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2011 DIGILAW 2583 (RAJ)

Kamaljeet v. State of Rajasthan

2011-11-25

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard learned counsel for the parties. 2. The present revision petition has been filed on behalf of the petitioner challenging the order dated 23.4.2011 passed by the learned Special Additional Sessions Judge (W.A.), Sri Ganganagar in Cri. Misc. Case No. 26/2010 pertaining to Sessions Case No. 15/2008 whereby the application filed by the petitioner for being treated as juvenile has been rejected. 3. Briefly stated the facts of the case are that a F.I.R. was registered against the petitioner along with other co-accused persons for offences under Sections 376, 366, 363, 420, 342, 120B and 382 I.P.C. being F.I.R. No. 22/2008 registered at Women Police Station, District Sri Ganganagar. On the conclusion of the investigation, the police proceeded to file a charge-sheet against the petitioner and other accused persons for the aforesaid offences. The case was committed to the Court of learned Special Additional Sessions Judge (W.A.), Sri Ganganagar where an application was filed on behalf of the petitioner for being treated him as a juvenile. The learned Special Additional Sessions Judge initiated an enquiry and on the conclusion of the enquiry, the learned Special Additional Sessions Judge came to a finding that the school record produced on behalf of the petitioner was as a matter of fact created subsequently and that the school record produced at the inquiry did not correspond to the petitioner. It was held that there were two different persons Kamaljeet Singh and Kanwaljeet Singh whilst the petitioner is Kamaljeet Singh, the entries in the school record are of Kanwaljeet Singh and taking advantage of the fact that the petitioner's mother was an employee in the school, the school entry In the name of Kanwaljeet Singh has been tried to be projected to be that of the petitioner and thus, whilst dismissing the petitioner's application for being treated as juvenile, the petitioner was directed to be tried as a regular offender by the impugned order dated 23.4.2011. Hence, being aggrieved by the order dated 23.4.2011, the present revision petition has been preferred. 4. Assailing the order Impugned, Mr. M.K. Garg, learned counsel for the petitioner submits that the learned trial Judge has committed grave error in disbelieving the school record of the petitioner and rejecting the application filed by the petitioner for treating him as a juvenile. Hence, being aggrieved by the order dated 23.4.2011, the present revision petition has been preferred. 4. Assailing the order Impugned, Mr. M.K. Garg, learned counsel for the petitioner submits that the learned trial Judge has committed grave error in disbelieving the school record of the petitioner and rejecting the application filed by the petitioner for treating him as a juvenile. He has further submitted that merely because of the discrepancy in one letter in the name of the petitioner, the whole substratum of the documents could not be brushed aside. He submits that the theory of manipulation which has been arrived, at by the learned trial Judge cannot be accepted for the reason that the petitioner's mother could not have known that the petitioner would he committing an offence and thus, an entry would be made with the intention of showing the petitioner of a smaller age. He further submits that if at all there was any doubt regarding entry of age, then the learned trial Judge should have directed a police enquiry for the purpose of verification of the documents of the petitioner. He further submits that the entry of the petitioner's sister name also finds place in the school record of the same school and it is not possible that both the entries would have been manipulated for the purpose of creating the record so as to save the petitioner from punishment. 5. Per contra, learned Public Prosecutor has opposed the revision petition and has submitted that the impugned order passed by the learned trial Judge rejecting the application of the petitioner was justified because there was discrepancy in the name of the petitioner in the school record and as such, the revision petition be dismissed as there was no illegality in the order of the learned trial judge. 6. I have heard the arguments advanced at the bar and have perused the impugned order as well as the record of the case. 7. From a perusal of the record and the order impugned, it becomes apparent that the trial Court has drawn much water out of the fact that there is a difference of one letter in the petitioner's. name and the name as shown in the school record which has been produced in the enquiry. 7. From a perusal of the record and the order impugned, it becomes apparent that the trial Court has drawn much water out of the fact that there is a difference of one letter in the petitioner's. name and the name as shown in the school record which has been produced in the enquiry. It has been observed that at some places, the name which has been mentioned in the school record is Kawaljeet Singh whereas at other places, the name has been mentioned as Kanwaljeet Singh. Thus, it has been held that Kamaljeet Singh and Kanwaljeet Singh are different persons and that the entries Ex.A-1 and Ex.A-2 in the admission register do not correspond to the petitioner. The learned trial Judge has also held that the scholar register entry Ex.A-1 is a forged entry and action has been directed to be taken against the school authorities in this regard.. 8. In the opinion of this Court, the aforesaid conclusion is absolutely unwarranted. i he certificate of District Education and Training Institute Ex.A-5 and marks-sheet Ex.A-6 as per which the petitioner passed his 8th school examination in the year 2006, completely put the issue beyond doubt. In these certificates, the date of birth of the petitioner has been mentioned as 25.12.1992. The incident in this case has taken place on 6.2.2008, The petitioner or petitioner's parents could not have known in the year 2006 that he would be implicated in a case of rape in 2008, therefore, his date of birth should be mentioned as being 10.9.1992 so that he could he treated below. 18 years on the date of occurrence. 9. The learned trial Judge has expressed his doubt as regards the school entries on the basis of difference in one letter in the name of the petitioner viz. Kamaljeet Singh/Kanwaljeet Singh. Suffice it to say that this slight difference is very well possible because the error may have been made by the person who made the entry but the fact remains that according to the register Ex.A-2, the petitioner's sister's name also finds place just above the petitioner's name and in the register, the father's name of both the persons is the same. The petitioner's mother has been examined as AW-1 and she has clearly stated that the petitioner is one year younger to her daughter. The petitioner's mother has been examined as AW-1 and she has clearly stated that the petitioner is one year younger to her daughter. There is no cross-examination from this witness in relation to the name of her daughter being entered in Ex.A-2 nor is there any cross-examination in this regard from the witnesses AW-2 and AW-3. Therefore, the conclusions drawn by the learned trial Judge appear to be totally misplaced. The entries in the school showing the age of the petitioner to be 25.12.1992 have been well established by oral as well as documentary evidence. The learned trial Judge has placed much reliance on the affidavit filed by the petitioner along with his bail application for the purposes of holding that the petitioner was major on the date of occurrence. Suffice it to say that before such an affidavit can be used, the concerned person has to be confronted with the same, Furthermore, an affidavit cannot be used in preference to the school certificate because the juvenile Justice (Care and Protection of Children) Rules, 2007 came into force on 26.10.2007 and by virtue of Rule 12(3) thereof, the school certificate of a juvenile has to be given precedence over any other evidence for determining the age. 10. Therefore, this Court is of the opinion that the finding arrived at by the learned trial Judge holding that the entry in the school record being Ex.A-2 which is being sought to be utilised by the petitioner for being treated as a juvenile does not pertain to him is absolutely illegal and contrary to the material available on record. The order impugned thus suffers from patent illegality. The learned trial Judge has totally overlooked the fact regarding the entry of the petitioner and his sisters name being made in Ex.A-2. If at all the learned trial Judge was of the opinion that the entries which are sought to be proved are incorrect or manipulated entries, then the police enquiry thereto could have been directed to be done. 11. In any event, the order impugned is totally illegal and contrary to the material available on record and is thus, set aside. The petitioner was definitely below 18 years on the date of occurrence, his date of birth being 25.12.1992, and thus, the case as against the petitioner is directed to be sent to the concerned Juvenile Justice Board for trial in accordance with law. The petitioner was definitely below 18 years on the date of occurrence, his date of birth being 25.12.1992, and thus, the case as against the petitioner is directed to be sent to the concerned Juvenile Justice Board for trial in accordance with law. 12. Resultantly, this revision petition succeeds. 13. Stay application also stands allowed.Revision petition allowed. *******