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2002 DIGILAW 1961 (ALL)

DAL CHAND v. STATE OF U P

2002-12-20

K.N.SINHA

body2002
K. N. SINHA, J. Heard the learned Counsel for the revisionist and learned A. G. A. and also perused the impugned orders. 2. The present revision has been filed against the order and judgment dated 31-10-2002 passed by the Sessions Judge, Pilibhit in Criminal Appeal No. 18 of 2002, Dal Chand v. State of U. P. , dismissing the appeal of the revisionist filed against the judgment and order dated 16-10-2002 passed by the Chief Judicial Magistrate, Pilibhit in Crime No. 280 of 2002 under Section 302 I. P. C. , P. S. Sungarhi, District Pilibhit. 3. The facts, giving rise to this revision, are that the revisionist was challaned under Section 302 IPC in case Crime No. 280 of 2002, P. S. Sungarhi, District Pilibhit in which the revisionist claimed himself to be a juvenile and below the age of 18 years. The C. J. M. Pilibhit recorded the oral evidence, obtained the medical report, considered the school certificate and came to the conclusion that the revisionist does not come within the definition of juvenile. Being aggrieved by this order the revisionist filed an appeal before the Sessions Judge, who dismissed the said appeal. 4. The learned Counsel for the revisionist has submitted that the revisionist has filed a school certificate showing the date of birth to be 1-7-1985 and if calculated on that basis the revisionist comes within the definition of juvenile. 5. I have examined the judgments of both the Courts. The learned C. J. M. and the learned Sessions Judge discussed the oral evidence of Smt. Omwati, who stated that the revisionist Dal Chand was born in the month of asarh 17 years back. Her statement must have been recorded prior to the date of judgment and if it is considered to be correct the revisionist would be below the age of 18 years. This statement has been rejected by both Courts on the ground that Smt. Omwati has not specified the year of birth. It is not expected from an illiterate lady to tell the actual year of the birth. The learned Courts below have also ignored the date of birth recorded in the school register, which is 1-7-1985. Sri Rati Ram Gangwar, Principal of the said school, was also examined, who stated that the revisionist has taken admission in Class VI on 1-7-1994. It is not expected from an illiterate lady to tell the actual year of the birth. The learned Courts below have also ignored the date of birth recorded in the school register, which is 1-7-1985. Sri Rati Ram Gangwar, Principal of the said school, was also examined, who stated that the revisionist has taken admission in Class VI on 1-7-1994. This witness has also stated that there should be difference of 2-3 years in the date of birth given by the father of the revisionist. This witness Sri Rati Ram Gangwar is the Principal of Agrasen Junior High School and he cannot say that there was difference of 2-3 years in the age stated by the father of the revisionist. If it was so, he could have raised an objection at the very time of admission. Moreover, the Principal is an unconcerned person and his statement about the difference in age is only based on conjectures. He was not in any way connected with the family of the revisionist. Thus his statement has got no value. The C. J. M. has also observed that generally at the time of admission in Class VI the age of the boy becomes 11 years. This is only the guess work of the concerned Court. So far as the report of the C. M. O. is concerned, it is only an opinion and it cannot over-ride the school certificate and specifically the statement of the mother, Smt. Omwati. 6. In 1999 (2) JIC 489 (Allahabad), Rajesh Maurya v. State of U. P. , the accused was found to be 19 years of age on the basis of medical report of the C. M. O. ; hence his trial commenced along with other accused ignoring the High School Certificate. It was held that the High School certificate was more authentic and acceptable as against the medical opinion of the C. M. O. 7. In Pankaj Kumar Tripathi v. State of U. P. , reported in 1995 (2) JIC 1343 (All) : 1996 (33) ACC page 37, this Court held that the date of birth entered in scholar register is to be accepted. 8. In Pankaj Kumar Tripathi v. State of U. P. , reported in 1995 (2) JIC 1343 (All) : 1996 (33) ACC page 37, this Court held that the date of birth entered in scholar register is to be accepted. 8. The Apex Court in Rajinder Chandra v. State of Chhattisgarh and another, held as follows: "while dealing with question of deter-mination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case. " 9. I have carefully perused this authority and find that the precedence has been given to the entries made in the school certificate over the oral evidence. It has been held by the Apex Court that in the cases of juvenile a hyper-technical approach should not be adopted and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. This authority is fully applicable on the facts of the present case. 10. As discussed earlier the school certificate was rejected by the trial Court only on his guess work. There is no rule that only the boy of 11 years can get admission in Class VI standard nor the principal can put the age more or less on the guess work. Thus in view of the evidence of Smt. Omwati and the entries in the school register the revisionist is held to be below the age of 18 years and governed by the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 11. In the result the revision is allowed. The orders dated 31- 10-2002 passed by the Sessions Judge in Criminal Appeal No. 18 of 2002 and dated 16-10-2002 passed by the C. J. M. Pilibhit in case crime No. 280 of 2002 are set aside. 11. In the result the revision is allowed. The orders dated 31- 10-2002 passed by the Sessions Judge in Criminal Appeal No. 18 of 2002 and dated 16-10-2002 passed by the C. J. M. Pilibhit in case crime No. 280 of 2002 are set aside. The matter is sent back to the Court of the C. J. M. Pilibhit with a direction to give decision as if the revisionist is a juvenile within the definition given in the Juvenile Justice (Care and Protection of Children) Act, 2000. If the bail application of the revisionist is pending or moved afresh it shall be dealt with in the light of the observations made above. Revision allowed. .