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2010 DIGILAW 990 (JHR)

Kashim Mian v. State of Jharkhand

2010-10-29

JAYA ROY

body2010
JUDGMENT Jaya Roy, J.- Heard the learned counsel for the petitioner, the learned counsel for the Opposite Party No. 2 and the learned counsel for the State. 2. Petitioner has filed the instant revision application against the judgment' dated 30.5.2009 passed by the Sessions Judge, Dumka in Criminal Misc. Appeal No. 71 of 2009 whereby the opposite party no. 2 has been declared as juvenile. 3. The prosecution case, in brief, is that on 12.4.2008/13.4.2008 at about 1 A.M. the informant-Kashim Mian who is the petitioner in this case, was sleeping in his house alongwith other family members. His daughter Hina Khatoon was sleeping with her grand maternal mother Osra Bibi in the verandah. At about 1 A.M. when Osra Bibi woke up, she found that Hina Khatoon was not sleeping in the said verandah. Then she informed the informant and the informant started for searching his daughter. At about 5 A.M. one Durga Dasi informed the informant that his daughter is lying naked near roadside field. Thereafter, the informant rushed towards that place and found his daughter in nude and injured position and blood was oozing from her head. Thereafter, the informant with the help of the co-villagers took his daughter to Mohalpahari for her treatment but as her condition was serious, she was referred to Vardwan Hospital for her medical treatment. After sometime, the daughter of the informant expired. Accordingly, the informant lodged the case against unknown under Sections 376, 302/201 of the I.P.C. 4. After completion of investigation the police has submitted charge-sheet against the accused persons including the opposite party no. 2 namely Ranjeet Goswami @ Rajeev Ranjan Goswaml 5. The opposite party no. 2 surre'1dered before the court below on 13.6.2008 and filed an application on 17.6.2008 raising plea of juvenility stating that as his date of birth is 10.5.1991, he is juvenile 6. The Chief Judicial Magistrate, Dumka directed the Principal Magistrate, Juvenile Justice Board, Dumka to get the age of the opposite party no. 2 to be assessed according to the provision of the Juvenile Justice (Care and Protection of Children) Act, 2000. Thereafter, the case of the opposite party no. 2 regarding the assessment of his age, was referred to the Medical Board and the Medical Board assessed the age of the opposite party no. 2 as 20 years. Accordingly, the Principal Magistrate, Juvenile Justice Board. Thereafter, the case of the opposite party no. 2 regarding the assessment of his age, was referred to the Medical Board and the Medical Board assessed the age of the opposite party no. 2 as 20 years. Accordingly, the Principal Magistrate, Juvenile Justice Board. Dumka rejected the application filed by the opposite party no. 2 for declaring him as juvenile by its order dated 27.3.2009. 7. Against the aforesaid order dated 27.3.2009, the opposite party no. 2 filed an appeal under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 which was registered as Criminal Misc. Appeal No. 71 of 2009. After considering the case of the opposite party no. 2, the appellate court allowed his aforesaid appeal and declared him as juvenile and recalled the sessions case from the Court of Addl. Sessions Judge, 5th (F.T.C.), Dumka and remit the same to the J.J. Board through C.J.M., Dumka by its order dated 30.5.2009. 8. Learned counsel for the petitioner (informant) submits that the Juvenile Justice Board referred the matter to the Medical Board for the assessment of the age of the opposite party no. 2. The Medical Board was constituted by three doctors namely Dr. A.N. Soren, Dr. C.P. Sinha and Dr. A.K. Singh under the chairmanship of Civil Surgeon, C.M.O., Dumka who examined the opposite party no. 2 and ultimately, after examining and also after considering the x-ray findings, the said Medical Board is of the opinion that the age of the opposite party no. 2 is about 20 years. 9. It is further contended that the Medical Board has assessed the age of the opposite party no. 2 about 20 years as on 18.2.2009 whereas the date of occurrence is 12.4.2008, therefore, the appellate court is wholly erred in declaring the opposite party no. 2 as juvenile. 10. learned counsel for the petitioner has further contended that the birth certificate filed by the opposite party no. 2 shows that the same was issued by the Panchayat Sewak and when the said Panchayat Sewak was summoned to prove the said birth certificate as per provision, 1e in his deposition has failed to prove that he had issued the said birth certificate as per provision. Furthermore, the school leaving certificate of the opposite party no. 2 shows that the same was issued by the Panchayat Sewak and when the said Panchayat Sewak was summoned to prove the said birth certificate as per provision, 1e in his deposition has failed to prove that he had issued the said birth certificate as per provision. Furthermore, the school leaving certificate of the opposite party no. 2 was issued from Primary School, Binagaria on 10.4.2004 was also produced which shows the date of birth of the opposite party no. 2 is 10.5.1991 and date of admission on 20.2.1997 and leaving the said school on 10.4.2004 in Class VI. The other documents which is the relevant extract copy of the school admission register by Exhibit-A/1, shows the name of opposite party No. 2 as Rajiv Ranjan Goswami is in SI. no. 19 and his date of birth is 10.4.1990. Though it is contended by the learned counsel for the opposite party no. 2 that both are two different persons but the trial court disbelieved the said documents and referred the matter to the Medical Board. The Medical Board opined the age of the opposite party no. 2 as 20 years on 18.2.2009 and the date of alleged occurrence is 12.4.2008. Thus, it is very clear that the opposite party no. 2 was not juvenile on the date of the alleged occurrence. 11. Learned counsel for the opposite party no. 2 submits that the appellate court after considering the certificates filed by the opposite party no. 2 regarding his date of birth and also considering the opinion of the Medical Board, has rightly declared the opposite party no. 2 as juvenile. He has further submitted that it is a well settled law that the medical opinion about the age must varies about two years on either side. Therefore, if the opposite party no. 2 is 20 years on 18.2.2009 and the date of occurrence is on 12.4.2008, the age of the appellant ought to be about 17 years on the alleged date of occurrence. 12. Therefore, if the opposite party no. 2 is 20 years on 18.2.2009 and the date of occurrence is on 12.4.2008, the age of the appellant ought to be about 17 years on the alleged date of occurrence. 12. Rule 22(5) of the Jharkhand Juvenile Justice (Care & Protection of Children) Rules, 2003 clearly laid down as to how the age of a person could be determined who claims juvenility which are as follows:- "22(5) In every case concerning a juvenile or a 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; . (iii) matriculation or equivalent certificates, if available; and . (iv) in the absence of (i) to (Hi) 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, when (regarding his age and, 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)." 13. As the aforesaid act clearly speaks to give the benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, therefore, there is no question to consider the opposite party no. 2 as juvenile on the date of the alleged occurrence. According to the report of the Medical Board, the age of the opposite party no. 2 is 20 years on 18.2.2009. Therefore, even his age after giving the benefit of one year in lower side, his age was more than 18 years. 14. The trial court after elaborate discussion, disbelieved the documents so filed by the Opposite Party No. 2 and referred the matter to the Medical Board for determination of his age. But, the appellate court has neither given his clear findings nor relied upon the said documents, practically, his judgment is based on the report of the Medical Board and after scrutinizing the said report, declared the opposite party no. 2 as juvenile. 15. But, the appellate court has neither given his clear findings nor relied upon the said documents, practically, his judgment is based on the report of the Medical Board and after scrutinizing the said report, declared the opposite party no. 2 as juvenile. 15. In the above facts and circumstances of the case, I do not think that it is necessary to consider the genuineness of the documents at this stage when those are discarded by the Principal Magistrate, J.J. Board earlier and the appellate court has not given any clear finding on this issue. 16. Considering the submissions made by both the parties and perusing the impugned judgment and as discussed above regarding the procedure laid down in Rule 22 of Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003, I find patent error in the assessment and determination of age of the petitioner made by the appellate court. 17. Accordingly, I allow this revision application and set aside the order dated 30.5.2009 passed by the Sessions Judge, Dumka in Cr. Misc. Appeal No. 71 of 2009 and confirm the order dated 27th March, 2009 passed by the Principal Magistrate, J.J. Board in connection with G.R. Case No. 577 of 2008, Enquiry No. 79 of 2009, Shikaripara P.S. Case No. 33 of 2008. 18. Office is directed to send back the lower court record immediately to the court concerned.