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2011 DIGILAW 1180 (RAJ)

Yusuf Ali v. State of Rajasthan

2011-05-31

R.S.CHAUHAN

body2011
JUDGMENT 1. - The petitioner is aggrieved by the order dated 20.11.2010, passed by the Additional Chief Judicial Magistrate, Hanumangarh, whereby the learned Magistrate had rejected the application filed by the petitioner for declaring him to be a juvenile under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 ('the Act', for short). The petitioner is equally aggrieved by the order dated 17.1.2011, passed by the Session Judge, Hanumangarh, whereby the learned Judge has rejected the appeal filed by the petitioner and has upheld the order dated 20.11.2010. 2. Briefly the facts of the case are that petitioner was named as an accused in F.I.R. No. 47/2010 for offences under Sections 307, 323, 341, 504 and 34, I.P.C. However, with the death of the injured, the offence under Section 302 I.P.C. was added later on. Since the petitioner claimed to be fifteen years old on the date of the occurrence, he filed an application before the learned Magistrate for declaring him to be a juvenile under the Act. In order to buttress his case, the petitioner examined five witnesses and submitted few documents. On the other hand, the prosecution examined two witnesses and also submitted few documents. After going through the oral and documentary evidence, vide order dated 20.11.2010, the learned Magistrate dismissed the petitioner's application. Aggrieved by the said order, the petitioner preferred an appeal before the learned Judge. However, vide order dated 17.1.2001, the learned Judge also dismissed the appeal. Hence, this petition before this Court. 3. Mr. Pankaj Sharma, the learned counsel for the petitioner, has vehemently contended that a bare perusal of the testimonies of the petitioner's parents would reveal that they were not in a position to state the petitioner's correct date of birth. Therefore, the learned trial Court should have relied upon the medical evidence. However, while relying on the medical evidence, it should have remembered that the medical evidence gives an approximate age of a person. The approximation is subjected to a variation of two years. According to the Medical Board, the petitioner was between the age of nineteen to twenty years. Therefore, his age would vary anywhere from seventeen to twenty-two years. However, while relying on the medical evidence, it should have remembered that the medical evidence gives an approximate age of a person. The approximation is subjected to a variation of two years. According to the Medical Board, the petitioner was between the age of nineteen to twenty years. Therefore, his age would vary anywhere from seventeen to twenty-two years. Relying on the case of Rajender Chandra v. State of Chhattisgarh & Anr., (2002) 2 SCC 287 the learned counsel has contended that in a border line case, the Court should not be hyper-technical and should give the benefit of doubt to the offender. Thus, both the learned trial Court, and the learned appellate Court should have taken the petitioner to be a minor, instead of being major on the date of occurrence. 4. On the other hand, Mr. J.S. Khinchi, the learned counsel for the complainant, and Ms. Chandra Lekha Parihar, the learned Public Prosecutor for the State, have ' contended that according to Zameel Mohmmed CW-4, the petitioner was nine years old when he took the petitioner for his admission in the school. According to the birth certificate NA-1, the date of birth of the petitioner is shown as 10.4.1984. Thus, on the date of the occurrence, i.e. on 18.1.2010, the petitioner was clearly an adult. Therefore, according to the learned counsel, both the learned Courts below were justified in relying on the medical evidence and in concluding that the petitioner is between the age of nineteen to twenty years. 5. Heard the learned counsel for the parties and perused the impugned orders. 6. The determination of the age of a juvenile delinquent is a rather ticklish issue. For, at. times there are conflicting documents, conflicting testimonies and conflicting evidence available on record. Rule 12 of the Juvenile Justice (Care and Protection) Rules, 2007 ('the Rules', for short) lays down the procedure for determining the age of a juvenile delinquent. 7. Rule 12 of the rules is as under: 12. For, at. times there are conflicting documents, conflicting testimonies and conflicting evidence available on record. Rule 12 of the Juvenile Justice (Care and Protection) Rules, 2007 ('the Rules', for short) lays down the procedure for determining the age of a juvenile delinquent. 7. Rule 12 of the rules is as under: 12. Procedure to be followed in determination of age- (1) In every case concerning a child or a juvenile in conflict with law, the Court or 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 the purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenile 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 home or in jail. (3) In every case concerning a child or juvenile in conflict with law the age determining inquiry shall be conducted by the Court of the Board or, as the case may be, the Committee by seeking evidence by obtaining (a) (i) The matriculation or equivalent certificate, 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this pule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act, for passing appropriate order in the interest of the juvenile in conflict with law. 8. A bare perusal of these rules clearly reveals that the Court or the Board should initially look for the matriculation or equivalent certificate, if available. In the absence whereof, the Court or the Board shall consider the date of birth indicated in a certificate from the school first attended. And in the absence whereof, the Court or the Board shall consider the birth certificate issued by a corporation, or a municipal authority, or a panchayat. In the absence whereof, the Court or the Board shall consider the date of birth indicated in a certificate from the school first attended. And in the absence whereof, the Court or the Board shall consider the birth certificate issued by a corporation, or a municipal authority, or a panchayat. If none of these documents are available, then the Court or the Board shall seek the opinion of duly constituted Medical Board. 9. In the present case, the learned Courts below are justified in concluding that the petitioner's mother, Manjura (CW-1) is unclear about the petitioner's date of birth. In her cross-examination, she has clearly admitted that she neither. remembers his exact date of birth, nor remembers the first school attended by him. Moreover, there is a conflict of the date of birth shown in the birth certificate (Ex.NA/1) wherein the petitioner's date of birth has been shown as 10.4.1984 and the petitioner's date of birth has been as shown in the admission form (Ex.P-4) wherein his date of birth has been shown as 14.4.1995. Thus there is a gap of almost ten year between the two dates. Moreover, there is a conflict between the testimonies of Zemeel Mohammed (CW-4) and the petitioner's father, Ummed Khan (CW-3). According to Zameel Mohmmed (CW-4), the petitioner was nine year old at the time of his admission to the school, but according to Ummed Khan (CW-3), the petitioner was less then nine years old on the date of his admission in school. Thus, neither the documentary evidence, nor the testimonies of the witnesses are reliable enough for deciding the age of the petitioner. 10. In the absence of reliable evidence, the learned Courts were certainly justified in relying upon the opinion of the Medical Board. According to the Medical Board, the petitioner was anywhere between the age of nineteen to twenty years. However, it is a well known fact that the medical opinion with regard to the age is subjected to variation of two years. In the case of Rajinder Chandra (supra), the Hon'ble Supreme Court has opined that while dealing with a border line case, the Court should not take a hyper-technical view. In fact, it is better to error in favour of the accused, than to err in favour of the prosecution. In the case of Rajinder Chandra (supra), the Hon'ble Supreme Court has opined that while dealing with a border line case, the Court should not take a hyper-technical view. In fact, it is better to error in favour of the accused, than to err in favour of the prosecution. Therefore, both the learned Courts below should have relished that the medical opinion with regard to the age can vary up to two years. Hence, they ought to have concluded that the petitioner was minor as he would be seventeen years old on the date of occurrence. 11. For the reasons stated above, this petition is, hereby, allowed and the impugned order dated 17.1.2011 and the order dated 20.11.2010 are, hereby, quashed and set aside.Petition allowed. *******