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2009 DIGILAW 791 (MAD)

Usha v. State Inspector of Police

2009-03-24

V.PERIYA KARUPPIAH

body2009
Judgment : This is a revision case filed by the aggrieved first accused against the order passed by the Fast Track Court No.I, Tirunelveli in refusing to consider the first accused as the juvenile accused and to pass orders thereon. 2. The gist of the case submitted by the revision petitioner before the lower Court are briefly stated as follows: The petitioner is the first accused against whom charge sheet has been filed under Sections 449, 120(B), 201, 302 and 380 r/w. 34 of Indian Penal Code and the said charge sheet was taken on file and committed to Sessions Court and the case was filed in S.C.No.461 of 2007 and after the full-fledged trial, it is posted to 31.03.2008 for judgment. The alleged occurrence was said to have taken place on 11.05.2007 and on the said date, the petitioner was aged only 17 years and the date of birth as per the Transfer Certificate and the Secondary School Leaving Certificate is 11.01.1990. The case filed against the petitioner/first accused should have been proceeded and tried under Juvenile Justice (Care and Protection of Children) Act, 2000 before the Juvenile Justice Board. Therefore, the case of the petitioner should be splited from the main case and transferred to the file of the Juvenile Justice Board and the Juvenile Justice Board alone is competent to pass judgment against the petitioner. 3. The objections raised by the respondent prosecution would be as follows: The School Certificates produced by the petitioner are not relevant to the petitioner and the School Certificates are not at all adequate to prove the age of the petitioner/first accused. The petitioner is under the obligation of proving that she was born on 11.01.1990. The petitioner did not put up her defence that she was juvenile accused on the date of offence during the course of trial and the petition has been filed by the petitioner/first accused at the fag end of the disposal for the case posted for judgment just to prolong the case as far as possible. Therefore, the petition has to be dismissed. 4. The learned Fast Track Judge No.I, Tirunelveli had permitted both parties to adduce oral evidence and had admitted documentary evidence. Accordingly, the petitioner had examined P.Ws.1 to 6 and Exs.P1 to P10 were marked on the side of the petitioner. Therefore, the petition has to be dismissed. 4. The learned Fast Track Judge No.I, Tirunelveli had permitted both parties to adduce oral evidence and had admitted documentary evidence. Accordingly, the petitioner had examined P.Ws.1 to 6 and Exs.P1 to P10 were marked on the side of the petitioner. There was no oral nor documentary evidence produced on the side of the respondent. 5. The lower Court after appraising both oral and documentary evidence had come to the conclusion that the petitioner is always entitled to file petition seeking to declare herself as juvenile at any stage of the proceedings as per Section 7(A) of Juvenile Justice (Care and Protection of Children) Act, 2000 and however the petitioner did not prove that she was born on 11.01.1990 and in the police records, she was described as Usha aged about 23 years whereas her name was mentioned in all the records produced by the petitioner as Karpaga Usha and the petitioner used to sign as Usha only and therefore, the petitioner did not show that both Usha and Karpaga Usha are one and the same person. Therefore, the age given by the respondent in warrants and other documents that she was aged about 23 years would be correct and the same was confirmed by the radiology report produced by Radiologist of Tirunelveli Medical College Hospital that the petitioner could have been aged about 21 years as on 02.04.2008 should be true. Against the said findings of the lower Court, the Criminal Revision has been preferred and was contended that the order passed by the lower Court was against all cannons of law without accepting the proved fact and therefore, the said order should have been interfered and set aside. 6. Heard Mr.P.Ramasamy, learned counsel for the petitioner and Mr.P.Rajendran, learned Government Advocate (Crl. side) for the State. 7. The learned counsel for the petitioner would submit in his argument that the lower Court was wrong in coming to the conclusion that the petitioner was aged more than 21 years and attained 23 years and she was not a juvenile on the date of the offence, when the said fact has been clearly proved by the petitioner by adducing evidence through P.Ws.1 to 6 and by producing the Birth Extract and the School Certificate. He would also submit that the lower Court has deviated from following the principles of law by holding that the Birth Certificate belonging to the petitioner cannot be a true and genuine document to prove the date of birth of the petitioner. The findings of the lower Court that since the radiology report shows that the petitioner was aged about more than 21 years and the records also showing the petitioner was aged 23 years, the version of the respondent could be true, cannot be sustained in the eye of Law. He would further submit in his argument that the lower Court while examination of the witnesses could have verified the identification marks given in a School Certificate and the Radiology Report with the physical verification of the accused, who was present at the time of enquiry. He would further argue that the proved facts were simply refused to have accepted by the lower Court, which is illegal. The petitioner was also called as Usha in short form and therefore, her name entered in School Register as Karpaga Usha will not in any way disentitle the petitioner that the School Certificates and the Birth Certificate are not belonging to her. Therefore, he would request the Court that the petitioner, who was the first accused in the case was a juvenile on the alleged date of commission of offence and therefore, as per the procedures laid down in Juvenile Justice (Care and Protection of Children) Act, 2000 the case has to be splited and sent to the Juvenile Justice Board for further proceedings. He would also submit that the enquiry regarding the juvenility of the accused could be proceeded at any stage of the proceedings and the lower Court had accepted at least to that extent. Therefore, the petitioner may be declared as the juvenile on the date of the alleged occurrence and the case may be splited and sent to the Juvenile Justice Board for further proceedings and the order of the lower Court may be interfered and set aside and the revision may be allowed. 8. The learned Government Advocate (Crl. Therefore, the petitioner may be declared as the juvenile on the date of the alleged occurrence and the case may be splited and sent to the Juvenile Justice Board for further proceedings and the order of the lower Court may be interfered and set aside and the revision may be allowed. 8. The learned Government Advocate (Crl. side) would submit in his argument that the lower Court had correctly come to the conclusion after accepting the contention that the petitioner/first accused was not Karpaga Usha and she was only Usha and the documents produced in Exs.P1, P3 and P4 are not relevant to the petitioner and the Radiology Report was rightly relied upon by the lower Court and therefore, there is no necessity to interfere with the order passed by the lower Court. He would further submit that the petitioner, who kept quiet during the time of trial, had come forward with the petition for enquiry just to protract the proceedings as far as possible. 9. Considering the arguments advanced on either side and on a careful perusal of the oral and documentary evidence adduced and the order passed by the lower Court, I could see that the only point to be decided in this case is as to whether the decision of the lower Court in rejecting the claim of the petitioner that she was juvenile on the date of alleged commission of offence is liable to be set aside or not. 8. 10. The lower Court had come to the conclusion that the petition filed by the petitioner seeking herself to declare as juvenile on the date of alleged offence was maintainable in view of Section 7 (A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 for understanding the point relied upon by the lower Court the provisions of said Section 7(A) of the Act have to be extracted: "7-A. 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 recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made there under, 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 subsection (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect." The ingredient will go a long way to mean that an application could be filed for deciding the juvenility of the accused at any stage of the case. Therefore, there is no impediment for the petitioner in asking for an enquiry in respect of deciding the juvenility of the petitioner at the time of pronouncing judgment. Therefore, the arguments advanced by the learned Government Advocate (Crl. side) that the petition was filed with the purpose of dragging on the case cannot sustained. 11. As regards the decision reached by the lower Court that the petitioner cannot be considered as juvenile, the reasons were dealt with by the lower Court in paragraphs 12 and 13 of its order. It had come to the conclusion that the petitioner had put her signature as Usha in the questionnaire under Section 313 Cr.P.C. and other documents. But the documents produced on the side of the petitioner in Birth Certificate, Identification Card, Transfer Certificate, she was mentioned only as Karpaga Usha. Therefore, the petitioner cannot claim that her date of birth was 11.01.1990 and she was aged only 17 years on the date of commission of alleged offence viz., 11.05.2007. But the documents produced on the side of the petitioner in Birth Certificate, Identification Card, Transfer Certificate, she was mentioned only as Karpaga Usha. Therefore, the petitioner cannot claim that her date of birth was 11.01.1990 and she was aged only 17 years on the date of commission of alleged offence viz., 11.05.2007. The petitioner had examined her father as P.W.3, the Assistant Commissioner and City Health Officer as P.W.1 and the Headmistress of the School, where the petitioner was said to have studied, as P.W.2. The documents produced as P1 to P3 viz., the Birth Certificate, School Identity Card and Transfer Certificate would show that the name of the student and the person mentioned therein was one Karpaga Usha. The evidence of P.W.2, the School Headmistress would show that the first accused is Karpaga Usha and she had studied at her School and the identity card was given to her and the school identity card was Ex.P2. That evidence of the petitioner was not challenged in the cross-examination. Nor any contra evidence has been adduced. Therefore, the first accused even though her name was entered as Usha she was proved to be 'Karpaga Usha' by the evidence of P.W.2, the Headmistress. The evidence of P.W.1 would go to show that P.W.03 and his wife Gandhimathi Ammal were shown as parents of Karpaga Usha and the said Gandhimathi Ammal had delivered a child on 11.01.1990 in Moses Hospital and it was registered on 18.01.1990 and the birth extract is Ex.P1. It is not disputed that P.W.3 is the father of the petitioner and his second wife was Gandhimathi Ammal, who is none other than the younger sister of first wife Ramalakshmi Ammal. Therefore, the evidence adduced on the side of the petitioner was clear that the petitioner was Karpaga Usha, as her identification card produced in Ex.P2 was not found to be a fake document. In the circumstances, the mere entries in the police case records that she was Usha and she had signed as Usha could not lead to say that the first accused/petitioner Usha was not the Karpaga Usha. The signature put by the petitioner at the time of her school studies as Karpaga Usha could have been changed by her as Usha due to the passing of time. Merely because, the signature is put in a different mode, it will not change the person and the facts. The signature put by the petitioner at the time of her school studies as Karpaga Usha could have been changed by her as Usha due to the passing of time. Merely because, the signature is put in a different mode, it will not change the person and the facts. Therefore, the birth extract produced under Ex.P1 was clearly proved before the lower Court but the lower Court had not considered the proved facts placed before it, and had come to the conclusion after relying upon the Radiology report, which cannot give accurate result. 12. It is a settled law that birth extract is the conclusive proof of one's age and radiology report cannot be considered as the full proof document to prove the age of the person. In the Judgment of the Hon'ble Apex Court reported in AIR 1958 SC 143 : 1958 SCR 743 (Sidheswar Ganguly v. State of West Bengal), it has been laid down as follows: "10. Lastly, we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the nature of the evidence to prove her age. The learned Judge pointed out the several items of evidence which had been adduced by the prosecution bearing on the question of the girl's age. The only conclusive piece of evidence may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. The girl's father was dead. Her mother apparently has left her to her own fate, and according to the evidence of the police, the mother's whereabouts were not traceable. It was sought to be argued that the police officer who himself made the inquiry, should have been examined, otherwise, the result of the inquiry is a mere hearsay. An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay. The girl is said to be a displaced person. The difficulty of tracing evidence of the parents of such a person is all the greater. An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay. The girl is said to be a displaced person. The difficulty of tracing evidence of the parents of such a person is all the greater. Hence, is all the circumstances of the case, the learned Sessions Judge has not committed any error in this part of his charge to the jury. On this part of the case, the learned Judge gave the following concluding directions: " In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that the age of the girl was below 16. But, gentlemen, in this case you have seen the girls, you have heard the evidence of the experts and you should also take into consideration the various factors; found out in cross-examination and in considering all these facts you can arrive at the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April, 1954, taking into consideration the facts that ossification test is not a sure guide, even in spite of this, you can come to the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence, i.e., on 20th April, 1954. I would tell you, gentlemen, that the question of consent would be immaterial." 13. As per the aforesaid principles laid down by the Hon'ble Apex Court when the birth certificate has been produced, it could be the conclusive proof and the Radiologist report is not accurate and cannot be relied upon, when the birth certificate is available. 14. When all the documents such as birth extract or school certificates are not available then only the Radiology report can be considered. Apart from that, the School certificates issued by the School Authorities had also corroborated with the birth certificate Ex.P1. The lower Court had come to a wrong conclusion that the petitioner was not Karpaga Usha and refused to accept the birth certificate, which is the conclusive proof of her age. So, as per the entries mentioned in Exs.P1, P3 and P4, the date of birth of the petitioner is 11.01.1990. The lower Court had come to a wrong conclusion that the petitioner was not Karpaga Usha and refused to accept the birth certificate, which is the conclusive proof of her age. So, as per the entries mentioned in Exs.P1, P3 and P4, the date of birth of the petitioner is 11.01.1990. On a careful calculation, I could see that on the alleged date of offence viz., 11.05.2007 her age was only 17 years and she is certainly a juvenile on the said date. Therefore, the lower Court ought to have accepted the claim of the petitioner and should have ordered for splitting of the case. But it has failed to accept the plea of the juvenile and had dismissed the petition, which is erroneous in law. 15. In view of the above discussion, it has become necessary for this Court to interfere with the decision of the lower Court as it was an error in law and therefore, the order passed by the learned Fast Track Court Judge No.I, Tirunelveli in Cr.M.P.No.76 of 2008 in S.C.No.461 of 2007 dated 06.02.2009 is set aside and the Criminal Revision petition is allowed. The lower Court has to pass appropriate order of splitting the case and to send the papers to the Juvenile Justice Board having the jurisdiction for further proceedings as against petitioner/accused No.1 and to proceed with the remaining accused in the same Court. Consequently, connected Miscellaneous petition is also closed.