibhit in Criminal Appeal No. 108 of 2011 Nihal Versus State of U.P. u/s 52 of the Juvenile Justice ( Care and Protection of Children) Act, 2000 dismissing the appeal and upholding the order dated 15.9.11 passed by Juvenile Justice Board, Pilibhit in Case No. 21 of 2011 State Vs. Nihal, case Crime no. 909 of 2011 u/s 302/34 I.P.C., P.S. Kotwali, District Pilibhit.

Learned counsel for the revisionist has submitted that both the courts below have refused the date of birth of the revisionist as 4.7.1995 on two grounds firstly; that in his evidence father of the juvenile in conflict with law had stated that it was he who had stated to the Principal of the school the date of birth of his son the revisionist as 4.7.95 while the mother of the juvenile in conflict with law had stated before the juvenile Board that the grand father of the juvenile had told the aforesaid date of birth to the Principal. The Principal has been examined in this case and he had deposed that it was father of the juvenile who had disclosed the date of birth of the juvenile as 4.7.95. Secondly; that the transfer certificate issued by the Prathamik Vidyalaya Kala Mandir Nagar Kshetra Pilibhit speaks that juvenile revisionist was born on 4.7.95. This certificate was issued on 5.7.11. According to which juvenile had passed Class 4 examination on 12.5.2003 and his name was struck out on 10.5.2005 due to his absence in class V. Principal Layeeq has proved the aforesaid date of birth of the juvenile. Another document has been issued by Prathamik Vidyalaya Shifakhana, Nagar Kshetra, Pilibhit. It is the copy of the mark sheet of Class V which shows that he had passed Class V on 19.5.2008. Meaning thereby he was there in class V for about 5 years since 12.5.2003 to 19.5.2008 which is not convincing. Ignoring this primary school certificates of date of birth learned Juvenile Board directed the juvenile to be produced before the Medical Board to determine his radiological age. As such the radiological age was determined by the Medical Board and according to its opinion the radiological age of the juvenile revisionist is about 18 years.

He further submitted that the difference of one year in the radiological age pointed out by the Medical board is permissible under Rule 22(5) of the Juvenile Justice (Care & Protection of Children) Rules, 2007, but learned Sessions Judge has reckoned this one year towards above side of the radiological age given by the medical board and holding him to be aged about 18 to 19 years dismissed the appeal. According to the revisionist this margin of one year should have been reckoned by both the courts below towards lower side keeping in view the fact that Epiphysis around wrist joint and medival end of clavicle were found not fused by the Medical Board.

Learned A.G.A. has very honestly conceded the fact that even as per the school leaving certificate as well as the radiological age, the revisionist does not appear to have completed 18 years of age on the date of incident i.e. 15.6.11. He has further stated that in the facts and circumstances of this case the margin of one year in reckoning the age of the revisionist keeping in view the stage of fusions should have been towards the lower side.

Considered the submissions of the learned counsel for the parties.

In both the situations either considering the school leaving certificate and mark sheet referred to above or the radiological age of the revisionist opined by the medical board, revisionist appears to be juvenile on the date of incident i.e. on 15.6.11. But here in this case the finding of both the courts below disbelieving the school leaving certificate appears to be improper and incorrect in as much as the school leaving certificate as well as the mark sheet both, although issued by different schools speak the same date of birth i.e. 4.7.95. The submissions made by the learned counsel for the revisionist is fully borne out by the evidence on record, therefore, there was no justification for the Juvenile Justice Board to have called for the radiological age of the juvenile in view of the seriatim of priority of evidence to be considered for determining the age of juvenile under the provisions of Rule 22(5) of the Juvenile Justice (Care & Protection of Children) Rules, 2007. In the result revision is allowed. Both the orders impugned dated 18.10.2011 and 15.9.2011 are set aside. The Juvenile Justice Board concerned is directed to decide the question of juvenility afresh raised by the accused revisionist in accordance with law on the basis of date of birth mentioned in the school leaving certificate filed on record.