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2011 DIGILAW 2608 (RAJ)

Gulam Nabi v. State of Rajasthan

2011-11-29

SANDEEP MEHTA

body2011
JUDGMENT 1. - Heard. 2. The present revision petition has been filed by the petitioner challenging the order dated 8.9.2011 passed by the learned Additional Sessions Judge (FT) No. 1, Jodhpur Metropolitan rejecting the application filed by the petitioner for being treated him as a juvenile in connection with Sessions Case No. 45/2011 arising out of F.I.R. No. 257/2010, P.S. Soorsagar, Jodhpur. 3. Assailing the order impugned, learned counsel for the petitioner submits that in this case, the petitioner's specific contention before the trial Court was that he has never gone to any school. It is submitted that during the course of enquiry, the petitioner's father and mother - witnesses No. 1 and 2, specifically denied the fact that the petitioner had gone to any school. It is submitted that when the parents of the petitioner were examined on oath, at that time, no suggestion has been made to them that the petitioner ever went to Veer Mohalla School of which the certificate has been relied upon by the trial Court for holding him not to be a juvenile. It is submitted that unless and until the parents of the petitioner were confronted with the said fact in their cross-examination, the said certificate whereby the petitioner has been treated as major cannot be used against the petitioner. It is submitted that the witness No. 4 Saraswati during the enquiry had admitted that the school of which the certificate has been proved has merged in her school 5-6 years ago. It is also submitted that there is no witness who has stated that the petitioner was the person who had been admitted in Veer Mohalla School for which the entry in scholar register Ex.1 has been taken on record and has been utilised as a piece of evidence to hold that the petitioner is not a juvenile. Pointing out the document, it is submitted that there are cuttings in the scholar register Ex.1 and thus, there is no reliability of the said admission register for proving the age of the petitioner. It is submitted that because there is no reliable or admissible school entry on the record, the medical evidence has to be relied upon, as per which the petitioner was found to be between 18-19 years of age on 23.8.2011. It is submitted that because there is no reliable or admissible school entry on the record, the medical evidence has to be relied upon, as per which the petitioner was found to be between 18-19 years of age on 23.8.2011. It is submitted that the offence has taken place in September, 2010 and thus, on the consideration of the medical evidence context to the date of occurrence, the age of the petitioner comes to be below 18 years when the offence was committed. 4. Per contra, learned Public Prosecutor and learned counsel for the complainant have supported the order impugned and have submitted that the investigation officer has procured the school record on the basis of the information given by the petitioner and thus, there is no doubt about the genuineness of the said entry. It is submitted that in the admission register, specifically the date of birth of the petitioner is mentioned as 26.9.1990 and if that date is considered as the date of birth of the petitioner, then the petitioner would be above 18 years on the date of commission of offence and has to be treated as major. Thus, it is submitted that the order impugned calls for no interference by this Court. 5. I have given my thoughtful consideration to the arguments advanced at the bar and have carefully perused the order impugned as well as the record of the case. 6. From a bare perusal of the record of enquiry, it becomes apparent that the witnesses No. 1 and 2 of the petitioner, who are father and mother of the petitioner, have specifically denied the fact that the petitioner ever went to the Veer Mohalla School. No cross-examination has been made from these witnesses and no suggestion has been given to them that the petitioner ever went to the said school. If at all, the prosecution intended to use the entry of age in the record of that school, then it was incumbent upon the prosecution that a suggestion should have been given to the petitioner's parents that he was admitted to that particular school. That apart, the school of which the certificate has been proved for age of the petitioner is said to be shut down 5-6 years prior to the same being merged in Rajkiya Vidhyalava Siwanchi Gate, Jodhpur. That apart, the school of which the certificate has been proved for age of the petitioner is said to be shut down 5-6 years prior to the same being merged in Rajkiya Vidhyalava Siwanchi Gate, Jodhpur. No person who was working in the Veer Mohalla School has been examined by the prosecution for proving that Gulam Nabi S/o Abdul Qadir, referred to in the admission register, is the same person who is facing prosecution i.e. the petitioner. In this view of the matter, the same entry Ex.1 which is sought to be relied upon by the prosecution cannot be said to be entry pertaining to the age of the petitioner. 7. Since the school register entry cannot be treated to be a reliable piece of evidence, then the only other reliable evidence which is required to be considered for the age of the petitioner is the medical evidence and as per which, the petitioner was of 18-19 years of age in August, 2011. Since the offence has been committed in September, 2010, the petitioner has to be treated as below 18 years on the date of commission of the offence. 8. Accordingly, the revision petition succeeds, the order dated 8.9.2011 passed by the learned Additional Sessions Judge (FT) No. 1, Jodhpur Metropolitan is set aside and it is hereby directed that the case of the petitioner shall be forthwith sent to the Principal Magistrate, juvenile justice Board, Jodhpur for trial in accordance with the provisions of Juvenile Justice Act, 2000. The record of the lower Court be sent back with forthwith.Stay petition also stands disposed of.Revision allowed. *******