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2011 DIGILAW 1752 (RAJ)

Virendra Singh v. State of Rajasthan

2011-08-18

R.S.CHAUHAN

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Hon'ble CHAUHAN, J.—Accused allegedly having committed rape on the petitioner's daughter, the petitioner is aggrieved by the order dated 22.09.2008 passed by the Principal Judge, Juvenile Justice Board, Alwar, whereby the learned Board has declared the petitioner to be a minor; the petitioner is also aggrieved by the order dated 15.06.2009 passed by the Additional Sessions Judge No.1, Alwar, whereby the learned Judge has upheld the order dated 22.09.2008 and dismissed the appeal filed by the petitioner. 2. Briefly the facts of the case are that on 11.02.2008, the petitioner had lodged a report at Police Station Tijara wherein he had claimed that around 1:00 p.m. while his daughter, Jyoti, was playing in the house, Nawal Singh (respondent No.2, before this Court) came to his house and dragged his daughter into the mustard fields. There he allegedly ravished his daughter. On the basis of the said report, a formal FIR was chalked out for offence under Section 376 IPC. After a thorough investigation, the police filed a charge-sheet before the Juvenile Justice Board, Alwar. Thus, the determination of the age of respondent No.2 became a crucial issue. In order to decide the issue four witnesses were examined and few documents were considered by the Board. After going through the oral and documentary evidence, vide order dated 22.09.2008, the learned Board concluded that Nawal Singh was, in fact, minor on the date of the incident. Since the petitioner was aggrieved by the said order, the petitioner filed an appeal before the learned Judge. However, vide order dated 15.06.2009, the learned Judge dismissed the appeal and confirmed the order dated 22.9.2008. Hence, this petition before this court. 3. Mr. Dileep Singh Jadaun, the learned counsel for the petitioner has vehemently raised the following contentions before this Court: firstly, according to Om Prakash (A.W.I), in the school documents, admission form (Ex.1A), the age of the accused is recorded as 02.06.1989 and in the S.R. Register (Ex.2A) also the date of birth of the accused is shown as 02.06.1989. Thus, according to the learned counsel, on the date of the incident, Nawal Singh was eighteen years, eight months, and nine days old. Hence, he was an adult. Secondly, according to Dr. Ravi Mathur (A.W.2), he had examined Nawal Singh for determination of his age. According to him, Nawal Singh was nineteen years old. Thus, according to the learned counsel, on the date of the incident, Nawal Singh was eighteen years, eight months, and nine days old. Hence, he was an adult. Secondly, according to Dr. Ravi Mathur (A.W.2), he had examined Nawal Singh for determination of his age. According to him, Nawal Singh was nineteen years old. Thus, according to the learned counsel, both the school documents as well as the medical evidence clearly points to the fact that on the date of incident, Nawal Singh was an adult. Relying upon the cases of Manak Chand vs. State of Raj. (2001(2) R.C.C. 1450 = RLW 2001(4) Raj. 547) and Mehmood Khan vs. State through P.P. (2002(1) R.Cr.D. 340 (Raj.) = RLW 2002(3) Raj. 1810), the learned counsel has contended that in case there are two school certificates, then the certificate supported by the opinion of the medical board should be accepted. Lastly, once Nawal Singh was caught in a criminal case another set of school documents, namely admission form (Ex.3A) and S.R. Register (Ex.4A) were prepared. According to the learned counsel, the learned Judge has erred in relying on the admission form (Ex.3A) and on the S.R. Register (Ex.4A) in order to conclude that the petitioner was minor on the date of the incident. 4. On the other hand, Mr. Raj Kumar Gaur, the learned counsel for respondent No.2, has raised the following contentions before this Court: firstly, neither the admission form (Ex.1A), nor the S.R. Register (Ex.2A) bear the signature of Nawal Singh's parents. Thus, the genuineness of these two documents becomes doubtful. Secondly, Dr. Ravi Mathur (A.W.2), in his cross-examination has admitted the fact that the opinion with regard to the age is subject to a variation of two to three years. Hence, a distinct possibility does exist that Nawal Singh may have been sixteen and half years old on the date of the incident. Thirdly, both according to the admission form (Ex.3A) and S.R. Register (Ex.4A), Nawal Singh's date of birth is 01.07.1991. The admission form (Ex.3A) bears the thumb impression of Nawal Singh's mother. Therefore, the learned Judge was justified in relying upon the admission form (Ex.3A) and the S.R. Register (Ex.4A). Moreover, Gyan Chand (A.W.3) has proven both the admission form (Ex.3A) as well as the S.R. Register (Ex.4A). The admission form (Ex.3A) bears the thumb impression of Nawal Singh's mother. Therefore, the learned Judge was justified in relying upon the admission form (Ex.3A) and the S.R. Register (Ex.4A). Moreover, Gyan Chand (A.W.3) has proven both the admission form (Ex.3A) as well as the S.R. Register (Ex.4A). Lastly, where the accused happens to be on the borderline, it is better to err in favour of the accused instead of in favour of the prosecution. In order to support his contention, the learned counsel has relied upon the case of Rajinder Chandra vs. State of Chhattisgarh & Anr. ( (2002) 2 SCC 287 ). 5. Heard the learned counsel for the parties, perused the impugned orders, and examined the record of the case. 6. A bare perusal of the admission form (Ex.1A) clearly reveals that it has not been signed by Nawal Singh's parents. Moreover, S.R. Register (Ex.2A) also does not bare the signatures of his parents. In contrast, the admission form (Ex.3A) bears the thumb impression of Nawal Singh's mother. According to the admission form (Ex.3A), Nawal Singh's date of birth is 01.07.1991. The same date of birth is reflecting in the S.R. Register (Ex.4A). Since the admission form (Ex.1A) and the S.R. Register (Ex.2A) do not bear the signatures of Nawal Singh's parents, the learned Judge is certainly justified in not relying upon them. For, in absence of the signatures of Nawal Singh's parents, the authenticity of the documents become suspect. Moreover, since the second admission form (Ex.3A) does contain the thumb impression of the Nawal Singh's mother and reveals the date of birth as 01.07.1991, since the date of birth is also reflected in the S.R. Register (Ex.4A), the learned Board was certainly justified in relying upon these two documents. Hence, the conclusion that the date of birth of Nawal Singh is 01.07.1991 is certainly justified. Thus, the learned Board has rightly held Nawal Singh to be a juvenile. 7. The medical opinion with regard to the age is invariably subject to two to three years. This fact has been admitted by Dr. Ravi Mathur (A.W.2), in his cross-examination. It is, indeed, a settled principle of law that where two interpretations are possible, the interpretation in favour of the accused should be accepted. Although, Dr. 7. The medical opinion with regard to the age is invariably subject to two to three years. This fact has been admitted by Dr. Ravi Mathur (A.W.2), in his cross-examination. It is, indeed, a settled principle of law that where two interpretations are possible, the interpretation in favour of the accused should be accepted. Although, Dr. Ravi Mathur (A.W.2), in his examination-in-chief, claims that Nawal Singh was nineteen years old, yet nineteen years are subject to variation of two to three years. Obviously, a distinct possibility does exist that Nawal Singh may have been less than eighteen years old on the date of the incident. Hence, the learned Board was certainly justified in concluding that Nawal Singh was minor on the date of the incident. 8. In the case of Rajinder Chandra (supra), the Apex Court has opined that where the accused happens to be in a border line case, it is better to err in favour of the accused than in favour of the prosecution. Hence, even in the present case it is better to tilt in favour of the accused, than to err in favour of the prosecution. 9. The case of Manak Chand (supra) is distinguishable on the factual matrix. In the said case, two certificates were available before the Board. However, the learned Board relied upon the fact that according to one of the certificates the accused was more than sixteen years old. Therefore, the learned counsel for the accused raised the contention that where two certificates are available, the learned Board is not justified in ignoring the certificate which reveals the age of the accused to be a minor. However, in the said case this Court opined that it is not merely a case of two contradictory documents being available. But, the fact remained that the school certificate showing the age of the accused to be above sixteen years was corroborated by the medical evidence. For, according to the doctor the accused was major on the date of the incident. However, in the present case, as mentioned above, the documents (Ex.1A) and (Ex.2A) are suspect as they do not bear the signature of Nawal Singh's parents. Moreover, according to Dr. Ravi Mathur (A.W.2), the age determined by the doctors is subject to a variation of two to three years. However, in the present case, as mentioned above, the documents (Ex.1A) and (Ex.2A) are suspect as they do not bear the signature of Nawal Singh's parents. Moreover, according to Dr. Ravi Mathur (A.W.2), the age determined by the doctors is subject to a variation of two to three years. Therefore, the finding given in the case of Manak Chand (supra) is inapplicable to the present case. 10. Similarly, the case of Mehmood Khan (Supra) is distinguishable from the present case. For, in that case, the medical opinion had corroborated the document which clearly showed that the accused was major. However, in the present case, the medical opinion, subject to a variation, does not corroborate the documents, namely admission form (Ex.1A) and S.R. Register (Ex.2A). 11. Therefore, this Court does not find any illegality or perversity in the impugned order. Hence, this petition is devoid of any merit; it is, hereby, dismissed.