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2006 DIGILAW 1638 (DEL)

SHEHZAD v. STATE (NCT OF DELHI)

2006-09-14

BADAR DURREZ AHMED

body2006
BADAR DURREZ AHMED, J. ( 1 ) THE petitioner is aggrieved by the order dated 25. 04. 2006 passed by the learned Additional Sessions Judge whereby his contention that he was a juvenile on the date of occurrence has been rejected. ( 2 ) IT is the contention of the petitioner that, as per the school certificates, his date of birth is 15. 05. 1989. The date of incident is 26. 04. 2005 which would clearly make him a juvenile within the meaning of the juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the said Act) inasmuch as the word "juvenile" has been defined in section 2 (k) as a person who has not completed the 18th year of age. ( 3 ) I have heard the learned counsel for the petitioner as well as the counsel for the State. The impugned order reveals that the Principal of phool Public Junior High School at Muzaffarnagar, U. P. whereby the petitioner was studying appeared in the witness box and testified that the petitioner (Shehzad) was admitted in the said school on 01. 07. 2000 in the sixth standard. His date of birth was entered as 15. 05. 1989 on the basis of the School Leaving certificate which he had produced from SSM Jolly School wherein this date of birth was indicated. The same was recorded in the school register. The School leaving Certificate of SSM Jolly School was also proved inasmuch as one Safiq ahmed had brought the admission record of the present petitioner pertaining to the said SSM Jolly School, Muzaffarnagar, UP. However, there was no birth certificate available on record. An ossification report was also obtained from the doctor who gave the opinion that the petitioner could be between 20-22 years of age. Of course, this radiological examination was done on 20. 09. 2005 which is a further 5 months away from the date of occurrence. Even if the advantage of plus - minus two years is given, as is the usual practice, then the age of the petitioner on 29. 9. 2005 would be, on the lower side, around 18 years. Of course, this radiological examination was done on 20. 09. 2005 which is a further 5 months away from the date of occurrence. Even if the advantage of plus - minus two years is given, as is the usual practice, then the age of the petitioner on 29. 9. 2005 would be, on the lower side, around 18 years. Since the incident took place sometime in April, 2005, it would be apparent that the age of the petitioner would be less then 18 years and, he would, therefore, fall within the definition of the word "juvenile" as appearing in the said Act. ( 4 ) HOWEVER, the learned Additional Sessions Judge thought otherwise and came to the following conclusion :"7. Shabnam and Safiq detailed that date of birth of Shehzad was recorded in school record as 15. 05. 89. However, it has been admitted that his date of birth was given by his father on the basis of his memory. No birth certificate or an affidavit was moved by Nanha in that regard. Resultantly, it is apparent that correct date of birth was not mentioned, when Shehzad was admitted in school. Dr. Gopesh Malhotra conducted ossification report and opined that shehzad was between 20-22 years on 29. 08. 2005. His report is Ex. CW. 9/a. Considering variation of two years on either side, it is apparent that Shehzad was not a juvenile at the time of commission of crime. Applications are accordingly disposed of. " ( 5 ) THERE are two difficulties with the conclusion arrived at by the learned Additional Sessions Judge. Firstly, the school record which has been proved ought to have been taken at its face value and the birth date of the petitioner ought to be accepted as 15. 05. 89. In this connection also it must also be noted that the finding that the correct date of birth was not mentioned in the school record because no birth certificate or affidavit had earlier been filed is clearly without any basis whatsoever. Just because there is no birth certificte and no affidavit had been filed earlier does not mean that the date of birth mentioned in the school record was not correct. On the contrary the school certificates stand fortified by the school record. The date of birth recorded in these records was much prior to the alleged incident. Just because there is no birth certificte and no affidavit had been filed earlier does not mean that the date of birth mentioned in the school record was not correct. On the contrary the school certificates stand fortified by the school record. The date of birth recorded in these records was much prior to the alleged incident. There is no material to doubt the veracity of the records. Therefore, the date of birth recorded therein ought to have been accepted. Secondly, the opinion of the doctor with regard to the age of the petitioner was considered in the range of 20-22 years without giving the benefit of plus-minus two years. ( 6 ) APART from this, the requirement of law is that even if the person appears to be a juvenile, he ought to be forwarded to the Juvenile justice Board. ( 7 ) IN view of these considerations, I feel that the impugned order deserves to be set aside and is so set aside. The petitioner is directed to be forwarded to the Juvenile Justice Board for further proceedings in accordance with law. This revision petition stands disposed of.