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2018 DIGILAW 2147 (ALL)

Lalit Kumar Sharma v. State of U. P.

2018-10-05

SIDDHARTH

body2018
JUDGMENT : Siddharth, J. 1. Heard Sri Anurag Pathak, learned counsel for the revisionists, learned AGA for opposite party No.1 and Sri Sushil Kumar Dubey, learned counsel for the opposite party No.2. 2. During the pendency of Sessions trial in Case Crime No. 55 of 2006, under Sections 147, 148, 149, 307, 302 IPC, Police Station Dakshin, District Firozabad, an application was made for declaring the accused-opposite party No.2 as juvenile. 3. In evidence, his date of birth was shown as 10.7.1990 in the Pariwar Register and therefore, the application was referred to the Juvenile Justice Board for determination of the age of the aforesaid accused. The incident was dated 22.02.2006 and the date of birth of the opposite party No.2 was stated to be 10.7.1990, which implies that his age at the time of the incident was 15 years 7 months 12 days. The transfer certificate issued by Janta Vidhyalay, Sakatpur, Kannauj was filed and Headmaster of the school was also examined. 4. The date of birth was found mentioned as 10.7.1990 in the school record, he joined his school from Class 6th on 02.07.1999 and on 03.07.2001, he has passed Class 7th examination. The date of birth, which has been mentioned in the aforesaid school is based on the record of the earlier school, S.N.D. Madhyamik Vidhyalay, Nangla Danua, Farrukhabad, District Kannauj. The photocopy of SR Register and the transfer certificate were filed. 5. Sri Kirshna, Headmaster of S.N.D. Vidhyalay, Farrukhabad, was also examined, who produced the admission register of the school and name of accused Gopal, was mentioned as serial No.975 and his date of birth was recorded as 10.7.1990. The Headmaster further proved that the date of birth is mentioned on the basis of the information given by the parents. The witness was cross-examined and it was found that the accused was admitted in Basic Class on 15.7.1998. 6. The mother of accused Gopal, was examined, who stated that Gopal was born in 1990 in the month of Sawan. He is aged about 17 years and was sent to Nagla Danua for studies, where her brother-in-law resides. His date of birth was informed by her and her brother-in-law got the same mentioned. She further stated that her eldest daughter is aged about 26 years and the youngest daughter is about 2-2.5 years younger to Gopal, her age is about 14-15 years. 7. His date of birth was informed by her and her brother-in-law got the same mentioned. She further stated that her eldest daughter is aged about 26 years and the youngest daughter is about 2-2.5 years younger to Gopal, her age is about 14-15 years. 7. Sri L.P. Singh, Deputy Basic Education Officer, Kannauj, was also examined, who proved that the T.C. of Class 5th and 7th of the accused was certified after verification with the school record. He proved his signatures on the same and the signatures of the earlier incumbent of his office. 8. The Kutumb Register filed on behalf of the accused was proved by Gram Panchayat Adhikari. He produced the Original Register and on its basis, the age of the accused was found recorded on the basis of the entry of the year 1990. After considering the entire evidence on record, the court below came to the conclusion that the date of birth of accused Gopal is 10.7.1990. 9. The prosecution stated that as per the medical report, the age of the accused Gopal, is above 18 years. As per the Medical Report dated 16.10.2007, age of the accused Gopal, was 21 years 6 months. Therefore, on the date of incident dated 22.6.200,. his age was 19 years 10 months and if benefit of one year's margin is given even then his age comes to 18 years, 8 months. 10. It was further argued that the application has been given at a belated stage of evidence and is not required to be entertained. Number of cases laws were produced before the court below and after considering the same, finding was recorded that where the school certificates have been filed, they cannot be superseded by the medical report, which is based only on estimation. The Juvenile Justice Board declared the accused Gopal, as juvenile. 11. After unsuccessfully approaching before the appellate court, this revision has been preferred. 12. Learned counsel for the revisionist has argued that the accused was sought to be declared as juvenile after the stage of Section 313 Cr.P.C. The courts below have ignored the report of the Medical Board and have relied upon the school documents, which was proved by the Deputy Basic Education Officer and Headmasters. The statements of the District Basis Education Officer and the Headmasters were not reliable, the courts below have wrongly accepted them as correct and passed the order. The statements of the District Basis Education Officer and the Headmasters were not reliable, the courts below have wrongly accepted them as correct and passed the order. 13. Learned counsel for the revisionist has relied upon the judgment in the case of Satish Mohan Bindal Vs. State of U.P., 1985 LawSuit(All) 108 and has relied upon paragraph No. 9 of the same:- “9. There is no doubt that admission in pleadings or judicial admissions by themselves can be made the foundation of the rights of the parties as held by Supreme Court in the case of Nagindas Ramdas v. Dalpatram Inccharam AIR 1974 SC 471 in para 26 as under : "....Admissions, if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties on the other hand, evidentiary admissions which are receivable at the trial as evidence are by themselves, not conclusive. They can be shown to be wrong," The trial court as well as the appellate court proceeded with the case on wrong assumptions that the documents filed by the aforesaid parties along with lists 34C 1 and 22C 1 were admissible documents in spite of the aforesaid order of the Munsif that they require proof. Not admitted is clearly written on the back of the documents exhibited. A document which is not a public document or not admitted cannot be exhibited and looked into unless it is proved by oral evidence or otherwise. No oral evidence has been adduced in this case. In mis view of the matter, these documents and their contents which are not admitted or proved should not have been exhibited and used without being proved. This method of exhibiting the document and using them to decide the cases is unusual and contrary to law and it has resulted into grave miscarriage of justice, which requires interference by this Court.” 14. This method of exhibiting the document and using them to decide the cases is unusual and contrary to law and it has resulted into grave miscarriage of justice, which requires interference by this Court.” 14. He has further relied upon the judgment of this Court in Criminal Revision No. 4056 of 2015, Sunil Kumar Thru His Father Rampal Vs. State of U.P. And another and has relied upon following observations of the court :- “Reverting to the case the revisionist/accused claimed juvenility on the basis of date of birth as disclosed in the High School Mark-sheet (2014), which showed his date of birth as 11.5.1999, i.e. as on the date of occurrence, i.e. 17.10.2014, he was alleged to be 15 years 5 months and 6 days. The informant challenged the juvenility on the ground that the said date of birth is an outcome of manipulation, which was established from the testimony of CW-2 Mahendra Singh, the then Officiating Principal of Senior Primary School, Kamalpur Mahmoodia, Bewar, Mainpuri, who stated that according to the records brought by him, the revisionist passed his Class-V examination from another school called Primary School, Kamalpur Mahmoodia, and had obtained admission in his institution in Class-VI on 7.7.2007 and left after passing out on 1.7.2008 on the basis of transfer certificate dated 7.7.2007, issued by Primary School Mahmoodia of Class-V, which showed the date of birth of the revisionist as 2.9.1996. He further stated that the revisionist did not come to collect his T.C. of Class-VI. Pertinent to mention that this witness, i.e. CW-2 was not subjected to any cross-examination by the revisionist/ accused, thus his testimony went un-rebutted. In other words, the revisionist could not dispute, i.e. he did pass Class-V from Primary School Kamalpur Mahmoodia, obtained a T.C. of the said institution on 7.7.2007, which showed the correct names of his parents, his caste and his date of birth as 2.9.1996. On the contrary, CW-1 was stating that when the revisionist joined his institution in Class-IX on 13.7.2012, he was shown to have studied in Class-VII and VIII from one Sri Manohar Singh Awadhesh Kumar Memorial Junior High School, Bahori and had submitted a transfer certificate of Class-VIII, which showed his date of birth as 11.5.1999 and he passed out his High School in the academic year 2013-14 with the same date of birth. Thus from the aforesaid discussion, it is evidently established that the first informant was successful in establishing that the date of birth, i.e. 11.5.1999 recorded in the High School Mark Sheet is an outcome of manipulation, as the same is not compatible with the age as disclosed in the Transfer Certificate of Class-V dated 7.7.2007 issued by the Primary School Kamalpur Mahmoodia, which showed his date of birth as 2.9.1996, which does not make him a juvenile, coupled with the fact that there was no challenge whatsoever to the academic records/transfer certificate of Class-V and his failure to produce the transfer certificate of Class-VI, which became the basis for admission in Class-VII. Once the date of birth recorded in the high school mark-sheet is found to be manipulative and on the contrary the date of birth as disclosed in the certificate of the first school attended shows the revisionist to be not a juvenile, the medical opinion being an opinion evidence is of no consequence. This Court cannot be oblivious to the fact that the revisionist is not only alleged to have attempted to rape the victim, but having failed in his design poured kerosene over her and set her on fire, as he had attempted to rape her 8 days earlier also. The Court does not find any illegality/impropriety in the order impugned. The revision lacks merit and is dismissed.” 15. He has lastly relied upon the judgment of the Apex Court in the case of Suhani and another Vs. State of U.P. and others, Civil Appeal No. 4532 of 2018, wherein on the basis of the medical report, the petitioner was found to be major and she was directed to be released from Nari Niketan and go with her husband. 16. Learned counsel for the opposite party No.2 has submitted that the Juvenile Justice Board has rightly declared the accused-opposite party No.2 as juvenile on the basis of the evidence on record and the appellate court has affirmed the same and now no interference is required in the orders passed by the courts below. Reliance has been placed on the judgment of the Apex Court in the case of Sri Ganesh Vs. State of Tamil Nadu and another, (2017) 3 SCC 280 , where the Apex Court relied upon the judgment in the case of Ashwani Kumar Saxena Vs. Reliance has been placed on the judgment of the Apex Court in the case of Sri Ganesh Vs. State of Tamil Nadu and another, (2017) 3 SCC 280 , where the Apex Court relied upon the judgment in the case of Ashwani Kumar Saxena Vs. State of M.P., 2012 LawSuit(SC) 607, wherein the Apex Court held that where the documentary evidence as contemplated in statutory provisions/rules are enough to establish juvenility of the accused and found to be reliable, there is no further need of medical examination in such a case. 17. The second case relied upon by the counsel for the accused-opposite party No.2 is Ashwani Kumar Saxena (supra). Judgment of this Court in the case of Sher Singh @ Sheru Vs. State of U.P., 2017 JCR 179 (All) (FB) has also relied. 18. After considering the rival submissions, it is found that the witnesses produced by the accused have to prove his juvenility at the time of the alleged incident. His mother Smt. Sharda Devi, Headmasters of both the schools and the Deputy Basic Education Officer, Kannauj have been examined and cross-examined and they do not appears any inconsistency or illegality in their statements. The statements of Headmasters are based on record and the Deputy Basic Education Officer has also proved his handwriting over the transfer certificates of Class 5th and 7th of the accused Gopal, which were countersigned by him. 19. He also certified the stamp affixed by him on the transfer certificates. He further testified that both the transfer certificates were issued after comparison with the records of the schools. He also proved the countersign of Omkar Nath Mishra, the earlier incumbent on his post. He denied in his cross-examination any suggestion that the transfer certificate of the accused are fraudulent. 20. Both the courts below have examined the objections of the revisionist in detail and have recorded their findings. The reliance on the judgment in the case of Satish Mohan Bindal (supra) is misconceived. There is no dispute that the documents in support of the age of the accused were not proved by the competent witnesses before the Juvenile Justice Board. In the case of Sunil Kumar Thru His Father Rampal (supra), this Court found that the high school certificate produced before the court below was fabricated. There is no dispute that the documents in support of the age of the accused were not proved by the competent witnesses before the Juvenile Justice Board. In the case of Sunil Kumar Thru His Father Rampal (supra), this Court found that the high school certificate produced before the court below was fabricated. The accused has passed high school examination from different schools and he had produced the mark-sheet of different schools and therefore, this Court discarded the case of the accused and dismissed this revision holding that he was not juvenile in this case. The officiating principal of the school proved that the accused has submitted fabricated document. Reliance on the case of Suhani and another (Supra) is not relevant for deciding the controversy, since it was a case where the petitioner claimed herself to be major and wanted to go with her husband, but the Court directed her to stay in Nari Niketan on the ground of being minor. Therefore the Apex Court got her medically examined and on the basis of the medical report, she was found aged about 19-24 years and therefore, she was directed to released from Nari Niketan and was set of liberty to go with her husband. 21. The case laws relied upon by the accused-opposite party No.2 conclusively proved that documentary evidence are sufficient and have been proved as per the procedure prescribed in the Act, there is no need of reliance upon the medical report of the accused. 22. In view of the above discussion, the orders of the courts below are justified. The revision lacks merit and is accordingly, dismissed.