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2012 DIGILAW 245 (JK)

Abbas Ali v. Abdul Gafar & Anr.

2012-05-10

MOHAMMAD YAQOOB MIR

body2012
1. Respondent no. 1 Abdul Gafar allegedly with the aid of his sister Shazia Kouser and mother committed rape upon the prosecutrix (daughter of the petitioner) on 12.8.2005, as a result thereof case has been registered as FIR no. 277/05 Police Station Rajouri for commission of offences punishable under Sections 376/109/341 RPC. Both respondent no. 1, Abdul Gafar and his sister Shazia Kouser projected to be less than sixteen years of age, so claimed to be governed by Juvenile Justice Act, 1997. 2. So for as Shazia (sister of accused Abdul Gafar) position of her being Juvenile is not disputed, but the position of respondent no. 1 Abdul Gafar being Juvenile was objected to, which lead to the enquiry by the competent authority (Juvenile Court) as warranted under Section 32 of the Juvenile Justice Act, 1977, hereinafter referred to as the Act. The competent authority i.e, Juvenile Court after concluding the enquiry has passed the order dated 7.10.2005 holding therein that respondent Abdul Gafar (accused) was not proved to be juvenile on the date of occurrence. 3. Dis-satisfied with the same, appeal has been preferred as prescribed under Section 37 of the Actbefore the Court of learned Sessions Judge, Rajouri which came to be assigned to the ld. Additional Sessions Judge Rajouri, who in his order dated 2.4.2011 has concluded that the age of Abdul Gafar (accused) at the time of alleged occurrence i.e, 12.8.2005 was less than sixteen years so was accordingly held to be juvenile, entitled to the benefits available to a delinquent juvenile under the Act. The complainant, father of the prosecrutix aggrieved thereof has filed the instant revision petition as prescribed under Section 38 of the Act. 4. The controversy relates to the actual age of respondent no. 1 (accused) whether to be less than sixteen years as on the date of occurrence so as to avail benefits under the Act. Section 2(h) of the Act provides that juvenilemeans a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. The determination of the controversy regarding the age of respondent no.1 became complicated in view of the two sets of documents produced by rival parties during the course of the enquiry before the competent authority. 5. The determination of the controversy regarding the age of respondent no.1 became complicated in view of the two sets of documents produced by rival parties during the course of the enquiry before the competent authority. 5. The documents as produced before the competent authority (Juvenile Court) so as to show the age of respondent Abdul Gafar as more than sixteen years on the date of occurrence are as under:- (a) Application by father of Abdul Gafar to Head Master Government Primary School Mehrakote for admission of Abdul Gafar in First Primary wherein age of Abdul Gafar is recorded as 17.11.1986. (b) Date of Birth Certificate and the copy of the examination result Register of First Primary issued from the said school Mehrakote also shows date of birth of Abdul Gafar as 17.11.1986. (c) Copy of the Register of Ration Card where in the year 2001- 2002 age of Abdul Gafar is shown fifteen years which should mean that Abdul Gafar is born in the year 1986. (d) Passport of Abdul Gafar shows his date of birth as 01.03.1985 and in the Electoral Card age is shown as eighteen years. 6. The documents produced for showing that Abdul Gafar was less than sixteen years of age on the date of occurrence are as under:- (A) Birth certificate issued by Station House Officer, Police Station Rajouri on 24.8.2005 wherein date of birth of Abdul Gafar is shown as 6.10.1989. (B) Birth certificate issued from Modern Public Institute of Education High School Muradpur shows date of birth of Abdul Gafar as 10.01.1991. 7. Learned Magistrate (Juvenile Court) in his detailed order has given reasons for accepting the date of birth of Abdul Gafar as 17.11.1986 by stating that it is the father of respondent no. 1 who at the time of seeking admission of his son has declared his date of birth as 17.11.1986 and it is on same basis in the Primary School Mehrakote date of birth of Abdul Gafar is recorded as 17.11.1986. Same position is also supported by copy of the Register of Ration Card wherein as in the year 2001-2001 Abdul Gafar is shown fifteen year old so date of birth of the accused would be year 1986. Same position is also supported by copy of the Register of Ration Card wherein as in the year 2001-2001 Abdul Gafar is shown fifteen year old so date of birth of the accused would be year 1986. Then on appreciation of the facts it has also been concluded by the Magistrate that Abdul Gafar has himself admitted his age as 01.3.1985 by obtaining the passport and same age is reflected in his passport. 8. The certificate issued by Modern Public Institute of Education High School Muradpur has been rejected to be suspicious because date of birth of Shazia Kouser sister of Abdul Gafar(accused) by the same school has been shown as 10.3.1991 which would mean that two months after the birth of Abdul Gafar his sister is born which is totally un-imaginable. 9. During the pendency of the appeal before the ld. Additional Sessions Judge, Rajouri, the accused Abdul Gafar has been subjected to medical examination by Medical Board for determination of his age and the report of the Medical Board would indicate that on the date of examination i.e, 09.12.1010, age of Abdul Gafar was more than eighteen (18) years but less than twenty one (21) years. 10. Learned Additional Sessions Judge has relied much on the report of the Medical Board while connecting the same with the birth certificate issued by police station Rajouri, therefore, has come to the conclusion that date of birth of Abdul Gafar is proved to be 6.10.1989. 11. Learned counsel for the petitioner contend that respondent no. 1, on the strength of the documents as referred above is proved to have attained the age of majority on the date of occurrence, so shall not be entitled to the benefit under the Act. Further has added that the accused has been subjected to medical examination wrongly as there was no such requirement when the documents available on the record were enough to prove him to be major. 12. The provisions of the Juvenile Justice Act are to be interpreted in a manner which may serve the purpose of the Act. The alleged commission of offence is horrendous but the position of the juvenile in the background of the welfare object of the legislation has to be protected. 12. The provisions of the Juvenile Justice Act are to be interpreted in a manner which may serve the purpose of the Act. The alleged commission of offence is horrendous but the position of the juvenile in the background of the welfare object of the legislation has to be protected. Law has to be followed as it is in the background of its own spirit so as to advance the legislative intent and to extend available permissible protections, to save the juvenile from becoming a hardened criminal. Approach to adopt reformative methods in case of juveniles is an essential feature of the welfare legislation i.e, Juvenile Justice Act. 13. Where the plea pertaining to the age is raised, enquiry is imperative, so it is duty of the court to examine the same with care and then to return a finding regarding age in a manner so that benefit of the provisions of the Act are not denied to the juvenile, Para 18 of the judgment rendered in Bhola Bhagar v. State of Bihar (1997) 8, SCC 720 in this connection is relevant to be quoted: It becomes obligatory for the court, in case it entertains any doubt about the age as claimed by the accused, to hold an enquiry itself for determination of the question of age of the accused or cause an enquiry to be held and seek a report regarding the same, if necessary, by asking the parties to lead evidence in that regard. Keeping in view the beneficial nature of the socially- oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused. The court must hold an enquiry and return a finding regarding the age, one way or the other. 14. The enquiry as has been conducted in the instant case by the competent authority (Juvenile Court) would suggest total doubt about the date of birth of Abdul Gafar (accused). The court must hold an enquiry and return a finding regarding the age, one way or the other. 14. The enquiry as has been conducted in the instant case by the competent authority (Juvenile Court) would suggest total doubt about the date of birth of Abdul Gafar (accused). Two school certificates showing two different date of births, even certificate issued by SHO Police Station Rajouri, which normally is based on the report of the Chowkidar (Village Guard) also shows different date of birth and it is in these circumstances during the pendency of the appeal the accused Abdul Gafar has been subjected to medical examination by the Medical Board, that was the proper mode available for resolving controversy. The Medical Boards report in effect would lead credence to the fact that the date of birth as recorded in police records based on Chowkidars report is to be accepted as correct. It is to be borne in mind that enquiry as envisaged under Section 32 of the Act is for determining the presumptive age with a safeguard as embodied in sub section 2 of Section 32 of the Act to the effect that the age recorded by the competent authority shall be deemed true only for the purposes of the Act. 15. Learned Magistrate in his order has discarded certificate issued by SHO, P/S Rajouri showing date of birth as 6.10.1989 on the ground that while examining the register maintained by the Chowkidar and the register maintained by the P/S Rajouri, he has found discrepancy to the effect that the name of the accused is not recorded therein. Learned Sessions Judge has dealt with the issue rightly by stating that immediately on the birth child being male or female name is not given that is why name of the accused does not figure therein but his birth by his mother Azmat Begum is substantiated by the fact that name of his mother is reflected in the said registers to show that it is the Azmat Begum (mother) of the accused who has given birth to the child i.e, accused. It is true that when a child is born it takes sometime for assigning name to him/her. Immediately name is not given, Chowkidar as usual while maintaining the register immediately records the position of births in the register. It is true that when a child is born it takes sometime for assigning name to him/her. Immediately name is not given, Chowkidar as usual while maintaining the register immediately records the position of births in the register. In case of birth of the accused he is shown to have recorded that Azmat Begum has given birth to a child, same position has been recorded in the register maintained by the police, therefore to hold the age of the accused for the purposes of the Act as 6.10.1989 based on the birth certificate issued by the police station cannot be found fault with. 16. The contention that while applying for passport the accused has declare his age as 1.3.1985 and then his age has been reflected in passport as 01.03.1985 is an admission on the part of the accused is to be ignored only on one count i.e, accused being below sixteen years of age his admission, is no admission in the eye of law, then again a serious position i.e, he has neither claimed his date of birth as 1986 nor 1989, so means in a routine manner for the purposes of obtaining passport he has recorded his date of birth as 01.03.1985. 17. In case documents as produced i.e, School Certificate, then police certificate, are ignored, even then in view of the report of the Medical Board age of the accused in any case will be less than sixteen years, because as per medical report age of the accused at the time of examination by the Board i.e, 9.12.2010 was more than eighteen (18) years but less than twenty one (21) years. The date of occurrence is 12.8.005, in case as per medical report age of the accused is taken as more than eighteen (18) years then his date of birth will be in the year 1992, on the date of occurrence his age would be thirteen (13) years. In case taken as nineteen (19) years, then his date of birth will be in the year 1991, so fourteen (14) years old and in case twenty (20) years then in the year 1990 his age will be fifteen (15) years and in case taken less than twenty one (21) years, then his date of birth will be in the year 1989, so less than sixteen (16) years. 18. 18. In the given stated circumstances the report of the Medical Board which suggests age of the accused more than eighteen years but less than twenty as on 09.10.2010 lends support to the position of the date of birth of the accused as recorded in the birth certificate issued by the SHO P/S Rajouri. The position of the date of birth as reflected in birth certificate issued by SHO P/s Rajouri is supported by the records i.e, register maintained by the Chowkidar of the village and the register maintained by the police station, therefore, for the purposes of this Act the view taken by the learned Additional Sessions Judge that the date of birth of the accused to be taken as 6.10.1989 is correct. 19. Ld. Additional Sessions Judge has correctly relied on the judgment rendered by the Honble Supreme Court in Arnit Dass v. State of Bihar reported in (2000)5, SCC 488, wherein it has been held that if two views are possible on the basis of the evidence on record the court should lean in favour of the one holding the accused to be a juvenile in borderline cases. 20. Revision petition is devoid of merit, order impugned dated 2.4.2011 passed by Additional Sessions Judge Rajouri as such, is upheld. Revision Petition dismissed accordingly alongwith connected Cr.M.P no. 24/2011. 21. Copy of the order be sent to the learned appellate court as well as Juvenile Court, Rajouri for follow up action.