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2011 DIGILAW 469 (ALL)

SONU PRAJAPATI v. STATE OF U. P.

2011-02-25

SHRI KANT TRIPATHI

body2011
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. Satish Trivedi, Senior Advocate for the revisionist and the learned AGA and perused the record. 2. This is a revision under Section 397/401 of the Code of Criminal Procedure against the judgment and order dated 28.4.2010 passed by the learned Sessions Judge, District Agra in Criminal (Juvenile) Appeal No. 02 of 2010 whereby the learned Sessions Judge dismissed the revisionist’s appeal against the order dated 9.12.2009 passed by the Juvenile Justice Board, Agra (in short “the Board) on the application for declaring the revisionist as a juvenile. 3. It appears that the revisionist Sonu Prajapati is an accused in Case Crime No. 365 of 2009, under Sections 364, 302, 411, 201 and 394 IPC, P.S. Tajganj, District Agra. He moved an application claiming himself as a juvenile. The Board held an enquiry for determining his age and passed the order dated 9.12.2009 holding that he was not a juvenile on the date of the occurrence. Feeling aggrieved from the order of the Board, he preferred the aforesaid criminal appeal in the Court of the Sessions Judge, Agra, which was dismissed on 28.4.2010. 4. Mr. Satish Trivedi submitted that the Board as well as the revisional Court committed gross error of law in discarding the school records relating to the date of birth of the revisionist and placing reliance on the medical opinion. Mr. Trivedi further submitted that the medical opinion could be relevant only when the school record was not available. 5. The learned AGA on the other hand submitted that the Board as well as the revisional Court found the school record entries as well as the entries made in the record of the Cantonment Board as unreliable, therefore, the learned Sessions Judge as well as the Board were justified in placing reliance on the medical opinion. 6. It may not be out of context to mention that one Vijay Kumar, Head Master, Sainik Bharti Junior High School, Shanti Nagar, Agra was examined as witness, who on the basis of the relevant record maintained in the said School, stated that the revisionist was a student in the said School and his date of birth, as recorded in the School record, is 19.9.1992 and that entry was made on the basis of the transfer certificate given by the previous school. Mr. Mr. Vijay Kumar further stated that the admission form was submitted by the revisionist’s mother Smt. Prema Devi. The previous school from where the revisionist had studied upto Class V, was S.B Montessori School, Ukharra. The learned Sessions Judge and also the Board disbelieved the entry made in the school record maintained by the Sainik Bharti Junior High School, Shanti Nagar, Agra on the ground that no attempt was made from the side of the revisionist to prove the School record, previously attended by the revisionist, therefore, the school record entries proved by the witness Vijay Kumar was of no help to the revisionist. The revisionist had also filed date of birth certificate issued by the Contonment Board, Agra which was proved by Mr. Avinash Kumar Pathak, Clerk of the said Board but the learned appellate Court disbelieved that entry on account of the fact that there was some interpolation and that entry was made later on. In view of the fact the birth certificate issued by the Cantonment Board as well as the entries made in the school record of the Sainik Bharti Junior High School, Shanti Nagar, Agra were not found proved, the learned appellate Court as well as the Board relied upon the medical opinion dated 13.7.2009, according to which the revisionist was aged about 19 years on the date of x-ray. Mr. Trivedi further submitted that even according to the opinion of the medical board, the revisionist was a juvenile. If the revisionist was 19 years on 13.7.2009, he could be of 18 years on that date and as such he was less than 18 years on the date of the occurrence, which took place on 4.4.2009. According to Mr. Trivedi, the medical opinion ought to have been considered, subject to a margin of one year, as provided under the U.P. Juvinile Justice (Care & Protection of Children) Rules 2004 (in short “Rules”). The learned Sessions Judge gave much stress on the fact that the mother of the revisionist was not examined to prove the entries made in the School record as well as in the record of the Cantonment Board. 7. It is not in dispute that the revisionist’s date of birth as recorded in the school record of the Sainik Bharti Junior High School, Shanti Nagar, Agra is 19.9.2992. 7. It is not in dispute that the revisionist’s date of birth as recorded in the school record of the Sainik Bharti Junior High School, Shanti Nagar, Agra is 19.9.2992. It is also admitted that the date of birth recorded in the record of that school is based on the Transfer Certificate issued by the previous school (S.B Montessori School, Ukharra) and the information furnished by the revisionist’s mother in the admission form. The said entry in the school record had been made much prior to the occurrence of the present case, therefore, it cannot be contended that the school record entries had been made for the purposes of this case. The learned Sessions Judge appears to have overlooked this material aspect of the case. If it was considered necessary and expedient to ascertain the basis of the date of birth recorded in the school record maintained by the previous school i.e. S.B Montessori School, Ukharra, the learned appellate Court should have directed the Board to provide an opportunity to the revisionist to summon the Head Master or any other employee of the S.B Montessori School, Ukharra alongwith the relevant record but the learned appellate Court, instead of doing so outrightly rejected the school record entries, which was not proper at all. If the learned Session Judge thought it proper to have the statement of the mother of the revisionist on record, he should have directed the Board to examine the mother of the revisionist for ascertaining truth regarding the date of birth shown in the transfer certificate issued by the previous school i.e. S.B Montessori School, Ukharra as well as in the record of the Sainik Bharti Junior High School, Shanti Nagar, Agra. 8. So far as the record maintained by the Cantonment Board is concerned, it should not be discarded only on the basis of surmises and conjunctures, as has been done by the learned appellate Court. If the school record entry is genuine and finds a corroboration from the entries made in the Cantonment Board, the record of the Cantonment Board should not be discarded only on the ground that it has been mentioned at serial number 419-A between two other entries. If the school record entry is genuine and finds a corroboration from the entries made in the Cantonment Board, the record of the Cantonment Board should not be discarded only on the ground that it has been mentioned at serial number 419-A between two other entries. If the school record entries as well as the entries made in the record of the Cantonment Board do not clash with each other and are almost similar, the rejection of the entries made in the record of the Cantonment Board would not be proper unless some cogent evidence to show that the entries in the record of the Cantonment Board is forged, is adduced. 9. In view of the aforesaid, it appears that the Courts below have not considered the prayer of the revisionist in a correct perspective, therefore, the impugned orders cannot be sustained. The revision is allowed. The order dated 28.4.2010 passed by the appellate Court as well as the Board’s order dated 9.12.2009 are quashed. The Board is directed to hold a fresh enquiry in accordance with the observations made herein before and pass a fresh order in accordance with law. —————