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Madhya Pradesh High Court · body

2009 DIGILAW 222 (MP)

NARENDRA YADAV ALIAS MANTOO v. STATE OF M P

2009-02-13

K.S.CHAUHAN

body2009
Judgment ( 1. ) THIS criminal revision under Section 53 of the Juvenile justice (Care and Protection of Children) Act, 2000 read with Sections 397/401 of the Code of Criminal Procedure has- beer preferred by the petitioner being aggrieved by the impugned order dated 12/5/2003 passed by the Third Additional sessions Judge, Bhopal in Criminal Revision No. 110/2003, whereby the order dated 24/2/2003 passed by the Juvenile Court, Bhopal in Case No. 498/2002 has been set aside by holding that the petitioner is more than 18 years of age,, ( 2. ) THIS case has got its chequered history, which can be narrated as follows :-The petitioner and other accused persons are being tried for the charges under sections 302, 323, 324/34 of IPC in the Court of First Additional Sessions Judge, bhopal. The case was fixed on 6/8/2002 for framing charge against the accused persons. On the same day, petitioner moved an application that he is child, hence cannot be tried by the Sessions Court. The application was allowed and it was found that the petitioner was below 18 years of age at the time of occurrence, hence direction was given to the prosecution to file charge sheet before the Juvenile court, Bhopal. The copy of the order sheet dated 14/8/2002 passed by the First additional Sessions Judge, Bhopal in ST No. 223/2000 is Annexure A-l. Being aggrieved by this order, respondent No. 2 filed Criminal Revision No. 1049/2002 before this Court, which was dismissed as withdrawn on 4/12/2002 and the direction was made to the Juvenile Court to conclude the enquiry as early as possible. The copy of the order dated 4/12/2002 is Annexure A-2. The Juvenile Court under the provisions of Section 49 of the Juvenile Justice (Care and Protection of Children)Act, 2000 (hereinafter referred to the "act") made an enquiry about the age of the petitioner and found that the date of birth of the petitioner is 16/11/1982, therefore he was not child on 3/5/2002 the day of occurrence and referred the matter to the sessions Court, Bhopal. A copy of the order dated 25/9/2002 passed by the competent authority is Annexure A-3. A copy of the order dated 25/9/2002 passed by the competent authority is Annexure A-3. Being aggrieved by this order, petitioner filed a criminal appeal under Section 52 of the Act in the Sessions Court, Bhopal, which was registered as Criminal Appeal No. 132/2002 and the Special Judge, scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 allowed the appeal and remanded back the case for fresh enquiry. The copy of the order dated 18/11/2002 is Annexure A-4. Pursuant to this order, the competent authority again conducted an enquiry and after recording the statements of witnesses has come to the conclusion that petitioner was below 18 years at the time of occurrence and hence would be dealt with by Juvenile Court, Bhopal. A copy of the order dated 24/2/03 passed by the competent authority is Annexure a-5. Being aggrieved by this order, respondent No. 2 filed criminal revision in the sessions Court (in fact appeal ought to have been filed), which was allowed by the impugned order dated 12/5/2003. Against which the instant revision has been filed on the grounds mentioned in the memo of revision. ( 3. ) SHRI Adil Usmani, learned counsel for the petitioner submitted that the age cannot be determined only on the basis of school certificate. As per the ossification test, the petitioner was below 18 years and even in the border line cases, the benefit should be given to the petitioner. The Court below has not properly considered the evidence of Rajjo Bai, mother of the petitioner. The Court below has also overlooked the orders dated 14/8/2002, 18/11/2002 and 24/2/2003 passed in favour of the petitioner. The order is erroneous, which deserves to be set aside and it be held that the petitioner is child under the Act. ( 4. ) ON the contrary, Shri Manikant Sharma, learned counsel appearing on behalf of respondent No. 2 supported the impugned order mainly contending that the petitioner has not come with clean hands from the beginning. In the application under Section 54 of Cr. P. C. , it was mentioned that he is an illiterate person, but he has prosecuted his studies in school and the record thereof has been produced. According to the school record his date of birth is 16/11/1982. This record has been maintained in regular course of business. In the application under Section 54 of Cr. P. C. , it was mentioned that he is an illiterate person, but he has prosecuted his studies in school and the record thereof has been produced. According to the school record his date of birth is 16/11/1982. This record has been maintained in regular course of business. According to this record, he was more than 18 years on the day of incident. The Court below has considered the case in the proper way and has rightly come to the conclusion that the petitioner is more than 18 years. Such finding does not call for any interference in this revision. ( 5. ) CONSIDERED the rival contentions raised by learned counsel for the parties. ( 6. ) FROM the very beginning the stand of the petitioner was that he is an uneducated. Initially such facts were mentioned in application under Section 54 of cr. P. C. filed by him before the First Additional Sessions Judge, Bhopal. His mother rajjo Bai has also deposed in her evidence that her son Narendra Yadav is an uneducated. But this fact is not true in the light of evidence of Smt. Vidya Desai and r. N. Gupta. ( 7. ) SMT. Vidya Desai has deposed that on 6/7/1988 she was a teacher in Gujrati society Middle School, Bhopal. On that day Narendra was admitted in the school. According to the scholar register Ex. P-3 his date of birth is 16/11/1982. He has studied in that school up to 8th class. Thereafter he has taken transfer certificate to study in other school. She has also deposed that she has taught this boy Narendra in 8th class. Thus, according to her evidence, which is given on the basis of scholar register Ex. P-3, the date of birth of Narendra is 16/11/1982. ( 8. ) R. N. GUPTA has also stated that the certificate Ex. P-1 was issued from the office of District Education Officer, Bhopal, in which the date of birth of Narendra yadav is mentioned as 16/11/1982. This certificate has been issued under the signature of Assistant Director, District Education Office, Bhopal. According to this certificate Ex. P-1, which was issued in the year 1997, the date of birth of narendra Yadav was shown 16/11/1982. Thus, school record shows that his date of birth is 16/11/1982. ( 9. This certificate has been issued under the signature of Assistant Director, District Education Office, Bhopal. According to this certificate Ex. P-1, which was issued in the year 1997, the date of birth of narendra Yadav was shown 16/11/1982. Thus, school record shows that his date of birth is 16/11/1982. ( 9. ) KHALIL Ahmed Khan has also given the evidence that there is one counter case in between the parties, wherein the petitioner Narendra Yadav stated his age 19 years in the deposition, which was recorded on 5/3/2003. The certified copy of the statement is Ex. D-2, which is recorded in Criminal Case No. 3601/ 2003. Thus, it is evident that petitioner Narendra Yadav in the deposition given before the JMFC, Bhopal has shown his age 19 years on 5/3/2003 the date which was before this incident Khalil Ahmed Khan has further deposed that this petitioner along with other family members executed a sale deed on 28/7/2000 wherein his age was shown 18 years and this sale deed has been done prior to this incident. Thus the evidence adduced by the respondent No. 2 prima facie goes to show that petitioner was more than 18 years on the date of incident. ( 10. ) LEARNED counsel for the petitioner submitted that the age cannot be determined only on the basis of school record. He has placed reliance on the decision of the Apex Court in the case of Ram Deo Chauhan v. State of Assam, air 2001 SC 2231 . In this case the entry in school register showed that accused was juvenile on relevant date. However school register was not shown to be maintained by public servant in discharge of his official act or by any other competent authority in such circumstances entry in school register cannot be accepted as positive proof regarding date of birth of accused petitioner. ( 11. ) LEARNED counsel for the respondent No. 2 has placed reliance on the decision reported in the case of Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 , in which it has been held that as per Section 35 of the Indian Evidence Act, 1872, all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. ( 12. ) SO far as present case is concerned, the record of the school has been maintained in the regular course of business. Moreover, the certificate Ex. P-1, which was issued by the Board also contains the same date of birth which is recorded in school record. By accepting such date of birth petitioner is more than 18 years on the relevant date. ( 13. ) LEARNED counsel for the petitioner has relied upon the ossification test conducted by Dr. Anjani Arora, who has opined the age of the petitioner was 17 years and 6 months on 9/8/2002 when he was examined by her. But she has also deposed that there may be an error of 6 months plus minus in both sides. Thus on this basis the contention of the learned counsel for the petitioner is that he was child. ( 14. ) ON the contrary learned counsel for the respondent No. 2 has submitted that the order was passed by the Juvenile Court on 24/2/2003, but the statement of Dr. Anjani Arora was recorded on 26/2/2003, therefore, this evidence cannot be made the basis of such finding. ( 15. ) IN the case of Ram Dev Chauhan (supra) the Apex Court has held thus: "the Statement of the doctor is no more than an opinion. The court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral-testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can be no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and toxicology, while determining the age of an accused. In this vast country with varied latitude, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform". ( 16. ) IN the case of Sanjay V. State of MP, 2007 (1) MPWN 75 , this Court has held that in determination of age of juvenile, hyper technical approach should not be adopted and in border line cases the Court should lean in favour of the juvenile. ( 17. ( 16. ) IN the case of Sanjay V. State of MP, 2007 (1) MPWN 75 , this Court has held that in determination of age of juvenile, hyper technical approach should not be adopted and in border line cases the Court should lean in favour of the juvenile. ( 17. ) IN the case of Anuj Singh V. State of MP, 2007 (2) MPWN 77 , this Court has held that benefit of an error in the case of age determination by ossification test, be given to the accused. In the case of Jugraj v. State of MP, 2003 (4)MPLJ 136 , this Court has held that on the basis of ossification test no definite opinion should be formed. ( 18. ) " Determination of age on the basis of ossification test is merely the opinion of the radiologist and not conclusive proof of age. Two years margin can be given in either side. However, in the present case Dr. Anjani Arora has given margin of 6 months plus minus in both sides. If other evidence in this case is also considered, then prima facie finding of the ossification test also goes against the petitioner to hold that he was more than 18 years on the relevant date. ( 19. ) SO far as evidence of Rajjo Bai mother of the petitioner is concerned, she has not given any definite evidence regarding birth of her son. She has given only general statement, which is quite insufficient to hold that her seawas child. No documentary evidence such as janma Patrika Horoscope and Birth Certificate has been adduced. ( 20. ) THUS, considering all the evidence available on record, it can be said that petitioner was not child on the date of incident. There is no illegality, infirmity or perversity in the impugned order, hence it does not call for any interference. The revision is meritless and deserves to be dismissed. ( 21. ) CONSEQUENTLY, this revision fails and is dismissed accordingly. The order 2/7/2003 regarding stay of further proceeding in ST No. 223/2000 pending in the court of First Additional Sessions Judge, Bhopal is hereby vacated. Revision dismissed.