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2009 DIGILAW 143 (JHR)

Dhan Singh Mundari v. State of Jharkhand

2009-01-29

JAYA ROY

body2009
Order The petitioner has filed this revision application for quashing the order dated 26.8.2008 passed by the Additional Sessions Judge, F.T.C.-V at Chaibasa rejecting an application filed by the petitioner to declare him Juvenile as he was below 18 years of age on the date of occurrence i.e. 18.1.2007. 2. Facts of the case, in brief, is that a case has been registered against the petitioner under Section 376 I.P.C. alleging that on 18.1 .2007 the informant when had gone to attend a local festival namely Tusu and to see the dance programme, the petitioner forced her to dance with him. After some time the petitioner asked her to bring water to drink. She went to take water, the petitioner also went there and on the point of knife, brought her to a lonely place and forcibly committed rape on her. 3. The case was committed to the Court of Sessions and when it was pending before the Additional Sessions Judge, F.T.C.-V, for trial in S.T. Case No. 108/ 07, the petitioner has filed an application praying therein that he may be declared Juvenile as he was a below 18 years of age at the time of alleged occurrence. The trial court according to the Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 directed to produce the petitioner before the Medical Board. The Medical Board after examining the petitioner on 17.12.2007, submitted its report vide memo no. 172 dated 24.1 .2008 and one of his member Doctor Ashok Kumar Mishra in order to prove the contents of the report, has been examined. The said Doctor had proved the entire report prepared by Medical Board which has been marked as Exhibit-1. The report of the Medical Board shows that the petitioner on date of examination was about 19-20 years of age. 4. The trial court during the course of hearing when the accused petitioner was produced before him from Judicial Custody, after seeing him, has opined that the physical appearance of the accused petitioner is more than 20 years of age as such on the date of occurrence he was definitely was more than 18 years of age. 5. On request of the counsel appearing for the accused petitioner, the trial court issued summon to the Headmaster/ Principal of Rajkio Uchha Vidyalay to bring Admission Register to see the date of birth. 5. On request of the counsel appearing for the accused petitioner, the trial court issued summon to the Headmaster/ Principal of Rajkio Uchha Vidyalay to bring Admission Register to see the date of birth. On being such summoned, a teacher namely Harihar Singh Sirka (P.W. 2) had come of with original Admission Register from the aforesaid School. The trial court on perusal of the said Register did not rely on it and finally on the basis of the report of the Medical Board, rejected the application of the petitioner by his order dated 26.8.2008. 6. The counsel of the petitioner submits that when the petitioner had raised a plea that he was a Juvenile and that his case should be sent to the Juvenile "Justice Board (or trial, it was incumbent upon the court below to refer the petitioner's case to the Juvenile Justice Board of assessment of the petitioner's age since such power under the Act is vested with the Juvenile Justice Board only. 7. The Counsel for the State has controverted the petitioner's ground and submits that the trial court was fully competent to make an enquiry regarding the age of the petitioner and for the said purpose it has full authority to refer the petitioner to the Medical Board for assessment of his age and there is no illegality or impropriety in the impugned order. 8. Section 7-A has been inserted by Act 33 of 2006, (w.e.f. 22.8.2006) in this Act which lays down the procedure to be followed when claim of juvenility is raised before any court:- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding. whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined to terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentenced if any, passed by a court shall be deemed to have no effect. 9. Thus it is very clear from the above provision that the court before whom an accused person raises a plea of being juvenile on the date of commission of the offence, the court is competent to conduct an enquiry and in course of enquiry, the court can take such evidence as may be necessary in order to determine the age of such accused person. 10. The Jharkhand Juvenile Justice (Care & Protection of Children) Rules, 2003 provides sub-rule 5 of Rule 22 also lays down the procedure to be followed by a Board in holding inquiries and the determination of age 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). 11. Therefore, the court should consider first the birth certificate given by a Corporation or Municipality Authority or date of birth certificate from the School first attended or Matriculation or equivalent certificate if available. 11. Therefore, the court should consider first the birth certificate given by a Corporation or Municipality Authority or date of birth certificate from the School first attended or Matriculation or equivalent certificate if available. The authority concerned can refer the matter to the Medical Board only in absence of the aforesaid documents. 12. In the present case the original Admission Register was brought before the trial court where the date of birth of the petitioner was recorded as 13.3.1989. This part of the Admission Register duly signed by the then Class Teacher J. Sinku which has been marked as Exhibit-2. Certified copy of the said portion of the Admission Register is annexed in this case as Annexure-2. I find after considering the Annexure-2 that the age of the petitioner is very clearly written as 13.3.1989. I further find there is no such interpolation or overwriting in the column No. 20 which bears the signature of J. Sinku. Therefore, I do not find any reason to disbelieve the date of birth of the petitioner recorded in the Admission Register. 13. The evidence of the Doctor (P.W.1) also shows "opinion mentioned in the report may differ by one year of either side" thus according to the report of the Medical Board which shows the age of the petitioner 19/20 on 17.12.2007 then after taking one year less according to the Doctor's evidence the age 0'1 the petitioner on 18.1.2007 (date of occurrence) was less than 18 years. 14. Considering all the aspects, I find merit in this revision. Accordingly the Impugned order dated 26.8.2008 passed by the Additional Sessions Judge, F.T.C.-V at Chaibasa is, hereby, set aside and declare the petitioner as juvenile as he had not completed 18 years of age on the date of the alleged occurrence. The case is remitted back to the court below for passing an appropriate order for referring the case of the petitioner to the Juvenile Justice Board. Revision application is allowed.