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2011 DIGILAW 425 (JHR)

Deepak Kumar Singh v. State of Jharkhand

2011-05-09

D.K.SINHA

body2011
Order This Criminal Revision has been preferred by the petitioner Deepak Kumar Singh under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 against the judgment dated 23.11.2009 passed by Sri G.K. Verma, Sessions Judge, Palamau at Daltonganj in Cr. Appeal No. 62 of 2009 by which the prayer of the petitioner for declaring him juvenile, rejected by the Juvenile Justice Board, Palamau at Daltonganj in connection with Sadar (Town) P.S. Case No. 159 of 2006 corresponding to G.R. No. 629 of 2006 was affirmed and the appeal was dismissed. The petitioner was in custody for the alleged offence under Sections 302/ 201 of the Indian Penal Code. 2. The prosecution story in short was that the village chowkidar in his statement before the police on 4.5.2006 narrated that a dead body of an unknown person was found thrown by putting inside a gunny bag. The neck and limbs of the deceased was tightly tied with nylon ropes to which Sadar (Town) P.S. Case No. 159 of 2006 was registered for the alleged offence under Sections 302/201 of the Indian Penal Code against unknown accused. During course of investigation the name of the deceased was transpired to be Santosh Agarwal who was earlier abducted by the culprits for ransom. The police got some) clues about involvement of the petitioner Deepak Kumar Singh in commission of the alleged offence and accordingly, he was arrested, and he confessed his guilt that he abducted the deceased in association with Mantoo Singh. He had given a detailed description as to how both of them hatched a plan to abduct Santosh Agarwal and they demanded ransom from his family for securing his release. From the very beginning the petitioner had taken the plea of his juvenility before the CJM. In pursuance of such plea, the case record of the petitioner was separated and it was referred to the Juvenile Justice Board, Ranchi for determination of his age. An enquiry was conducted under Section 49 of the said Act and the Board after considering all the materials collected during course of enquiry held that the petitioner was not a juvenile at the relevant time and date of the alleged occurrence. An enquiry was conducted under Section 49 of the said Act and the Board after considering all the materials collected during course of enquiry held that the petitioner was not a juvenile at the relevant time and date of the alleged occurrence. During course of such enquiry the petitioner was referred to the Civil Surgeon-cum Chief Medical Officer, Ranchi for determination of his age and the Medical Board duly constituted determined the age of the petitioner about 20-21 years. 3. The petitioner then preferred Criminal, Appeal No. 86 of 2007 under Section 52 of the said Act before the Sessions Judge, Palamau at Daltonganj which was allowed and the matter was remitted back again to the J.J. Board. Ranchi for re-determination of age of the petitioner. In compliance thereof the J.J. Board called for the relevant documents from the Civil Surgeon-cum-Chief Medical Officer, Ranchi by which the age of the petitioner was determined between 20 and 21 years. On receipt and upon consideration of the said report, the J.J. Board, Ranchi, directed appearance of any member of the Medical Board with original documents regarding the assessment of the age of the petitioner for its proof, but in the meantime an independent Juvenile Justice Board was constituted at Daltonganj, where the record of the petitioner was transferred. The Juvenile Justice Board, Daltonganj thought it proper to get the age of the petitioner determined by directing the Civil Surgeon. Palamau. Accordingly a Medical Board was constituted for the re-determination of the age of the petitioner and the Board determined the age of the petitioner about 1920 years by the report dated 14.5.2009. During course of enquiry one of the members of the Medical Board Dr. V.K. Singh was examined as E.W. 3. The J.J. Board, Daltonganj finally held the petitioner not a Juvenile against which Cr. Appeal 62 of 2009 was preferred before the Sessions Judge, Pal am au at Daltonganj under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 wherein while deciding the appeal it was .observed that the Juvenile Justice Board. Daltonganj quite correctly assessed and determined the age of the appellant on the basis of. Appeal 62 of 2009 was preferred before the Sessions Judge, Pal am au at Daltonganj under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 wherein while deciding the appeal it was .observed that the Juvenile Justice Board. Daltonganj quite correctly assessed and determined the age of the appellant on the basis of. and by detailed discussion and appreciation of medical opinion rendered by the Medical Boards both at Ranchi and Daltonganj, and rightly held that the appellant was above 18 years of age on the alleged date of occurrence in the year 2006 and the appeal was dismissed. 4. Mr. A.K. Kashyap, the learned Sr. Counsel submitted that the learned J.J. Board, Ranchi did not accept the entry made in the school leaving certificate of the petitioner to be genuine which was proved by E.W. 1 during course of enquiry who was a competent witness being the Headmaster Incharge of the Gandhi Praveshika Vidhyalaya, Krishna Ashram Sikariya, Jahanabad, wherein date of birth of the petitioner was recorded as 15.8.1993 and this fact was corroborated by the father of the petitioner as E.W. 2 during course of enquiry for determination of the age. The J.J. Board, Pal am au at Daltonganj however, ignoring the evidence of two material enquiry witness relied upon the report of the Medical Board, Ranchi wherein age of the petitioner was determined to be 20-21 years though it could not be substantiated by the evidence of any member of the Board. The Second Medical Board was constituted at Daltonganj pursuant to the direction of the newly constituted J.J. Board in Palamau at Daltonganj which assessed and determined the age of the petitioner as about 19-20 years on 14.5.2009. The occurrence as alleged took place between 3.5.2006 to 4.5.2006 and the age of the petitioner was determined to be about 19-20 years by the Medical Board, Daltonganj on 14.5.2009. Therefore, the learned Sr. Counsel Mr. A.K. Kashyap submitted that the petitioner was definitely under 18 years of age, a juvenile, on the alleged date of occurrence and this fact was ignored while recording the impugned judgment by the Sessions Judge, Daltonganj in Cr. Appeal No. 62 of 2009 by dismissing the appeal. 5. Advancing his argument Mr. Therefore, the learned Sr. Counsel Mr. A.K. Kashyap submitted that the petitioner was definitely under 18 years of age, a juvenile, on the alleged date of occurrence and this fact was ignored while recording the impugned judgment by the Sessions Judge, Daltonganj in Cr. Appeal No. 62 of 2009 by dismissing the appeal. 5. Advancing his argument Mr. Kashyap further submitted that the Headmaster Incharge of the concerned school, where the petitioner last read, was produced and examined as E.W. 1 who proved the school leaving certificate and the admission register wherein the date of birth was recorded as 15.8.1993 as such the petitioner was below 18 years on the alleged date of occurrence on 4.5.2006. E.W. 3 also being the member of the Medical Board, Daltongang, testified that the age of the petitioner was determined between 19-20 years on 14.5.2009 by the Medical Board, therefore, he was below 18 years as on 3/4.5.2006 i.e. the alleged date of occurrence. 6. The learned counsel asserted on the point of law that Rule 22(5)(iv) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 vests jurisdiction to the Juvenile Justice Board to obtain the medical opinion with regard to determination of age in absence of required proof of age as per sub-clauses-I, II, III of clause (5) of Rule 22, by the duly constituted Medical Board, subject to margin of one year, in deserving cases but of course for the reasons to be recorded. In the instant case the petitioner could be able to bring the original transfer certificate on the record and thereby he satisfied the requirement of Rule 22(5)(11) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 and therefore, assessment and determination of the age by constituting Medical Board was not required. 7. Heard the learned A.P.P. on behalf of the O.P. State. 8. 7. Heard the learned A.P.P. on behalf of the O.P. State. 8. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, provision of law as laid down under Rule 22(5) Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 provides procedure for determination of age of a juvenile in conflict with law as hereunder:- In every case concerning a juvenile or a child, the Board shall either obtain (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; (iii) matriculation or equivalent certificate, if available; and (iv) In the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, when (regarding his age and, 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). 9. The rules as such provides that for determination of age of a juvenile, the Juvenile Justice Board, has to first rely upon the birth certificate issued by the Corporation or Municipal authority or a date of birth certificate from the school first attended, matriculation or equivalent certificate and in absence of the aforesaid certificate/certificates, the medical opinion of a duly constituted Medical Board may be called for subject to a margin of one year. 10. I find from the arguments and the materials on the record that the J.J. Board, Palamau at Daltonganj directed for constitution of Medical Board at Daltonganj for determination of the age when the petitioner herein failed to satisfy the requirement of Rule 22(5)(1)(11)(111) of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 specially by not producing any birth certificate issued by the Corporation or Municipality, a birth certificate from the school first attended by him or a matriculation or equivalent certificate. In the report dated 15.2.2008 his age was determined by the Medical Board at Ranchi between 20-21 years based on dental and radiological finding of the Medical Board but such report could not be proved though its veracity was not challenge a by the petitioner. In the report dated 15.2.2008 his age was determined by the Medical Board at Ranchi between 20-21 years based on dental and radiological finding of the Medical Board but such report could not be proved though its veracity was not challenge a by the petitioner. The report formed the opinion of the body of experts and was relevant. 11. On the transfer of the record from J.J. Board, Ranchi to the J.J. Board, Palamau at Daltonganj on' its creation, again a report was called for from Medical Board, Daltonganj which determined the age of the petitioner between 19-20 years by its report dated 14.5.2009. During such enquiry EW-3 Dr. V.K, Singh a member of the Medical Board, Palamau at Daltonganj was examined and he proved the report and affirmed the age of the petitioner within group of 19-20 years on determination. 12. Now there were two medical reports of two different Medical Boards duly constituted with variation in the age of the petitioner after assessment and determination by the body of experts. In the first medical report dated 15.2,2008 the age of the petitioner was determined to be 20/21 years whereas in the second report submitted by the Medical Board, Palamau at Daltonganj dated 14.5.2009 his age was determined to be 19/20 years both based upon dental and radiological findings. 13. I find from the order of the Juvenile Justice Board, Pal am au at Daltonganj dated 12.6.2009 in G.R. No. 628 of 2006 and the judgment recorded by the Sessions Judge, Pal am au at Daltonganj on 23.11.2009 that both the courts in succession presented comparative discussions on two different medical reports and determined the age of the petitioner to be above 18 (eighteen) years as on the alleged date of occurrence on 4.5.2006 by giving conscious consideration and logically relying upon the reports submitted by the Medical Boards of two different places. 14. The Civil Surgeon. Ranchi when called upon, had given a detailed report with regard to assessment and determination of the age of the petitioner Deepak Kumar Singh by the Medical Board, Ranchi as hereunder.- Dentition - 28+ 1 (erupting) Total-29 Radiological:- (i) X-ray of wrist and hand shows pisiferous ossified, heads of metacarpals fused lower ends of radius and ulna fused. (ii) X-ray of pelvis shows crest of ilium fused, ischial tuberosity not fused. (ii) X-ray of pelvis shows crest of ilium fused, ischial tuberosity not fused. The age on the basis of above finding is about 20-21 (twenty-twenty one) years. The Medical Board, Palamau Daltonganj had given the following grounds while determining the age of the petitioner:- Teeth-29 Secondary Sex character appeared (i) X-ray shows lower radial epiphysis fused. Lower ulna epiphysis fused. Upper radial epiphysis fused. Crest fused. In the opinion of the Board the age of Deepak Kumar Singh was about 19-20 years. 15. The learned Sessions Judge in the appeal meticulously dealt with the finding of the J.J. Board, Palamau at Daltonganj that lower and upper radial epiphysis fused, lower ulna epiphysis fused and right iliac crest epiphysis fused which usually gets completed within the age group of 19-20 years and that the Medical Board, Ranchi was of the opinion on the basis of such finding that the petitioner was about 20/21 years even while it could have been more than the assessed age, but in no case could be less than the assessed one. The J.J. Board relied upon Modi's book of Medical Jurisprudence and Toxicology wherein it was described that such developments in males were complete within the age group of 19 to 20 years but at the same time the report of the Medical Board, Daltonganj dated 15.2.2008 reflected on the radiological test that wrist and hands of the petitioner showed pisiferous ossified, heads of metacarpals fused, lower ends of radius and ulna fused and pelvis showing iliac crest also fused on the basis whereof the age of the petitioner was determined to be 19/20 years. It was held by the Juvenile Justice board and affirmed by the appellate Court that since all the characters and osteological changes which were necessarily to be present between the age of 19-20 years had already been found by the Medical Board, Ranchi at the time of examination of the petitioner at the first instance which were corroborated by physical appearance between 21, 22 years with the application of deviation to plus-minus two years on the upper side, it was held that the petitioner was not a juvenile, certainly above 18 years of age on the alleged date of occurrence and the Juvenile Justice Board, Palamau at Daltonganj also held him' above 18 years by his appearance, as such, evaluation of the J.J. Board is corroborative in nature. 16. 16. The learned Sr, Counsel Mr. A.K. Kashyap failed to show any reasonable ground so as to call for interference in the concurrent findings of the J.J. Board, Palamau at Daltonganj as well as the finding of the Sessions Judge, Palamau at Daltonganj in Cr. Appeal No. 62 of 2009. I find and observe that J.J. Board, Daltonganj as well the Sessions Judge, Palamau, Daltonganj have metiulously and technically dealt with and have come to the logical findings based upon the contentions of the Modi's Medical Jurisprudence and toxicology an authority for reference, and I do not find any illegality or irregularity caused so as to call for interference in the judgment delivered in Criminal Appeal. There being no merit, this Criminal Revision is dismissed affirming that the petitioner Deepak Kumar Singh was not a juvenile under 18 years of age as on 4.5.2006 i.e. the date of alleged occurrence.