Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 178 (PAT)

Md. Shahzad Ansari v. State Of Bihar

2006-02-20

INDU PRABHA SINGH

body2006
Judgment 1. This revision application has been filed under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short the Act). It is directed against the judgment and order dated 17.11.2005 passed in Cr. Appeal No. 52 of 2005 by Sri Uday Bhanu Narain Singh, 7th Addl. Sessions Judge, Muzaffarpur by which he has confirmed the order dated 23.9.2005 passed by the Juvenile Justice Board, Muzaffarpur (in short the Board) adjudging the petitioner Md. Shahzad Ansari a major in the eyes of law. The petitioner is an accused in a case under Sections 302, 201, 376 and 120-B/34 of the Indian Penal Code which is pending trial. 2. From the facts of the present case it appears that one Sajjad Alam submitted a written report on 10.3.2005 before the Officer Incharge of Parihar police station alleging therein that his seven years old daughter Nagmi Begum had left the residence for the coaching institute in the village at about 6 p.m. Her grand father had also gone with her. On the way the present petitioner alleged to be aged 19 years gave her Gulgulla to eat and also had accompanied her. When by 7 p.m. Nagmi Begam did not return a search for her is started. On the following morning her dead body was found in a bush near Idgah. Her Chappal, Towel, drops of blood and Gulgulla were found in the fuel shed of Md. Islam. 3. On the basis of this information Parihar P.S. Case No. 11 of 2005 was instituted and the investigation was taken up. The petitioner was arrested on 16.3.2005 and was forwarded to the Court of the Chief Judicial Magistrate, Sitamarhi. He was remanded to judicial custody and since then he is in jail. The police after completing investigation submitted chargesheet under Sections mentioned above against the petitioner and two others. A petition was filed in the Court stating therein that the petitioner was a minor boy aged about 15 years and a prayer was made to refer the matter to the competent authority namely, the Board for ascertaining his correct age. The Board in its turn referred the matter to the Medical Board which after enquiry and clinical examination submitted a report on 22.7.2005 to the effect that the age of the petitioner between 17-18 years. The Board in its turn referred the matter to the Medical Board which after enquiry and clinical examination submitted a report on 22.7.2005 to the effect that the age of the petitioner between 17-18 years. The Board examined two witnesses on 6.8.2005, namely, the father and the mother of the petitioner. While the father (PW 1) had stated that the petitioner was born in 1989 her mother (PW 2) had stated that he was 15 years of age. However, the Board by its order dated 23.9.2005 held that on the date of the alleged occurrence the petitioner had completed 18 years of age and refused to declare him as a Juvenile. 4. Cr. Appeal No. 52 of the 2005 was filed against this order which was heard and disposed of by the 7th Addl. Sessions Judge, Muzaffarpur who by his order dated 17.11.2005 dismissed the same. It is against this order that the present application has been filed. It has been contended that both the orders, namely, the order passed by the Board as also the order passed by the learned 7th Addl. Sessions Judge are bad in law, misconceived and fit to be set aside. It has been pointed out that the learned Court below has wrongly relied on the case of Arnit Das V/s. State of Bihar, 2000 (1) East Cr C 548 (Pat) : 2000 (1) PCCR 400, to hold that the relevant date for ascertainment of the age of the petitioner was the date of his production before the Board since this decision has been over-ruled by a Bench of five Hon ble Judges of the Hon ble Supreme Court in the case of Pratap Singh V/s. State of Jharkhand, reported in 2005 (2) East Cr C 244 (SC) : 2005 (3) East Cr C 244 (SC) : 2005 Cri LJ 309. In this decision it was held that the relevant date for determining the age to declare an offender as juvenile is the date of occurrence and not the date of his production before the Board. Both the Courts below have also erred in law in discarding the report of the Medical Board on the misconceived assumption and on hypothetical basis. It is well settled that if two views are possible the view which is favourable to the accused should be accepted. Both the Courts below have also erred in law in discarding the report of the Medical Board on the misconceived assumption and on hypothetical basis. It is well settled that if two views are possible the view which is favourable to the accused should be accepted. The learned Courts below came to the wrong conclusion that the age of the petitioner was 19 years on the basis of his physical appearance in the first remand order. The physical appearance cannot be made a basis for ascertaining the age of an accused. The Courts below have wrongly rejected the statement oh oath of the parents of the petitioner. The learned Addl. Sessions Judge has failed to appreciate the judgment reported in 2005 (3) BLJR 325. which is fully applicable to the facts of the present case. On these grounds it has been prayed that the impugned orders be set aside and the petitioner be declared to be a Juvenile. 5. I have heard the parties in detail. In the present case the alleged date of occurrence is 10.3.2005. The Act has come into force on 1.4.2001. As such it is clear that this Act will be applicable to the present case. As per Section 2(k)of this Act a Juvenile is a person who has not completed 18 years of age. From the impugned order it appears that a reference has been made to the decision of the Hon ble Supreme Court in the case of Arnit Das (supra). This decision was with respect to the Juvenile Justice Act, 1986 which has since been repealed and replaced by the Act mentioned above. As per this decision the relevant date to decide the Juvenility of an accused would be the date of his first production in the Court. However, this decision has been over-ruled by the Hon ble Supreme Court in the case of Pratap Singh (supra) in which it was held that the relevant date would be the date of commission of the alleged offence. In the present case the date of the commission of the alleged offence is 10.3.2005 and as per this decision the relevant date to decide the juvenility of the petitioner would be this date and not the date on which he was produced before the Board. In the present case the date of the commission of the alleged offence is 10.3.2005 and as per this decision the relevant date to decide the juvenility of the petitioner would be this date and not the date on which he was produced before the Board. From the present petition it appears that the petitioner was arrested by the police and was forwarded to the Court of the Chief Judicial Magistrate, Sitamarhi on 16.3.2005 and was remanded to jail custody. So there is difference of about six days in his production before the Court and the alleged date of occurrence. As noticed about the alleged date of occurrence would be the relevant date as held in the case of Pratap Singh (supra). However, this is not going to make much difference as noticed above. From the impugned judgment it appears that the petitioner was produced before the Board for the first time on 28.6.2005 which makes a difference of little more than three months. This, however, is also not very material for the reasons stated below. 6. Before the Board the father and mother of the petitioner were examined as PWs 1 and 2. Obviously they would be the most competent person to speak about the age of the petitioner. Even then their evidence on this point is not consistent. It has been pointed out before me that they would be highly interested witnesses and, therefore, their evidence should be properly scrutinised before the same is accepted as correct. So far as PW 1, the father is concerned he has stated that the petitioner was born in the year 1989. No month of his birth either according to the Hindi calender or the Roman calander has been disclosed. From this it would appear that on the alleged date of occurrence he would be less than 18 years of age. PW 2 is the mother who has stated that the petitioner was aged about 15 years. Thus there is no consistency in the evidence of the father and mother of the petitioner on this point. It appears that a Medical Board was constituted which gave its report on 19.8.2005. As per this report the age of the petitioner was found to be 17-18 years on this date. It is well settled that the radiological examination of a person can not conclusively determine his age. It appears that a Medical Board was constituted which gave its report on 19.8.2005. As per this report the age of the petitioner was found to be 17-18 years on this date. It is well settled that the radiological examination of a person can not conclusively determine his age. In the case of Jaya Mala V/s. Home Secretary, Government of Jammu and Kashmir and others, AIR 1982 SC 1297 , it has been held that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Hence it has been submitted that inspite of this report of the Medical Board it can be said that the petitioner was aged about more than 18 years on the alleged date of occurrence. 7. In the present case there is no horoscope to show the age of the petitioner. Judicial notice, may, however, be taken that in Muslim family horoscopes are not prepared. It, however, appears from the impugned judgment that even the extract of the school admission report which would have been shown the age of the petitioner has not been produced and filed by the petitioner and no steps was taken on his behalf to call for the same from the school and to get it exhibited. This would have been an important document to show the correct age of the petitioner. Before the learned Court below one of the grounds taken before the Court was that the Board had discarded the school leaving certificate of the petitioner. But strangely enough no such document was filed before the Board nor the same was found mentioned anywhere in the order-sheet. These two would have been important documents to show the correct age of the petitioner. They could have been called for and produced before the Board. It is surprising that such important documents which could have been established the correct age of the petitioner were neither called for nor produced before the Board for the reasons best known to the petitioner. This clearly goes against the case of the petitioner as he has denied his admission in the school. It is surprising that such important documents which could have been established the correct age of the petitioner were neither called for nor produced before the Board for the reasons best known to the petitioner. This clearly goes against the case of the petitioner as he has denied his admission in the school. In the case of State of Punjab V/s. Mohinder Singh, AIR 2005 SC 1868 , while referring to Section 32(5) of the Evidence Act it was held that school records have more probative value than horoscope which is a weak piece of material to prove the age of a person. Though in this case the horoscope has not been produced, however, the evidenciary value of the school records have been properly stated by the Hon ble Supreme Court. 8. From the detailed discussions made above it becomes clear to me that there is no illegality or irregularity in the impugned judgment of the learned Courts below and I see no reason to interfere with the same. 9. This application is, accordingly, dismissed.