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Madhya Pradesh High Court · body

2010 DIGILAW 275 (MP)

Krishna v. State of M. P.

2010-03-09

N.K.MODY

body2010
ORDER N.K. Mody, J. 1. Being aggrieved by the order dated 2512010 passed by XI ASJ, Indore in Cr. Appeal No. 5/2010, whereby the order dated 24122005 passed by Juvenile Justice Board, Indore in Cr. Case No. 367/09 whereby the application filed by the Respondent No. 2 to declare the Respondent No. 2 juvenile was dismissed. In appeal the order passed by Juvenile Justice Board was set aside and case was remanded back to crossexamine the witnesses. After remand learned Juvenile Justice Board again dismissed the application filed by Respondent No. 2 holding the date of birth as 14290, against which an appeal was filed by the Respondent which was allowed and order passed by Juvenile Justice Board was set aside holding the date of birth as 151291, against which the present petition has been filed. 2. Short facts of the case are that the Respondent No. 2 along with other accused persons was prosecuted for the offence punishable under Section 302, IPC which was alleged to have been committed on 10122008. In the said incidence, one Prem Singh who is father of the Petitioner was murdered. The challan was filed against Respondent No. 1 along with other accused persons. An application was filed by the Respondent No. 2 alleging that Respondent No. 2 was juvenile on the date of incidence as his date of birth is 151291. It was prayed that it be declared that Respondent No. 2 is juvenile and case be transferred to Juvenile Justice Board for the trial. The application was opposed by the Petitioner disputing that date of birth is 151291. It was alleged that date of birth of Respondent No. 2 is 14290. Both the parties were permitted to lead the evidence. After holding a summary enquiry the petition filed by the Respondent No. 2 was dismissed by the learned Juvenile Justice Board vide order dated 382009, against which an appeal was filed by the Respondent No. 2 which was allowed and the case was remanded vide order dated 2882009 by XI ASJ with the direction to the Juvenile Justice Board to conclude enquiry after giving opportunity of crossexamination of the witnesses. In compliance of the order passed by the learned 11th ASJ, Indore, the inquiry was concluded on 23122009 and the application filed by the Respondent No. 2 was dismissed against which the appeal was filed by the Respondent No. 2 which was allowed and the order dated 231109 passed by the Juvenile Justice Board was set aside holding that the date of birth of the Respondent No. 2 was 151291 on 101208 when the incidence took place. Thus the Respondent No. 2 was juvenile on the date of the offence. Being aggrieved by the impugned order passed by the learned Trial Court whereby the Respondent No. 2 was declared juvenile, present petition has been filed. 3. Learned Counsel for the Petitioner submits that deceased is Prem Singh father of the Petitioner. Petitioner Krishna Pal Singh ' Krishna who is also complainant submitted that coaccused Dhannalal is none else but the brother of Prem Singh. It is submitted that four persons who arc involved in the offence namely Dhannalal, Rekhabai, Lokesh and Deepak ' Vijay who is Respondent No. 2. It is submitted that Lokesh is brother of the Respondent No. 2 while Dhannalal and Rekhabai are parents of the Respondent No. 2. Learned Counsel tenders the documents before this Court which are Higher Secondary School certificate examination of the year 2009 which has been issued by Board of Higher Secondary School Examination, Bhopal wherein the date of birth of Respondent No. 2 Deepak ' Vijay is mentioned as 14290. Learned Counsel for the Petitioner submits that the Petitioner procured the document before few days back only, therefore, the same could not be filed before the Trial Court. It is submitted that in spite of order passed by the learned Appellate Court, in the first round vide order dated 28809 the Petitioner was never given any opportunity to crossexamine the witnesses. It is submitted that no crossexamination has been made by the Petitioner on the witnesses examined by the Respondent No. 2. 4. Learned Counsel further submits that alleged incident is of 101208, challan was filed on 30th December, 08 and the incident took place at 7.10 a.m. and the FIR was lodged at 8.20 a.m., i.e., after one hour and 5 minutes of the incident. It is submitted that carbon copy of the FIR was given to the Petitioner immediately after lodging of the complaint. It is submitted that carbon copy of the FIR was given to the Petitioner immediately after lodging of the complaint. It is submitted that along with challan, copy of the FIR has been filed by the Respondent No. 1 in which there are various interpolations regarding each of the accused persons carrying weapons. It is submitted that all these interpolations have been made to give benefit to the accused persons. 5. Learned Counsel for the Petitioner submits that school register was filed before the Court below wherein the date of birth of the Respondent No. 2 is mentioned as 14290. Apart from this, LIC Policy of the Respondent No. 2 has been filed in which the date of birth of the Respondent No. 2 is mentioned as 14290. It is submitted that this school certificate was issued by Head Master, Higher Secondary School, Bhidota wherein the date of birth of the Respondent No. 2 is mentioned as 14290. It is submitted that all these documents are not taken into consideration by the learned Appellate Court and the date of birth has been held as 151291 on the basis of the oral evidence. It is submitted that the petition be allowed and the impugned order be set aside. 6. Mr. L.S. Chandiramani, Learned Counsel for the Respondent No. 2 submits that the Petitioner was appearing before the Trial Court and was adduced evidence oral as well as documentary but never prayed before the Trial Court that he may be permitted to crossexamine the witness. It is submitted that the Respondent No. 2 has crossexamined the witnesses who were examined on behalf of the Petitioner. Therefore, if the Petitioner has not availed the opportunity, then he cannot blame someone else. 7. Learned Counsel submits that the Respondent No. 2 has produced the record of Primary Health Centre, Manpur and also examined (P.W. 1) Mohanlal, Ward Boy, PHC Manpur and Dr. R.S. Tomar (P.W. 6), BMO, Primary Health Centre/Manpur and Rekhabai (P.W. 4), mother of Respondent No. 2. It is submitted that from the evidence, it is amply proved that the date of birth of the Respondent No. 2 was 151291. It is submitted that no illegality has been committed by the Appellate Court in coming to the conclusion that the date of birth of the Respondent No. 2 is 151291. It is submitted that from the evidence, it is amply proved that the date of birth of the Respondent No. 2 was 151291. It is submitted that no illegality has been committed by the Appellate Court in coming to the conclusion that the date of birth of the Respondent No. 2 is 151291. It is submitted that the petition has no force and the same be dismissed. 8. From the perusal of record, it is evident that to prove the fact that on the date of the incident, the Petitioner was juvenile, the Respondent No. 2 has submitted the documents (Exhs. P1 to P6). To prove this fact that Respondent No. 2 has examined Mohanlal (P.W. 1), Ward Boy, PHC Manpur and to prove the document (Exh. P1) which is Hospital Delivery Register, Manpur. Apart from this, Rekhabai (P.W. 4) who is also happened to be mother of the Respondent No. 2 has been examined and Bahirupa Wang (P.W. 5), who claims to be herself Nurse, was also examined to prove Exh. Pl, which is Hospital Delivery Register, Manpur and also examined Dr. R.S. Tomar (P.W. 6) to prove document (Exh. P6), which is based on hospital record. Apart from this, Respondent has examined Rameshchandra Nakedar (P.W. 7), Nagar Panchayat, Manpur to prove documents (Exhs. P7, P8 and P9). Kalyan (P.W. 8), grand father of the accused has been examined by the Respondent No. 2. 9. In rebuttal, the Petitioner has examined Jaiprakash, Teacher of Malwa Public School who has proved certificate (Exh. P2) School Register, Depalpur, wherein the date of birth of the Respondent No. 2 is mentioned as 14290. The Petitioner has also examined Krishna (P.W. 3), to prove documents (Exhs. P3, P4 and P5), Malwa Public School Certificate and LIC Policy and arrest memo, wherein the Respondent No. 2 has declared his age as 18 years 10 months and 2 days. Apart from this, the Petitioner has examined Ramnarayan Panchal (P.W. 10), Director, Malwa Public School Depalpur to prove document (Exh. P2) and Sursingh Baghel (P.W. 11), Saskiya Madhyamik Vidyalaya, Bhidota has been examined to prove document (Exh. P2). 10. From the perusal of the order sheet dated 11209 it is evident that at the time of examination of various witnesses the Petitioner has declared that he does not want to crossexamine the witness. P2) and Sursingh Baghel (P.W. 11), Saskiya Madhyamik Vidyalaya, Bhidota has been examined to prove document (Exh. P2). 10. From the perusal of the order sheet dated 11209 it is evident that at the time of examination of various witnesses the Petitioner has declared that he does not want to crossexamine the witness. From the record, it is also evident that the Petitioner was not being assisted by any of the Advocates. 11. So far as the marksheet before this Court is concerned, Learned Counsel placed reliance on a decision of Hon'ble Apex Court in the matter of Pratapsingh v. State of Jharkhand, AIR 2005 SC 2731 , wherein Hon'ble Apex Court has observed that the upshot of the aforementioned discussions is: (1) In terms of the 1996 Act, the age of the offender must be reckoned from the date when the alleged offence was committed. (2) The 2002 Act will have a limited application in the cases pending under the 1986 Act. (3) The model rules framed by the Central Government having no legal force cannot be given effect to. (4) The Court, thus, would be entitled to apply the ordinary rules of evidence for the purpose of determining the age of the juvenile taking into consideration the provisions of Section 35 of the Indian Evidence Act. It is submitted that in view of this position of law, no illegality has been committed by the learned Appellate Court in passing the impugned order which can be corrected by this Court while exercising the revisional jurisdiction. The Juvenile Justice (Care and Protection of Children) Act, 2006 has come in force w.e.f. 142001. In exercise of powers conferred by the proviso to Subsection (1) of Section 68 of the Act, Central Govt. made the rules and laid down the fundamental principles to be applied in Juvenile Justice. These rules are known as Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 lays down the procedure to be followed in determination of age. Subrule (3) of said Rule reads as under: Section 12. made the rules and laid down the fundamental principles to be applied in Juvenile Justice. These rules are known as Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 lays down the procedure to be followed in determination of age. Subrule (3) of said Rule reads as under: Section 12. Procedure to be followed in determination of age.- (1) *** *** *** (2) *** *** *** (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. For determination of the age of Respondent No. 2 the marksheet has been produced by the Petitioner before this Court. Genuineness of the said document has yet to be decided as per Clause (a) of Subrule (3) of the Rules. In absence of either (1) (ii) or (iii) of Clause (a) of Subrule (3) of Rule 12, the medical opinion can be sought for the purpose of determination of age of the juvenile. Apart from this from perusal of record it is evident that for one reason or another, none of the witnesses which was examined by the Respondent No. 2 was crossexamined. It is true that at the time of examination of various witnesses, the Petitioner has declared that he does not want to crossexamine the witnesses and at any point of time the Petitioner was not being assisted by any of the Advocates before the Juvenile Justice Board. It is true that at the time of examination of various witnesses, the Petitioner has declared that he does not want to crossexamine the witnesses and at any point of time the Petitioner was not being assisted by any of the Advocates before the Juvenile Justice Board. It is true that Respondent No. 2 is in jail and matter is under enquiry since 231 2009 when the application was filed by the Respondent No. 2 and it is also the fact that the matter has been remanded twice, however, keeping in view the facts and circumstances of the case the petition filed by the Petitioner is allowed and the impugned order passed by the learned Courts below are set aside and the case is remanded back to the Juvenile Justice Board with a direction to conclude the enquiry within a period of six weeks from the date of receipt of this order. Parties are directed to remain present before the Court below on 2932010. On that day Respondent No. 2 shall keep the witnesses present which are in his power and so far as other witnesses are concerned, Humdust notice will be issued by the Juvenile Justice Board which will be served by the Petitioner. Petitioner will also be entitled to crossexamine the witnesses which have already been examined. 12. With the aforesaid observation, the petition stands disposed of. C.C. as per rules.