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2013 DIGILAW 200 (MP)

Subham v. State of Madhya Pradesh

2013-02-14

N.K.GUPTA

body2013
ORDER (Passed on the 14th day of February, 2013) The petitioner has challenged the order dated 23.5.2012 passed by the learned Sessions Judge, Burhanpur in criminal appeal No.61/2012, whereby the appeal filed by the petitioner was dismissed and order dated 7.5.2012 passed by the Chief Judicial Magistrate, Burhanpur in criminal case No.71/2012 was kept intact, by which it was found that the petitioner was not a juvenile in the eye of law. 2. The prosecution's case, in short, is that on 18.4.2012, at about 12 O'Clock, the petitioner and other children were playing cricket. The boy Sachin had a liability of Rs.50 to 60 thousands and therefore, they planned to kidnap a boy Kaushal, so that some ransom may be demanded from his father. Kaushal was also playing cricket with these persons. He did not agree and therefore, the petitioner and other accused persons held the deceased Kaushal and tried to take him away. His hands and feet were tied by a rope and during such a procedure, the deceased Kaushal expired, due to strangulation. Thereafter, the dead body of the deceased Kaushal was disposed off by throwing it in a dry well and ultimately, a sum of Rs.6 Lacs were demanded from his father. After enquiry, one accused Dipesh was found to be juvenile and therefore, his matter was directed to be considered by the Juvenile Justice Board. 3. The petitioner had also applied to assess his age and declare him juvenile and therefore, an enquiry was done by the learned Chief Judicial Magistrate, Burhanpur, as per the provisions of section 7 (a) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter it will be referred to as 'The Act') and rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter it will be referred to as 'The Rule') and after getting the enquiry done, it was directed that the applicant was not a juvenile and therefore, the application filed by the applicant was dismissed. On preferring an appeal, the learned Sessions Judge has found that the appeal was not maintainable and therefore, no interference was done in the order passed by the learned Chief Judicial Magistrate, Burhanpur. 4. I have heard the learned counsel for the parties. 5. On preferring an appeal, the learned Sessions Judge has found that the appeal was not maintainable and therefore, no interference was done in the order passed by the learned Chief Judicial Magistrate, Burhanpur. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the petitioner has submitted that the petitioner is a juvenile in the eye of law and the learned Chief Judicial Magistrate has committed an error in making the observations regarding the age of the petitioner. Age of the petitioner was to be computed according to the provisions of rule 12 of the Rules, which was no where computed. In support of his contention, reliance is placed upon various judgments and orders of Hon'ble the Apex Court in cases of “Shah Nawaz Vs.State of U.P. & Anr.”, [2011 AIR SCW 4632], “Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh & Anr”, [(2009) (6) SCC 681], “Madhuri Patil Vs. Additional Commissioner, Tribal Development”, [ AIR 1995 SC 94 ], “Dharambir Vs. State (NCT of Delhi) & Anr”, [(2010) (5) SCC 344]. The learned counsel for the petitioner has also relied upon the orders passed by the single Bench of this Court in case of “Devendra Singh Vs. State of M.P.”, [(1998) (1) MPLJ 529]. Also one order passed by the single Bench of Jharkhand High Court was referred in case of “Poulush Pahan Vs. State of Jharkhand & Anr.”, [(2000) Cr.L.J. 785] and therefore, it is prayed that the petitioner may be declared to be a juvenile and his matter may be directed to be tried by the Juvenile Justice Board. 6. On the other hand, the learned Panel Lawyer has submitted that the learned Chief Judicial Magistrate, Burhanpur has discussed the entire case laws in his order and it was found that the report received from ossification test was accepted by the doctor. A certificate issued by the Sarpanch, Shiv Thakur (P.W.1) has no value and therefore, the ossification test done by Dr.Azad Jain (P.W.3) is to be relied and therefore, the petitioner was above 18 years of age at the time of the incident. 7. If age of anyone is to be computed then, evidence should be considered in a particular order. A certificate issued by the Sarpanch, Shiv Thakur (P.W.1) has no value and therefore, the ossification test done by Dr.Azad Jain (P.W.3) is to be relied and therefore, the petitioner was above 18 years of age at the time of the incident. 7. If age of anyone is to be computed then, evidence should be considered in a particular order. If date of birth of a person is found registered as required by the registration of Births and Deaths Act, 1969, soon after his birth then, that entry amounts to be admissible under section 76 of the Indian Evidence Act and it is a conclusive proof to that fact but, if registration of birth was done after sometime then, the Court has to consider the reasons of such delay and genuineness of the entry. Secondly, when a person continues with his shown date of birth for a longer period then, he is estopped to say contrary to that fact and therefore, he could be believed for that entry because when the date of birth was informed to a particular authority and it continues for a longer period then, it cannot be said that a particular date of birth was mentioned due to a particular reason but, such a principle is not acceptable in case of the prosecutrix of any case. The reason behind the principle is that the computation of age should be done in a manner that if any doubt is created then, benefit of doubt should be given to the accused. Therefore, when a date of birth of the accused is to be counted then, his entry relating to date of birth given to the school, which continues till his high school examination then, that entry of date of birth shall be considered in favour of the accused, if no cognate evidence is submitted by him contrary to that entry, whereas in case of a prosecutrix, it is to be considered as to whether the entry given to the school authorities was given on the basis of any document and what was the source of that entry. Otherwise, that entry becomes doubtful and benefit of doubt is to be given to the accused. Otherwise, that entry becomes doubtful and benefit of doubt is to be given to the accused. Similarly, in ossification test, if age of the accused is computed then, variation of two years may be considered on the lower side to assess as to whether he is a juvenile or not, whereas, age of the prosecutrix assessed by the ossification test, may be added by two years on upper side, so that the benefit of doubt may be given to the accused. However, age of any person, if it is computed by the ossification test then, two years may be added or deleted, according to the other symptoms of that person and factual position of the case and therefore, it cannot be said that it is a hard and fast rule, by which age may be computed. 8. The learned counsel for the petitioner has cited some of the judgments passed by Hon'ble the Apex Court and the single Bench of this Court as well as the Jharkhand High Court. In case of Dharambir (supra), Hon'ble the Apex Court has mentioned the effect of amendment in the Act in the appeals pending before various Courts. It was mentioned in the judgment that the age of the accused be considered on the date on which the offence was committed. In case of Devendra Singh (supra), the single Bench of this Court has directed to consider the age of the accused on the basis of mark-sheet of the school because the Court did not take any consideration of the affidavits given by the parents of the accused and therefore, matter was remanded back. The judgment passed by Hon'ble the Apex Court in case of Madhuri Patel (supra) is not relevant for assessment of the age of the juvenile. In the present case, Dr.Azad Jain (P.W.3) found the age of the petitioner to be 18 to 19 years but, in his cross-examination he has accepted that his assessment of age, according to the x-ray report Ex.P/6 was 17.5.1995. He has further accepted that there may be a variation of six months in his assessment and therefore, assessment of the age of the petitioner by the ossification test could be 17 to 19 years. He has further accepted that there may be a variation of six months in his assessment and therefore, assessment of the age of the petitioner by the ossification test could be 17 to 19 years. The assessment was done on 27.12.2012 and the incident took place on or about 18.4.2012 and therefore, according to the judgment passed by Hon'ble the Apex Court in case of Dharambir (supra), age of the accused should be considered on the date of the incident. Therefore, the age of the accused on the date of the incident, according to the ossification test would be 16 years, 4 months to 18 years 4 months. The range given by Dr.Azad Jain (P.W.3) is such that the petitioner could be below 18 years of age at time of the incident or he could be above 18 years of age at the time of the incident. However, as discussed above there appears to be a doubt in computation then, the benefit was to be given to the accused and therefore, when there was a possibility that he could be below 18 years of age, according to the ossification test then, he should be determined to be a juvenile being below 18 years of age at the time of the incident. 9. In the case of Shah Nawaz (supra), Hon'ble the Apex Court has referred the procedure of computation of age as mentioned in the rule 12 of the Rules, 2007. In that rule, exclusion of next procedure is given, if the document presented by the accused refers to the previous provision of sub rule 3 of the Rule 12. In sub rule 3, it is mentioned that if the matriculation or equivalent certificate is available then, it would be the basis of computation of the date of birth. In the present case, the matriculation certificate is shown to the Chief Judicial Magistrate, in which the Date of Birth of the petitioner was mentioned to be 1.10.1995 and therefore, the petitioner was below 18 years of age at the time of the incident. When the matriculation certificate was available then, according to the provisions of rule 12 (3) (b), no other evidence is required to be considered for computation of the age and therefore, the ossification test done by Dr.Azad Jain loses its value. 10. When the matriculation certificate was available then, according to the provisions of rule 12 (3) (b), no other evidence is required to be considered for computation of the age and therefore, the ossification test done by Dr.Azad Jain loses its value. 10. Hence, in the light of judgments passed by Hon'ble the Apex Court in cases of Shahnawaz (supra) and Ramsuresh Singh (supra) and also, the computation which took place on the basis of rule 12 (3) (a), the petitioner appears to be below 18 years of age at the time of the incident. 11. It appears that the learned Chief Judicial Magistrate decided the age of the petitioner being sentimental with the gravity of the crime alleged to have been committed by the petitioner. It is strange that in the order dated 7.5.2012, the learned Chief Judicial Magistrate did not discuss the Date of Birth of the petitioner, which was mentioned in the matriculation certificate, whereas on perusal of his order-sheet dated 26.4.2012, such matriculation certificate was produced before him by Shyam Singh, father of the petitioner. Under such circumstances, where the matriculation certificate is available and the Date of Birth given in that certificate clearly indicates that the petitioner was below 18 years of age at the time of the incident then, nothing more could be seen at the time of assessment of his age. The learned Chief Judicial Magistrate has committed an error of law in the assessment of age done by the petitioner. Hence, it is a good case, in which interference is required from the side of this Court by way of a revision. 12. On the basis of the aforesaid discussion, the revision filed by the petitioner is hereby allowed. The order dated 7.5.2012, passed by the learned Chief Judicial Magistrate, Burhanpur and order dated 23.5.2012 passed by the learned Sessions Judge, Burhanpur are hereby set aside. It is declared that the petitioner Subham was a juvenile at the time of the incident. Therefore, his name may be removed from the trial which is pending before the Sessions Court. The SHO Police Station Lalbag, District Burhanpur is directed to produce the charge-sheet against the petitioner before the concerned Juvenile Justice Board. The trial Court shall fix a date of appearance of the petitioner before the Juvenile Justice Board. 13. Therefore, his name may be removed from the trial which is pending before the Sessions Court. The SHO Police Station Lalbag, District Burhanpur is directed to produce the charge-sheet against the petitioner before the concerned Juvenile Justice Board. The trial Court shall fix a date of appearance of the petitioner before the Juvenile Justice Board. 13. A copy of the order be sent to the trial Court forthwith, so that the petitioner should not face the trial before the Sessions Court.