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2009 DIGILAW 3093 (ALL)

BAHADUR v. STATE OF U. P.

2009-09-10

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard the learned counsel for the revisionist Bahadur and the learned AGA and perused the impugned order. 2. The revisionist has preferred this revision against the order passed by Shri Ajay Kumar Srivastava, Additional Sessions Judge/Fast Track Court No. 3, Gorakhpur in Sessions Trial No. 100/2008, State v. Bahadur, whereby the learned Additional Sessions Judge has rejected the revisionist’s application for declaring him as a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000. 3. It appears that the revisionist is being tried under Sections 302, 364 and 201, IPC. He moved an application before the Court concerned for declaring him juvenile. The revisionist pleaded that he was less than 18 years on the date of occurrence and as such he was required to be dealt with in accordance with the aforesaid Act. The learned Additional Sessions Judge rejected the application on 15.7.2008 which was impugned in Criminal Revision No. 2931/2008. Hon’ble A.K. Roopanwal, J. allowed the revision and set aside the order dated 15.7.2008 and remanded the matter to the trial Court for a fresh decision on the factum of juvenility of the revisionist strictly as per the provisions of Section 7-A of the Act. Accordingly the learned trial Court held an inquiry and passed the impugned order dated 17.8.2009 rejecting the revisionist’s application to declare him juvenile. The learned Additional Sessions Judge has held that the revisionist was more than 18 years on the date of occurrence. He has relied on the entries made in the Family Register and held that the medical report was not conclusive on the point of age of the revisionist. 4. The learned counsel for the revisionist submitted that the learned trial Court should have kept in mind the provisions of Rule 22 (5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 while passing the impugned order. It was further submitted that the entries made in the Family Register were not at all relevant to determine the age of the revisionist. The learned counsel placed reliance on Onkar Tiwari @ Karla v. State of U.P., 2001(1) JIC 10 (All) in support of his submission. In that case it was held that the entries made in the Kutumb Register are never made in regular course. The learned counsel placed reliance on Onkar Tiwari @ Karla v. State of U.P., 2001(1) JIC 10 (All) in support of his submission. In that case it was held that the entries made in the Kutumb Register are never made in regular course. The Kutumb Register is an evidence to show that the person is living in the family, but not an evidence regarding the age. It was further held that the document regarding age is the Birth and Death Register. The learned counsel for the revisionist further submitted that the principles of law laid down in Onkar Tiwari’s case (supra) were placed before the learned Additional Sessions Judge, but he failed to appreciate the same and passed the impugned order on altogether irrelevant materials, ignoring the principles of law laid down by this Court. 5. In the case of Onkar Tiwari (supra), this Court has already dealt with the relevancy of the entries made in the kutumb register and held that kutumb register is an evidence to show that the person is living in the family but not an evidence regarding the age. It was further held that the document regarding the age is the Birth and Death Register. It appears that the learned Additional Sessions Judge could not properly understand the principles of law propounded by this Court in Onkar Tiwari’s case (supra). The learned Additional Sessions Judge tried to distinguish the case of Onkar Tiwari on altogether irrelevant grounds. According to the learned Additional Sessions Judge, in the case of Onkar Tiwari, school certificate was found forged and there was only the evidence of family register and the medical opinion regarding the age was not accepted. In my opinion, the grounds stated by the learned Additional Sessions Judge to distinguish the case of Onkar Tiwari were not at all relevant. In Onkar Tiwari’s case the Court had to answer the question as to whether the entries made in Family Register are relevant for deciding the fact that the accused was juvenile or not and answered the question in negative. The question of relevancy of the entries made in the family register being relied on by the revisionist was also in issue before the learned Additional Sessions Judge and that issue could be answered according to the principles laid down in Onkar Tiwari’s case. The question of relevancy of the entries made in the family register being relied on by the revisionist was also in issue before the learned Additional Sessions Judge and that issue could be answered according to the principles laid down in Onkar Tiwari’s case. But the learned Additional Sessions Judge has committed material illegality in ignoring the verdict of this Court propounded in Onkar Tiwari’s case, which resulted in causing failure of justice in the case. 6. It may not be out of context to mention that the learned Additional Sessions Judge recorded the statement of Gram Panchayat Adhikari as PW-2, who proved the copy of the family register and stated that the copy was prepared from the family register prepared in the year 2000. The Gram Panchayat Adhikari further stated that the family register, which was prepared in the year 2000, was prepared on the basis of the previous register of the year 1970, but no attempt was made to secure the production of original register of 1970 and to ascertain as to what was the basis of the entries made in the family register regarding the date of birth of the revisionist. For argument sake if it is assumed that the family register was in any way relevant for determining the age of the revisionist, it was the duty of the learned Additional Sessions Judge to ascertain as to what was the basis of recording the date of birth of the revisionist as 4.4.1988 in the family register. If the basis was genuine and based on some reliable source and material, the entries in the family register regarding the date of birth of the revisionist, in that event, could be said to be credible otherwise it was a waste paper. But the learned Additional Sessions Judge has not held any inquiry to find out the basis of the entries made in the family register and as such he was not justified in placing reliance on such entries. After establishment of genuineness of the entries made in the family register, the Court has to see whether or not the same are relevant for determining the age of the revisionist under the relevant rules. 7. After establishment of genuineness of the entries made in the family register, the Court has to see whether or not the same are relevant for determining the age of the revisionist under the relevant rules. 7. Rule 22(5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, being relevant in this case is being produced as follows : “22(5) In every case concerning a juvenile or 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.” 8. A similar set of rules have also been framed in the State of Jharkhand, which has been referred to in the case of Babloo Pasi v. State of Jharkhand and another, 2009 (64) ACC 754. In other words, Rule 22(5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 is pari materia with Rule 22(5) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003. In the case of Babloo Pasi (supra) the Apex Court has interpreted Rule 22(5) of the Jharkhand rules and held that in the absence of birth certificate given by a corporation or a municipal authority or date of birth certificate from the school first attended or the Matriculation or equivalent certificate, the medical opinion by a duly constituted Board subject to the margin of one year, in deserving cases shall be relevant for determining the age of the alleged juvenile but the medical opinion per se is not a conclusive proof of the age of the person concerned and it is merely an opinion. The Apex Court further held that it would be imprudent to formulate a uniform standard for the determination of the age. The Apex Court further held that it would be imprudent to formulate a uniform standard for the determination of the age. True, that the Medical Board’s opinion based on radiological examination is a useful guiding factor for determination of the age of a person but is not incontrovertible. The date of birth is to be determined on the basis of material on record and appreciation of the evidence adduced by the parties. 9. Under the Rule 22(5) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004, the date of birth certificate issued by a corporation or a municipal authority or school is the relevant material for determining the age of the person who claims to be a juvenile. In absence of these materials, the medical opinion may be taken into consideration keeping in view the facts and circumstances of the case and other evidence on record. If the medical opinion is in consonance with other evidence on record, the same may be acted upon for determining the age of the alleged juvenile provided there is no date of birth certificate issued by a corporation or municipal authority or school. While considering the medical opinion, a margin of one year for determining the age may be given. In other words, if the medical opinion indicates that the age of a particular person is 18 years, that person may be held to be the age of 19 years as well as of 17 years. It is also well settled that where two conclusions are possible, the conclusion in favour of the accused has to be given preference. 10. It may also be mentioned that the revisionist’s mother Smt. Panmati had appeared in the witness box and stated that the revisionist was aged about 17 years. She, being the mother of the revisionist, was the best person to tell the age of revisionist. Her statement was some how consistent with the medical opinion, but the learned Additional Sessions Judge rejected her testimony by making arithmetical calculation on the basis of her statement regarding her marriage, GAUNA and death of her husband. In my opinion, the reasons recorded by the learned Additional Sessions Judge in rejecting the testimony of the revisionist’s mother were altogether irrelevant in view of the fact that she was a rustic and illiterate lady. 11. In my opinion, the reasons recorded by the learned Additional Sessions Judge in rejecting the testimony of the revisionist’s mother were altogether irrelevant in view of the fact that she was a rustic and illiterate lady. 11. For the reasons discussed above, the revision is allowed and the impugned order dated 17.8.2009 is set aside. The learned Additional Sessions Judge is directed to re-consider the question of juvenility of the revisionist in the light of the observations made hereinbefore and pass appropriate order in the matter in accordance with law after providing reasonable opportunity of hearing to the parties. Result; Petition Dismissed. ————