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2011 DIGILAW 470 (ALL)

SUBHADRA PATHAK v. STATE OF U. P.

2011-02-25

SHIR KANT TRIPATHI

body2011
JUDGMENT Hon’ble Shri Kant Tripathi, J.—Heard Mr. V.M. Zaidi, Senior Advocate for the revisionist and the learned AGA and perused the record. 2. This is a revision against the judgment and order dated 23.7.2010 passed by the Additional Sessions Judge, Court No. 4, Fatehpur in S.T. No. 15 of 2009 (State v Subhadra Pathak & others) whereby the learned Additional Sessions Judge rejected the revisionist’s application for declaring him as a juvenile. 3. It appears that the revisionist Subhadra Pathak is an accused in the aforesaid case. The case of the revisionist has been separated by the learned trial Court vide its order dated 14.5.2010 and he is now being tried as accused in S.T. No. 15-A of 2009. 4. It appears that the revisionist Subhadra Pathak moved an application alleging that he was a juvenile on the date of occurrence i.e. 14.9.2008. According to him his date of birth is 9.8.1991. The revisionist filed his father’s affidavit and High School certificate and mark sheet of the year 2006 as well as the Scholar register, according to which, the revisionist’s date of birth is 9.8.1991 but the learned Additional Sessions Judge disbelieved the date of birth shown in the High School certificate and mark-sheet of the year 2006 as well as the Scholar Register (T.C.). According to the State the revisionist’s date of birth is 1.8.1989. P.W. -1, Jagdish Prasad Singh, Principal of Dhata Intermediate College, Fatehpur has been examined on behalf of the State to prove the date of birth dated 1.8.1989. The learned trial Court further obtained the medical opinion dated 1.4.2010 according to which the revisionist was aged about 18 years on 1.4.2010, therefore, according to the learned counsel for the revisionist, the revisionist was less than 18 years on 14.9.2008 i.e. the date of occurrence. 5. It may not be out of context to mention that the learned Additional Sessions Judge appears to have obtained certain documents/certificates relating to the Dhata Intermediate College, Fatehpur, Janta Junior High School, Singhari, Patti, Fatehpur, Saraswati Madhymik School, Fatehpur and also certain records from the Board of High School & Intermediate, U.P. According to these documents and evidences, the revisionist’s date of birth is 1.8.1989, therefore, there were contradictory evidences regarding the revisionist’s date of birth. According to the High School certificate and mark-sheet of the year 2006 and T.C. etc the revisionist’s date of birth is 9.8.1991. According to the High School certificate and mark-sheet of the year 2006 and T.C. etc the revisionist’s date of birth is 9.8.1991. If the High School record entries are believed, the revisionist would undoubtedly be a juvenile on the date of the occurrence. On the other hand, if certain entries made in the school record as proved by aforesaid P.W.-1 J.P.Singh, P.W.-2 Pradeep Singh, Teacher, Sarswati Madhymik Vidyalaya, Dhata, Fatehpur and P.W.-3 Magan Singh, Clerk, Janta Junior High School, Sinhari Patti, Fatehpur and the letters issued by the High School & Intermediate Board, U.P. are believed, the date of birth of the revisionist would be 1.8.1989 and in that eventuality he will not be deemed to be a juvenile on the date of occurrence, therefore, it was necessary and expedient for the learned trial Court to find out as to which of the various school record entries was genuine and acceptable. The High School Certificate and mark-sheet of the year 2006 and Scholar Register (T.C.) have been discarded on the ground that there was no evidence to prove the source of the date of birth recorded in these documents. If the source was required to be proved, the learned trial Court should have afforded an opportunity to the revisionist to summon the Principal or other employee of the concerned institution. It was therefore necessary and expedient for the learned trial Court to ascertain as to how the date of birth 9.8.1991 in the High School certificate, mark sheet and transfer certificate had been recorded and what was its source. It is, therefore, just and expedient to direct for a fresh enquiry for finding out the genuineness of the date of birth shown in the High School certificate/mark sheet of the year 2006. This dispute cannot be resolved without holding a proper enquiry and providing afresh opportunity to the revisionist to adduce evidence. 6. The learned trial Court had no doubt made an attempt to record the statement of P.W.-1, P.W.-2 and P.W.-3 for proving various school record but this attempt was only in regard to the alleged date of birth dated 1.8.1989. The other set of evidence relating to the High School Certificate, mark-sheet and transfer certificate was not procured. The learned Court below rejected the other set for want of evidence regarding the source of the entries relating to the date of birth of the revisionist. The other set of evidence relating to the High School Certificate, mark-sheet and transfer certificate was not procured. The learned Court below rejected the other set for want of evidence regarding the source of the entries relating to the date of birth of the revisionist. According to Rule 12 of the Juvenile Justice (Care & Protection of Children) Rules, 2007, the matriculation or equivalent certificates, if available, are to be given preference over any other evidence, therefore, first of all the Court below will have to ascertain, as to whether the matriculation certificate and mark sheet produced by the revisionist are genuine or not. It is so, the learned trial Court is further required to ascertain as to whether the date of birth shown in the said certificate has any reasonable basis or not. Without doing so, the age of the revisionist on the date of occurrence cannot be properly ascertained, therefore, a fresh enquiry is required to be held in the matter to find out the correct age of the revisionist on the date of occurrence. As such, the matter has to be remitted to the learned trial Court for further enquiry. For the reasons aforesaid, the impugned order cannot be sustained. The revision is allowed. The impugned order dated 23.7.2010 is quashed. The Court below is directed to hold a further enquiry in accordance with the observations made herein before and pass a fresh order in accordance with law. —————