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2013 DIGILAW 1103 (RAJ)

Saddam Hussain v. State of Rajasthan

2013-05-29

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - In this revision petition, accused-petitioner Saddam Hussain has challenged the order dated 4.4.2013 passed by Addl. Sessions Judge No. 3, Bikaner in Sessions (Murder) Case No. 130/2013 titled as State v. Saddam Hussain whereby the learned Court below has dismissed the application of the petitioner for treating him Juvenile under Section 7A of Juvenile Justice Act, 2000 (for short 'the Act of 2000'). Petitioner Saddam Hussain is an accused in the aforesaid Sessions Case and charge-sheet was filed against him under Section 302/34 I.P.C. etc. The alleged incident took place on 2.3.2012. The petitioner states that his date of birth is 17.3.1994 and accordingly his age on the date of offence comes to 17 years 11 months and 15 days and, therefore, he claims to be a Juvenile delinquent. 2. The learned Court below has not accepted the argument advanced by accused Saddam Hussain. By consent of both sides, final arguments on merit have been heard in this case at the stage of admission. 3. The learned Public Prosecutor has argued that accused Saddam Hussain was above 18 years of age at the time of commission of offence of murder and it has also been argued by the learned Public Prosecutor that accused-petitioner has not been able to prove that he was below 18 years of age on the date of alleged commission of murder. 4. I have perused the ruling Kamaljeet v. State of Rajasthan, 2012(1) CJ (Cri.) 268.1 have perused the provisions of Section 7A of the Act of 2000 and Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 states as under: "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 64 of 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. Rule 12(3) casts a duty on the Board or the Court to obtain certain documents, such as school record, and in the absence of school register, to obtain medical opinion. However, the evidentiary value of the document would have to be adjudged by the Court." 5. In the lower Court, Venkat Sambha Shiv Ram, Principal, St. Marks School, Surat, Gujarat was examined as CW-1 on behalf of accused-petitioner. Similarly Hasim Ibrahim Khatib, Principal of Simla Primary Sangrampura, Surat was examined as CW-2 on behalf of the accused-petitioner. Accused-petitioner had also produced his father Arab Hussain as CW-3 to prove that he was below 18 years. The accused-petitioner relies upon following documents to prove that he was below 18 years of age on the date of alleged commission of murder: (1) Ex.C-1. This is a copy of T.C. given by a private school which mentions the date of birth of accused-petitioner as 17.3.1994. This document has been issued on 23.5.2012 by the Principal of said school, (2) Copy of admission register of St. Marks Public School (Ex.C-2A). This is a copy of T.C. given by a private school which mentions the date of birth of accused-petitioner as 17.3.1994. This document has been issued on 23.5.2012 by the Principal of said school, (2) Copy of admission register of St. Marks Public School (Ex.C-2A). This schools is also a private school, (3) Copy of T.C. given by Principal, Symga English School, Sangrampura, Surat. This document mentions the date of birth of accused-petitioner as 17.3.1994 and this document was also issued on 20.7.2012 by the concerned Principal. This school is also a private school. (4) Ex.C-5A is copy of admission register of St. Marks Public School, (5) Ex.C-6A is a copy of admission register of ST. Marks Public School, (5) Ex.C-7A is a copy of admission form of accused-petitioner mentioning his date of birth as 17.3.1994. This document was also issued on 18.6.2012. (6) Ex.C-8A is also a copy of admission register of a private school. 6. After perusal of the aforesaid documents issued by the Principals of two private schools and after perusing the statements of the persons who have exhibited these documents, I am unable to agree with the argument advanced by the accused-petitioner. Statement of Arab Hussain also is not convincing. 7. It is pertinent to mention here that in Ex.C-2A and Ex.C-5A there are two entries at one serial number which is S.No. 1547 and that proves that there has been fabrication in the record. Similarly, in Ex.C-3A as well as Ex.C-6A there are two entries at serial number 1029 which also clearly proves that there is fabrication in the records of the school and it appears that back dated entries have been made unauthorisedly by some person to give undue benefit to accused-petitioner Saddam Hussain so that he may not be tried by a regular Court on the charge of murder. Both the overlapping entries relate particularly to accused Saddam Hussain. At one place, his name has been added after the name of another candidate Aayush and at one place, his name has been added after the name of another candidate, namely, Damini. The lower Court has also not relied upon these suspicious documents and I fully endorse the views expressed by the lower Court. At one place, his name has been added after the name of another candidate Aayush and at one place, his name has been added after the name of another candidate, namely, Damini. The lower Court has also not relied upon these suspicious documents and I fully endorse the views expressed by the lower Court. In this order, probative value of exhibits, exhibited from the side of accused-petitioner is not up to the mark and so the argument of the accused-petitioner that he was juvenile on the date of murder is not tenable. 8. In the circumstances of the case, this revision petition filed by accused Saddam Hussain under Section 397/401 Cr.P.C. is hereby dismissed at the stage of admission itself. The stay petition also stands dismissed accordingly. Copy of this order be sent to the Court below immediately.Revision dismissed. *******