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2011 DIGILAW 78 (RAJ)

Shivnarain @ Shivda v. State of Rajasthan

2011-01-11

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - The instant revision petition has been filed by the petitioner Shiv Narain @ Shivda s/o Jaisa Ram, b/c Jat, r/o Jaisalsar, Tehsil Nokha, District Bikaner against the judgment and order dated 02.12.2010 passed by the learned Addl.District & Sessions Judge (Fast Track), Nagaur, in Cri.Misc. Case No.54/2010 whereby the learned trial court has rejected the application filed by the petitioner for declaring him juvenile. 2. The brief facts of the case giving rise to the present revision petition are that the complainant lodged a report before the SHO, Police Station Shree Balaji, stating inter alia that on 28.12.2009 he had gone to village Somsar for domestic work and at about 07.00AM accused Shiv Narain @ Shivda and Chhelu Ram @ Shiram went to his Dhani and told his daughter that her father was serious and admitted in the hospital at Nokha , therefore, some amount was required for his treatment. It was further alleged that his daughter boarded the vehicle with the box containing cash and ornaments etc. and the accused plied the vehicle in wrong direction and thereafter they broke open the box and took Rs. 1,50,000/- and also gold and silver ornaments. The accused persons also raped her and threatened her of dire consequences. It was averred that when her daughter cried Raju Singh and Chhugna Ram came at the spot and then accused persons escaped from there. 3. On the basis of this complaint, the SHO, Police Station, Shree Balaji, lodged FIR against the petitioner and other persons and started investigation. After completion of investigation, police filed charge sheet against the petitioner and other persons. The case was committed for trial to the court of learned Addl.Sessions Judge ( Fast Track), Nagaur. The petitioner moved an application under section 49 of the Juvenile Justice ( Care and Protection of Children ) Act, 2000 for determination of the age of the petitioner. 4. During the course of trial the father of the petitioner Jaisa Ram was examined as AW/1 and Nanu Ram as AW/2 and Karni Singh as AW/3 and six documents were also exhibited. The learned trial court vide its order dated 02.12.2010, rejected the application filed by the petitioner. Being aggrieved by the order dated 02.12.2010 passed by the learned Addl.District & Sessions Judge(Fast Track), Nagaur, the petitioner has preferred this revision petition. 5. The learned trial court vide its order dated 02.12.2010, rejected the application filed by the petitioner. Being aggrieved by the order dated 02.12.2010 passed by the learned Addl.District & Sessions Judge(Fast Track), Nagaur, the petitioner has preferred this revision petition. 5. The learned counsel for the petitioner contended that the order dated 02.12.2010 passed by the learned Addl.District & Sessions Judge(Fast Track), Nagaur, is not based on evidence available on record and the learned trial court arrived at the conclusion merely on the basis of the cutting made in the School Certificate as well as on the basis of the non-attestation of the affidavit about the fact of the same name Ram Narain and Shiv Narain and further the learned trial court held that at the first instance the petitioner did not take any such plea of petitioner being juvenile. Therefore, he rejected the application of the petitioner to declare him juvenile. 6. Learned counsel for the petitioner submitted that the father of the petitioner was in the Military Service and in the year 2001, when the father of the petitioner retired from the Indian Army, after 17 years of service, in the Discharge Certificate itself the age of Shiv Narain was mentioned as 10.09.1992 and this document could not be said to be a forged document or a document created with an intention to declare the present petitioner as juvenile on wrong reliance of material documents . The learned trial court arrived at a wrong conclusion and even in the case of suspicion or where there can be two views possible of a fact , the learned trial court ought to have considered the petitioner as juvenile. 7. The learned Public Prosecutor vehemently defended the judgment of the learned trial court. 8. I have considered the rival submissions and perused the evidence recorded during the course of enquiry and the order of the learned trial court. The Hon'ble apex court in the case of Rajinder Chandra v. State of Chhatisgarh, 2002 (1) WLC (SC) Cri. 210 has observed that if two views are possible while considering the matter in relation to juvenile, then the courts should hold in favour of holding the accused to be a juvenile in border-line cases. The Hon'ble apex court in the case of Rajinder Chandra v. State of Chhatisgarh, 2002 (1) WLC (SC) Cri. 210 has observed that if two views are possible while considering the matter in relation to juvenile, then the courts should hold in favour of holding the accused to be a juvenile in border-line cases. In the case of Raisul v. State of U.P., AIR 1977 SC 1822 the Hon'ble apex court has observed that the courts are not required to substitute their own estimation to record the age of accused, on the basis of their estimation about the age. It was also observed that the appearance can often be deceptive. 9. The facts and evidence as has been discussed by the learned trial court suggest that the case in hand is also a border-line case and except some cutting in the admission form, in relation to the date of birth of the petitioner, there does not appear any interpolation in other entries such as Discharge Certificate issued by the office of the petitioner's father or other entries. In the Transfer Certificate issued by the School Authorities, the date of birth of the petitioner has been mentioned as 10.09.1992 and in the admission register the same date of birth has been mentioned. 10. In the above circumstances, the cutting at some places of any document, when seen with other documents tendered in evidence, go to show that no interpolation has been made therein, then to presume that a false record has been prepared or produced, in my opinion, is not justified. 11. In view of the aforementioned discussions, the order of the learned Addl.District & Sessions Judge (Fast Track), Nagaur, dated 02.12.2010 is liable to be set aside and the revision petition filed by the petitioner Shiv Narain @ Shivda is allowed at admission stage. Learned trial court shall proceed against the petitioner as if he is juvenile.Revision petition allowed. *******