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2013 DIGILAW 440 (RAJ)

Om Singh alias Kuldeep v. State of Rajasthan

2013-02-21

NISHA GUPTA

body2013
JUDGMENT 1. - This Misc. Petition under Section 482 Cr.P.C has been filed against the order dated 12.7.2012 passed by the Special Judge, Dacoity Effected Area, Bharatpur in Criminal Appeal No. 11/2012, whereby order passed by Juvenile Justice Board dated 9.2.2012 the present petitioner has been declared juvenile was set aside. 2. The short facts of the case are that the petitioner is facing trial for the offence u/s 302 IPC and 3/181 and 134/187 of Motor Vehicles Act. 3. The petitioner moved an application to treat him as juvenile. The Juvenile Justice Board vide order dated 9.2.2012 has opined that the present petitioner is juvenile. The appeal has been preferred. The order of Juvenile Justice Board dated 9.2.2012 was set aside. It is also pertinent to note that earlier S.B.Criminal Misc. Petition No. 1567/2012, the court has remanded the matter to the lower appellate court to pass fresh order taking into consideration the ratio laid down by Hon'ble Supreme court in the case of Shah Nawaz v. State of Uttar Pradesh and another, 2011 (3) Criminal Court Cases 838 (S.C.) : 2011 (3) Apex Court Judgments 010 (S.C.) : 2011(13) SCC 751 . 4. The contention of the present petitioner is that he is a juvenile and the court below has rightly considered the class 10th mark sheet and according to provisions of rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 the court is duty bound to make the inquiry for the determination of the age and the matriculate certificate or equivalent certificate if any is the foremost evidence to be considered and when class 10th marksheet was available the court below has rightly considered the document and rightly declared the petitioner as juvenile. 5. Per contra contention of the respondent is that if the school or birth record are not free from ambiguity and do not conclusively prove the age of the accused then medical evidence should only be relied upon and other documents are irrelevant for the determination of age under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rule, 2007 and his contention is that the medical opinion regarding age of the juvenile be called for. Heard learned counsel for the parties and perused the impugned orders as well as the record of the case. 6. Heard learned counsel for the parties and perused the impugned orders as well as the record of the case. 6. The Juvenile Justice Board has relied upon class 10th certificate and opined that the date of birth of juvenile is 15.7.1994 and he was juvenile at the time of the incident. The appellate court has considered the fact that class 10th mark sheet could not be relied upon as it has been drawn on the basis of Ex.1 which is the admission form of the present petitioner in class I and there is over writing in the year of birth and hence all other documents in which the date of birth have been recorded on the basis of Ex.1 are also unreliable. Ex.2 is the student record register wherein the date of birth has been written as 15.7.1994 and admittedly there is no cutting in the said entry. On the basis of the fact that there is cutting or overwriting in the entry of date of birth in Ex.1. The appellate court has found that school records are not reliable and to ascertain the age, reliance has been placed on ration card, voter list and Phoshahar Register of Medical Department. 7. To deal with the controversy, relevant provisions are Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rule, 2007 which read as under: (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. 8. Keeping in view of the above, the court which is making an inquiry for the determination of age of juvenile, first has to place reliance on matriculate or equivalent certificate and in absence of it the date of birth certificate from the school first attended and in absence of it birth certificate from other authority be relied and in absence of all three the medical opinion would be relevant. Hence, it is clear that to determine the age of the juvenile under section 7 (a) of Juvenile Justice (Care and Protection of Children), Act, 2006 read with Rule 12 of sub clause 3 of the Rules, the ration card, voter list or any entry in any register are not relevant. Hence, the appellate court was clearly erred in placing reliance on ration card, voter list and Poshahar Register. Order of the appellate court suffers from basic infirmity as irrelevant evidences have been relied upon. 9. Now, the question remains only that whether class 10th marksheet is reliable or not? It could not be disputed that if school record is not reliable then medical opinion could be called for, and reliance has been placed by respondent on Om Prakash v. State of Rajasthan, Criminal Appeal No. 651/2012 . 10. Here in the present case, class 10th marksheet has been placed on record which was believed on the ground by the Juvenile Board that age of the juvenile was written in this document on the basis of class I admission form of the petitioner. 10. Here in the present case, class 10th marksheet has been placed on record which was believed on the ground by the Juvenile Board that age of the juvenile was written in this document on the basis of class I admission form of the petitioner. It is true that in Ex.1 there is overwriting in the year of birth of the present petitioner written in numbers but at the same time the date of birth has also been written in words and there is no cutting or over writing in the year of birth of the petitioner written in words. Ex.1 clearly proves that the date of birth of petitioner is 15.7.1994 and on the basis of Ex.1 entry has been made in school record register wherein date of birth of the petitioner is written 15.7.1994 and there is no cutting in the said entry and in Ex-12 and Ex. 13, marksheet and certificate of Class VIII and marksheet of Secondary Board respectively same date of birth has been entered and where there is no cutting or over witting in Ex.1 in regard to date of birth of petitioner written in words, it cannot be said that the entry is not free from ambiguity. Hence Ex.12 and 13, marksheet and certificate of Class VIII and marksheet of Secondary Board respectively conclusively proves that the date of birth of the present petitioner is 15.7.1994. 11. The contention of the respondent is that medical opinion be called for but to answer this, the present petitioner has relied upon 2011 (3) Criminal Court Cases 838 (S.C.) : 2011(3) Apex Court Judgments 010 (S.C.) : 2010 (13) SCC 751 Shah Nawaz v. State or Uttar pradesh and another , where it has been held that medical opinion should be sought only when matriculate certificate or school certificate or any birth certificate issued by the Corporation by any Panchayat or Municipality is not available. Here in the present case when class 10th marksheet of the juvenile is available, medical opinion could not be sought for. 12. Here in the present case when class 10th marksheet of the juvenile is available, medical opinion could not be sought for. 12. It is very painful that earlier this court has ordered the appellate court to pass fresh order in the light of ratio laid down in Shah Nawaz case (supra) but inspite of clear direction,the appellate court has committed the same error and reliance has been placed on ration card voter list and other irrelevant register, the impugned order has been passed by ignoring the legal provisions and reveals non application of mind. Hence, the order of appellate court dated 12.7.2012 is set aside. The petition stands allowed accordingly. *******