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Madhya Pradesh High Court · body

2013 DIGILAW 1560 (MP)

Raje @ Rajendra Dhakad v. State of M. P.

2013-12-16

SUJOY PAUL

body2013
ORDER 1. This Criminal Revision under section 397 read with section 401 of Code of Criminal Procedure, is directed against the order dated 27.11.2013 passed by First Additional Sessions Judge, Jaura, District Morena in Special Sessions Trial No.02/2013. By the impugned order, the application of the petitioner under section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000 [for short ‘ the Act’’] is rejected. 2. It is canvassed by learned counsel for the petitioner that the petitioner is accused under sections 377, 294 of IPC and sections 3, 4 & 5 of P.O.C.S.O. Act,2012. The alleged incident took place on 6.2.2013. The prosecution mentioned the age of petitioner as 19 years 6 months. The petitioner preferred an application before the Court below, stating that the petitioner was born on 15.7.1996. On the date of incident, he was juvenile. He has not studied in any school. In addition, it is contended that the petitioner’s horoscope (Ex. A-1) shows that the petitioner was born on 15.7.1996. By placing reliance on the medical report/ ossification test, it is contended that the age of the petitioner is between 16-17 years on 17.7.2013. Thus, on the date of incident, he was juvenile. 3. Shri Ankur Maheshwari, learned counsel for the petitioner by placing reliance on the judgment of apex Court in Jabar Singh v. Dinesh & Another, (2010) 3 SCC 757 , submits that the admission register of the school does not fulfill the requirement of Rule 12 (3)(a)(i) and (ii) of the Rules, namely, Juvenile Justice (Care and Protection of Children) Rules, 2007 [for short ‘’2007 Rules’’]. Putting it simply, Shri Maheshwari, submits that the said provision shows that the evidence for the purpose of age determination should be either (i) matriculation or equivalent certificate; and in absence thereof (ii) the date of birth certificate from the school first attended; and in absence thereof (iii) the birth certificate given by a Corporation or a Municipal Authority or a Panchayat. If the aforesaid documents mentioned in (i) (ii) and (iii) are not available, the medical opinion will prevail and should be treated as conclusive proof. He submits that no stretch of imagination, the admission register can be equated with the date of birth certificate from the school. Heavy reliance is placed on paragraph 27 of the judgment in Jabar Singh (supra). 4. He submits that no stretch of imagination, the admission register can be equated with the date of birth certificate from the school. Heavy reliance is placed on paragraph 27 of the judgment in Jabar Singh (supra). 4. Prayer is opposed by Shri Awasthi, learned Panel Lawyer for the respondent- State. 5. I have heard learned counsel for the parties and perused the record. 6. The judgment of Jabar Singh (supra) is recently considered by the apex Court in 2013 (1) JLJ 69 = (2012) 9 SCC 750 [Ashwani Kumar Saxena v. State of Madhya Pradesh]. The apex Court in paragraph 20 of the judgment in Ashwani Kumar Saxena (supra) opined that it has its own reservations on the view expressed by the Bench in case of Jabar Singh( supra). Thereafter, in Ashwani Kumar Saxena (supra), the apex Court considered the entire scheme of section 7A of the Act and Rule 12 of 2007 Rules. The apex Court in paragraph 25 of the judgment opined that section 7A of the Act has used the expressions “ Court shall make an inquiry”, “take such evidence as may be necessary” and “ but not an affidavit”. It is held that the Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates, etc. as evidence, need not be oral evidence. Rule 12 was considered along with section 7A of the Act which uses the expression “prima facie” and “on the basis of physical appearance” or “documents, if available”. Rule 12(3) used the expression “by seeking evidence by obtaining”. These expressions are read by the apex Court to show that it reemphasize the fact that what is contemplated in section 7A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days which indicates the manner in which inquiry has to be conducted and completed. It is further held that age determination inquiry contemplated under section 7A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates. It is further held that age determination inquiry contemplated under section 7A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates. In paragraph 38 the apex Court has opined as under:- “We are of the view that the above document produced by the Principal of the school conclusively shows that the date of birth was 24.10.1990, hence, Rules 12(3)(a)(i) and (ii) of the 2007 Rules have been fully satisfied.” 7. Since in the recent judgment, the apex Court has considered the case of Jabar Singh (supra) and opined that the admission register of the school fulfills the requirement of 2007 Rules, the argument of Shri Maheshwari fails. The bone of contention of Shri Maheshwari is that the Rule only talks about the date of birth certificate and not about the admission register. However, the apex Court in Ashwani Kumar Saxena (supra) has made it clear that the admission register is also an important piece of evidence. In paragraph 43, the apex Court has opined as under:- “43. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.” 8. In the light of the aforesaid, it is clear that the Court below has not committed any error in relying the judgment of Ashwani Kumar Saxena (supra) and has rightly relied on the admission register (Ex.D-1). Apart from this, the Court below has found that there is no date on horoscope of the petitioner (Ex. A-1). The paper of this document is new/fresh. This creates doubt about its genuineness. 9. In cross-examination, Baijnath (PW 3), the person who prepared the horoscope of the petitioner, deposed that in horoscope no date is mentioned. In cross-examination, he stated that the petitioner’s father Kedar has two sons and two daughters,including the petitioner. No horoscope is prepared for other children. The paper of this document is new/fresh. This creates doubt about its genuineness. 9. In cross-examination, Baijnath (PW 3), the person who prepared the horoscope of the petitioner, deposed that in horoscope no date is mentioned. In cross-examination, he stated that the petitioner’s father Kedar has two sons and two daughters,including the petitioner. No horoscope is prepared for other children. For this reason also, the Court below has disbelieved the statement of Baijnath. 10. The medical report is not believed because the Court below has treated the admissions register under Clause (ii) aforesaid of Rule 12. No fault can be found on the said finding of the Court below. The Court below has taken plausible view which warrants no interference in the revisional jurisdiction of this Court. The criminal revision is bereft of merits and is hereby dismissed.