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2013 DIGILAW 926 (ALL)

ANNU @ VIKRAM v. STATE OF U. P.

2013-03-21

S.C.AGARWAL

body2013
JUDGMENT Hon’ble S.C. Agarwal, J.—Counter-affidavit filed today is taken on record. Heard Sri K.P. Shukla, learned counsel for the revisionist, learned A.G.A. for the State as well as Sri Manoj Kumar Singh, learned counsel for the complainant. 2. This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ‘Act’) is directed against the order dated 1.11.2012 passed by Additional Sessions Judge, Court No. 6, Jaunpur in S.T. No. 299 of 2011, State v. Dharmendra Singh and others, arising out of crime No. 124 of 2011 under Sections 304, 323, 504 and 506 IPC, P.S. Barsathi, District Jaunpur whereby the application filed on behalf of the revisionist Annu @ Vikram for declaring him to be a juvenile was rejected. The application was moved on the ground that the revisionist had passed class V from Primary School, Dhanapur, Barsathi, District Jaunpur and according to the school records, his date of birth was 18.7.1995. 3. Learned Additional Sessions Judge conducted an inquiry under Section 7 A of the Act, examined the witnesses C.W.1 Madhuri Devi - mother of the revisionist and C.W.2 Urmila Singh - the Principal of Primary School, Dhanapur, Barsathi, Jaunpur. A copy of the T.C. Showing 18.7.1995 to be the date of birth of the revisionist was also filed and the revisionist was further subjected to cross-examine by a duly constituted Medical Board. The medical examination was conducted on 23.5.2012 and according to the report of Medical Board, the approximate age of the revisionist was about 18 years. The incident took place on 1.5.2011. 4. It is submitted by learned counsel for the revisionist that even if learned Additional Sessions Judge found the date of birth recorded in the school records untrustworthy, the medical opinion should not have been disbelieved, but should have been adopted and according to the medical opinion, the accused was about 17 years of age on the date of incident and, therefore, learned Additional Sessions Judge committed illegality in rejecting the application moved on behalf of the revisionist. 5. Per contra, learned A.G.A. as well as learned counsel for the complainant supported the impugned order. 5. Per contra, learned A.G.A. as well as learned counsel for the complainant supported the impugned order. It was contended by learned counsel for the complainant that according to the voter list of Panchayat Nirvachak Namawali - 2009, the age of the revisionist is recorded as 19 years and, therefore, in the year 2011, his age must be about 21 years. 6. The age of an accused has to be determined according to Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ‘Rules 2007’), which provides as under : “12 (3). Procedure to be followed in determination of Age.—(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. 7. Admittedly, the revisionist has not passed the matriculation or equivalent examination. 7. Admittedly, the revisionist has not passed the matriculation or equivalent examination. The birth certificate issued by the school i.e. the date of birth recorded in the school records has been been disbelieved by learned Additional Sessions Judge on valid grounds as the school register was prepared in the year 2006. No birth certificate issued by a Corporation or Municipal Authority or Panchayat has been filed. In the absence of all three items mentioned above, the date of birth has to be determined on the basis of the opinion given by a duly constituted Medical Board. The Board estimated the age of the revisionist to be about 18 years in May, 2012, whereas the incident took place on 1.5.2011. Thus, according to medical opinion, on the date of incident, the age of the revisionist was about 17 years and, therefore, he had to be declared a juvenile by the trial Court. Juvenile Justice Board is a welfare legislation. 8. Learned Additional Sessions Judge refused to rely upon the report of the Medical Board on the ground that there can be grace period of 1 to 2 years, which may be extended in favour of the prosecution. By such approach, learned Additional Sessions Judge has gone against the purpose for which the Act was enacted by the Parliament. This Act was enacted keeping in view the welfare of the minor offenders and it should be interpreted keeping in view the purpose of the Act. The approach adopted by learned Additional Sessions Judge cannot be appreciated. The view taken by learned Additional Sessions Judge is perverse and illegal and cannot be sustained. On the other hand, the age recorded in the voter list cannot be taken to be a guide for determining the age of the accused. Voter list is not a document mentioned in Rule 12 (3) of the Rules 2007 and has no relevance. In view of the aforesaid, this revision is allowed. The impugned order dated 1.11.2012 is set-aside and the revisionist Annu @ Vikram is declared to be a juvenile. Learned Additional Sessions Judge is directed to pass consequential orders accordingly i.e. to separate his case and to send the same to Juvenile Justice Board concerned for further action. ——————