Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 584 (PNJ)

Bittu Singh v. State of Punjab

2013-05-06

Mehinder Singh Sullar

body2013
JUDGMENT Mr. Mehinder Singh Sullar, J.:- Tersely, the facts and material, which needs a necessary mention for the limited purpose of deciding the core controversy involved in the instant petition and emanating from the record is that initially a criminal case was registered against the petitioner-accused Bittu son of Gurdas Singh vide FIR No.40 dated 18.2.2012 for commission of offence punishable under Section 376 IPC by the police of Police Station City, Mansa. 2. Sequelly, the application (Annexure P-1) for conducting the ossification test of the petitioner was accepted by the trial court by way of order dated 08.10.2012 (Annexure P-2). In compliance thereof Dr. Kamaldeep Kumar, Ortho Specialist (AW2) found the approximate age of the petitioner between 16 to 18 years vide report Ex.AW2/A. Again Dr. Vijay Singla, Medical Officer (Dental), Civil Hospital, Mansa (AW3) made the following statement :- “On 17.10.2012 I examined Bittu Singh son of Gurdas Singh and as per my report I found all the found second molars were present in the mouth which erupts at the age of 11 to 13 years. Second all the their molars were absent in the mouth which erupts at the age of 17 to 21 years. My report is Ex.AW3/A. According to medical science the variations in the age is always below side upto 3 to 4 years. XXXX Sh. Jasvir Singh APP for the State. It is correct that I give two reports. In my first report point-A I declared the age 11 to 13 years and in my second report at point B I declared the age 17 to 21 years volunteered stated that age of eruption of second molars is 11 to 13 years and in case of third molars it erupts at the age of 17 to 21 years. The third molar was absent in this case.” 3. Likewise, Dr. Ajay Singla, Medical Officer, Civil Hospital, Mansa (AW4) found him to be between 16 to 18 years vide his report Ex.AW4/A. The trial Judge ignored the contradictory medical reports, believed the birth certificate and declared the petitioner as major, by virtue of impugned order dated 19.2.2013. 4. Aggrieved thereby the petitioner-accused has preferred the instant revision petition to challenge the impugned order invoking the provisions of Section 401 of the Code of Criminal Procedure. 5. 4. Aggrieved thereby the petitioner-accused has preferred the instant revision petition to challenge the impugned order invoking the provisions of Section 401 of the Code of Criminal Procedure. 5. After hearing learned counsel for the petitioners, having gone through the record with his valuable assistance and after deep consideration of the matter, to my mind there is no merit in the instant revision petition. 6. Ex-facie the argument of learned counsel that since the Medical Officers found the petitioner to be minor (juvenile), so the trial court committed a legal mistake to declare him as major, is not only devoid of merit but misplaced as well. 7. As is evident from the record that the petitioner-accused is facing a trial of heinous offence of rape. Dr. Kamaldeep Kumar, Ortho Specialist (AW2) and Dr. Ajay Singla, Medical Officer (AW4) determined the age of petitioner between 16 to 18 years vide their respective reports Annexures AW2/A and AW4/A, whereas Dr. Vijay Singla, Medical Dentist (AW3) gave indicated contrary findings. On the contrary the prosecution has placed reliance on the birth certificate (Ex.RB), issued by the Head Master of the Government Primary School, Mansa, of the petitioner, which is admissible under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The trial Court has rightly ignored the indicated contradictory medical reports and taking into consideration the acceptable evidence of birth entry of Ex.RB and negatived the plea of juvenility of the petitioner vide impugned order dated 19.2.2013, which in substance is as under :- “In view of the Rule 12(3)(ii), the date of birth certificate from the School (other than a play school) first attended has to be taken into evidence, and in the absence whereof opinion is to be sought from medical Board. So the perusal of this rule shows that the date of birth mentioned in the school certificate has to prevail upon the birth certificate given by a corporation or a municipal authority or a panchayat and in the event of non availability of any such certified, medical opinion has to be taken into consideration. 9. In the case in hand, the perusal of certificate Ex.RB issued by the Headmaster, Government Primary School, Mansa, reveals that date of birth of Bittu Singh son of Gurdas Singh, as per school record is 01.04.1992. 9. In the case in hand, the perusal of certificate Ex.RB issued by the Headmaster, Government Primary School, Mansa, reveals that date of birth of Bittu Singh son of Gurdas Singh, as per school record is 01.04.1992. The entry from ‘ADMISSION AND WITHDRAWAL REGISTER’ of said school has been proved as Ex.RA which reveals that Bittu son of Gurdas Singh was admitted in said school on 02.04.1997 vide admission serial No.904 and there also his date of birth is recorded as 01.04.1992. The said record has been proved by AW1 Rimpi Rani teacher of Government Primary School, Bus Stand, Mansa, who has been examined by accused himself. Moreover, there is no reason to doubt the school certificate and school record. I further find support to my this view from Surendra Kumar vs. State of Rajasthan, 2009(1) RCR (Crl.), 112, wherein it was held that authentic school record should be preferred over the medical evidence which has variation on either side. It was also held that under Rule 12(3) of 2007 Rules, the age determination enquiry shall be conducted by the Court on evidence by obtaining (1) matriculation or equivalent certificate it available; in the absence thereof, (2) the date of birth certificate of the school (other than the play school) first attended and in the absence whereof (3) the birth certificate given by a Corporation, or Municipal Authority or a panchayat. It is only thereafter that Rule 12(3)(b) provides that only in absence of any of the three documents, medical opinion be sought from Medical Board. It was held by the Hon’ble Supreme Court of India, in Bhoop Singh vs. State of U.P., 1989(1) Recent Criminal Reports, 573, in para 7 of the judgment as under :- “There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 days of age as on 30.04.1987. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the Chief Medical Officer that the appellant appeared to be about 30 days of age as on 30.04.1987. Even in the absence of any material to throw doubts about the entries in the school certificate, the Sessions Judge has brushed it aside merely on the surmise that it is not unusual for parents to understate the age of their children by one or two years at the time of their admission in schools for securing benefit to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the trial judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12.098.1977 on the ground that appellant was a boy of 17 years of age. The observation of the trial judge would lend credence to the appellant’s case that he was less than eighteen years of age on 03.10.1975 the offence were committed.” 10. Accordingly in view of the discussion above, the medical opinion cannot prevail upon when school certificate Ex.PB and school register entry Ex.RA is available on record, according to which date of birth of accused is 01.04.1992. thus he cannot be said to be juvenile at the time of incident, by any stretch of imagination. Accordingly, the prayer of the accused is declined.’ 8. Meaning thereby, the trial court has recorded cogent reasons in this relevant connection. The learned counsel for the petitioner did not point out any material/reasons, much less cogent, so as to warrant any interference in the impugned order. Such impugned order, containing valid reasons, cannot possibly be interfered with by this Court in exercise of limited revisional jurisdiction of this Court, unless and until, the same is totally illegal, perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case. 9. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner. 10. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, so, the impugned order deserves to be and is hereby maintained in the obtaining circumstances of the case. 9. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner. 10. In the light of aforesaid reasons, as there is no merit, therefore, the instant petition is hereby dismissed as such. ---------0.B.S.0------------