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2011 DIGILAW 376 (RAJ)

Vikram Saini v. State of Rajasthan

2011-02-18

MAHESH BHAGWATI

body2011
JUDGMENT Hon'ble BHAGWATI, J.—Since both the criminal revision petitions pertain to one incident and arise out of the order dated 10.9.2009 passed by Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur, they have been heard together and are being disposed of by this common order. 2. Contextual facts giving rise to the instant revisions, in nub, are that a charge sheet came to be filed against both the petitioners Vikram Saini and Dev Karan for the offences under Section 302, 201 IPC and Section 3(2) (5) of SC/ST Act, whereupon the cognizance was taken against them for the aforesaid offences. Since the offences were triable by the Court of Sessions, as such the case was committed to the Court of Sessions for trial. 3. The petitioner no.1 Vikram Saini filed an application under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short as “Act of 2000”) and the petitioner no.2 Devkaran filed an application under Section 2(k) of the Act of 2000 before the learned Judicial Magistrate No.8, Jaipur City, Jaipur, which were decided vide order dated 6.2.2009. Against the said order dated 6.2.2009, an appeal was preferred by the petitioners, which was decided by the appellate Court vide order dated 1.4.2009, whereupon the learned appellate court partly allowed the appeal of the petitioners; set-aside the order dated 6.2.2009 and remanded the matter to the learned trial court directing to pass an order in accordance with law after affording an opportunity to both the parties to adduce evidence in support of their claims, so as to determine the age of both the petitioners. 4. In pursuance of the order dated 1.4.2009 passed by the learned appellate court, the learned trial court recorded the statements of NAW-1 Gopal Lal; NAW-2 Lali Devi; NAW-3 Hanuman; NAW-4 Girdhari; NAW-5 Radhey Shyam Saini and NAW-6 Girraj and exhibited the documents Ex.NA1 Admission Form; Ex.NA2 Student's admission register; Ex.NA3 birth certificate of Vikram Saini issued by Vandan Vidhyapeeth Shiksha Samiti; Ex.NA4 original application form of Dev Karan Gurjar for admission in school; Ex.NA4/1 certified copy of application form; Ex.NA5 original TC of Dev Karan Gurjar; Ex.NA5/A certified copy of TC; Ex.NA6 original SR register; Ex.NA6/A certified copy of register; Ex.NA7 Original TC of Girraj; Ex.NA7/A certified copy of TC; Ex.NA8 original TC of Ghanshyam; and Ex.NA8/A certified copy of TC. 5. 5. The learned trial court, having critically analyzed both the direct as also documentary evidence ad-longtum arrived at a conclusion vide order dated 22nd July, 2009 that the petitioners were juvenile at the time of incident and directed to produce the petitioners before the Juvenile Justice Board treating them to be juvenile. 6. Aggrieved with the aforesaid order dated 22nd July, 2009, the complainant preferred a Criminal Appeal before the Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur. The learned Appellate Court, on the basis of the medical examination report, determined the age of the petitioner no. 1 Vikram Saini to be above 20 years and petitioner no. 2 Devkaran to be between 18 to 20 years and resultantly allowed the appeal vide order dated 10th September, 2009 preferred by the complainant and set-aside the order dated 22.7.2009 passed by the learned trial court. 7. Being dissatisfied with the order passed by the appellate court, the petitioners have preferred the instant criminal revision petitions. 8. Heard learned counsel for the parties and carefully perused the relevant material including the impugned order on record. 9. Learned counsel for the petitioners canvassed that the learned Judicial Magistrate rightly treated the petitioners to be juvenile on the basis of the statement of the witnesses and the documentary evidence available on record, but the learned appellate court, set-aside the order of the trial court merely on the ground of medical examination report. He further canvassed that the order dated 22.7.2009 was not passed by a competent authority, as defined under Section 2(g) of the Juvenile Justice (Care and Protection of Children) Act, 2000, and as such in view of the provisions of Section 52 of the Act, the appeal was not maintainable before the appellate court, but the learned appellate court arbitrarily entertained the appeal and allowed the same, hence the impugned order deserves to be set-aside and the order passed by the trial court be upheld. 10. Learned counsel for the complainant as also the learned PP appearing for the State, in contra, defended the impugned order and stated the same to be apt and proper. 11. Having ruminated over the submissions made by the learned counsel for the parties, it is noticed that in the students admission register, the date of birth of petitioner no. 10. Learned counsel for the complainant as also the learned PP appearing for the State, in contra, defended the impugned order and stated the same to be apt and proper. 11. Having ruminated over the submissions made by the learned counsel for the parties, it is noticed that in the students admission register, the date of birth of petitioner no. 1 Vikram Saini is mentioned as 8.10.1991 and in the school admission form, the date of birth of petitioner no.2 Dev Karan is mentioned as 25.8.1992. The date of incident is said to be 7.11.2008. Thus, on the date of incident, the petitioner no. 1 was of the age nearing 17 years and 1 month, while the petitioner no.2 was nearing 16 years and 2 months old. Both these documents were in existence prior to the date of incident, as such the genuineness of these documents cannot be doubted. The learned trial court placing reliance on the documentary evidence, rightly determined the age of the petitioners and directed to treat them to be juvenile and produce before the Juvenile Justice Board. The learned Appellate Court having failed to consider the documentary evidence (school certificates) available on record, passed the judgment contrary to the provisions of law placing reliance on the opinion given by the Doctor. 12. Rule 12 of the Rules of 2007 envisages the procedure to be followed in determination of age, which is reproduced as under: “12.Procedure to be followed in determination of age:- (i) In very case concerning a child or a juvenile in conflict with law, the court of 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 that purpose. (2) The Court or the Board or as the case may be the the Committee shall decide the juvenility 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 observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a)(i) the matriculation or equivalent certificates, 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. 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.” 13. Sub Rule 3 of Rule 12 of Rules of 2007 envisages that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board, as the case may be, or the Committee by seeking evidence by obtaining the matriculation or equivalent certificates, if available, and in the absence whereof; the date of birth certificate from the school and in the absence whereof, the birth certificate given by a corporation or a municipal authority or a panchayat. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any person's age is his/her birth certificate. 14. The medical opinion with regard to the age of the delinquent child shall be sought only when a birth certificate or school certificate or matriculation certificate is not available with him. The Hon'ble Apex Court in umpteen cases has repeatedly held that the conclusive evidence for any person's age is his/her birth certificate. 14. In the case title of Bhoop Ram vs. State of Uttar Pradesh reported in AIR 1989 sc 1329 , the Hon'ble Apex Court has held that on the point of proof of age, school certificate is the basic evidence and so far as the medical certificate is concerned, the same is based on estimate and possibility of error cannot be ruled out. 15. In the case of Harpal Singh and Anr. vs. State of Himachal Pradesh reported in AIR 1981, SC, 361, the Hon'ble Apex Court held that in the matriculation certificate or Board certificate or school certificate the entries with regard to the age are based on the entries in the birth register. These entries are admissible in evidence under Section 35 of the Indian Evidence Act. In the case of Nahar Singh vs. State of Raj. and Anr. reported in WLC (Raj.) U.C. (2002) at page 85, it has been held that when there are school certificate as also the opinion of the Medical Board with regard to the age are available on record, then in such a situation, school record or the matriculation certificate would prevail upon the medical opinion. 16. Rule 12 of the Rules 2007 categorically envisages that the medical opinion from the medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a Corporation or by any Panchayat or Municipality is not available. The learned court below seems to have committed grave error in determining the age of the petitioners, ignoring the date of birth, mentioned in the documents, as mentioned above. 17. Secondly, section 2(g) of the Act of 2000 prescribes the 'competent authority'. It means in relation to children in need of care and protection a Committee and in relation to juveniles in conflict with law a Board. 17. Secondly, section 2(g) of the Act of 2000 prescribes the 'competent authority'. It means in relation to children in need of care and protection a Committee and in relation to juveniles in conflict with law a Board. In the instant case, the order dated 22.7.2009 is found to have been passed by the trial court and since the trial court is not defined to be a competent authority under Section 2(g) of the Act, as such, the appeal under section 52 of the Act is not maintainable. The impugned order, ex-facie, is found to be arbitrary, illegal, erroneous and contrary to the legal provisions and therefore, the same deserves to be set-aside. 18. For the reasons stated above, both the criminal revision petitions filed by the petitioners are allowed. The impugned order dated 10.9.2009 passed by the learned appellate court, being contrary to the provisions of law, stands set aside and the order passed by the trial court is upheld. 19. Consequent upon the disposal of the criminal revision petitions, the stay applications, filed therewith, do not survive and they also stand disposed of accordingly.