Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 144 (ALL)

DINESH KUMAR SHARMA v. STATE OF U. P.

2016-01-12

VIJAY PRAKASH PATHAK

body2016
JUDGMENT Hon’ble Vijay Prakash Pathak, J.—Heard Shri Amit Daga, learned counsel for the revisionist as well as learned AGA for the State and Shri Jitendra Kumar Sisodia, learned counsel for the opposite party No. 2. 2. The present criminal revision has been preferred against the impugned order dated 18.12.2012 passed by Additional Sessions Judge, Court No. 3, Aligarh in Sessions Trial No. 1060A of 2006, by which the application 32Kha, filed by the accused-opposite party No. 2, Amit, has been allowed and he has been held juvenile on the date of occurrence. 3. The factual matrix of the present matter is that the incident is alleged to have taken place on 1.7.2006, for which an FIR was got lodged on 7.7.2006 at Police Station Sasni Gate, District Aligarh against five accused persons including the opposite party No. 2, Amit son of Shankarpal for abducting and killing the son of the complainant/revisionist. During the pendency of the aforesaid sessions trial before the trial Court, an application 32Kha was moved by the accused-opposite party No. 2, Amit on 6.6.2007 with the prayer to declare him juvenile on the ground that at the time of incident he was minor and in the High School Mark Sheet his date of birth is mentioned as 5.7.1989 and the alleged incident is shown to be of 1.7.2006, hence at the time of incident he was juvenile aged about 17 years. In support of the said application moved by the accused-opposite party No. 2, Amit, High School Mark Sheet issued by Madhyamik Shiksha Parishad Uttar Pradesh has been filed. 4. Against the said application dated 6.6.2007, an objection was filed by the complainant/revisionist Dinesh Kumar Sharma with the allegation that the High School Mark Sheet, which has been filed by the accused-opposite party No. 2, Amit is false and unreliable being against the evidence on record as the said Amit Kumar had passed the examination of Class 8th in the year 2000 from New SBBM J.H. School, Aligarh, in which the date of birth of the accused-opposite party No. 2, Amit is shown as 3.11.1987, hence the birth date 5.7.1989 as mentioned in the High School Mark Sheet is totally fake and forged. It has also been alleged that the accused-opposite party No. 2, Amit Kumar is elder than his two sisters namely Km. Gunjan Singh and Km. Rachana Singh as according to School Certificate of Km. It has also been alleged that the accused-opposite party No. 2, Amit Kumar is elder than his two sisters namely Km. Gunjan Singh and Km. Rachana Singh as according to School Certificate of Km. Gunjan, her date of birth is 5.7.1988 and the date of birth of Km. Rachana Singh is 16.6.1989, whereas the date of birth of the accused-opposite party No. 2, Amit Kumar is 3.11.1987, hence at the time of incident he was above 18 years of age, as such, he is not liable to be declared juvenile. 5. Alongwith the said objection filed by the revisionist, a second copy of the transfer certificate from New SBBM J.H. School, Aligarh has also been annexed. 6. The learned trial Court also directed for medical examination of the accused-opposite party No. 2, Amit and the Chief Medical Officer, Aligarh has submitted his report dated 26.7.2007 regarding age of the accused-opposite party No. 2, Amit Kumar to be about 19 years and thereafter second medical examination was got conducted by a Medical Board, in which the age of the accused-opposite party No. 2, Amit is said to be 25 years or more than 25 years. 7. Before the trial Court three witnesses namely Sunita wife of late Shankarpal, Smt. Savitri wife of late Shankarpal and Banwari Lal Sharma, Head Master, Primary Pathshala Shankhya-35, Aligarh were examined as Court witnesses. 8. Learned trial Court after considering the evidence on record and after hearing the learned counsel for the parties had decided the said application 32Kha moved by the accused-opposite party No. 2, Amit vide order dated 11.8.2010 and after allowing the said application 32Kha declared the accused-opposite party No. 2, Amit Kumar to be juvenile on the date of incident i.e. 1.7.2006. The said order dated 11.8.2010 was challenged before this Court by filing a criminal revision No. 3580 of 2010, which has been allowed by this Court vide order dated 10.2.2012 and after setting aside the order dated 11.8.2010, the matter was sent back to the trial Court with the direction to decide the matter afresh in the light of the observations made in the judgment after considering the entire evidence and giving opportunity to the parties. 9. 9. In pursuance of the said order dated 10.2.2012 passed by this Court, the learned trial Court has reconsidered the application 32Kha moved by the accused-opposite party No. 2, Amit and provided opportunity to both the parties in the matter. Before the learned trial Court the accused-opposite party No. 2, Amit Kumar got summoned the record pertaining to Higher Secondary Examination held by Madhyamik Shiksha Parishad Uttar Pradesh from the office of Madhyamik Shiksha Parishad Uttar Pradesh, Regional Office Meerut, whereas the complainant Dinesh Kumar Sharma did not lead any evidence and submitted that the application may be decided after considering the material already available on record. Before the trial Court the statement of Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh was recorded as DW1, who was authorized by a letter written by Regional Secretary of Madhyamik Shiksha Parishad Uttar Pradesh to produce before the Court the official record of the Madhyamik Shiksha Parishad Uttar Pradesh, Regional Office Meerut. DW1 has clearly stated in his statement that record was prepared on the basis of records sent by G.P.M. Secondary School, Aligarh. The record bears the date 27.5.2005. He has also proved the letter written by Regional Secretary, which was exhibited as Ex. Kha1. The attested photocopy of the official gazette/record was filed and marked as Ex. Kha2 and self attested copy of the Identity Proof of DW1 was filed and marked as Ex. Kha3. 10. The learned trial Court after considering the entire material on record has allowed the application 32Kha moved by the accused-opposite party No. 2, Amit and held the accused to be juvenile on the date of occurrence vide impugned order dated 18.12.2012, which is under challenge before this Court in the present revision. 11. Learned counsel for the revisionist has contended that the date of birth in the High School Mark Sheet of the accused-opposite party No. 2, Amit is forged and fabricated and the same was based on fake certificate pertaining to the age of the accused as date of birth of Km. Rachana, who is sister of the opposite party No. 2, as per school record is 16.6.1989 and the date of birth of the accused-opposite party No. 2, Amit is shown to be 5.7.1989, as such, no two children i.e. brother and sister can take birth within a period of 19 days. Rachana, who is sister of the opposite party No. 2, as per school record is 16.6.1989 and the date of birth of the accused-opposite party No. 2, Amit is shown to be 5.7.1989, as such, no two children i.e. brother and sister can take birth within a period of 19 days. It has also been contended that the statements given by Smt. Savitri and Smt. Sunita, wives of late Shankar Pal Singh, father of the accused-opposite party No. 2, Amit, are not reliable as they have given false statements before the learned trial Court in order to save the accused-opposite party No. 2, Amit from a trial before the sessions Court. It has also been contended that according to first medical report, the age of the accused-opposite party No. 2, Amit was shown to be 19 years, whereas according to second opinion of the Medical Board his age was shown to be 25 years and the said certificate of the Medical Board is reliable one, hence the accused-opposite party No. 2, Amit was major at the time of incident, but the learned trial Court has illegally allowed the application 32Kha moved by the accused-opposite party No. 2, Amit. It has also been contended that where the school certificate is fake and forged, the medical evidence should have been considered. The learned counsel has referred the judgment of the Hon’ble Apex Court given in Om Prakash v. State of Rajasthan, 2012(5) SCC 201 . 12. On the other hand learned AGA and learned counsel for the opposite party No. 2 have submitted that the learned trial Court has rightly and legally allowed the application 32Kha moved by the accused-opposite party No. 2, Amit and declared him to be juvenile on the date of occurrence after considering the entire material available on record and by passing a detailed order. They have also submitted that the learned trial Court has rightly relied upon the High School Mark Sheet of the opposite party No. 2, which was duly proved by DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh as the said document confirms to the Section 35 of the Indian Evidence Act, whereas the documents regarding the age of Km. Gunjan and Km. Rachana do not confirm to the provisions of the Section 35 of the Indian Evidence Act. Gunjan and Km. Rachana do not confirm to the provisions of the Section 35 of the Indian Evidence Act. Learned counsel for the opposite party No. 2 has also submitted that Km. Rachana is not the sister of the opposite party No. 2 as no such daughter was born to Shankar Pal Singh and his wives as has been stated by two wives namely Smt. Sunita and Smt. Savitri of late Shankar Pal Singh. He has also submitted that the father of the accused-opposite party No. 2, Amit had performed two marriages, firstly with Smt. Savitri and thereafter with Smt. Sunita in 1984 and from the wedlock of Shankar Pal and Smt. Sunita one girl Km. Gunjan was born on 5.7.1988 and thereafter the opposite party No. 2 Amit Kumar was born on 5.7.1989 and a girl namely Km. Antim was born from the wedlock of Shankar Pal and Smt. Savitri (first wife) in 1989 and both the wives were living with Shankar Pal in the same house and Shankar Pal has no daughter with the name of Km. Rachana Singh from either of the wives. Learned counsel has also submitted that the said facts have been duly established from the statements of Smt. Sunita and Smt. Savitri, wives of late Shankar Pal Singh. Learned counsel has also submitted that according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 in absence of matriculation or equivalent certificate, the date of birth certificate from the school (other than play school) first attended and in absence whereof the birth certificate given by a Corporation or Municipal Authority or a Panchayat, may be obtained and only in absence of above three documents, the medical opinion will be sought from a duly constituted Medical Board, but in this matter the matriculation/High School Mark Sheet is available to prove the age of the accused-opposite party No. 2, Amit, hence the documents as mentioned in Rule 12(a) (ii) & (iii) and also the medical opinion is irrelevant and the learned trial Court has rightly relied upon the High School Mark Sheet filed on behalf of the accused-opposite party No. 2, Amit. 13. In support of his contention, learned counsel for the opposite party No. 2 placed reliance on the judgment given by the Hon’ble Apex Court in B.M. Singhavi v. Anand Purohit, 1988 (Supp.) SCC 604. 14. 13. In support of his contention, learned counsel for the opposite party No. 2 placed reliance on the judgment given by the Hon’ble Apex Court in B.M. Singhavi v. Anand Purohit, 1988 (Supp.) SCC 604. 14. Learned counsel for the opposite party No. 2 also cited the verdicts of Hon’ble Apex Court reported in Ashwani Kumar Saxena v. State of M.P., 2012(9) SCC 750 ; Ranjeet Goswami v. State of Jharkhand and others, 2014(1) SCC 588 and Kulai Ibrahim @ Ibrahim v. State Represented by the Inspector of Police, 2014(12) SCC 332 , for the submission that when the High School Mark Sheet of the accused-opposite party No. 2, Amit was duly proved by DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh, Regional Office Meerut, then there was no question to consider the medical report regarding the age of the opposite party No. 2. 15. I have considered the said arguments advanced by the learned counsel for the parties and have perused the order impugned dated 18.12.2012 passed by the learned trial Court alongwith all other material available on record. 16. The learned trial Court while passing the order impugned dated 18.12.2012 has considered the entire material/documents produced on behalf of the parties and came to the conclusion that the claim of juvenility can be raised at any stage during the proceeding or even at the appellate stage. In the case of Mohan Mali v. State of Madhya Pradesh, (2010) 6 SCC 669 , the plea of juvenility was raised in an appeal before the Hon’ble Apex Court and the claim of juvenility was permitted. The said view has also been confirmed by the Hon’ble Apex Court in the matter of Dharambir v. State (NCT of Delhi), 2010 JSCC 344. 17. The learned trial Court has also considered the procedure to be adopted by the Courts while deciding the juvenility of any person claiming to be juvenile, which has been laid down in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. 17. The learned trial Court has also considered the procedure to be adopted by the Courts while deciding the juvenility of any person claiming to be juvenile, which has been laid down in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. The said Rule clearly states that the age determination enquiry shall be conducted 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. 18. The learned trial Court has also observed that the said Rule clearly mandates that if a matriculation certificate is available, then the age of juvenile has to be decided on the basis of it and the Court can only proceed to clause (a) (ii) & (iii) or clause (b), if the matriculation certificate is not available. 19. In the present case the accused-opposite party No. 2, Amit has filed his matriculation/High School Certificate, which states his date of birth to be 5.7.1989 and thus the Court has no option except to examine the contents and veracity of the matriculation certificate. As if the law prescribed and procedure to do or perform a certain thing in a particular manner, then it has to be performed in that particular manner. Thus the medical reports pertaining to the age of the accused-opposite party No. 2, Amit became irrelevant. 20. As if the law prescribed and procedure to do or perform a certain thing in a particular manner, then it has to be performed in that particular manner. Thus the medical reports pertaining to the age of the accused-opposite party No. 2, Amit became irrelevant. 20. Learned trial Court has also considered the verdict given by the Apex Court in the matter of B.M. Singhavi v. Anand Purohit (supra), in which it has been held that any document which can be admitted in evidence by the Court must confirm to the Section 35 of the Indian Evidence Act. The Apex Court has laid down that the following three conditions must be satisfied before a document is admitted: (a) firstly, entry that is relied on must be one in a public or other official book, register or record, (b) secondly, it must be an entry stating a fact in issue or relevant fact; and (c) thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. 21. While considering the matriculation certificate filed by the accused-opposite party No. 2, it has been held by the learned trial Court that undoubtedly it is a public document as the entries pertaining to it have been made in the official gazette/result of Madhyamik Shiksha Parishad Uttar Pradesh of the year 2005. The result of all the candidates appearing in the Board Examination is declared by the concerned Board in the present case the Madhyamik Shiksha Parishad of the Uttar Pradesh. The result is gazetted each year and forms the official record. The entry in this gazette includes the name, roll No., parentage, the date of birth and the result of the candidate. Thus, the name, parentage and date of birth in the present case are fact in issue or the relevant facts and the entries in the gazette in the present case are made by the officials of the Madhyamik Shiksha Parishad Uttar Pradesh in discharge of their official duties. 22. The said matriculation certificate has been duly proved by evidence of DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh. The Ex. 22. The said matriculation certificate has been duly proved by evidence of DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh. The Ex. Kha1 is the letter written by the Secretary of the Madhyamik Shiksha Parishad Uttar Pradesh, Regional Office Meerut, which authorizes the DW1 to produce the official records before the trial Court, the Ex. Kha-2 is the attested photocopy of the official gazette and the Ex. Kha-3 is the ID proof of DW1. 23. DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh in his testimony has clearly stated that the record was prepared on the basis of records sent by the G.P.M. Secondary School, Aligarh. The record bears the date 27.5.2005. Thus there is absolutely no inconformity in the certificate submitted by the accused-opposite party No. 2 and the official gazette maintained by the Board. 24. The learned trial Court has also considered the Primary School Certificates submitted by the complainant with regard to Km. Gunjan and Km. Rachana and has observed that they are not public documents as no record is maintained with regard to them by any public authority, but individual school keeps the records. The records of the individual school are only certificied by the Inspector of Schools. In the present matter the Principal of said school Shri Banwari Lal Sharma, Head Master, Primary Pathshala Shankhya-35, Aligarh was examined as DW3, who issued the certificate to the complainant pertaining to Km. Rachana has specifically stated that there is no record/birth certificate of Km. Rachana in his records. Further he was not aware, who submitted the date of birth certificate of Km. Rachana in his school. Thus, the certificates pertaining to the date of birth of Km. Rachana cannot be relied upon as they do not confirm to the provisions of the Section 35 of the Indian Evidence Act. It has also been observed by the learned trial Court that the complainant has failed to prove that Km. Rachana is real sister of the accused-opposite party No. 2 and her date of birth as claimed by the complainant is 16.6.1989. 25. This Court while allowing the criminal revision No. 3580 of 2010 vide order dated 10.2.2012 has considered the transfer certificate issued by New SBBM J.H. School, Aligarh giving date of birth of the accused-opposite party No. 2 to be 3.11.1987. 25. This Court while allowing the criminal revision No. 3580 of 2010 vide order dated 10.2.2012 has considered the transfer certificate issued by New SBBM J.H. School, Aligarh giving date of birth of the accused-opposite party No. 2 to be 3.11.1987. Although the second copy of the said transfer certificate from New SBBM J.H. School, Aligarh was filed alongwith the written objection submitted by the complainant/revisionist, but the same has not been filed before the trial Court alongwith the Fehrist of document, Paper No. 47Ka. The said transfer certificate of New SBBM J.H. School, Aligarh has also not been duly proved from the concerned person of the said institution, whereas the complainant himself has filed a copy of admission form relating to Amit Kumar, accused-opposite party No. 2 as paper No. 47Ka/2, which was issued from G.P.M. Secondary School, Aligarh and the said document was obtained by the complainant/revisionist under the Right to Informant Act, 2005, in which also the date of birth of the accused-opposite party No. 2 is shown to be 5.7.1989. In the said admission form it has also been mentioned that the opposite party No. 2 had passed his Class 8th from G.P.M. Secondary School, Aligarh (Gyandeep Purva Madhyamik Vidyalaya, Dori Nagar, Aligarh). Thus from the said document submitted by the complainant/revisionist alongwith his Fehrist of documents, paper No. 47Ka, the date of birth of the accused-opposite party No. 2 is shown to be 5.7.1989 and same has been written in the High School Mark Sheet issued by the Madhyamik Shiksha Parishad Uttar Pradesh. The date of birth on the said High School Mark Sheet was written on the basis of records sent by the G.P.M. Secondary School, Aligarh as has been established by the statement of DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh, Regional Office Meerut. Thus the document i.e. second copy of the transfer certificate from New SBBM J.H. School, Aligarh, which has been made basis of the objection raised by the complainant, is not duly proved and hence cannot be relied upon, whereas the High School Mark Sheet issued by Madhyamik Shiksha Parishad Uttar Pradesh in the name of accused-opposite party No. 2 has been duly proved by DW1 and has rightly been relied upon by the learned trial Court. 26. 26. The ratio in the verdict of the Hon’ble Apex Court given in Om Prakash v. State of Rajasthan (supra) as has been relied upon by the learned counsel for the revisionist, is not applicable in the present matter as the facts of the said case were different. In the said case the juvenility of accused was claimed on the basis of Primary School Certificate and the trial Court could not even record the definite, clear and conclusive finding as to juvenility, but due to benefit of principle of benevolent legislation attached to the Juvenile Justice Act, given the benefit and declared the accused juvenile, hence the Hon’ble Apex Court has set aside the order of the trial Court and the High Court and held that merely on the basis of shaky evidence like the school admission register which is not proved or the oral evidence based on conjectures leading to further ambiguity, cannot be relied upon and the preference must have been given to the medical evidence for assessing the age of the accused, but in the present matter the age of the opposite party No. 2, Amit Kumar was determined on the basis of matriculation certificate duly proved by DW1 Shri Chander Gupt Narayan, Administrative Officer, Madhyamik Shiksha Parishad Uttar Pradesh, who is a public servant in accordance with law and a clearcut finding to the juvenility of accused-opposite party No. 2 has also been recorded by the trial Court and there is no such evidence produced by the complainant/revisionist which creates any ambiguity as to the genuineness of the High School Mark Sheet of Amit Kumar, hence the said verdict is not applicable to the facts of the present case. 27. The Hon’ble Apex Court in the case of Ashwani Kumar Saxena v. State of M.P. (supra) has held in para 32 that the question of obtaining medical opinion from a duly constituted Medical Board arises only if the documents mentioned in Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 are not available. The para 32 of the said verdict is reproduced hereinbelow : “32 - “Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. The para 32 of the said verdict is reproduced hereinbelow : “32 - “Age determination inquiry” contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.” 28. The same view has also been reiterated by the Apex Court in the case of Ranjeet Goswami v. State of Jharkhand and others (supra) and Kulai Ibrahim @ Ibrahim v. State Rep. (supra). 29. Considering the aforesaid verdicts given by the Hon’ble Apex Court in Ashwani Kumar Saxena v. State of M.P. (supra), Ranjeet Goswami v. State of Jharkhand and others (supra) and Kulai Ibrahim @ Ibrahim v. State Rep. (supra), the learned trial Court has rightly held that if a matriculation certificate is available then the age of juvenile has to be decided on the basis of it and the Court can only proceed to clause (a) (ii) & (iii) or clause (b) of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 if the matriculation certificate is not available and thus the medical reports pertaining to the age of accused-opposite party No. 2, Amit became irrelevant. 30. 30. The learned trial Court after considering the entire evidence as well as the law applicable in the matter has passed a detailed order impugned dated 18.12.2012 and allowed the application 32Kha moved by the accused-opposite party No. 2, Amit Kumar and held him to be juvenile on the date of incident, which calls for no interference by this Court under its revisional jurisdiction. 31. In view of the aforesaid considerations, I do not find any infirmity, illegality, irregularity or jurisdictional error in the order impugned passed by the learned trial Court and this revision has no force and is liable dismissed. 32. Accordingly, this revision is dismissed. ———————