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2010 DIGILAW 980 (ALL)

Ninku alias Chandra Bhan Singh v. State of U. P.

2010-03-23

S.C.CHAURASIA

body2010
S.C. Chaurasia,J.:- This revision has been preferred against the impugned order dated 07-08-2007, passed by the learned Additional Sessions Judge/F.T.C. Vth, Court No. 14, Sultanpur, in Sessions Trial No. 365 of 2006, State Vs Ninku alias Chandra Bhan Singh, whereby, he rejected the application 12-Kha moved on behalf of the revisionist/accused to declare him as juvenile in conflict with law. 2. The brief facts, giving rise to present revision, are that the revisionist/accused, Ninku alias Chandra Bhan Singh, is facing trial in S.T. No. 365 of 2006. In the said Sessions Trial, an application 12-Kha was moved by the revisionist's father, Sri Mathura Singh to the effect that his son/accused Ninku alias Chandra Bhan Singh has studied from Class VI to VIII at Purva Madhyamik Vidhayalaya, Dadra Vikas Kshetra, Musafirkhana, District-Sultanpur and his date of birth is 16-10-1989. His age on the date of alleged incident was 16 years 10 months and 26 days and hence, he comes within the purview of a juvenile in conflict with law. Since the accused is a juvenile in conflict with law, the Sessions Court has no jurisdiction to try the case and the case should be tried by the Juvenile Justice Board, Faizabad, in accordance with the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000. It has been prayed that the appropriate order may be passed after declaring the accused as juvenile in conflict with law. The prosecution has filed objection against the said application to the effect that the accused is involved in a serious offence and the copy of the school certificate filed by him is doubtful. The medical examination of the accused is essential for determination of his age. 3. After considering the record and hearing learned counsel for both the parties, learned Additional Sessions Judge, has rejected revisionist's application 12-Kha vide order dated 07-08-2007. Feeling aggrieved by the said order, the accused has preferred this revision. 4. I have heard Sri Rana M.P.Singh holding brief of Sri Sharad Pathak, learned counsel for the revisionist, Sri R.K.Srivastava, learned A.G.A., Sri S.P.Singh, learned counsel for the opposite party no. 2 and perused the record. 5. Learned counsel for the revisionist has submitted that the learned trial court has not appreciated the evidence on record properly and has come to the wrong conclusion. 2 and perused the record. 5. Learned counsel for the revisionist has submitted that the learned trial court has not appreciated the evidence on record properly and has come to the wrong conclusion. He has further submitted that the age of the accused was less than 18 years on the date of alleged incident and hence, he ought to have been declared as juvenile in conflict with law. His submission is that the learned trial court has committed illegality and impropriety in exercise of its jurisdiction in rejecting the accused's application and hence, the impugned order deserves to be quashed. 6. Learned counsel for the opposite party no. 2 has submitted that the age of accused was more than 18 years at the time of alleged incident and hence, he can not be declared as juvenile in conflict with law. He has further submitted that the order passed by the learned Additional Sessions Judge is perfectly valid and it calls for no interference. 7. Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007, provides the procedure for determination of the age of a child or juvenile in conflict with law. For convenience, Sub Rule (3) of Rule 12 of the said Rules may be quoted as under :- "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." 8. In the absence of matriculation or equivalent certificate, the date of birth certificate from school (other than a play school) first attended becomes relevant for determination of the age of accused. From perusal of the impugned order dated 07-08-2007, it transpires that the learned trial court summoned the original record of the concerned school and verified the date of birth of the accused. It appears that the accused was admitted in Class II at Sant Kabir Bal Vidya Mandir, Kodaili, Musafirkhana, District-Sultanpur, and his name was entered at Serial No. 274 in the admission register of the year 1995. In Column 4 of the said admission register, his date of birth was mentioned as 02-07-1989. He was admitted in Class III on 15-07-1996 at Primary Pathshala, Dadra and in the admission register, his date of birth was mentioned as 16-10-1989. The record of Purva Madhyamik Vidhayalaya, Dadra, was also summoned during the course of enquiry conducted by the trial court, which revealed that he was admitted in the said school on 10-07-1999 and his name was struck off from Class VIII on 29-09-2001 on account of remaining absent. The date of birth of the accused in the record of the said school was mentioned as 16-10-1989. Thus, it is clear that the date of the birth of accused was mentioned as 02-07-1989, when he was admitted in Class II at Sant Kabir Bal Vidhya Mandir Kodaili, Musafirkhana, District-Sultanpur. Thereafter, his date of birth was mentioned as 16-10-1989 when he got admitted in Class III and VI at Primary Pathshala, Dadra, and Purva Madhyamik Vidhyalaya, Dadra, respectively. Thus, it is clear that the date of the birth of accused was mentioned as 02-07-1989, when he was admitted in Class II at Sant Kabir Bal Vidhya Mandir Kodaili, Musafirkhana, District-Sultanpur. Thereafter, his date of birth was mentioned as 16-10-1989 when he got admitted in Class III and VI at Primary Pathshala, Dadra, and Purva Madhyamik Vidhyalaya, Dadra, respectively. The accused has not produced the birth certificate of the school first attended by him for the reasons best known to him. In the absence of matriculation or equivalent certificate, the age of a child or juvenile in conflict with law has to be determined on the basis of the birth certificate issued from school first attended,but, no birth certificate from school first attended by the accused has been filed, without any valid reason. He has also not assigned any reason for not filing birth certificate of the school first attended by him. The birth certificate issued by the school/college attended subsequently, is not relevant for determination of the age of a child or juvenile in conflict with law in view of Rule 12(3)(a)(ii) of The Juvenile Justice (Care and Protection of Children) Rules, 2007. 9. In the absence of the matriculation or equivalent certificate and the birth certificate issued from the school (other than a play school) first attended, age of a child or juvenile in conflict with law has to be determined on the basis of the birth certificate given by a Corporation or a Municipal Authority or a Panchayat. 10. From perusal of the impugned order, it transpires that in compliance with the order of learned trial court, Sri Ram Raj, Gram Panchayat Adhikari, appeared and produced the Pariwar Register, Dadra and filed the photostat copy thereof. The learned trial court perused & considered the original Pariwar Register and held that the date of birth of the accused was mentioned as 16-10-86, but, the year 86' was converted into the year 89' by over-writing. Thus, it is clear that the date of birth of the accused in the Pariwar Register was mentioned as 16-10-86 initially, but, later on, the year was changed by over-writing. The finding of fact in this regard, recorded by learned trial court, is based on relevant original record and there is no valid reason to interfere in the said finding of fact in exercise of revisional powers. 11. The finding of fact in this regard, recorded by learned trial court, is based on relevant original record and there is no valid reason to interfere in the said finding of fact in exercise of revisional powers. 11. The date of birth of the accused, as per the entries made in the Pariwar Register maintained by Gram Panchayat Adhikari, is 16-10-1986. The alleged incident took place on 15-09-2006. Thus, the age of the accused on the date of alleged incident was about 19 years 11 months. Since the age of the accused was more than 18 years on the date of alleged incident, he cannot be declared as juvenile in conflict with law. The application moved on behalf of the accused for declaring him as juvenile in conflict with law has been rejected rightly by the learned trial court. 12. In the instant case, the age of a child or juvenile in conflict with law can be determined on the basis of date of birth mentioned in the Pariwar Register maintained by the Gram Panchayat Adhikari in view of Rule 12 (3) (a)(iii) of The Juvenile Justice (Care and Protection of Children) Rules, 2007, and hence, the medical opinion in respect of the age of the accused is not relevant for determination of his age in view of Rule 12(3)(b) of the said Rules. 13. Learned trial court has made reference of Section 22 of The Juvenile Justice (Care and Protection of Children) Act, 2000, in the impugned order in reaching to a conclusion that the accused was not a juvenile in conflict with law on the date of alleged incident. Section 22 of the said Act relates to the provision in respect of escaped juvenile and it does not provide procedure for determination of age of a child or juvenile in conflict with law. It appears that the learned trial court has made reference of Section 22 of the said Act in the impugned order wrongly, although, ultimately he has reached to a correct conclusion. 14. In view of the aforesaid discussions, I am of the view that the learned trial court has not committed any illegality or impropriety in exercise of its jurisdiction in rejecting the revisionist's application. This revision lacks merit and it deserves to be and is dismissed accordingly. Interim order, if any, stands vacated.