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2016 DIGILAW 745 (JHR)

Manju Sexana v. State of Jharkhand

2016-04-29

ANANDA SEN

body2016
ORDER : The petitioner has filed this criminal revision application challenging the order dated 23.7.2012 passed by the Additional Judicial Commissioner XX, Ranchi in Sessions Trial No.81 of 2005. 2. The petitioner is the informant of the case and has challenged the impugned order on the ground that the accused is not a juvenile and thus the order of the Additional Judicial Commissioner treating him a juvenile and separating the record from remaining accused persons is illegal. 3. The petitioner further submits that on the fact of the case the accused namely, Sikandra Baitha @ Sachindra Baitha @ Satyendra Kumar Rajak son of Ram Kishun Baitha cannot be treated to be juvenile and should be tried with the other accused. 4. Brief fact of this case is that an FIR instituted at the instance of the informant, Manju Sexana, who is the petitioner herein, stating inter alia, therein that her daughter Binita Kumari, aged about 15 years resides with her. On 30.6.2004 at about 4 a.m. in the morning, she discovered that her minor daughter has been taken away by accused Sikandra Baitha, who happens to be accused-opposite party no.2. On search and on enquiry, she came to know that accused Sikandra Baitha and other accused named in the FIR have abducted her daughter. She further states that when the informant tried to contact the accused persons, she was assaulted also. On the aforementioned fact, FIR under Sections 364A 147, 148, 149, 448, 341, 323, 324 and 307 of the Indian Penal Code was registered. Later on, on 25.8.2004 section 376 of the Indian Penal Code was added. 5. After investigation, charge sheet was submitted against the accused persons for allegedly committing an offence under Sections 147, 148, 341, 366A and 376 of the Indian Penal Code. The case was committed to the court of sessions and charge was framed under Sections 147, 148, 341, 366A and 376 of the Indian Penal Code against the opposite party no.2. 6. During the course of trial, an application was filed by the opposite party no.2 Sakindra Baitha wherein he claimed himself to be a juvenile on the date of occurrence and claimed to be treated in terms of the provisions of the Jharkhand Juvenile Justice (Care and Protection of Child) Act, 2000 (hereinafter referred to ‘the Act’). 6. During the course of trial, an application was filed by the opposite party no.2 Sakindra Baitha wherein he claimed himself to be a juvenile on the date of occurrence and claimed to be treated in terms of the provisions of the Jharkhand Juvenile Justice (Care and Protection of Child) Act, 2000 (hereinafter referred to ‘the Act’). The said petition filed by the accused was challenged by the informant, who is petitioner herein. 7. Two witnesses were examined for assessing the age of Sakindra Baitha. It is pertinent to mention here that the informant was also examined as P.W.1 who produced documents in support of her claim. 8. After going through the records which were produced in support of the age of the accused and after hearing the parties, the court below came to conclusion that the accused Sakindra Baitha is a juvenile and thus, passed the following order. “Considering above oral as well as documentary evidence, I am of the view that accused Sakindra Baitha @ Sachindra Baitha @ Satyendra Kumar Rajak son of Ram Kishun Baitha was juvenile on the day of occurrence accordingly above prayer is being disposed of. Hence Office clerk is directed to separate the record of juvenile from the case record of remaining five accused persons and sent it to the Juvenile Justice Board to proceed in accordance with law. Put up this record on 02.08.2012 for defence evidence if any. 9. Being aggrieved by the said order the informant has filed this revision application challenging the same. 10. I have heard learned counsel appearing for the petitioner and learned counsel appearing for the State and the accused and also gone through the documents produced. 11. The petitioner claims that the accused could not be treated as a juvenile as there is serious discrepancy in the record which reflects the date of birth of the accused. The petitioner had produced school leaving certificate of the accused before the court below, which the petitioner has obtained under the right to information. This school leaving certificate is Annexure 3 to this revision application also. From perusal of the school leaving certificate, it is evident that date of birth recorded therein in respect of the accused is 20.2.1987. 12. The petitioner had produced school leaving certificate of the accused before the court below, which the petitioner has obtained under the right to information. This school leaving certificate is Annexure 3 to this revision application also. From perusal of the school leaving certificate, it is evident that date of birth recorded therein in respect of the accused is 20.2.1987. 12. The petitioner further states that the accused has claimed himself a juvenile on the date of occurrence on the basis of Matriculation certificate which reflects his date of birth as 15.1.1989. The petitioner further states that date of birth of the accused disclosed by him at the time of registration of marriage is something else. The petitioner further argued that since there are three different date of birth in different document, it was the duty of the court to get the accused medically examined before declaring him as juvenile. He further states that it is the duty of the court to act in terms of Rule 22 of the Jharkhand Juvenile Justice (Care and Protection of Child) Rules, 2003 (hereinafter referred to ‘the Rules’) and by not following the provision of the Rules, the court below has committed grave illegality and thus, the impugned order cannot be sustained. 13. Learned counsel for the opposite party no.2 Sakindra Baitha @ Sachindra Baitha @ Satyendra Kumar Rajak submitted that there is no illegality in the impugned order and the court below has rightly followed the provision laid down in the Rules of 2003. He further states that the accused on the date of occurrence was a juvenile and has to be treated as per the provision laid down in the said Act. Counsel for the opposite party no.2 thus supports the impugned order and prays for dismissal of this revision application. 14. He further states that the accused on the date of occurrence was a juvenile and has to be treated as per the provision laid down in the said Act. Counsel for the opposite party no.2 thus supports the impugned order and prays for dismissal of this revision application. 14. Before deciding the case, it is important to refer to Rule 22(5) of the Rules, 2003 which reads as follows: Rule 22(5)-In every case concerning a juvenile or a child, the Board shall either obtain,- (i) a birth certificate given by a corporation or a municipal authority; or (ii) a date of birth certificate from the school first attended; or (iii) matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board (regarding his age and, when 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).” 15. From perusal of sub-rule (5) of Rule 22, it is clear that the document mentioned in the Rule has to be taken into consideration while adjudging whether an accused is juvenile. Rule 22(5)(iv) makes it clear that in absence of any document mentioned in the Rule 22(5)(i),(ii) and (iii) , medical opinion by a duly constituted Medical Board has to be considered. 16. The Hon’ble Supreme Court in a case of Ashwani Kumar Saxena vs. State of M.P reported in [ 2012 (9) SCC 750 ] has held that the court can obtain matriculation certificate or equivalent, if available, for the purpose of determining the age of the accused. It has been further held that only in 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. It has been further held that in absence of matriculation certificate or equivalent or in absence of 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. It has been further held that in absence of matriculation certificate or equivalent or in absence of 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. Hon'ble Court further went on to hold that medical opinion from duly constituted Medical Board can only be obtained if all the aforementioned documents are unavailable while determining the age. 17. In the said judgment the Hon’ble Supreme Court also held that if those certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the Committee needs to go for medical report for age determination. 18. On this proposition of law, it is to be decided whether the impugned order is correct or not. 19. Admittedly, the date of occurrence is on 30.6.2004. The petitioner, who is an informant, has produced school leaving certificate of the informant which shows that his date of birth is recorded as 20.2.1987. The accused had produced matriculation certificate which shows his date of birth recorded as 15.1.1989. As per the matriculation certificate, the age of the accused on the date of occurrence comes to approximately 15 and ½ years. 20. As per the date of birth given by the informant basing her claim on school leaving certificate obtained under RTI which is recorded as 20.2.1987, age of the accused comes to 17 years and few months. Thus, from both the certificates it is quite clear that age of the accused on the date of occurrence, i.e. 30.6.2004 is not 18 years but is less than that. 21. The petitioner’s contention that the declaration given by the accused in the marriage certificate about his age, while registering his marriage is something else, cannot be accepted. A self declaration given by any person while registering his/her marriage cannot be treated to be a conclusive proof of date of birth in terms of the provision of Rule 22 of the Rules, 2003. 22. The Hon’ble Supreme Court in a case of Ashwani Kumar Saxena vs. State of M.P (supra) has held that date of birth recorded in the matriculation certificate will be conclusive proof, if the said document is not manipulated, fake or fabricated. There is no such allegation that the matriculation certificate is manipulated, fake or fabricated. 22. The Hon’ble Supreme Court in a case of Ashwani Kumar Saxena vs. State of M.P (supra) has held that date of birth recorded in the matriculation certificate will be conclusive proof, if the said document is not manipulated, fake or fabricated. There is no such allegation that the matriculation certificate is manipulated, fake or fabricated. The only ground taken by the petitioner is that date of birth recorded therein is not a correct one which cannot be a ground for adjudication in a proceeding under the Act while determining the age. Since there is a matriculation certificate showing the date of birth, the same has to be accepted by the court to assess whether the accused is juvenile or not if the document is genuine and not manipulated or fabricated. Thus, the court below has rightly concluded that on the date of occurrence, the accused was a juvenile and hence, directed to separate the record of the juvenile accused and has ordered to send it to the Juvenile Justice Board to proceed in accordance with law. 23. I find no illegality or irregularity in the impugned order. Hence, this revision application is dismissed. 24. The interim order dated 25.2.2013 is vacated. Application dismissed.