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2000 DIGILAW 153 (PAT)

Arnit Das v. State Of Bihar

2000-01-28

R.N.PRASAD

body2000
Judgment R.N.Prasad, J. 1. The petitioner is an accused in Kadamkuan P.S. Case No. 574/98 for the offence under Section-302 of the Indian Penal Code. The date of occurrence is 5-9-1998. The petitioner claims to be juvenile on the date of occurrence and as such he is entitled to the benefits under the Juvenile Justice Act. The claim of the petitioner was disputed by the opposite party and as such an enquiry under Sec. 32 of the Juvenile Justice Act was conducted by the Additional Chief Judicial Magistrate, a Juvenile Court and it came to a conclusion that the petitioner was above 16 years of age on the date of occurrence and he cannot be tried by Juvenile Court as claimed by the petitioner vide order dated 10-9- 1999. The said order was challenged in appeal by the petitioner. The appeal was dismissed vide order dated 5-10-1999 by the Sessions Judge, Patna and the finding of the Juvenile Court was affirmed. The petitioner has challenged the aforesaid two orders of the Juvenile Court and the Appellate Court in this revision application. 2. The claim of the petitioner was that he was born on 18-9-1992 in Central Calcutta Nursing Home, Calcutta and as such his age was 13 days less than 16 years on the date of occurrence. In support of his contention, the petitioner examined three witnesses, AW 1 Sunita Das, mother of the petitioner. AW 3 Arun Kumar Das, father of the petitioner. AW 2-R. Braunza/Office Assistant, Don Bosco Academy and also produced documents, i.e. Ext. 1, a certificate of ICSE, New Delhi, Ext. 1 I A. marks obtained in ICSE Examination, New Delhi. .Ext. 2 School register of Don Bosco Academy, Digha, Patna. Ext. 3 admission form filled up by office of Don Bosco Academy. Ext. 4 school leaving certificate of Don Bosco Academy, Patna. Ext. 5 birth certificate issued by Central Calcutta Nursing Home, Calcutta. Exts, 6 and 61 A, the affidavits sworn by the father and the mother of the petitioner respectively. On the other hand, opposite party examined two witnesses, namely, Dr. Devi Dutta Gupta, PW1. Head of the Department of Radiology and Md. Wasir Alam, PW 2, Head of the Department, Orthopaedic, P.M.C.H., Patna. They were members of the Medical Board constituted for ascertaining the age under the order of Juvenile- Court. Opposite party also brought on record the original X-ray plate, material Ext. Devi Dutta Gupta, PW1. Head of the Department of Radiology and Md. Wasir Alam, PW 2, Head of the Department, Orthopaedic, P.M.C.H., Patna. They were members of the Medical Board constituted for ascertaining the age under the order of Juvenile- Court. Opposite party also brought on record the original X-ray plate, material Ext. 6, original X-ray plate of wrist joint of the petitioner, material Ext. 1/A and original X-ray plate of Pelvis, material Ext. 1/B, Radiological report, Ext. A, report of Medical Board regarding determination of age, Ext. A/l. The Juvenile Court considered the evidence on record and also the law and came to the conclusion that the petitioner is not a Juvenile and as such his claim for separate trial by Juvenile Court was rejected. The finding of the Juvenile Court was affirmed by the Appellate Court giving reason for the same. Thus, revision petition has been filed. 3. Obviously, the claim of the petitioner of being juvenile was based on Ext. 5 which was disputed by the opposite party which led to enquiry under Sec. 32 of the Juvenile Justice Act. Learned - Counsel for the petitioner contended that the petitioner was born at Calcutta on 189-1982. A birth certificate, Ext. 5 was issued by the Central Calcutta Nursing Home, Calcutta. The said date was mentioned in Exts. 1 to 4 and as such there was no occasion for doubting those documents. Admittedly, Ext. 5, birth certificate was issued from Central Calcutta Nursing Home, Calcutta, a private Nursing Home. AW-1 has admitted that she along with her husband was residing at Patna. The Courts below have come to a conclusion that no reasonable reason has been assigned as to under what circumstances. AW1 was taken to Calcutta and gave birth to the petitioner at Calcutta. Moreover, Ext. 5 was brought on the record and exhibited under protest while AW3 was being examined. The Courts below have stated that it was brought belatedly on the record. AW3 stated in his evidence that Ext. 5 has been filled up and signed by Smt. Tara Dey. However, he stated in-his evidence that signature is not legible. AW3 further stated in his evidence that Central Calcutta Nursing Home. C8Icutta is a private Nursing Home. Ext. 5 has been issued on the basis of record of Nursing Home, but neither record has been produced in support of issue of Ext. However, he stated in-his evidence that signature is not legible. AW3 further stated in his evidence that Central Calcutta Nursing Home. C8Icutta is a private Nursing Home. Ext. 5 has been issued on the basis of record of Nursing Home, but neither record has been produced in support of issue of Ext. 5 nor the person issuing the same has come to prove the document as required under the law. Effort was also not made to bring original record on the basis of which Ext. 5was issued-nor anything was brought on the record to show that original record has been destroyed and as such the same cannot be treated as evidence under Sec. 65 of the Evidence Act. Ext. 5 was produced while AW 3 was being examined in the Court. The reason for late production was also not disclosed by the witnesses. Exts. 1 to 4 are based on the said document, Ext. 5. AW2 also admitted in his evidence that earlier entry was made on the basis of Ext. 3, application for admission which was erased and address was changed on the basis of an application but neither the said application was brought on record nor he knew as to who had submitted the application. The contention of the opposite party was that interpolation in the admission register was made only with the purpose to substantiate issuance of Ext. 5. The Court below considered those documents and doubted the genuineness of Ext. 5 due to the reason as mentioned above. On consideration, I do not find any infirmity in the finding recorded by the Juvenile Court and the Appellate Court. 4. However, learned Counsel for the petitioner relied upon a decision in the case of Bhoop Ram V/s. State of U.P., wherein it has been held that school leaving certificate cannot be rejected if no material has been brought on record throwing doubt on the entry in the school certificate. The law laid down by the Apex Court is not in dispute but in the instant case, it is evident that Ext. 5, the birth certificate itself was doubted by the Courts below for reason stated above. The date of birth in the school leaving certificate, Exts. 1 to 4 is based on the said documents. Thus, it cannot be said that there was no reasonable material throwing doubt on the entries in the school certificates. 5, the birth certificate itself was doubted by the Courts below for reason stated above. The date of birth in the school leaving certificate, Exts. 1 to 4 is based on the said documents. Thus, it cannot be said that there was no reasonable material throwing doubt on the entries in the school certificates. Thus in my view the decision relied upon by the learned Counsel for the petitioner does not help the petitioner. 5. In view of the fact that the birth certificate, Ext. 5 on the basis of which entry was made in the school certificates, Exts. 1 to 4, has been doubted, the Courts below have placed reliance upon the evidence of PW1, Head of the Department of Radiology, P.M.C.H. and PW 2, Head of the Department of Orthopaedic Surgery, report of ossification test and the report submitted by the Medical Board and came to the conclusion that the petitioner was not juvenile on the date of occurrence. It appears that the Courts below considered the evidence on record in details. It has been stated by PW 2 that radiological test was held on 10-10-1998, i.e. after one month of the date of occurrence. The petitioner was 5 10" tall. His weight was 60 kgs. at the time of examination. Moustache was appearing. public and axillary hair was found grown. Fusion of epiphysis of elbow joint is seen at the age of 16 years. There was complete fusion of the lower ends of the radius and lower end of ulna of both sides. In case of male fusion of lower ulna occurs at the age of 18 years. In Ext All, it was .mentioned that appearance of epiphysis of eliac crest of both sides was found which was seen in the X-ray of pelvis of the petitioner. In the case of male epiphysis in pelvis appears at the age of 19 and 20 years. He also stated that epiphysis of pelvis bone of the petitioner had appeared. The report of the Medical Board was that the petitioner was 17 years old on the date of examination. The learned Counsel for the petitioner, however, relied upon a decision in the case of Jaya Mala V/s. Home .Secretary, Govt. He also stated that epiphysis of pelvis bone of the petitioner had appeared. The report of the Medical Board was that the petitioner was 17 years old on the date of examination. The learned Counsel for the petitioner, however, relied upon a decision in the case of Jaya Mala V/s. Home .Secretary, Govt. of J & K. and Others, wherein, it has been held that judicial notice can be taken about error of age ascertained by radiological examination which may be two years on either side. The law laid down by the Apex Court is not indispute but in the instant case, the petitioner was produced before the Juvenile Court which has assessed the age of the petitioner 18 years on physical and mental appearance. Moreover, in the case of Daya Chand V/s. Sahib Singh and Another, it has been held that it would be safer to rely upon the medical opinion based on radiological and other physical characteristics than the school certificates for determining the age more accurately where there was conflicting evidence relating to the age from the school certificates. In the instant case, the petitioner bas based his claim relating to his age on evidence of doubtful character as indicated above. Therefore, I do not find anything wrong in the finding arrived at by the Courts below. 6. It is true that Juvenile Justice Act is beneficial legislation and the benefit under the said Act cannot be denied to a Juvenile but the Juvenile Court has to be cautious while recording finding on the question so that persons found guilty of committing offences which are shocking to the conscience of the Court do not escape punishment by getting themselves declared as juvenile, on the basis of certificate. The juvenile Court and the Appellate Court both have considered the foresaid aspect of the, matter and the evidence brought on record in detail. There is concurrent finding that the petitioner was not juvenile on the relevant date of occurrence; It is also evident that birth certificate and the school certificates have been doubted by the Courts below and the date of birth as mentioned in those certificates is contrary to the Medical Boards report. The finding recorded by the juvenile Court has been affirmed by the Appellate Court. The finding recorded by the juvenile Court has been affirmed by the Appellate Court. In such a situation, it would not be justified by this Court in revision to interfere with the concurrent findings recorded by the Court below. 7. No other point was raised. Thus, on consideration as discussed above, I find no merit in this application. Accordingly this application is dismissed.