NAZIR HOSSAIN HALDER v. STATE — 1997 DIGILAW 412 (CAL)

DIBYENDU BHUSAN DUTTA, J. ( 1 ) THE short point involved in the instant revisional application is whether or not the petitioner was a juvenile within the meaning of the Juvenile Justice Act on the date of the commission of the offence. ( 2 ) THE petitioner was implicated as one of the accused in Usthi P. S. Case No. 24 dated 29-3-92. Police investigated the case and submitted charge-sheet against all the persons including the present petitioner under Ss. 147/148/304 of the Indian Penal Code. The case was committed to Sessions and it is pending before the learned Additional Sessions Judge, Sixth Court, Alipore as Sessions Trial Case No. 24 (5) of 1993. On 26 August, 1993, the date fixed for consideration of charge, the petitioner filed an application before the learned Judge claiming the benefit of a separate trial according to the provisions of Juvenile Justice Act alleging that he was a juvenile on the date of occurrence. The application was opposed by the prosecution. It was alleged on behalf of the prosecution that the petitioner-accused had completed the age of 18 years on the date of occurrence and as such, he was liable to be tried jointly along with the other accused persons. The learned Judge made an inquiry in order to ascertain the age of the accused-petitioner on the date of commission of the offence. During the inquiry, the accused-petitioner examined one witness who happens to be the headmaster of the school where the petitioner claims to have been admitted as a student. The witness deposed with reference to the relevant admission register and formally proved the writings in that register. As per that admission register, the date of birth of the accused-petitioner was recorded as 13 December, 1978. According to the headmaster's evidence, the said date was recorded on the basis of declaration of the guardian of the petitioner at the time of his admission in the admission form. The headmaster did not, however, have any independent knowledge regarding the age of the petitioner. On behalf of the prosecution the voters' list of the relevant Assembly Constituency was placed before the Judge. According to the entries in Serial No. 623 of Part 137 of the said voters' list, the petitioner was aged 19 years as on 1-1-93. The headmaster did not, however, have any independent knowledge regarding the age of the petitioner. On behalf of the prosecution the voters' list of the relevant Assembly Constituency was placed before the Judge. According to the entries in Serial No. 623 of Part 137 of the said voters' list, the petitioner was aged 19 years as on 1-1-93. If one goes by the admission register, the petitioner would have completed just 13 years 9 months on 17-3-92, the date of commission of the offence, while if one goes by the voters' list, the petitioner would have completed 18 years on the relevant date. In other words, on the question of age of the petitioner the admission register and the voters' list contradict each other. No other evidence was, however, adduced by either party during that inquiry. The learned Judge observed that both the admission register and the voters' list were based upon the declaration of the parents of the petitioner. But he preferred the voters' list to the admission register for the purpose of coming to a finding regarding the age of the petitioner as on the date of commission of the offence, because he was of the view that the voters' list was a public document having been prepared by the proper authority of the Government specially empowered to verify the age of a voter and accordingly, by his order No. 11 dated 19-2-94, he rejected the contention of the petitioner to the effect that he was a juvenile within the meaning of the Juvenile Justice Act and as such, was entitled to be dealt with under the Juvenile Justice Act. This order was challenged on behalf of the petitioner-accused in an earlier revision being Criminal Revision No. 191 of 1994 before this Court and His Lordship, N. A. Chowdhury, J. by order dated 2-2-95 set aside that order and directed the trial Court to send the petitioner to a Govt. Hospital for his ossification test and consider the medical report and medical evidence and also to consider the other materials and determine the age of the petitioner. ( 3 ) PURSUANT to this order of this Court, the petitioner was sent to a Govt. hospital for his ossification test which was held on 20-7-95. According to the ossification test report, the petitioner was aged between 20 and 21 years on the date of examination. ( 3 ) PURSUANT to this order of this Court, the petitioner was sent to a Govt. hospital for his ossification test which was held on 20-7-95. According to the ossification test report, the petitioner was aged between 20 and 21 years on the date of examination. If one goes by this report, the petitioner would have been aged between 16 years 8 months and 17 years 8 months on 17-3-92, the date of commission of the offence. The learned Judge, who proceeded to determine the age afresh on the basis of the materials already on record and the new material, that is to say, the ossification test report was of the view that as there was clear discrepancy between the evidence afforded by the school register as well as the voters' list regarding the age of the petitioner which were based on the statement of the petitioners' parents, no reliance could be placed on either of them. The learned Judge relied on the ossification test report and came to a finding that the accused-petitioner was aged more than 16 years at the time of commission of the offence and accordingly by Order No. 26 dated 13-9-95, the learned Judge rejected the prayer of the accused-petitioner to be dealt with under the Juvenile Justice Act. Being aggrieved by this order, the accused-petitioner has come up in the present revision. ( 4 ) SO far as a boy is concerned, a 'juvenile', according to Section 2 (h) of the Juvenile Justice Act, is he who has not attained the age of 16 years. A delinquent juvenile, according to Section 2 (e) of the Act, means a juvenile who has been found to have committed an offence. Undisputedly, in order to be entitled to the benefit of the Juvenile Justice Act, the petitioner must not have attained the age of 16 years on 17-3-92, the date on which the offence in question was committed. In other words, the age of the petitioner is to be determined with reference to 17-3-92. There is no specific provision in the Criminal Procedure Code prescribing any particular procedure for determining the age of an accused when he claims before an ordinary Criminal Court to be a juvenile under the Juvenile Justice Act. The Juvenile Justice Act does contain some provisions for determining whether a person brought before a competent authority is a juvenile or not. The Juvenile Justice Act does contain some provisions for determining whether a person brought before a competent authority is a juvenile or not. The relevant provisions are contained in Section 32 of that Act. It obligates the competent authority to make due inquiry as to the age of that person and to take such evidence as may be necessary for that purpose and record a finding. On a scrutiny of the lower Court record, it appears that the only materials placed before the Court below at the instance of the parties to this proceeding for determination of the age of the petitioner consisted of the unchallenged testimony of the headmaster of a school in which the petitioner was admitted as a student, a voters' list of the Assembly Constituency of the locality where the petitioner resides and the ossification test report. The headmaster appears to have given his evidence with reference to the admission register of the school for the relevant academic session and the register itself does not appear to have been exhibited even though the handwriting was formally proved. It is not disputed on behalf of the parties before me that the voters' list is a public document which requires no formal proof. The ossification test report does not appear to have been legally brought into evidence. The Radiologist who held the ossification test and gave his opinion regarding the age of the petitioner was not examined as a witness. No substantive evidence was also led as a direct proof of the age of the petitioner. Strictly speaking, the only legal evidence in proof of the age of the petitioner that remains on record consist of the unchallenged and uncorroborated testimony of the headmaster of the concerned school and the voters' list. I have already observed that the evidence afforded by the admission register and the voters' list contradict each other. In such state of evidence, the matter could be remitted back to the Court below for a fresh determination of the age after giving the parties opportunity to lead further evidence. But that would have delayed the matter further. I have already observed that the evidence afforded by the admission register and the voters' list contradict each other. In such state of evidence, the matter could be remitted back to the Court below for a fresh determination of the age after giving the parties opportunity to lead further evidence. But that would have delayed the matter further. Besides, if the parties do neither raise any objection as to the admissibility of the materials already placed before the Court below for determining the age nor pray for any further opportunity before this Court to lead any further evidence in support of their respective contentions regarding the age of the petitioner, there would be no point in remitting the case back for determination of the age afresh on the basis of the materials which are already on record. I, therefore, proceed to examine the materials already on record and find out whether any interference with the impugned order is called for. ( 5 ) I have already observed that on the material date, that is to say, on 17-3-92, the petitioner would be aged (i) 13 years 9 months, as per school admission register, (ii) 18 years 2 and a half months, as per voters' list and (iii) between 16 years 8 months and 17 years 8 months, as per ossification test report. In other words, if the school admission register is preferred to both the voters' list and the ossification report, there would be no escape from the conclusion that the petitioner was yet to cross the age of 16 years on the material date and as such could be entitled to the benefit of the provisions of the Juvenile Justice Act. If, on the other hand, the voters' list and the ossification test report are to be given in preference to the school admission register, the conclusion would be that the petitioner was not a juvenile on the material date to be dealt with in accordance with the provisions of the Juvenile Justice Act. Now, the ossification test report is not a sure test and the learned Counsel appearing for the petitioner relied on an observation of the Apex Court appearing at paragraph 9 reported in 1982 SC (Cri) 502 : (1982 Cri LJ 1777) in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir. Now, the ossification test report is not a sure test and the learned Counsel appearing for the petitioner relied on an observation of the Apex Court appearing at paragraph 9 reported in 1982 SC (Cri) 502 : (1982 Cri LJ 1777) in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir. The relevant observation is to the effect that it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. The learned Counsel for the petitioner also relied on a decision of the Supreme Court reported in 1990 Cri LJ 2671 : ( AIR 1989 SC 1329 ), Bhoop Ram v. State of U. P. and submitted that the evidence afforded by the school register should be accepted as the best evidence for determining the age of the petitioner in preference to the evidence afforded by the voters' list and the ossification test report. In Bhoop Ram's case (supra), the Sessions Judge brushed aside the evidence afforded by the school certificate merely on the ground that it is not unusual for the parents to understate age of their children by one or two years at the time of admission in school for securing benefits to the children in the future years and the Supreme Court disapproved it in view of the fact that there was not material on record to throw any doubt about the genuineness of the entries in the school certificate. In our case, however, the situation is different because there exist other materials to throw sufficient doubt about the genuineness/correctness of the entries in the admission register with reference to which the headmaster gave evidence. As such, the decision in Bhoop Ram's case (supra) will be of no help to the petitioner. The entries in both the school admission register and the voters' list are recorded obviously on the basis of the statements of either the parents/guardians of the petitioner or the petitioner himself, as the case may be but the statements on the basis of which voters' list is prepared and published are subjected to scrutiny/verification by the prescribed authorities in exercise of the powers conferred by the Representation of the People Act, 1950. As such, voters' list will carry greater weight than the school register. As such, voters' list will carry greater weight than the school register. Accordingly, if one gives precedence to the voters' list over the entries in the admission register, one cannot be faulted. Moreover, we must not forget that the evidentiary value of the entries in the school admission register stands considerably weakened by the evidence afforded by the voters' list which, indeed, casts a grave doubt as to the genuineness/correctness of the age recorded in the admission register. The ossification test report, on the other hand, if read with the voters' list, would definitely go to suggest that the petitioner had at least crossed the age of 16 years on the material date. After all, it is for the petitioner-accused to prove that he is a juvenile in order to be entitled to reap the benefit of the Juvenile Justice Act. The onus in this regard undoubtedly lies upon the accused-petitioner and as the materials on record stand, it cannot be said that the petitioner has been able to discharge that onus and to prove to the satisfaction of the Court below that he was juvenile within the meaning of the Juvenile Justice Act on the material date. ( 6 ) IN the circumstances, it cannot be said that the learned Court below was unjustified in rejecting the prayer of the petitioner for reaping the benefit of the Juvenile Justice Act. There is, thus, no just or sufficient reason to interfere with the impugned order. In the result, the revisional application fails and is hereby dismissed. Application dismissed.