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2010 DIGILAW 197 (RAJ)

JEETA @ JITENDRA v. STATE

2010-01-22

MAHESH BHAGWATI

body2010
( 1 ) CHALLENGE in this criminal revision petition is to the order dated 18th November, 2009 rendered by Special Judge, Dacoity Affected Area, Bharatpur, whereby the learned Special Judge determined the age of the petitioner and found him to be above the age of 18 years. ( 2 ) HEARD learned counsel for the petitioner as also the learned Public Prosecutor appearing for the State and carefully perused the relevant material on record, including the impugned order. ( 3 ) LEARNED counsel for the petitioner has canvassed that the occurrence of this case took place on 22nd December, 2008 and FIR of this fact came to be lodged in the offences under Sections 224, 225, 332, 353, 307, 395, 397 of IPC with Police Station Mathura Gate, Bharatpur. The petitioner was arrested on 26th April, 2009 and after completion of investigation, a supplementary police report under Section 173 (2) of Cr. P. C. came to be filed in the court of Special Judge, Dacoity Affected Area, Bharatpur on 7th June, 2009. The petitioner filed an application before the concerned Court with regard to determination of his age. The learned trial Court conducted an inquiry in accordance with the provisions of law and did not rely upon the Board certificate, wherein the date of birth of the petitioner was recorded as 10th July, 1991 and on the contrary, placed reliance on the medical report, which was prepared by the Doctors on the basis of ossification test. The Medical Board having conducted the ossification test, determined the age of the petitioner to be between 20-21 years. ( 4 ) LEARNED counsel for the petitioner took me through the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter to be referred to as Rules of 2007) and contended that the above Rule categorically contemplates that the medical opinion with regard to the age of the delinquent child on the basis of medical evidence, shall be taken into consideration only when the Matriculation or equivalent certificate or date of birth certificate issued by the School or birth certificate given by a Corporation or a Municipal Authority is not available. ( 5 ) RULE 12 of the Rules, 2007 is reproduced thus: 12. ( 5 ) RULE 12 of the Rules, 2007 is reproduced thus: 12. Procedure to be followed in determination of age:- (i) In very case concerning a child or a juvenile in conflict with law, the court of the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while 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 and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. ( 6 ) SUB Rule 3 of Rule 12 of Rules of 2007 envisages that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining the matriculation or equivalent certificates,if available, and in the absence whereof; the date of birth certificate from the school and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any persons age is his/her birth certificate. ( 7 ) THE learned Public Prosecutor has fairly conceded and supported the submissions made by the learned counsel for the revisionist. ( 8 ) IN the case titled of Bhoop Ram Vs. State of Uttar Pradesh reported in AIR 1989 sc 1329 , the Hon'ble Apex Court has held that on the point of proof of age, school certificate is the basic evidence and so far as the medical certificate is concerned, the same is based on estimate and possibility of error cannot be ruled out. ( 9 ) IN the case of Harpal Singh and Anr. VS. ( 9 ) IN the case of Harpal Singh and Anr. VS. State of Himachal Pradesh reported in AIR 1981, SC, 361, the Hon'ble Apex Court held that in the matriculation certificate or Board certificate or school certificate the entries with regard to the age are based on the entries in the birth register. These entries are admissible in evidence under Section 35 of the Indian Evidence Act. In the case of Nahar Singh Vs. State of Raj. And Anr. reported in WLC (Raj.)U. C (2002 at page 85, it has been held that when there are school certificate as also the opinion of the Medical Board with regard to the age are available on record, then in such a situation, school record or the matriculation certificate would prevail upon the medical opinion. Rule 12 of the Rules 2007 categorically envisages that the medical opinion from the medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a Corporation or by any Panchayat or Municipality is not available. The learned trial Court seems to have committed grave error in determining the age of the petitioner, ignoring the date of birth mentioned in the matriculation certificate. His order, on the face of it, seems to be erroneous and against the provisions of of the rules of 2007. ( 10 ) FOR the reasons stated above, the criminal revision petition filed by the petitioner is allowed. The impugned order dated 18th November, 2009, being contrary to the provisions of law, deserves to be set aside and stands set aside, accordingly. ( 11 ) THE learned trial Court is directed to determine the age of the petitioner in accordance with the procedure laid down under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, within a period of fifteen days.