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2006 DIGILAW 596 (RAJ)

Jawari Lal Bhati v. State of Rajasthan

2006-02-21

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-By way of filing the present petition under Section 482, CrPC the petitioner has prayed for quashing order dated 012.2004 passed by Addl. Sessions Judge (Fast Track) No. 1, Jodhpur in Criminal Regular Case No. 80/2004. 2.Facts of the case indicate that an FIR was registered against Manohar Lal, son of the present petitioner Jawari Lal for offence under Sections 376 and 323, IPC at Police Staton Bilara. It is contended by learned Counsel for the petitioner at the time of occurrence the accused was only about 17 years of age and, therefore, under the definition given in the Juvenile Justice (Care & Protection of Children) Act, 2000 (in short, the Act hereinafter), male child means a male child who has not completed the age of 18 years and as such the trial is required to be conducted before the Juvenile Board; but, the police, after investigation, have filed challan against Manohar Lal, son of petitioner, before the A.C.J.M., Bilara and the learned Magistrate before whom challan has been filed committed the case for trial before the Sessions Judge, Jodhpur. The case was thereafter transferred for trial to the Addl. Sessions Judge (Fast Track) No. 1, Jodhpur. 3.It is contended that the application was filed by Manohar Lal before the learned Sessions Judge on 30.06.2005 praying that at the time of the occurrence the petitioners son Manohar Lal was 16 years 9 months old and, therefore, under the definition of child given in Section 2 (k) of the Act, the matter required to be transferred for trial to the Juvenile Board treating the accused juvenile offender. On 12.07.2004, the learned trial Court passed order and proceeded to make enquiry for determining the age of the petitioners son Manohar Lal. Accordingly, the accused was directed to produce documents and oral evidence in support of his age. During the course of enquiry, witnesses were examined and statements of Dinesh Kumar, Dr. Premdas Goyal and Jawari Lal were recorded. Documents, Exhibit P-1 scholar register and Exhibit P-2 horoscope were exhibited in support of the age of the accused. Petitioner Jawarilal, father of the accused, filed his affidavit to support the application and certificate issued on 15.04.2000 by Ambedkar Public School, Chawandiya Kalan was also filed alongwith photo-stat copy of marks-sheet for the Session 1993-94, attested by the Head Master, Government Secondary School, Pipar Shahar. Petitioner Jawarilal, father of the accused, filed his affidavit to support the application and certificate issued on 15.04.2000 by Ambedkar Public School, Chawandiya Kalan was also filed alongwith photo-stat copy of marks-sheet for the Session 1993-94, attested by the Head Master, Government Secondary School, Pipar Shahar. The learned trial Court, after recording the evidence and taking into account the documents filed by the accused, rejected the application vide order dated 012.2004. The trial Court arrived at the finding that as the school certificates filed by the accused in support of his contention with regard to age are also not acceptable because the certificate is issued by private school and has not been proved by the authorised officer. The trial Court held in the impugned order that on the date of occurrence the age of the accused was eighteen and half years. The trial Court also took into account the fact that when the case was committed to the Sessions Court no objection was taken by the accused nor the accused submitted at that stage that due to his adolescent age the matter required to be tried by the Juvenile Board. 4.It is contended by learned Counsel for the petitioner that the finding of the trial Court is erroneous because as per the material on record it is obvious that the petitioner was juvenile as defined in the Act and was less than 18 years of age at the time of the alleged occurrence. He invited attention of the Court to the original transfer-certificate issued by the Ambedkar Public School, Chawandiya Kalan and emphasized that the said school recognized by the Government of Rajasthan and there is seal upon the certificate bearing the registration number. He also invited attention of the Court towards photo-stat copies of marks-sheet for the year 1996-97 wherein his date of birth is shown 03.06.1987. In the transfer-certificate also the date of birth of the accused is shown 03.06.1987. Learned Counsel for the petitioner emphatically urged that in his statement, witness Dinesh Kumar categorically stated that name of accused Manohar Singh appears at S.No. 17, of the scholar register wherein his date of birth is shown as 03.06.1987. Learned Counsel for the petitioner vehemently argued that there was no occasion for the Court below to disbelieve the testimony of Dinesh Kumar. Learned Counsel for the petitioner vehemently argued that there was no occasion for the Court below to disbelieve the testimony of Dinesh Kumar. He contended that the trial Court has seriously erred in law in appreciating the evidence coming on record with the result that there is grave perversity in the finding. 5.Record of the case was called in the matter. Witness Dinesh Kumar has categorically stated before the Court that the document, scholar register is genuine and Manohar Singh was admitted to his school on 07/07/1993. It was further deposed by him that at the time of admission in the school, date of birth of Manohar Singh was registered on the affidavit of Jawarilal, father of the accused. It was also deposed by him that he has brought with him the scholar register and Exhibit P-1 is its photo copy. In the face of the evidence coming on record, the trial Court seriously erred in reaching the conclusion that the witness has not supported the case of the applicant. The conclusion seems to have been arrived at over subjective groping by the trial Court which is not exactly the requirement of law. Once the witness has testified to the veracity of the documents and contents of the document are not denied, the Court should not have raised questions alien to the admissibility of the evidence. 6.Witness Dr. Premdas Goyal categorically denied in his cross-examination that the X-ray plate was taken under his direction. There is consistent judicial opinion that ossification and medical test for determination of age is liable to variation. In Arnit Das vs. State of Bihar, 2000 (5) SCC 488 , having reviewed the judicial opinion over the issue, reached consensus that while dealing with the question of determination 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. 7.This Court, in the case of Raju Ram @ Rajendra Kumar vs. State of Rajasthan, 2002 (2) CrLR 1349 (Raj.), having considered the material aspects in play for founding the judicial view, expressed the following view: "In my opinion there was nothing wrong with the testimony of the school Principal Roop Narayan who came with the original record of the school and on its basis deposed that the recorded date of proof of the petitioner was 25.06.1985. The offence allegedly took place on 25.09.2000. Thus, the age of the petitioner on the date of the alleged offence was 15 years 3 months,. Roop Narayan the Principal has stated that earlier the petitioner was a student of some other school and the date of proof was entered in the school record on the basis of the transfer certificate which was received from the previous school. The learned trial Court has opined that since the record of the earlier school was not produced the testimony of Roop Narayan was of no consequence. I am afraid that was not the right approach. The school record was old one and it cannot be argued that it was got prepared or was fabricated to serve the petitioner in this case. There was no reason to believe that in the transfer certificate which came from the earlier school the recorded date of birth was not 25.06.1985.” 8.Thus, in determination of the age of the accused, the Court need apply its mind only to the probative value of the evidence. A school certificate or document showing the date of birth of the accused, in criminal justice, need not be put to test on the anvil of technical certainties. By sure, such approach would lead astray the conclusion of the Court whereas it is settled view that benefit of admissible variation taken into account over a ossification or medical test for determination of age goes in favour of the accused. In Nahar Singh vs. State of Rajasthan, reported in 2002 WLC (UC) 85, this Court at Jaipur Bench has expressed the conscientious opinion that medical report in determination of age is an opinion which can vary by two years either way and, therefore, the certificate of school has more probative value in the eye of law. In Nahar Singh vs. State of Rajasthan, reported in 2002 WLC (UC) 85, this Court at Jaipur Bench has expressed the conscientious opinion that medical report in determination of age is an opinion which can vary by two years either way and, therefore, the certificate of school has more probative value in the eye of law. 9.Having considered the case on its material aspects, I am of the opinion that the trial Court fell into material perversity in arriving at the finding that evidence adduced does not support the case of the applicant - accused Manohar. In its appreciation, the Court below unnecessarily dragged in questions not germane for consideration. 10.As a result of the foregoing, this petition is allowed. Order impugned dated 012.2004 is set aside. Application moved under Section 27, CrPC, read with Section 49 of the Act is ordered to be allowed. The trial Court shall transfer the case to the concerned Juvenile Board for trial in accordance with law.