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2012 DIGILAW 2804 (ALL)

Yogesh Yadav @ Sonu v. State of U. P. and Another

2012-12-05

RAMESH SINHA

body2012
Ramesh Sinha, J.;— Heard Sri Amit Daga, learned counsel for the revisionist, Sri Rajiv Lochan Shukla, learned counsel for the opposite party no.2 and learned AGA for the State. This Criminal Revision has been filed challenging the judgment and order dated 1.3.2012 passed by learned Sessions Judge, Aligarh in Criminal Appeal No.20 of 2012 and order dated 8.2.2012 passed by Juvenile Justice Board, Aligarh in Misc. Case No.149 of 2011 (arising out of Case Crime No.157 of 2011, registered u/s 364, 302, 201 IPC, P.S. Harduaganj, district Aligarh. On 22.7.2011, an application was moved by opposite party no.2 u/s 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) for declaring him juvenile. On 8.2.2012, the Juvenile Justice Board after considering the material on record, declared the opposite party no.2 Rohit Yadav accused in Case Crime No.157 of 2011, Police Station Harduaganj, district Aligarh, u/s 364, 302, 201 IPC declaring him juvenile on the basis of the documents such as Scholar Register and Transfer Certificate of Agrasen Bal Vidya Mandir, Hardauganj, district Aligarh where the applicant is said to have first attended the school treating him to be aged about 17 years, 8 months and 27 days on the date of incident i.e. 18.4.2011 on the basis of the date of birth record in the aforesaid documents as 21.7.1993. The revisionist/complainant being aggrieved by the order dated 8.2.2012 of the Juvenile Justice Board, challenged the same before the Sessions Judge, Aligarh in Criminal Appeal No.20 of 2012, Yogesh @ Sonu Vs. Rohit Yadav, u/s 52 of the Act, which was dismissed by the appellate court affirming the order of the Juvenile Justice Board declaring the opposite party no.2 juvenile as the court did not find any illegality in the order of the Board. The revisionist being aggrieved by the order passed by the Juvenile Justice Board and the Appellate Court, has preferred the present revision before this Court. It has been contended by learned counsel for the revisionist that the materials which was relied upon by the Juvenile Justice Board for declaring him juvenile was shaky and not reliable evidence regarding his date of birth and the Board should have taken into consideration the medical report of the opposite party no.2 Rohit Yadav into consideration according to which, he was 19 years which was performed by the C.M.O on 6.7.2011. He also argued that the evidence of Smt. Anshu Gupta, the Principal of Agrasen Baal Vidya Mandir, Hardauganj, district Aligarh who has proved the documentary evidence such as Scholar Register and Transfer Certificate of the opposite party no.2 in which his date of birth has been mentioned as 21.7.1993 from the original Scholar Register and Transfer Certificate which she has produced before the Court is contradictory to the statement of Ashok Kumar, alleged to be the Assistant Teacher of the said institution. The Board as well as appellate court have committed gross illegality on relying the same and declaring the opposite party no.2 as juvenile. He in support of his argument, has placed reliance on the judgment of the Apex Court reported in 2012 (5) SCC, 201, Om Prakash Vs. State of Rajasthan and another and has drawn the attention of the Court to para no.33 and 34 of the said judgment which is being quoted here below:- Para 33- Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well-planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not the accused of matured mind who use the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. Para 34- The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused. Learned counsel for the revisionist further pointed out that the institution in which the opposite party no.2 had studied i.e. Agrasen Baal Vidya Mandir, Hardauganj, district Aligarh was not a recognised institution. Hence the date of birth mentioned in the Scholar Register and Transfer Certificate cannot be said to be a reliable evidence regarding the proof of age of the opposite party no.2. On the other hand, Sri Rajiv Lochan Shukla, learned counsel for the opposite party no.2 has vehemently refuted the arguments raised by learned counsel for the revisionist and has submitted that the order passed by Juvenile Justice Board in declaring the opposite party no.2 to be juvenile taking into consideration his date of birth i.e. 21.7.1993 as recorded in the Scholar Register and Transfer Certificate of Agrasen Bal Vidya Mandir, Hardauganj, district Aligarh was in accordance with the provisions of Rules 12(3)(a) (ii) of the Juvenile Justice Rule, 2007 which lays down the procedure to be followed in determination of the age. He further submits that the said document was also proved by evidence of P.W.1 Smt. Anshu Gupta who was the Principal of the said institution and had appeared before the Juvenile Justice Board with the original Scholar Register and Transfer Certificate/School Leaving Certificate of the institution which was corroborated with the documents produced by the opposite party no.2 Rohit Yadav before the Board. He has strongly opposed the arguments of the learned counsel for the revisionist that the institution in which opposite party no.2 had studied was not a recognized institution is of no substance as there is no requirement of law as per the provisions u/s 12(3)(a)(ii) of the Juvenile Justice Act that the institution in which the date of birth certificate from the school first attended should be a recognized institution. It is then urged that the Assistant Teacher, Sri Ashok Kumar who had appeared before the Juvenile Justice Board for giving evidence, his identity itself is doubtful as he had failed to prove his identity as Assistant Teacher in the said institution as is apparent from his statement that he did not carry any identity card etc. that he was the Assistant Teacher in the said institution at any point of time. that he was the Assistant Teacher in the said institution at any point of time. More over when the Principal of the institution has appeared before the Board and had produced the original record, there was no occasion for the Assistant Teacher Ashok Kumar to be there and further Smt. Anshu Gupta, the Principal of the institution has stated before the Board that there was no such person by the name of Ashok Kumar teaching in the said institution. Hence the evidence of Ashok Kumar, is not a reliable one contradicting the evidence of Principal of the institution. The case cited by the learned counsel for the revisionist of Om prakash Vs. State of Rajasthan (Supra) is distinguishable from the facts of the present case as in the said case, learned counsel for the revisionist submitted that in the said case of Apex Court the trial court as well as the High Court were not able to ascertain the age of the accused, hence the benefit of medical report regarding the age of the accused was relied upon. The learned counsel for the opposite party no.2 has relied upon the judgment of Apex Court reported in 2011(74) ACC 871 S.C. Shahnawaj Vs. State of U.P. in support of his arguments and relied on para 21 and 22 of the judgment of the Apex Court which is quotted here below:- Para 20- "We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the School Leaving Certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-O-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18.6.1989 in School Leaving Certificate issued by the Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said school at Serial No.1382 which have been proved by the statement of the Principal of that school recorded before the Board. Apart from the clerk and the Principal of the school, the mother of the appellant has categorically stated on oath that the appellant was born on 18.6.1989 and his date of birth in his academic records from preparatory to Class X is the same, namely 18.6.1989, hence her statement corroborated his academic records which clearly depose his date of birth as 18.6.1989. Accordingly, the appellant was a juvenile on the date of occurrence that is 4.6.2007 as alleged in the FIR dated 4.6.2007. Para 21- We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report. Considered the submissions made by learned counsel for the parties. From the record it is apparent that there is documentary evidence regarding the age of opposite party no.2 which has been fully proved by the evidence of Principal of the institution by producing the necessary record before the court on the basis of which, the Board has recorded the finding that the opposite party no.2 was juvenile. The Case law of the Apex Court cited by the learned counsel for the revisionist is distinguishable from the facts of the present case whereas the case of the Apex Court cited by the learned counsel for the opposite party no.2 is applicable to the present case. From the perusal of the impugned order passed by the courts below, I find that there is no infirmity, illegality or impropriety or judicial error in the orders passed by the Courts below. The revision lacks merit. It is, accordingly, dismissed. The interim order, if any, stands vacated. _____________