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Madhya Pradesh High Court · body

2004 DIGILAW 803 (MP)

Shashikant Choudhary v. State of M. P.

2004-09-28

S.L.KOCHAR

body2004
Judgment ( 1. ) THIS revision is directed against the order dated 9-8-2004 passed by the learned Second Addl. Sessions Judge, Dewas in Sessions Trial No. 125/2004 thereby rejecting the contention of the applicant that he is below 18 years of age and can not be tried by the Sessions Judge under the provisions of Juvenile Justice (Care and Protection) Act. ( 2. ) THE applicant was arrested for the offences punishable under Sections 394, 397 and 411 of the Indian Penal Code. Police submitted a charge-sheet before the Court and the case was committed to the Court of Sessions. The contention of the applicant was that his dale of birth is 1-4-86 and on the date of arrest, i. e. , the date on which he was first produced before the Court, he had not completed 18 years and as such, he is a juvenile and thus, the Trial Court has no jurisdiction to entertain the matter as he is aged 17 years, 11 months and 23 days. The learned Trial Court examined three witnesses and after hearing the Counsel for the parties rejected the application filed by the applicant. Hence, this revision. ( 3. ) IN short, necessary facts for adjudication of this revision are that the applicant was arrested and produced before the Committal Court on 24-3- 2004 for having committed the alleged offences of robbery punishable under Section 394/397 and also under Section 411 of the Indian Penal Code. After filing of the charge-sheet, the case was committed to the Court of Sessions and the learned Sessions Judge, Dewas made over the case for trial to the Second Addl. Sessions Judge vide Sessions Trial No. 125/2004. Before the Trial Court, the applicant submitted an application under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity hereinafter referred to as act ). According to the applicant his date of birth is 1-4-1986, on the date of his production before the Committal Court, he was below 18 years of age. Therefore, he can not be tried by the learned Addl. Sessions Judge, Dewas. For proving his age, the applicant filed a photo-copy of the mark sheet and also examined his father Babulal, uncle Ghanshyam and teacher Shri Navin Choubey of Prera Adarsha Vidyalaya, Dewas. Therefore, he can not be tried by the learned Addl. Sessions Judge, Dewas. For proving his age, the applicant filed a photo-copy of the mark sheet and also examined his father Babulal, uncle Ghanshyam and teacher Shri Navin Choubey of Prera Adarsha Vidyalaya, Dewas. The applicant has also filed an affidavit of his father Babulal, photo-copy of mark-sheet of his elder brother Ashok and true copy of the Voter List whereas the prosecution has filed the true copy of latest revised and amended Voter List of 2003 of Parliament Constituency No. 22 Shajapur and Legislative Assembly Constituency 1986, Dewas. ( 4. ) AFTER due and detailed assessment and appreciation of oral and documentary evidence adduced and produced by both the parties, the learned Trial Court has held that the applicant has failed to prove that his date of birth is 1-4-86 because, at the time of his admission in Prera Adarsha Vidyalaya, in the Admission Form of the applicant filled in by his guardian, in column of date of birth, in place of figure 6 there is major overwriting and on the said overwriting short initials of the scribe of the form arc not available. Not only this, the next column which is the column of present age of the student, is left blank. If the correct date of birth was 1-4-86, the same could be fortified by filling in the column of present age of the student in the admission form. When the applicant was admitted in Nursery Class on 1-9-88, he was two years and four months of age whereas according to the Admission Rules, as admitted by the teacher Shri Naveen Choubey, for admission in nursery class, the required age of a child was three years. Therefore, on the said date (i. e. , 1-9-88) he could not be admitted in the Nursery Class because he was below three years and the margin was of about eight months. The learned Trial Court also considered that the applicant has not filed any document regarding registration of his birth in the Office of Registrar Births and Deaths of Municipal Corporation or the office maintaining the Register of births and deaths of the citizen. The learned Trial Court also considered that the applicant has not filed any document regarding registration of his birth in the Office of Registrar Births and Deaths of Municipal Corporation or the office maintaining the Register of births and deaths of the citizen. The applicant has also not filed any entry regarding birth of the child in the Police Station where normally information is given by the parents and the basic document of date of birth of the applicant in Admission Form in which the date of birth mentioned as 1-4-86, has been found doubtful by the learned Trial Court because of overwriting thereon. In the Revised and Amended Voter List of 2003, the age of the applicant is mentioned as 19 years, which shows that on the date of production of the applicant before the Court, he was above 18 years of age. ( 5. ) LEARNED Counsel for the applicant has vehemently argued and submitted that in all the subsequent years mark-sheets, the date of birth of the applicant is mentioned as 1-4-86 and in the true copy of the Voter List filed on behalf of the applicant, the name of the applicant is not mentioned whereas the names of his father Babulal and other brothers are mentioned and in the affidavit House Number of his father is mentioned as 160 while in the Revised and Amended Voter List filed by the prosecution, though the name of the applicant Shashikant s/o Babulal is mentioned, but the House Number mentioned is 165 which is not the house of the applicant where he resides. Learned Counsel has also submitted that while considering the age of the accused under the provisions of the act, if there is marginal difference and two views arc possible, then the view which is in favour of the accused, should be adopted. He placed reliance on a Supreme Court judgment rendered in the case of Rajinder Chandra v. State of Chhattisgarh and Anr. , 2002 (1) M. P. H. T. 536 (SC) - 2002 SCC (Cri.) 333. ( 6. ) ON the other hand, contention of the learned Dy. He placed reliance on a Supreme Court judgment rendered in the case of Rajinder Chandra v. State of Chhattisgarh and Anr. , 2002 (1) M. P. H. T. 536 (SC) - 2002 SCC (Cri.) 333. ( 6. ) ON the other hand, contention of the learned Dy. Advocate General Shri Desai appearing for the State is that in the Admission Form in Column of date of birth of student major overwriting can be seen on figure 6 and by naked eye, it can be seen that earlier at place 6 figure 3 was written and thereafter, on the said figure, by overwriting it has been made to read as 6. The scribe of this form whether guardian or the teacher, has not put his short initial near the overwriting and the next column is left blank which is the column for present age. If in fact, the date of birth of the applicant was 1-4-86, his present age on that day could have been mentioned. Learned Counsel has also submitted that in Court also, father of the applicant has not explained this situation. On the contrary, they have levelled allegation against the police that in the Form, overwriting must have been done by the police. The Form was in the custody of the School Authorities and the School Authority has not said so before the Court. The School Authority and the witness examined by the applicant, I e. , Naveen Choubey has also not explained the overwriting found in the Admission Form. According to the Rules, the student below three years is not eligible to be admitted in the Nursery Class. Father of the applicant has signed this Form in English language. This shows that he is quite literate and educated and while filling in the form, he could not have made any fault and the overwriting was done deliberately just to get the applicant admitted in the Nursery Class. The learned Counsel also emphasised regarding non-filing of the Horoscope or birth certificate of the applicant from Government Office like Registrar of Births and Deaths, in Municipal Corporation or the Police Station. The burden is on the applicant who is seeking benefit of the act to prove his age below 18 years on the date of his production before the Court and he has tailed to do so. ( 7. ) LEARNED Dy. Govt. The burden is on the applicant who is seeking benefit of the act to prove his age below 18 years on the date of his production before the Court and he has tailed to do so. ( 7. ) LEARNED Dy. Govt. Advocate General submitted that the decision of the Supreme Court passed in the case of Rajinder Chandra (supra), is not applicable in the facts and circumstances of the present case. The present is not the case where the dispute of border line age of the applicant regarding getting benefit of the act, but it is a case where the applicant has failed to file genuine and true documents to establish his date of birth. ( 8. ) HAVING heard learned Counsel for the parties and after perusing the entire record, this Court is of the view that the learned Trial Court has discussed the evidence oral and documentary at length and rightly found that the basic document for determination of age of the applicant was the Admission Form wherein in Column of Date of birth, the date in figure is mentioned as 1-4-86 and at place 6, there is deep overwriting and the same has not been satisfactorily explained by the applicant. Therefore, the, said document cannot be relied upon. This ambiguity could have been set at rest by filling in further column, i. e. , the present age, but that column is left blank. This Court is also of the view that the applicant has failed to lead evidence before the Trial Court regarding basis of making the entry of date of birth in the Admission Form. Father of the applicant has not stated that he was having any document or the diary or horoscope or any document showing the date of birth of the applicant maintained by him immediately after the birth of the applicant. The argument advanced by the learned Counsel for the applicant that the date of birth in Higher Classes of the applicant is also shown as 1-4-86 in the mark-sheets and the same has no relevance because the basic document is found to be doubtful and making the entry of date of birth in the said document, is stated by the applicant in evidence. The prosecution has filed the Revised and Amended Voter List in which the name of the applicant Shashikant s/o Babulal is mentioned and his age is shown in the year 2003 as 19 years. The Admission Form is disclosing that at place 6, initially the figure 3 was written. If the age of the applicant is considered as 1-4-83, his brother Ashok whose date of birth is shown as 5-7-84 is younger to the applicant by one year and three months. In the Voter List filed by the applicant, prepared in the year 2003, the name of Ashok s/o Babulal is mentioned and his age is shown as 18 years. In the Revised and Amended Voter List filed by the prosecution, the name of the applicant Shashikant son of Babulal is mentioned and his age is shown as 19 years. This is also indicative of the fact that Ashok is younger than the applicant. Mere mentioning of different House Number, would not be sufficient to discard the Revised and Amended Voter List. The fact that the applicant could not be admitted in the Nursery Class when he was below three years is also sufficient to hold that his correct date of birth as shown in the mark-sheets is not 1-4-86. ( 9. ) THE applicant has not offered for his ossification test. He has placed reliance only on the entry made in the School Register and that was found doubtful on over all assessment of oral and documentary evidence by the Trial Court and this Court is in full agreement with the view of the Trial Court. In the case of Rajinder Chandra (supra), the accused produced for consideration before the Court school mark-sheet, birth certificate, horoscope and entry in Kolwar Book. Apart from this oral evidence of mother Smt. Savita Tiwari, father Gopal Tiwari, Head Master Vinod Kumar Mishra and Assistant Teacher R. S. Naik of High School was also adduced. On the basis of this documentary and oral evidence and the ossification test report showing the age of the accused between 15 and 16 years, the accused was found below 16 years of age and which was the age of juvenile according to Juvenile Justice Act, 1986. Such is not the situation in the case on hand. On the basis of this documentary and oral evidence and the ossification test report showing the age of the accused between 15 and 16 years, the accused was found below 16 years of age and which was the age of juvenile according to Juvenile Justice Act, 1986. Such is not the situation in the case on hand. Before the Trial Court, in the present case, original entry of date of birth of the applicant in the Admission Form is doubtful and to clarity this serious ambiguity, no other documentary evidence like birth registration certificate issued by Registrar, Births and Deaths of Municipal Corporation or other Department maintaining such entries of birth and deaths or the Police Station or even horoscope were filed. In the instant case, no evidence is led by the applicant to establish the basis for making entry of date of birth in the Admission Form. Therefore, the said entry especially when there is clear overwriting has rightly been discarded by the learned Court below. ( 10. ) AS a result of the discussion as aforesaid, this revision fails and is hereby dismissed having no merit.