Rama Kant vs State of M.P. and Another

B.K. Rathi, J.—Opposite Party No. 2 is an accused for offence u/s 326, IPC in Crime No. 61 of 1998, P.S. Jhangaha, District Gorakhpur, of which the FIR was lodged by the applicant. Opposite party No. 2 moved an application before the Juvenile Judge, Gorakhpur pleading that he is a juvenile. The Juvenile Judge, Gorakhpur rejected the application after considering the evidence and held that opposite party No. 2 is not a juvenile. Against that order, opposite party No. 2 preferred Criminal Appeal No. 26 of 1999 u/s 37 of the Juvenile Justice Act. The appeal was heard and decided on 20.10.1999 by IIIrd Additional Sessions Judge, Gorakhpur and he has declared opposite party No. 2 a juvenile. Against that order, the present revision has been preferred by the complainant.

2.1 have heard Sri H.N. Singh, learned Counsel for the complainant revisionist and Sri B.K. Tripathi, learned Counsel for opposite-party No. 2, who is accused in this case.

The perusal of the orders show that in support of the allegations of opposite party No. 2 that he is a juvenile, opposite party No. 2 filed affidavits of his father and brother. He also produced the copy of Scholars Register, according to which opposite party No. 2 took admission in class-VI in Janta Inter College, Brahampur, Gorakhpur and his name was struck of while he. was in class X. The application submitted on behalf of opposite party No. 2 for taking admission in the school was also produced. In these documents the date of birth of opposite party No. 2 is mentioned as 5.2.1984. The incident took place on 9.4.1998 and therefore, it was alleged by opposite party No. 2 that on the date of incident his age was 14 years only.

As against this, applicant filed counter-affidavit and the copy of the Kutumb Register. The medical evidence was also obtained regarding assessment of the age on the basis of Radiological tests and the report of the C.M.O. is dated 15.12.1998, according to which opposite party No. 2 was 19 years of age.

Apart from this, the learned Magistrate before whom opposite party No. 2 was present, had an opportunity to see him and observed that he does not appear to be a juvenile. After considering this evidence and on the basis of appearance the learned Juvenile Judge has rejected the plea that opposite party No. 2 is juvenile.

The learned IIIrd Additional Sessions Judge in the appeal mainly relied on he decision of the Hon''ble Supreme Court in the case of Bhoop Ram v. State of U.P. 1989 CAR 167 and certain Ors. decisions of this Court. On the basis of the decisions he has held that the date of birth mentioned in the Scholars Register will prevail. Accordingly, he held that opposite party No. 2 is a juvenile.

In my opinion, the finding of the Appellate Court is not correct. He has referred to the cases of this High Court and the decision of the Hon''ble Supreme Court in the case of Bhoop Ram v. State of U.P., which was decided by two Judges Bench of the Apex Court in the year 1989. Later on in the case of Brij Mohan Singh v. Priya Narain Singh and Ors., which was decided by the Bench of five Judges of the Apex Court, reported in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, , the following observation was made by the Apex Court :

"In actual life it often happens that persons give false age of the boy at the time of his admission in a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive."

The fact whether opposite party No. 2 is a juvenile, shall be looked into in the light of this later decision of Larger Bench of, the Apex Court and not on the basis of certain decisions referred to by the Appellate Court. School certificate in this case was rightly rejected by the Juvenile Judge. He has mentioned that according to the Scholars Register produced before him, opposite party No. 2 took admission in class VI. That the register of the school, in which he initially took admission, has not been produced. That the name of opposite party No. 2 was struck of while he was in class X without any reason. That therefore, it appears that the entries have been made afterwards, Opposite party No. 2 never appeared in class: X and therefore, it has been shown that his name was struck of while he was in class X. On this basis he held that the Scholars Register is not reliable and it appears that it was prepared for purposes of this case. Therefore, the said evidence cannot form basis for deciding the age opposite party No. 2.

According to the medical evidence, the age of opposite party No. 2 was 19 years. The report of the C.M.O. is dated 15.12.1998; whereas the incident took place on 9:4.1998. Even if some margin is given as it is an opinion evidence, it cannot be accepted that opposite party No. 2 was a juvenile at the time of incident.

Lastly, it may be mentioned that Juvenile Judge had an opportunity to see opposite party No. 2 and expressed his opinion on the basis of appearance that he is not a juvenile. In the circumstances, I find that the learned IIIrd Additional Sessions Judge erred in accepting opposite party No. 2 as juvenile.

The revision is accordingly allowed and the order of IIIrd Additional Sessions Judge, Gorakhpur dated 20.10.1999 is quashed and that of the Juvenile Judge is restored.