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2008 DIGILAW 1462 (JHR)

Brajesh Kumar Yadav v. State of Jharkhand

2008-12-17

JAYA ROY

body2008
JUDGMENT : The petitioner has filed the instant Criminal Revision application for quashing the order dated 12.6.008 passed in Criminal Appeal No.14 of 2008 by Sri Uma Shankar Prasad Sinha, Ist Additional Sessions Judge, Hazaribagh and order dated 18.1.08 passed in Mandu P.S.Case No.275 of 2006 corresponding to G.R.No.2467 of 2006 by the learned Chief Judicial Magistrate, Hazaribagh whereby the learned court has refused to declare the petitioner as Juvenile. 2. The case of the prosecution, in brief, is that the informant Sanjay Kumar Gupta has lodged an F.I.R stating therein that he has got one Ration shop and one cloth shop. While the informant was sitting in the cloth shop and his younger brother Pramod Kumar was sitting in the Ration shop at about 7.30 P.M. on 25.8.2006, 7-8 miscreants came to his shop and demanded money form both the brother and told them to give the money otherwise they will finish them. The two miscreants have taken Rs. 60,000/-from their shop. When the informant and his brother started run away then one of the miscreant injured his brother by knife and he also fired the informant which hit him at the left side of his stomach and bleeding started. Thereafter, the four miscreants took the informant inside of his house and demanded the key, money and jewelery and they again fired on the right side of his stomach. All the four miscreants looted the articles of the house and took away one lakh and ten thousand rupees and ornaments of the ladies from the godrej Almeera. The informant has further stated in the F.I.R. that the person who injured him was known to the informant and his name is Sanjay Kumar Yadav. The informant has claimed to identify other three miscreants and he has given the description of the miscreants. On this information a case was registered under Sections 395/ 397 and 412 I.P.C. against Sanjay Kumar Yadav and 7-8 unknown persons. On investigation, the name of the petitioner has come on confessional statements of the co-accused and he was remanded to Judicial Custody on 27.11.2007. During the pendency of the case, the petitioner filed an application before the C.J.M. Hazaribagh for declaring him for Juvenile as his date of birth in 15.6.1992 in the School Register and in the Transfer certificate. 3. During the course of enquiry, the petitioner adduced oral and documentary evidence on his behalf. During the pendency of the case, the petitioner filed an application before the C.J.M. Hazaribagh for declaring him for Juvenile as his date of birth in 15.6.1992 in the School Register and in the Transfer certificate. 3. During the course of enquiry, the petitioner adduced oral and documentary evidence on his behalf. Witness No.1 Ramesh Yadav father of the petitioner has stated in his evidence that the petitioner is his son and his date of birth is 15.6.1992. Witness No.2 Suresh Prasad, a teacher of Government Middle School, Bigha has stated in his evidence that he is the in-charge of the Headmaster of the School and he brought the Admission Register of the school and at serial no. 105 the name of the petitioner is written and his date birth is mentioned as 15.6.1992. But in his statement he has stated that at the time of his admission (admission of the petitioner), no transfer certificate was produced. 4. The petitioner was also examined by the Medical Board. According to the report of the Medical Board dated 5.1.2008 the age of the petitioner was twenty years on 24.12.2007. The learned counsel of the petitioner submits that another case bearing Mandu P.S.Case No. 276 of 2006 which was registered against the petitioner under Sections 25(1-b) A/26/27 of the Arms Act for the same occurrence and in the said record the learned Judicial Magistrate vide order dated 5.1.2008, has assessed the age the petitioner less than 16 years and he has declared him as minor and the trial of the said case is pending before the Juvenile Justice Court, Hazaribagh. It is further submitted that in the said case the learned Judicial Magistrate has passed his order on the basis of the oral evidence adduced on behalf of the petitioner. 5. The counsel of the state submits that the petitioner was examined by the Medical Board and as per Medical Board he was aged about 20 years on 24.12.2007. Therefore, the petitioner cannot be said minor on the date of alleged occurrence i.e on 26.8.2006. 6. 5. The counsel of the state submits that the petitioner was examined by the Medical Board and as per Medical Board he was aged about 20 years on 24.12.2007. Therefore, the petitioner cannot be said minor on the date of alleged occurrence i.e on 26.8.2006. 6. The Clause 5 of section 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 which reads as follows:- (5) In every case concerning a juvenile or a child, the Board shall either obtain:- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, (regarding his age and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be record a finding in respect of his age). 7. In the present case, from the orders of both the courts below I find the petitioner has not filed any of the certificate regarding his date of birth as mentioned in clause (5) (i) to (iii) of section 22 of the aforesaid Rules. From the order of the trial court dated 18.1.2008, I find witness No.2 Suresh Prasad, a teacher of the Govt.Middle School, Bigha brought the Admission Register of the school and in said Admission Register the name of the petitioner is mentioned at serial no.105 and his date of birth recorded as 15.6.1992. The same was marked as Exhibit-1. But the said witness no.2 Suresh Prasad has further stated in his evidence that at the time of admission of the petitioner, no transfer certificate has been produced by his guardian. Thus, it creates a great doubt as there is no basis of recording the petitioner’s date of birth as 15.6.1992. It further shows that the guardian of the petitioner has given a date of birth as he likes i.e. without any basis. 8. Thus, it creates a great doubt as there is no basis of recording the petitioner’s date of birth as 15.6.1992. It further shows that the guardian of the petitioner has given a date of birth as he likes i.e. without any basis. 8. Therefore, in absence of any of these certificates as mentioned (i) to (iii) of clause 5 of section 22 of the aforesaid Rules, there is no way other than to consider the report of the Medical Board in respect of his age. According to the Medical Board, the age of the petitioner was 20 years on 24.12.2007. Therefore, the petitioner can not be considered as minor or below 18 years of age on the date of the alleged occurrence i.e. 25.8.2006. 9. In view of the aforesaid discussion, I do not find any illegality or infirmity in the impugned orders. I find no merit in this revision. Accordingly, it is dismissed.