Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 2017 (RAJ)

Dalip Kumar v. State of Rajasthan

2012-09-25

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—Heard learned counsel for the petitioner as well as learned Public Prosecutor. 2. This criminal revision petition has been preferred against the impugned order dated 4.1.2012 passed by The Additional Sessions Judge, Nohar (District Hanumangarh) in Sessions Case No. 47/2011 whereby the learned Court below has dismissed The application moved on behalf of the petitioner to declare him juvenile and to send his case for further proceedings to the concerned Juvenile Justice Board. 3. Brief relevant facts for the disposal of this petition are that a written report was lodged by the complainant on 5.7.2011 before the concerned police station against the present petitioner and some other persons for murder of one Shri Nakhat Singh and on the basis of aforesaid written report FIR No. 112/2011 came to be registered for the offences under Section 302 & 342 IPC After usual investigation, charge-sheet for the aforesaid offences was filed against the petitioner and some other persons before the concerned Magistrate and the case being exclusively trible by Sessions Judge the same was committed to the Court below. It is pertinent to note that the petitioner was arrested on 7.7.2011 during investigation and he is still in judicial custody. The petition moved an application on 7.11.2011 claiming to be juvenile within the meaning of the Juvenile Justice (Care & Protection of Children) Act, 2000 (hereinafter referred to as "the Act") as having not attained the age of 18 years and to be age of 15 years only on the date of alleged incident. It was prayed by him that his case may be sent for further proceedings to the concerned Juvenile Justice Board. On the basis of the application so submitted, the learned Court below held an enquiry and during the same evidence was produced on behalf of the petitioner and his medical examination regarding age was also conducted and to prove the report statement of one of the doctors was also recorded. The learned Court below after hearing both the parties disallowed the application filed by the petitioner. Feeling dissatisfied, he is before this Court by way of this criminal revision petition. 4. The learned Court below after hearing both the parties disallowed the application filed by the petitioner. Feeling dissatisfied, he is before this Court by way of this criminal revision petition. 4. It was submitted by the learned counsel for the petitioner that there is ample evidence, oral as well as documentary, available on record indicating that the age of the petitioner on the date of incident i.e. on 5.7.2011 was about 15 years, but learned Court below without considering the same in a right perspective dismissed the application. It was further submitted that even according to the medical evidence the age of the petitioner at the time of examination was found to be between 19 to 20 years and it is well settled that medical evidence is not final and it is only opinion of an expert. It was also submitted that the evidence available on record clearly reveals that the date of birth of elder brother of petitioner is 25.7.1990 and after him one daughter and one son also born to the mother of the petitioner and thereafter the petitioner was born and if on that basis calculation is made age of the petitioner cannot be above 18 years. It was also submitted that in a case in which accused claims to be "juvenile" and on the basis of evidence available on record two views are possible regarding his age, the Court should lean in favour of holding the accused to be a juvenile. According to the learned counsel for the petitioner, as in the present case no definite evidence is available on record to determine the age of the petitioner, the discretion should have been exercised in favour of the petitioner. It was also submitted that benefit of two years must be accorded to the petitioner even on the basis of age of 19 years as opined by the Medical Board. In support of his submissions, learned counsel for the petitioner relied upon the case of Jawari Lal Bhati vs. State of Rajasthan reported in 2006(1) Cr.L.R. (Raj.) 536, Ramdayal vs. State of Rajasthan reported in WLC 2009 (Raj.) 41 and in Rajinder Chandra vs. State of Chhattisgarh & Anr. reported in 2002 AIR SCW 385. 5. In support of his submissions, learned counsel for the petitioner relied upon the case of Jawari Lal Bhati vs. State of Rajasthan reported in 2006(1) Cr.L.R. (Raj.) 536, Ramdayal vs. State of Rajasthan reported in WLC 2009 (Raj.) 41 and in Rajinder Chandra vs. State of Chhattisgarh & Anr. reported in 2002 AIR SCW 385. 5. On the other hand by supporting the conclusion arrived at by the Court below, learned Public Prosecutor submitted that in absence of school certificate or municipal/gram panchayat certificate of the petitioner, only medical evidence available on record is relevant to determine the age of the petitioner and from the evidence available on record it is clear that on the date of aforesaid incident the petitioner was of more than 18 years. 6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as relevant legal provisions and the case law. 7. I am of the view that if in a case an accused claims to be "juvenile" within the meaning of the Act the procedure provided in the Act and the Rules framed thereunder is to be followed to arrive at a correct conclusion. According to Section 2(k) of the Act "juvenile" or "child" means a person who has not completed eighteenth year of age. Section 7A of the Act provides the procedure to be followed when claim of juvenility is raised before any court. Section 7A of the Act, which has come into force w.e.f. 22.8.2006, is as below: "7A. According to Section 2(k) of the Act "juvenile" or "child" means a person who has not completed eighteenth year of age. Section 7A of the Act provides the procedure to be followed when claim of juvenility is raised before any court. Section 7A of the Act, which has come into force w.e.f. 22.8.2006, is as below: "7A. Procedure to be followed when claim of juvenility is raised before any court.(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect." 8. The Central Government in exercise of the powers conferred by the proviso to Sub-sec. (1) of Sec. 68 of the Act has framed the Rules of 2007. Rule 12 of the Rules of 2007 is relevant in the present matter, which is an below: "12. Procedure to be followed in determination of Age.—(1) In every case concerning a child or a juvenile in conflict with law, the court or 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 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. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, section 64of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 9. Sub-section (1) of Section 7A of the Act provides that whenever a claim of juvenility is raised before any court, the court shall make an enquiry, take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is a juvenile stating his age as nearly as may be. The proviso to this section provides that if a claim of juvenility is raised then such claim shall be determined in terms of the provisions contained in the Act and the rules made thereunder. This provision clearly shows that although an enquiry is required to be made if a claim of juvenility is raised before any court, but evidence is required to be taken only when the Court feels that it is necessary to take evidence. The provision also indicates that the claim of juvenility shall be determined in terms of the provisions contained in the Act and rules made thereunder. The Central Government has framed Rules of 2007 under the Act. The provision also indicates that the claim of juvenility shall be determined in terms of the provisions contained in the Act and rules made thereunder. The Central Government has framed Rules of 2007 under the Act. The procedure of enquiry for the determination of juvenility is provided in Rule 12 of the Rules of 2007, which has already been quoted in entirety as above. 10. A close look at Rule 12 reveals that this rule provides a complete code in which "inquiry" referred to in Section 7A of the Act about determination as to the age of a juvenile is to be conducted and if any of the documents referred to in this rule is available on record then no further evidence is required to be taken and the court on the basis of the document referred to in the rule itself shall determine the age of the person. 11. According to Rule 12(3)(a)(i), first of all the age determination enquiry shall be conducted by seeking evidence by obtained the matriculation or equivalent certificate. Once the matriculation certificate or any other equivalent certificate is available on record, no further evidence is required to be taken by the reason that by obtaining the matriculation certificate or equivalent certificate the enquiry is complete. If in a case the matriculation certificate or equivalent certificate is available that shall be conclusive proof of the age of the person by whom the claim of juvenility was made but if in case such certificate is not available then the court proceed to make further enquiry. In the present case, it is an admitted fact that secondary school certificate or any other equivalent certificate has not been produced by the petitioner. According to the aforesaid rule, if matriculation or equivalent certificate is not available then date of birth certificate from the school first attended and in absence thereof the birth certificate given by a corporation or a municipal authority or a panchayat will be obtained and considered. In the present case, no such certificates have also been made available on record. If any of the above mentioned certificates are not available, then comes the medical opinion which shall be sought from a duly constituted medical board. In the present case, no such certificates have also been made available on record. If any of the above mentioned certificates are not available, then comes the medical opinion which shall be sought from a duly constituted medical board. In the present case as the aforesaid certificates were not available on record, the learned Court below sought medical opinion and in this respect a Medical Board of three doctors was duly constituted and a report dated 28.11.2011 was also prepared by it and the same has been proved by one of the members of the Board. According to the report as prepared by the Board when examination was made the age of the petitioner was found to be 19 to 20 years. Dr. Sunil Sarva has proved the medical report with reasons in support of the report. In his cross-examination, he has denied the suggestion that the age of the petitioner can be two years less than 19 years, although at the same time he has admitted that according to the medical jurisprudence of Dr. Modi, age of a person can be two years less or above the age determined on examination. Thus, in the present case medical evidence regarding determination of age of the petitioner being available on record in accordance with the aforesaid rule, no further evidence was required to be considered, but the learned Court below even then has considered the statement of mother of the petitioner and after critically analysing it, has come to an conclusion that the age of the petitioner is 18 years and two months. I find no reason to disagree with the conclusion arrived at by the Court below. Although, according to a certificate produced by the petitioner, the date of birth of Shri Ram Kumar, elder brother of the petitioner, is 25.7.1990 but in absence of proof of the same by a competent person, it is not relevant for the determination of age of the petitioner. Merely because the prosecution has not disputed the validity of this certificate, it cannot be said that same was not required to be proved by the person who issued it. Merely because the prosecution has not disputed the validity of this certificate, it cannot be said that same was not required to be proved by the person who issued it. It is well settled legal position that a certificate of age issued by a school is to be proved by the person who has issued it and the source from which the age of the person was entered in the school register is also required to be proved. In the present case, the Headmaster, who has issued the above said certificate, did not appear as a witness before the Court and in absence thereof, the same cannot be held to be proved. Apart from that, according to the procedure provided in the aforesaid rule, it is the age certificate of the person concerned issued by a school is relevant and not of any other person. Similarly, the age mentioned in ration card also cannot be a relevant evidence for the determination of age of a person. In the present case, although in the ration card issued on 12.5.2010, age of the petitioner is 15 years but in comparison to the medical evidence, priority cannot be given to it. It is pertinent to note that mother of the petitioner admits that the petitioner studied in a Government School situated at Tolasar upto second standard, but even then no efforts were made by the petitioner to obtain age certificate from that school. According to Rules 12(3)(a)(ii) of the Rules, the date of birth certificate from the school first attended is also relevant and has priority over the medical opinion. I am of the opinion that, that certificate would have been best evidence for the determination of the age. In absence of best evidence, adverse inference has to be drawn against the petitioner. When medical opinion in the form of report prepared by the duly constituted Medical Board is available on record, no other evidence is relevant for the purpose of age determination of the petitioner. A perusal of impugned order clearly indicates that the learned Court below has considered each and every aspect of the matter in a right perspective and after analysing the evidence available on record and the relevant legal provisions has come to a definite finding that the petitioner was not below the age of 18 years at the time of aforesaid incident. I find no illegality or perversity in the impugned order. So far as the case law relied upon by the learned counsel for the petitioner is concerned, being based on different set of facts, it is of no help to him. 12. Consequently, the revision petition being meritless is, hereby, dismissed. Stay application is also dismissed.