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2008 DIGILAW 580 (JHR)

Gautam Giri v. State of Jharkhand

2008-06-11

D.K.SINHA

body2008
JUDGMENT: DK Sinha, J.-The Petitioner Gautam Giri has preferred this Cr. Revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 against the order impugned passed by the Sessions Judge, Hazaribagh in Cr. Appeal No. 97 of 2005 on 20.7.2005 whereby and whereunder the plea of the petitioner that he be declared juvenile was dismissed upholding the order of the A.C.J.M., Hazaribagh dated 7.6.2005 arising out of Ramgarh P.S. Case No. 322 of 2004 for the alleged offence under Sections 3021201/34/ 220B/364A I.P.C. 2. The prosecution story in short was that the C.P. No.2 informant stated in his Fardbayan on 15.7.2004 that his nephew Bhavesh Mishra who had gone to Rakesh Tuition Centre, Ranchi Road for tuition in the day hours, as usual, did not return by 5.30 p.m. When Bhavesh Mishra did not return even late in the evening, the informant started searching in near relations but the missing boy could not be located. At about 7.15 p.m. on the same day the informant received call that Bhavesh Mishra was kidnapped and a sum of Rs. 5 lakhs was demanded by the kidnappers as the ransom for the release of the boy. The F.I.R. was instituted against unknown. 3. In course of investigation, the dead body of Bhavesh Mishra was recovered with injuries on his person and the petitioner Gautam Giri with another Kamlesh Kumar Choubey were arrested who confessed their guilt leading to discovery of relevant fact including the weapon used in assassination of Bhavesh Mishra. Later on, in course of investigation the third accused Mukesh Pawan was arrested and was remanded to judicial custody. The case of the petitioner Gautam Giri, on his plea of minority was sent to the AC.J.M., Hazaribagh for enquiry and by the enquiry report dated 7.6.2005 the learned AC.J.M., Hazaribagh observed that since the transfer certificate issued by the school was not exhibited and the only material was the oral evidence adduced by the parents of the petitioner Gautam Giri, he had to rely upon the report submitted by the Medical Board in respect of the determination of the age of the petitioner which was assessed 18 years. Learned A.C.J.M. on the physical appearance of the petitioner found that he was not less than 19 years and that the margin of error of two years in determination of age after radiological examination of either side could not be ruled out and therefore the learned AC.J.M. assessed the age of the petitioner 18 years at the time of alleged occurrence. 4 Against such order the petitioner preferred a Criminal Appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which was also dismissed on the ground that the school transfer certificate filed on behalf of the petitioner Gautam Giri did not appear to be reliable in absence of admission register and that no endeavour whatsoever was made on behalf of the petitioner to bring the admission register on record in course of enquiry and considering the argument advanced on behalf of the informant that if the benefit of the variation of age up to two years, by either side, was taken for determination of the age of the petitioner, it would be against the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, the learned Sessions Judge, Hazaribagh dismissed the appeal without appreciation of Section 12 of the Act. 5. Learned Counsel for the petitioner submitted that apart from the evidence adduced by the parents of the petitioner and production of the school transfer certificate, wherein, the date of birth of the petitioner was shown as 8.8.1989, below 18 years of age on the alleged date of occurrence, the petitioner was sent to the Medical Board and the Board after his clinical examination and by radiological test, assessed his age 18 years as on 13.12.2004 whereas the alleged date of occurrence was 15.9.2004. 6. Learned Counsel further submitted that neither the A.C.J.M. in course of enquiry nor the learned Sessions Judge, Hazaribagh in appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 did appreciate that the Act was brought about to provide for the care, protection and rehabilitation of the juveniles in conflict with law and that the Act was beneficial and socially oriented legislation. Learned courts below even did not follow the Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 which was mandatory in nature and it clearly laid down that for the determination of the age of the juvenile, in conflict with law, the court may rely upon any of the following documents:- (i) Birth certificate given by a Corporation or Municipal authority, or (ii) Date of birth certificate from the school first attended, or (iii) Matriculation or equivalent certificate if available and in absence of above document the opinion of the Medical Board duly constituted under the orders of the Court/Juvenile Justice Board subject to margin of one year. 7. Concluding the arguments, the learned Counsel submitted that the learned courts below did not appreciate either the oral evidence of the parents of the petitioner, school transfer certificate or the report of the Medical Board which indicated that the petitioner at the relevant time was below 18 years of age and hence a juvenile under the Act. 8. On the other hand, Mr. Deepak Kumar, learned Counsel for the O.P. No.2 vehemently opposed the contention raised by the Counsel for the petitioner and submitted that there was no legal evidence on the record in support of the fact that the petitioner at the relevant time of murder was a juvenile and hence he was put on trial alongwith other accused persons by the regular Court of Additional Sessions Judge after framing of charge under various Sections of I.P.C. 9. Having regard to the facts and circumstances of the case the fact is not disputed that the parents of the petitioner had appeared in enquiry before the AC.J.M. and adduced evidence that the petitioner was below 18 years of age at the relevant time of alleged occurrence. The school transfer certificate was produced by the father of the petitioner Binod Giri which indicated the date of birth of the petitioner as on 8.8.1989 though, this transfer certificate was not proved in course of enquiry but the averment made in the said certificate was taken into account by the learned AC.J.M. Binod Giri deposed that the age of his son Gautam Giri was little more than 15 years. The mother of the petitioner Sanju Devi also deposed that his age was about 15/16 years and nothing could be elicited contrary to their statements before the Court and that certain Court questions were put to them by the A.C.J.M. to his satisfaction during enquiry. 10. I have also carefully gone through the report of the Medical Board, presided by the Civil Surgeon, Hazaribagh dated 13.12.2004 in which on the basis of the Xray of AP. view of pelvis and the wrist of the petitioner the Board found the lower end of radius and ulna fused, greater/lesser tronchentar fused but epiphysis of iliac crest was not found fused, as such, in the opinion of the Medical Board, the ago of the petitioner Gautam Giri was determined 18 years on 13.12.2004. 11. Jharkharrd Juvenile Justice (Care and Protection of Children) Rules, 2003 lays down the provisions for determination of age concerning a juvenile or a child under Rule 22(5) that the Juvenile Justice 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). 12. In the instant case. I find that the petitioner could be able to satisfy the requirements in support of the fact that he was a juvenile, below 18 years of age at the relevant time of alleged occurrence but the courts below failed to appreciate this aspect. 13. A similar situation fell for consideration before the Patna High Court in Dablu @ Manish Kumar vs. State of Bihar (Jhr.) reported in 2004(1) East Cr. C.651 (Jhr.) and it was observed:- "In my opinion, no hard and fast rule can be laid in regard to weightage to be given either to the school leaving certificate or the report of the Medical Board. It will depend upon the facts and circumstance of each case. C.651 (Jhr.) and it was observed:- "In my opinion, no hard and fast rule can be laid in regard to weightage to be given either to the school leaving certificate or the report of the Medical Board. It will depend upon the facts and circumstance of each case. When there is no doubt in regard to the certificate granted by the authority then in that case entry made therein shall have higher value. However, in a case in which the certificate looks to be doubtful, the opinion given by the Medical Board may be worthy of reliance. I am of the considered opinion that this is in realm of appreciation of evidence and for that every case has to be decided on its own merit. However, one has to bear in mind that the opinion of the Medical Board is after all an opinion and till date science has not developed to the extent that it can accurately assess the age whereas the school leaving certificate is granted on the basis of declaration made by the guardian or the parents of the child at the time of his admission and in a case in which there is either no interpolation, misrepresentation or fraud, the entry made in the school leaving certificate shall certainly carry more weight. Reference in this connection can be made to a decision of the Supreme Court in the case of Umesh Chandra vs. The State of Rajasthan, AIR 1982 SC 1057 , in which it has been held as follows:- "7. We agree with the High Court that in cases like these, ordinarily the oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. To these extent, we agree with the approach made by the High Court". 14. I am in agreement with the view taken by the Patna High Court referred to hereinabove and observe that the petitioner Gautam Giri was a juvenile below 18 years of age under the Act on the date of alleged occurrence. To these extent, we agree with the approach made by the High Court". 14. I am in agreement with the view taken by the Patna High Court referred to hereinabove and observe that the petitioner Gautam Giri was a juvenile below 18 years of age under the Act on the date of alleged occurrence. I, therefore, direct his case record to be split up and to be tried by the Juvenile Justice Board. This Revision is allowed and accordingly, the orders impugned passed by tile Sessions Judge, Hazaribagh in Cr. Appeal No. 97 of 2005 on 20.7.2005 and the order recorded by the A.C.J.M., Hazaribagh on 7.6.2005 after enquiry in G.R. No. 2257 of 2004 arising out of Ramgarh P.S. Case No. 322 of 2004 are set aside. 15. Let the record of the lower court be returned back.