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2010 DIGILAW 2020 (ALL)

Amar Singh v. State of U. P. and Another

2010-07-12

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi,J. - 1. By this revision under section 53 of Juvenile Justice (Care and Protection of Children) Act 2000, (hereinafter referred to as "the Act of 2000"), the revisionist Amar Singh has assailed the order dated 27.4.2010 rendered by Special Judge (E.C. Act) Gonda in Sessions Trial No. 183 of 1999, State Vs. Shiv Shankar Tiwari and others, whereby the learned Special Judge refused to declare the revisionist as a juvenile. 2. Heard Mr. R.P. Mishra the learned counsel for the revisionist, Mr. M.K. Mishra for the respondent no.2 and the learned AGA for the respondent no.1 and perused the record. 3. It appears that in the aforesaid Sessions Trial, the revisionist Amar Singh is an accused under section 147, 148, 149, 307 and 302 IPC. The incident relating to the case took place on 13.5.1998. The revisionist Amar Singh claimed himself as a Juvenile and pleaded that his date of birth per the school record was 8.6.1981. The learned Special Judge held an inquiry under section 7-A of the Act of 2000 and arrived at the conclusion that the revisionist was more than 18 years on the date of the occurrence. During the inquiry, the revisionist's father CW-1 Gajendra Bahadur Singh appeared as a witness in support of the plea of juvenility of the revisionist. One Sri O.S. Jackson, a clerk in the Chambers Memorial Girls School, Gonda also appeared as a witness along with the original school register. 4. The learned Special Judge disbelieved the school record on the ground that the revisionist's father stated that the revisionist was admitted in the school in the year 1981 and was not in a position to tell as to what was the exact age of the revisionist at the time of his admission in the school. The learned Special Judge while arriving at the aforesaid conclusion, has also placed reliance on Pratap Singh Vs. State of Jharkhand 2005 (2) Criminal Court Cases 334 in which the Apex Court has held that entry in the school record is relevant and admissible but the entry regarding the age of a person in a school register is of not much evidenciary value in the absence of the material on which the age was recorded. The learned Special Judge further placed reliance on Birad Mal Singhavi Vs. Anand Purohit AIR 1988 SC 1376 in which too a similar principle has been propounded. The learned Special Judge further placed reliance on Birad Mal Singhavi Vs. Anand Purohit AIR 1988 SC 1376 in which too a similar principle has been propounded. 5. Mr. R.P. Mishra, the learned counsel for the revisionist, submitted that the learned Special Judge travelled beyond his jurisdiction in placing reliance on the aforesaid rulings, specially when in the aforesaid cases the rules framed under the Act of 2000 in Uttar Pradesh were not taken into consideration. Mr. Mishra further submitted that the learned Special Judge has not decided the case per the rules applicable in this case. 6. The learned counsel for the respondent no.2 on the other hand submitted that the finding of fact cannot be upset in this revision. It was also submitted that the matter relates to an incident that took place prior to coming into force of the Act of 2000, therefore, the revisionist is not entitled to the benefit of the Act of 2000 unless it is shown that he was not more than 18 year on the commencement of the Act of 2000, therefore, the revisionist was not in any way a juvenile on the date of the occurrence of this case. 7. The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 have been framed, which deal with the various matters relating to the Juveniles. The Rule 22 (5) of the said rules is the relevant rule for the purposes of determining the age of the person, who claims himself as a juvenile. The learned lower Court has not considered the provisions of Rule 22 (5) of the said Rules while passing the impugned order and has overlooked the same. The Rule 22 (5) of the said rules is the relevant rule for the purposes of determining the age of the person, who claims himself as a juvenile. The learned lower Court has not considered the provisions of Rule 22 (5) of the said Rules while passing the impugned order and has overlooked the same. Rule 22 (5) of the said Rules is being reproduced 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, recorded a finding in respect of his case." 8. A similar set of rules have also been framed in the State of Jharkhand, which have been referred to in the case of Babloo Pasi V. State of Jharkhand & Anr, 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 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 which is controvertible, may be taken into consideration. While considering the medical opinion, a margin of one year for determining the age may be given. 10. Apparently, the learned Special Judge has not proceeded to determine the question of juvenility of the revisionist in accordance with the aforesaid rule 22 (5). If the school record entry was not genuine and there was no birth certificate given by a corporation or a municipal authority, the medical opinion by a duly constituted medical board subject to a margin of one year ought to have been obtained and taken into consideration but no attempt was made to procure such opinion. 11. It may also be mentioned that in the instant case the revisionist's date of birth as recorded in the record of initial school i.e. Chambers Memorial Girls School, Civil Lines, Gonda is 8.6.1981. This fact had been proved by CW-2, O.S. Jackson on the basis of the original record. Even in the High School record the same date of birth has been recorded (Annexure-3). CW-1 Gajendra Bahadur Singh, the father of the revisionist, stated before the court that it was he who had got recorded the aforesaid date of birth of the revisionist in the school record. The entry in the school record was made much prior to the occurrence of this case. Therefore, there was no reason for the revisionist's father to inform the school a false date of birth of the revisionist nor it can be inferred in any way that any fabrication was made in the school record for claiming juvenility in the case being tried against the revisionist. Therefore, there was no reason for the revisionist's father to inform the school a false date of birth of the revisionist nor it can be inferred in any way that any fabrication was made in the school record for claiming juvenility in the case being tried against the revisionist. The learned Special Judge appears to have lost sight of this material aspect of the matter while considering the statement of CW-1, the father of the revisionist, and unnecessarily based his reasoning on arithmetical calculations and on the statements regarding the age of the revisionist at the time of his admission in the initial school. The Special Judge should have taken into account the ground reality that the revisionist's father was a rustic villager and had given the statement in the court after about two decade from the date of admission in the initial school. A possibility cannot be ruled out that the revisionist's father, due to some misunderstanding gave the statement that he went to get the revisionist admitted in the school in the year 1981. However, in the last paragraph of the statement, this witness has very clearly stated that he had gone in the school in the year 1984 or 1985 for getting the revisionist admitted in the school. This statement of CW-1 seems to be in consonance with the entry in the school record. Therefore, the conclusion that the date of birth shown in the school record was without any basis or material, is based on no legal evidence, therefore, revisional court has power to interfere with the finding of fact in such a situation. If a finding of fact is based on no legal evidence or misreading of evidence or overlooking the relevant evidence, such finding of fact can be upset by the revisional court. 12. If the revisionist's date of birth is treated as 8.6.1981, he was 16 years, 1 month and 5 days on the date of the occurrence. The learned counsel for the respondent no.2 submitted that on the date of occurrence The Juvenile Justice Act, 1986 was in force and in that Act a person was considered to be a juvenile if he was below 16 years on the date of the occurrence. The learned counsel for the respondent no.2 submitted that on the date of occurrence The Juvenile Justice Act, 1986 was in force and in that Act a person was considered to be a juvenile if he was below 16 years on the date of the occurrence. In view of the fact that the revisionist was more than 16 years on the date of occurrence, he was not a juvenile, therefore, he can not be permitted to claim any benefit of being juvenile under the Act of 2000. The learned counsel for the respondent no.2 further submitted that under the new Act a person is considered as a juvenile if he has not completed 18 years of age on the date of the commission of the offence. It may not be out of context to mention that the Act of 2000 came into force on 1.4.2.001, therefore, according to the learned counsel for the respondent no.2 the revisionist had completed more than 18 years before the date of the commencement of the Act of 2000, therefore, he was not a juvenile. In this connection, the learned counsel for the respondent no.2 relied on Pratap Singh's Case (supra), Jabar Singh VS. Dinesh & another 2010 (69) ACC 326 and Munne Vs. State of U.P. 2006 (12) SCC 697 . 13. The learned counsel for the revisionist, in reply submitted that by the Amendment of 2006 certain amendments were made in various sections including section 20 of the Act of 2000 and thereby an explanation was added in section 20. After the amendment, the principles laid down in Pratap Singh's case have no material bearing in the matter. The explanation to section 20 of the Act of 2000 is extracted as follows: Explanation- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law in any court, the determination of juvenility of such a juvenile shall be in term of clause (1) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed." 14. The provisions of Act of 2000 as amended by the Amending Act of 2006 have been considered by the Apex Court in the case of Hari Ram Vs. State of Rajasthan 2009 (13) SCC 211 . The Apex Court held: "The said intention of the legislature was reinforced by the amendment effected by the said amending Act to Section 20 by introduction of the proviso and the Explanation thereto, wherein also it has been clearly indicated that in any pending case in any court the determination of juvenility of such a juvenile has to be in terms of Section 2 (1) even if the juvenile ceases to be so "on or before the date of commencement of this Act" and it was also indicated that the provisions of the Act would apply as if the said provisions had been in force for all purposes and at all material times when the alleged offence was committed." 15. In the case of Jabar Singh Vs. Dinesh (supra) relied upon by the learned counsel for the respondent no.2 the amendments of 2006 incorporated in the Act of 2000 were not taken into account and is silent in regard thereto, therefore, the view expressed in Hari Ram's case (supra), taking into account the amendments, would prevail. 16. In view of the principles propounded in Hari Ram's case (Supra) it is crystal clear that if the revisionist was less than 18 year on the date of occurrence, though the same took place prior to the commencement of the Act 2000, he shall be treated as a juvenile and his case can not be discarded on account of the fact that he had become more than 18 years on the commencement of Act of 2000. 17. The revision, therefore, succeeds and is allowed. 18. The impugned order is set aside and the matter is remanded to the Special Judge,Gonda with the direction to reconsider the matter in the light of the observations made herein above and pass an appropriate order afresh in accordance with law after providing a reasonable opportunity of hearing to the parties.