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Allahabad High Court · body

2014 DIGILAW 2721 (ALL)

SHAILENDRA KUMAR YADAV v. STATE OF U. P.

2014-09-05

BHARAT BHUSHAN

body2014
JUDGMENT Hon’ble Bharat Bhushan, J.—Heard Mr Kamal Krishna, learned Senior counsel assisted by Mr Ghan Shyam Das, learned counsel for the revisionist, Mr Ram Sagar Yadav, learned counsel for the respondent No. 2 and learned AGA for the state respondent. 2. This Criminal Revision is directed against the order dated 3.10.2012 passed by Additional Sessions judge, Court No. 1, Allahabad in S.T. No. 162 of 2011 (State v. Gyan Chand and others) arising out of Case Crime No. 199 of 2008, under Sections 302,120-B/34 IPC and Section 7 of Criminal Law Amendment Act, P.S. Jhunsi, District Allahabad whereby the opposite party No. 2 has been declared juvenile in conflict with law on the basis of the High School Mark sheet. 3. The adumbrated facts of the case are that the Opposite party No. 2 is being prosecuted for having committed an offence punishable under Sections 302,120-B/34 IPC and Section 7 of Criminal Law Amendment Act. During course of trial, an application dated 15.2.2011 was, moved on his behalf by mother of opposite party No. 2 (juvenile) stating therein that the date of birth of the opposite party No. 2 was 24.10.1990 on the date of incident i.e. 30.6.2008 as disclosed by his High School mark-sheet as such he was 17 years 8 months and 6 days i.e. below 18 years of age on the date of occurrence and thus, a juvenile in conflict with law. The learned Trial Court after holding an inquiry found the contention to be correct and thus by the impugned order, declared him to be a juvenile in conflict with law on the date of occurrence. 4. The contention of the learned counsel for the revisionist is that a High School mark-sheet was not proved in accordance with law. It was also contended that the transfer certificate produced by the claimant bears Sl. No. 2470. Report dated 12.7.2011 of the Principal of Primary Pathshala Patel Nagar, Jhunsi, Allahabad indicated that name of opposite party No. 2 was not entered at sl. No. 2470. 5. On the other hand, learned counsel for the opposite party No. 2 denied the allegation made by the revisionist. No. 2470. Report dated 12.7.2011 of the Principal of Primary Pathshala Patel Nagar, Jhunsi, Allahabad indicated that name of opposite party No. 2 was not entered at sl. No. 2470. 5. On the other hand, learned counsel for the opposite party No. 2 denied the allegation made by the revisionist. It is further contended by learned counsel for the opposite party No. 2 that the report 12.7.2011 submitted by the Principal of Primary Pathshala Patel Nagar, Jhunsi, Allahabad would have no effect over the High School Certificate as n o witness was produced by the revisionists to prove the report. He further contended that the High School mark sheet of respondent No. 2 issued by the Gandhi Inter College, Patel Nagar, Jhunsi, Allahabad showing the date of birth as 24.10.1990 has been duly proved by the issuing authority. The Court below, taking into consideration the materials collected in course of enquiry passed the order impugned, which is under challenge in the present criminal revision. 6. Before entering to test the correctness, legality and impropriety of the impugned order, it would be appropriate to examine the relevant provisions under the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short Juvenile Justice Act). Section 7 A of the Juvenile Justice Act reads as under : Section 7-A. Procedure to be followed when claim of juvenility is raised before any Court.— (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is juvenile or a child or not, stating his age as nearly as may be; Provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect.” 7. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 (in short Rules 2007) provides the procedure for determination of age of claimants of juvenility which reads as under: “Rule 12. Procedure to be followed in determination of age.—(1) In every case concerning a child or juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board, or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (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 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. (4) If the age of the juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act, and these rules, no further inquiry shall be conducted by the Court or the Board after examining any obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 8. Similar procedure is available in the State of Uttar Pradesh vide Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 with minor variations. Similar procedure is available in the State of Uttar Pradesh vide Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 with minor variations. Section 7-A of the Act of 2000 contemplates that wherever claim of juvenility is raised before any Court, the Court shall make an inquiry so as to determine the age of such person in accordance with the procedure prescribed in Rule 12 of Rules 2007. As per sub Rule (3) (a)(i) of the aforesaid Rules 2007, the date of birth recorded in matriculation or equivalent certificate comes at the first stage in order of priority for ascertaining the age of the accused claiming to be a juvenile. There is no doubt that provisions of Evidence Act are applicable while considering the documentary evidence. 9. In Shah Nawaz v. State of U.P., (2011) 13 SCC 751 , Hon’ble the Supreme Court has held that entry related to date of birth entered in the High School mark sheet is a valid evidence for determining the age of the accused person. 10. Coming back to the facts of the present case, it is evident that the O.P. No. 2 claimed to be a High School. He produced the mark sheet of High School examination before the Court concerned wherein his date of birth was recorded as 24.10.1990. Once the authenticity of the same was established by the Court after conducting inquiry in accordance with law, the juvenility had to be determined in consonance with the procedure laid down in Rule 12 of Rules 2007 or Rule 22 of the UP Rules 2004 which are in essence almost similar of course with minor variations. The entry relating to date of birth made in the High School register is relevant and admissible under Section 35 of the Evidence Act. The said entry has been proved by the issuing authority i.e. the Clerk of the Gandhi Inter College, Patel Nagar, Jhunsi, Allahabad. The High School mark sheet indicating the date of birth of claimants was proved by the clerk of the School. No contrary evidence was adduced by the revisionist to rebut the genuineness of this mark sheet. Once the trial Court relied on his mark sheet, it could not have rejected the claim of juvenility on the basis of report of Principal of Primary School debunking the date of birth of claimant, which in any case was not proved. No contrary evidence was adduced by the revisionist to rebut the genuineness of this mark sheet. Once the trial Court relied on his mark sheet, it could not have rejected the claim of juvenility on the basis of report of Principal of Primary School debunking the date of birth of claimant, which in any case was not proved. The Court below has given clear, cogent and convincing reason for coming to the finding of Juvenility in favour of the opposite party No. 2. The order passed by the Court below is neither erroneous nor perverse. There is no illegality, impropriety or jurisdictional error. 11. In view of above, I do not find any merit in the present criminal revision. The criminal revision is bereft of merits and is accordingly dismissed. —————