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2017 DIGILAW 1169 (ALL)

Sushil Kumar v. State of U. P.

2017-05-02

RAMESH SINHA, UMESH CHANDRA SRIVASTAVA

body2017
JUDGMENT : 1. This revision has been directed against the order dated 16.6.2014 of Additional Sessions Judge court No. 4, Saharanpur passed in Sessions Trial No. 387 of 2013, State vs. Boby, whereby the learned Additional Sessions Judge, Saharanpur has turned down the plea of juvenility of the revisionist who was facing trial for the offences under sections 376, 302 IPC and has been convicted and sentenced with capital punishment for the said offences. 2. Facts of the case in brief are that revisionist took two and a half year old daughter of opposite party No. 2 in a sugar cane field and strangulated her to death after having committed rape upon her. In the course of trial, revisionist had taken a plea before the learned Additional Sessions Judge, Saharanpur that he was juvenile on the date of the alleged incident and, therefore, his matter be referred to the Juvenile Justice Board for trial under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (in short JJ Act). The plea of juvenility taken by the revisionist was inquired into by the learned Additional Sessions Judge, Saharanpur himself. In the inquiry, besides documentary evidence, CW-1 Sushil Kumar, father of the revisionist and Sethpal CW-2 the Head Master of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur from the side of the revisionist and CW-3 Shimla Devi, the Head Mistress of Government Primary School, Fatehpur Kalan, Saharanpur were examined. CW-1 Sushil Kumar stated that he got the revisionist admitted in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur in Class-I in the year 2002 and his date of birth is 4.11.1996. He has also stated that the same date of birth is entered not only in the records of the school in which the revisionist studied upto Class-V, but in the Birth Register of Block Office, Nagal also. He also filed birth certificate, application for admission and school leaving certificate of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur in support of his contention. 3. CW-2 Sethpal, who was examined from the side of revisionist stated that revisionist was admitted in his school on 16.7.2002 in Class-I and as per records of the school, his date of birth is 4.11.1996. He also stated that revisionist left the school on 25.5.2007. 3. CW-2 Sethpal, who was examined from the side of revisionist stated that revisionist was admitted in his school on 16.7.2002 in Class-I and as per records of the school, his date of birth is 4.11.1996. He also stated that revisionist left the school on 25.5.2007. CW-3 Smt. Shimla Devi, who happens to be the Head Mistress of Government Primary School, Fatehpur Kalan, Saharanpur proved the entries relating to admission of the revisionist in her school saying revisionist was admitted in her school on 1.8.1998 in Class-I and his recorded date of birth is 1.3.1993. She also stated that the name of revisionist is entered in the School Register at Serial No. 49 and his Admission No. is 1518. She also stated that revisionist left the school on 22.8.2001. She also stated that Sushil Kumar, the father of the revisionist has put his signature against the name of the revisionist in the School Admission Register. 4. Learned Additional Sessions Judge after having heard the submissions of learned counsel of both sides and having perused the various certificates regarding date of birth of the revisionist available on record came to the conclusion that as per date of birth of the revisionist being 1.3.1993, as recorded in the Admission Register of the Government Primary School, Fathepur Kalan, Saharanpur which was the first attended school of the revisionist, he was above 18 years of age on the date of incident and therefore he was not juvenile, hence his case cannot be be referred to the Juvenile Justice Board for trial. Aggrieved by the order of the learned Additional Sessions Judge, this revision has been preferred. 5. We have heard Sri Nazrul Islam Jafri, learned counsel for the revisionist, Sri Raghuraj Kishore, learned counsel for the opposite party No. 2 and Sri Ashish Pandey, learned counsel for the State and have gone through the material brought on record. 6. Learned counsel for the revisionist has contended that it is proved from the Admission Register of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, where revisionist studied from Class-I to Class-V, that his date of birth is 4.11.1996 and not 1.3.1993 as opposite party No. 2 states. 6. Learned counsel for the revisionist has contended that it is proved from the Admission Register of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, where revisionist studied from Class-I to Class-V, that his date of birth is 4.11.1996 and not 1.3.1993 as opposite party No. 2 states. He has further submitted that ample evidence had been filed from the side of the revisionist showing that his date of birth is 4.11.1996, but the learned Additional Sessions Judge did not believe them without assigning any concrete reason therefor and he believed the kachcha admission register of the Government Primary School, Fatehpur Kalan, Saharanpur, wherein the date of birth of the revisionist has been recorded as 1.3.1993. He has further submitted that no authenticity could be attached to the said kachcha Admission Register of the Government Primary School as it does not bear the seal of the school either on its opening page or on the last page. He has also submitted that it is difficult to believe that there could be two admission register instead of one in a school and, more so when pucca Admission Register is maintained, then there could be no necessity of kachcha Admission Register which even does not bear the seal of the school. It is further submitted that it is proved from the evidence of CW-2 Sethpal, the Head Master of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur that the revisionist was admitted in the said school on 16.7.2002 in Class-I and he studied there upto Class-V. He has also proved that as per entries made in the school Admission Register his date of birth is 4.11.1996, and in the birth certificate also issued by the Block Office, Nagal the same date of birth has been entered. He has further submitted that when it is proved from the admission register of the first attended school of the revisionist that his date of birth is 4.11.1996, and the same is supported with birth certificate also, the learned Sessions Judge should have believed the same and should have held that revisionist was juvenile on the date of incident, as his date of birth being 4.11.1996, the age of revisionist was below 18 years when the incident is said to have taken place. He has also submitted that there was no reason for the learned Additional Sessions Judge to believe the kuchcha admission register of the Government Primary School in which the revisionist was never admitted as regular student, rather he had gone to that school for only few months and that too without getting admission. 7. Per contra, learned AGA and learned counsel appearing for the opposite party No. 2 have contended that the mode of determining the age of a juvenile accused has been given in Rule 12 of the Juvenile Justice (Care and Protection) Rules, 2007 (hereinafter referred to as JJ Rules) and it is provided therein that in case of conflict regarding age of juvenile accused his age shall be determined as per date of birth entered in his Matric/High School Certificate and in absence of any such certificate, it shall be decided as entered in the first attended school, which shall not be a playing school and in the absence of these two, the age of juvenile accused shall be decided as per birth certificate issued by the local body and in the absence of the aforesaid certificates only the accused shall be referred to the Medical Board for determining his age. He has further submitted that when an order of preference has been given in Rule 12 of the JJ Rules for determining the age of juvenile-accused the age of a juvenile-accused, shall be decided in the same order and not otherwise. He has further submitted that in the case in hand, admittedly, there is no High School certificate of the revisionist and therefore it is desirable to see as to which is the first attended school of the revisionist. He has submitted that it is proved from the evidence of CW-3 Shimla Devi, that revisionist had taken admission in the Government Primary School, Fatehpur Kalan, Saharanpur on 1.8.1998 in Class-I and his recorded date of birth as per school record is 1.3.1993. She has further proved that revisionist studied in that school for more than three years as he left the school on 22.8.2001. 8. She has further proved that revisionist studied in that school for more than three years as he left the school on 22.8.2001. 8. Learned AGA has further submitted that when it is proved from the evidence of Principal of the Government Primary School that revisionist had taken admission in the school in the year 1998 and had studied in the said school for three years before leaving the school, his first attended school would be the Government Primary School, Fatehpur Kalan, Saharanpur, and not S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, wherein he took admission on 16.7.2002 after leaving the first school. 9. As regards birth certificate in which the date of birth of the revisionist has been entered the same as in the Admission Register of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, learned AGA and learned counsel appearing for opposite party No. 2 have submitted that in the event of availability of certificate of the first attended school the date of birth entered in the birth certificate would not be taken into consideration for determining the age of juvenile accused as provided in Rule 12 of the JJ Rules, which clearly says that date of birth of a juvenile-accused entered in the birth register would be taken into consideration in the event of non-availability of matriculation certificate and the first attended school certificate only. They have submitted that since it is proved from the record that revisionist has studied in the Government Primary School, Fatehpur Kalan, Saharanpur which was his first attended school and, as per Admission Register of that school, his date of birth is 1.3.1993 and according to that date of birth, he was above 18 years on the date of incident, the order passed by the learned Additional Sessions Judge rejecting the plea of juvenility of the revisionist is fully justified and in accordance with law and needs no interference. 10. Having heard the submissions of learned counsel of both sides, it appears that revisionist is claiming himself to be below 18 years of age on the date of incident on the basis of his date of birth being mentioned as 04.11.1996 in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, where he studied from Class-I to Class-V and the birth certificate issued by the Block office Nagal. In both the certificates, the date of birth of the revisionist has been mentioned as 4.11.1996 and according to this, he appears to be juvenile on the date of incident which is said to have taken place on 7.2.2013. 11. The contention of learned counsel for the revisionist is that since the same date of birth, i.e. 4.11.1996 has been mentioned in the Admission register of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, as well as in the Block Office Nagal and it is stated that the said school is the first attended school where revisionist studied from Class-I to Class-V, revisionist should be declared juvenile as his age was below 18 years on the date of incident, and in that event the order of conviction and sentence passed by the learned Additional Sessions Judge awarding capital punishment to the revisionist for the offences under section 376 A and 302 IPC, should be quashed and the matter should be referred to Juvenile Justice Board for holding a fresh trial in his matter. The next contention of learned counsel for the revisionist is that learned Additional Sessions Judge has wrongly believed the entry regarding the date of birth of the revisionist as entered in the kachcha Admission Register of the Government Primary School, Fatehpur Kalan, Saharanpur in which his date of birth has been mentioned as 1.3.1993. His contention is that since revisionist never studied in that school, the date of birth as entered in the kachcha Admission Register of the school could not be made basis for determining his age and the learned Additional Sessions Judge has erred in taking the entry of that school into account for determining the age of the revisionist and holding him major on the date of the incident. 12. Section 7 A of the JJ Act provides that if a plea of juvenility has been taken by accused during the course of any inquiry or trial the said plea would be inquired into by the Juvenile Justice Board or the court before whom such inquiry or trial is pending. Rule 12 of the JJ Rules, provides that in case of any conflict with regard to age of juvenile-accused, the Juvenile Justice Board or court would hold inquiry and would take such evidence as may be necessary to determine the age of the person who claims to be juvenile. Rule 12 of the JJ Rules, provides that in case of any conflict with regard to age of juvenile-accused, the Juvenile Justice Board or court would hold inquiry and would take such evidence as may be necessary to determine the age of the person who claims to be juvenile. It also reads that under Rule 12 of the JJ Rules the Board is enjoined to take evidence by obtaining the matriculation certificate and in its absence, the date of birth certificate from the school first attended and if it is also not available then the birth certificate given by the local body. It also provides that in case any of the above certificates are not available then medical opinion can be obtained and if the Board comes to the conclusion that the date of birth mentioned in the matriculation certificate raises some doubt on the basis of material or evidence on record, it can seek medical opinion from a duly constituted medical board to determine the age of the accused persons claiming juvenility. 13. Thus, from the reading of Rule 12 of the JJ Rules, it is clear that for determining the age of the person claiming himself to be a juvenile, firstly the matriculation certificate of that persons would be taken into account and in the absence of that certificate only the birth certificate issued by the first attended school would be taken into consideration and in the absence of these two only the birth certificate issued by a local body would be taken into account and in the absence of these three, the persons would be referred to a medical board for determining his age and the opinion so expressed by the medical board would be taken into account by the Juvenile Justice Board or the court for determining the age of the person claiming juvenility. 14. After having heard the submissions of learned counsel of both sides, it appears that revisionist is claiming himself to be below 18 years of age on the date of incident on the basis of his date of birth being mentioned as 04.11.1996 in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, where he studied from Class-I to Class-V and the birth certificate issued by the Block Office, Nagal. In both the certificates, the date of birth of the revisionist has been mentioned as 4.11.1996 and according to this, he appears to be juvenile on the date of incident which is said to have taken place on 7.2.2013. The contention of learned counsel for the revisionist is that since the same date of birth, i.e. 4.11.1996, has been mentioned in the Admission Register of S.N. Memorial Public School, Fatehpur Kalan, Saharanpur as well as in Block Office Nagal and it is stated that the said school is the first school where revisionist studied from Class-I to Class-V, revisionist should be declared juvenile on the date of incident, and in that event the order of conviction and sentence by the learned Additional Sessions Judge who has punished revisionist with capital punishment for the offences under section 376 A and 302 IPC should be quashed and the matter should be referred to Juvenile Justice Board for holding the trial afresh in his matter. The next contention of learned counsel for the revisionist is that the learned Additional Sessions Judge has wrongly believed the entry regarding date of birth of the revisionist in the kachcha Admission Register of the Government Primary School, Fatehpur Kalan, Saharanpur in which the date of birth has been mentioned as 1.3.1993. The contention is that since revisionist never studied in this school, the date of birth as entered in the kachcha Admission Register of the school could not be made basis for determining his age and the learned Additional Sessions Judge has erred in taking the entry of that school into account for determining the age of the revisionist and holding him major on the date of incident. 15. From the facts of the case in hand it appears that S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, is not the first school where revisionist studied from Class-I to Class-V as he alleges. 15. From the facts of the case in hand it appears that S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, is not the first school where revisionist studied from Class-I to Class-V as he alleges. The father of the revisionist CW-1 Sushil Kumar, has though stated that revisionist studied Class-I to Class-V from the S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, wherein he took admission in the year 2002 and his date of birth is 4.11.1996, however, no reliance can be placed on his this statement as he has not been able to tell the date of birth of his other three children and he has admitted in his cross examination that revisionist had studied in the Government Primary School, Fatehpur Kalan, Saharanpur for sometime before taking admission in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur. Though he has said that the period of his study in Government Primary School was only 5-7 months and that he had not taken admission in the school. However, in view of what has been stated by CW-3 Shimla Devi, the Head Mistress of Government Primary School, Fatehpur Kalan, Saharanpur, his statement cannot be believed. According to CW-3 Shimla Devi, revisionist had taken admission in her school in Class-I on 1.8.1998 and his date of birth has been mentioned as 1.3.1993 in the school Admission Register which also bears the signature of his father Sushil Kumar against his name. She has also stated that revisionist left the school on 22.8.2001. This makes it clear that revisionist studied in this school for about three years before he left the school and got him admitted in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, by reducing his age by 3 years 8 months and 3 days as in the Admission Register of that school his date of birth has been mentioned as 4.11.1996. This makes it clear that revisionist studied in this school for about three years before he left the school and got him admitted in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, by reducing his age by 3 years 8 months and 3 days as in the Admission Register of that school his date of birth has been mentioned as 4.11.1996. When the father of the revisionist has stated that his son had studied in Government Primary School, Fatehpur Kalan, Saharanpur and the record of that school clearly states that he was admitted in this school in Class-I on 1.8.1998 and as per school Admission Register, which bears signature of appellant's taken which has not been denied and his date of birth as entered in this school is 1.3.1993, this school would be treated as the first school attended by the revisionist and in that event the S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, where revisionist took admission in the year 2002 after leaving the first attended school i.e. Government Primary School, Fatehpur Kalan, Saharanpur, his date of birth mentioned in the records of that school would not be taken into account as per Rules 12 of the JJ Rules, for determining the age of the revisionist and even the birth certificate issued by the local body would also be not relevant for determining the age of the revisionist. 16. The Apex Court in the case of Parag Bhati (Juvenile) through Legal Guardian-Mother- Smt. Rajni Bhati vs. State of Uttar Pradesh and Another, AIR 2016 SC 2418 , has held that if there is a clear and unambiguous case in favour of juvenile-accused that he was minor below 18 years on the date of incident and the documentary evidence prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. The Apex Court has also held that age determination inquiry contemplated under Section 7-A of the JJ Act and the JJ Rules, has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination. 17. In view of the facts and circumstances of the case, it is established that Government Primary School, Fatehpur Kalan, Saharanpur is a school which was firstly attended by the revisionist where he had taken admission in class-I in the year 1998 and studied upto the year 2001. According to Admission Register of that school which has been filed on record and proved by CW-3 Shimla Devi the Head Mistress of that school the date of birth of the revisionist is 1.3.1993 and in view thereof the revisionist was not below 18 years of age on the date of offence which had taken place on 7.2.2013. According to this, the revisionist was about 20 years when the incident took place and therefore he cannot be allowed to be given the benefit of being minor on the date of incident on the basis of date of birth as mentioned in S.N. Memorial Public School, Fatehpur Kalan, Saharanpur, as well as birth certificate issued by the local body. 18. Learned Additional Sessions Judge has rightly believed the school Admission Register of the Government Primary School, Fathepur Kalan, Saharanpur, which was firstly attended by the revisionist and has held that revisionist was major on the date of alleged incident. Learned Additional Judge has not committed any factual or procedural irregularity in arriving at the conclusion that revisionist was not minor on the date of alleged incident. Learned Additional Judge has not committed any factual or procedural irregularity in arriving at the conclusion that revisionist was not minor on the date of alleged incident. Therefore, the impugned order by which the learned Additional Sessions Judge has rejected the plea of juvenility of the revisionist does not suffer any factual or legal error and needs no interference. In the result we do not find any force in the revision and it fails. 19. Accordingly, the Revision is dismissed.