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2009 DIGILAW 1172 (JHR)

Pankaj Kumar Tiwari v. State of Jharkhand

2009-08-21

D.K.SINHA

body2009
Judgment D.K. Sinha, J.-This Cr. Revision is directed against the judgment passed by the Sessions Judge, Garhwa in Cr. Appeal No. 22 of 2007 by which prayer made by the petitioner for declaring him juvenile under Juvenile Justice (Care and Protection of Children) Act, 2000 was dismissed affirming the order passed by the Juvenile Justice Board, Ranchi on 4.9.2007 arising out of Garhwa P.S. Case No. 171 of 2006 corresponding to G.A. No. 594 of 2006. 2. The prosecution story in short was that the petitioner was arrested by the police on 18.12.2006 for the alleged offence under Sections 364/34 I.P.C. and subsequently Section 302 I.P.C. was added against three accused persons including the petitioner. At the time of his remand to the judicial custody the age of the petitioner. Was assessed 22 years by the C.J.M. Incharge, Garhwa. Subsequently, the petitioner took the plea of being a juvenile and thereafter, his case record was referred to the Juvenile Justice Board, Garhwa to enquire the matter for determination of his age, as contemplated under Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, in short the Act. The J.J. Board in course of enquiry recorded the statements of the witnesses, examined the documents produced on behalf of the petitioner and also examined the report of the Medical Board. After discussing the pros and cons, the J.J. Board held that on the relevant time of occurrence the. petitioner was no longer juvenile thus the record was sent back to the Court of C.J.M., Garhwa, the petitioner Pankaj Kumar Tiwari was recalled from Observation Home, Ranchi and was remanded to Garhwa Jail as he was held to be above 18 years of age. 3. Against such order passed by the Juvenile Justice Board, the petitioner preferred an appeal before the Sessions Judge, Garhwa and, the Sessions Judge observed, "From perusal of the impugned order as well as reasons assigned by the learned court below it is crystal clear that the appellant has attempted to place reliance upon a forged school certificate, which could not be relied upon at all. Further medical report about age of the appellant reveals the appellant sage about 19 years. Thus placing reliance upon Rule 22(5)(iv) of Juvenile Justice (Care and Protection of Children) Rules 2001 as well as physical appearance of the appellant he was not found the appellant juvenile. Further medical report about age of the appellant reveals the appellant sage about 19 years. Thus placing reliance upon Rule 22(5)(iv) of Juvenile Justice (Care and Protection of Children) Rules 2001 as well as physical appearance of the appellant he was not found the appellant juvenile. I find no valid reason to interfere with the findings and conclusion recorded by the learned court below." 4. Learned Sr. Counsel Mr. A.K. Kashyap assailed both the order passed in enquiry and the judgment delivered in appeal on the ground that the courts failed to appreciate the merit of the petition of the petitioner who claimed to be a juvenile below 18 years of age on the documentary evidence as well as the report of a duly constituted medical board. 5. Advancing his argument, learned Sr. Counsel submitted that a procedure has been laid down for determination of the age of a person who claims to be a juvenile, as contemplated in Rule 22(5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 which speaks, "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; (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)." 6. The petitioner in proof of his age produced the school leaving certificate which was proved by E.W. 1 Amar Nath Yadav, Incharge Headmaster of Government Buniyadi School, Ranka, Garhwa, who identified the writing and signature of admission register in which the date of birth of the petitioner was recorded as on 12.9.1988 which stood at SI. No. 61 and the said certificate was marked Ext.-2. No. 61 and the said certificate was marked Ext.-2. Yet, the Juvenile Justice Board disbelieved the evidence for the reason that the said witness was not posted in the concerned school at the time of admission of the petitioner and that the entry of date of birth as recorded in the admission register of the school was based upon a transfer certificate of a different school was produced by the petitioner and that it was not an original document to be placed reliance. The Juvenile Justice Board observed, "From perusal of Ext.-2 it transpires that at the time of admission the age of petitioner was written in column No. 8 of admission, register as 5 years 4 months. If the age of petitioner Pankaj Kumar Tiwari was 5 years 4 months on the date of admission i.e. on 31.7.1992 then from calculation his age comes about 19 years 3 months on the date of occurrence i.e. 17.6.2006. From further perusal of Ext.- 2 it transpires that column No.10 of admission register is not filled up and it is blank and in column NO.18 of admission register the caste of petitioner is written ,as "Harizan Chamar" and in column No.11 the thumb impression of Yougal Ram is made in place of signature of father or guardian. Here the petitioner is by caste "Tewari" and his fathar's name is Virendra Kumar Tewari. All these facts create doubt over the matter." 7. Mr. Kashyap, learned Sr. Counsel submitted by attracting attention of this Court that a Medical Board was also constituted by the Juvenile Justice Board for the determination of the age and the Medical Board by its letter No. 2450 dated 17.8.2007 presided over by Civil Surgeon-cum-Chief Medical Officer, Ranchi determined the age of the petitioner about 19 years on 26.7.2007. 8. Mr. Kashyap advanced his argument that the date of alleged occurrence was 17.6.2006 and even if the report of the Medical Board was accepted to be an authentic determination of age, there was margin of plus minus one year as per Rule 22(5)(iv), as such, the age of the petitioner could be determined much below 18 years on the alleged date of occurrence. The learned members of Juvenile Justice Board, Garhwa committed serious error by relying upon their visual assessment determining the age of the petitioner about 22/23 years for the reasons as well that the C.J.M. Incharge, Garhwa had also assessed the age of the petitioner about 22 years at the time of his remand. The reasoning assigned by the Juvenile Justice Board was erroneously affirmed by the Sessions Judge in Cr. Appeal preferred under Section 52 of the Juvenile Justice Act the Counsel added, which cannot be sustained under law in view of specific provision laid down under Rule 22(5)(iv) of Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. The mode of assessment that has been given in the Rules for determining the age of an accused claiming to be juvenile cannot be undermined by any other mode including visual determination. 9. Having regard to the facts and circumstances of the case, argument advanced on behalf of the petitioner as well as the State, I find that both the courts below in succession failed to appreciate specific rules, as contemplated under Rule 22(5)(iv) of the Jharkharid Juvenile, Justice (Care and Protection of Children) Rules, 2003. The said Rule postulates preferential option for determination of age of an accused claimed to be a juvenile. In the given situation, when the Juvenile Justice Board, Garhwa questioned the authenticity of the school leaving certificate produced on behalf of the petitioner (Ext.-2) as also the admission register (Ext.-1) of the school wherein the date of birth of the petitioner was recorded, the only mode left out for determination of the age of the petitioner was to follow the provision as contained in sub-clause 5(iv) of Rule 22. Though I find that the Juvenile Justice Board had forwarded the petitioner before the Medical Board for determination of the age of the petitioner and the Board by scientific examination determined the age of the petitioner about 19 years as on 26.7.2007 but the J.J. Board failed to calculate that the petitioner's age on the alleged date of occurrence on 17.6.2006 could be determined below 18 years. The Board failed to appreciate the possibility of error of plus minus one year as contemplated in the said Rule. The Board failed to appreciate the possibility of error of plus minus one year as contemplated in the said Rule. I, therefore, find and hold that the petitioner on 17.6.2006 was below 18 years of age and therefore, was a juvenile under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000. 10. I find that the courts below failed to appreciate the provisions of law as referred to hereinbefore while determining the age of the petitioner. The legislature has enacted the law for extending special treatment in respect of a juvenile in conflict with, law the Act is benevolent but at the same time duty is cast upon the courts to strictly scrutinize the evidence regarding the age of the offender at the time of commission of the offence to prevent misuse of this benevolent legislation. 11. In the instant case, I find merit in this Cr. Revision for the reasons stated accordingly, it is allowed. The age of the petitioner is determined below 18 years of age. The impugned orders are set aside.