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2018 DIGILAW 237 (ALL)

VIPIN v. STATE OF Uttar Pradesh

2018-01-30

DINESH KUMAR SINGH I

body2018
JUDGMENT : Hon'ble Dinesh Kumar Singh-I,J. 1. This criminal revision has been preferred against the order dated 21.2.2005 passed by Special Additional Session Judge, Baghpat in bail application no. 868 of 2004 (State of Uttar Pradesh vs. Vipin) arising out of Case Crime No.275 of 2004 under sections 302, 120-B IPC PS Chhaprauli, District Baghpat whereby the revisionist has been held to be major and not a juvenile and his application for getting himself declared a juvenile has been dismissed. 2. The facts as mentioned in the impugned order are that in a bail application moved from the side of the revisionist it was stated that he had appeared in the examination of High School in the year 2002 from Vaidic Inter College, Baraut where his date of birth was recorded as 10.12.1986 and the same was mentioned in High School mark sheet which is also entered in the certificate issued by Janta Vaidic Inter College. The original register containing name of the students and transfer certificate were enclosed with the said application. The occurrence took place on 09.09.2004 and on that date his age was 17 years and nine months, hence he should be treated to be a juvenile in conflict with law under the provisions of Juvenile Justice (Care and Protection of Children) Act 2000 (to be referred in short as "Act of 2000"). 3. In the impugned order it is mentioned that a report was called for from the Chief Medical Officer, who after having held medical examination, submitted his report, holding his age to be 22 years. From the side of the revisionist, Rajendra Pal Singh, Head Clerk of Janta Vaidic Inter College, Baraut was examined as APW-1, Sukram Pal, father of the revisionist was examined as APW-2 and the photocopies of enrollment register of the students of Janta Vaidic Inter College, Baraut, Sarvoday Mandir Inter College, Mahawatpur Bawli, Meerut and transfer certificate, were also produced, in which his date of birth was shown to be 10.12.1986. Learned court below has mentioned in the impugned order that the main emphasis laid by the revisionist is upon the transfer certificate (Shankraman Praman-patra) pertaining to his failure in class X and on the enrollment register of the students and transfer certificate belonging Sarvoday Vaidic Inter College, Mahawatpur-Bawli District Meerut and on the basis of these documents he wanted to get himself declared a juvenile. It is recorded in the order that father of the juvenile Sukram Pal had stated that his son had studied in Sarvoday School upto IX and X classes. Before that, he used to study in New Modern Junior High School, Gandhi Road, Baraut from class VI onwards to class VIII and till class V he had studied in Basic Primary Pathshala, Loyan. He had failed in examination of X class twice. In cross-examination he has not pointed out that he had ever studied in Janta Vaidic Inter College. He has also stated that he had two sons, but he had no knowledge about the other son Gaurav. The Head Clerk of Janta Vaidic Inter College was examined as APW-1 who stated that on the basis of transfer certificate issued by Sarvoday Mandir Inter College, admission was given to the revisionist, but he refused to disclose as to whether transfer certificate which was issued by Sarvoday Inter College was false or genuine. He also could not disclose whether the signature on the transfer certificate was of the Principal of the college or not. It was further mentioned that it is admitted by the father of the revisionist that the revisionist had studied in Basic Primary Pathshal, Loyan upto class V, hence for the first time the date of birth must have been mentioned in that school. Therefore, the certificate of that school was very essential to be filed because on the basis of that, he would have been given admission in class VI. No document has been produced from the side of the revisionist of his age recorded at the time when he took admission in class VI. The date of birth which was recorded at the time when he was studying in Basic Primary Pathshala was the basis of his date of birth but no such document had been filed by the revisionist nor any explanation given as to why the same could not be filed. His father Sukram Pal had also not stated that he had gone to get the revisionist admitted in Basic Primary Pathshala and had got his age entered there. In these circumstances the court held that it was difficult to arrive on a conclusion about the age of the revisionist, on the basis of the statement of his father. His father Sukram Pal had also not stated that he had gone to get the revisionist admitted in Basic Primary Pathshala and had got his age entered there. In these circumstances the court held that it was difficult to arrive on a conclusion about the age of the revisionist, on the basis of the statement of his father. It was often seen that people would get the age of their wards reduced at the time of their entry in school. Further, it is recorded that on the basis of the report of Chief Medical Officer, Meerut, his age was found to be 22 years and even if a benefit of two years on the lower side was given to the revisionist, he could not be less than 19 years old on the date of occurrence and ultimately concluded that the accused-revisionist was more than 19 years old on the date of occurrence and hence could not be treated to be a juvenile in conflict of law. 4. Learned counsel for the revisionist has assailed this order on the ground that it is settled law that the age of juvenile would be determined on the basis of his age recorded in the High School certificate only and in the case at hand the date of birth of revisionist was recorded in the mark sheet of High School as 10.12.1986, hence he should be treated to be a juvenile as on the date of occurrence as his age would stand 17 years and 09 month only on the said date. 5. In Prag Bhati (Juvenile) through legal guardian mother Rajni Bhati vs. State of Uttar Pradesh and others, (2016) 12 SCC 74, it is made clear by Supreme Court that Section 7-A, Juvenile Justice (Care and Protection of Children) Act, 2000, the court is enjoined to make an enquiry and take such evidence as may be necessary to determine the age of the person who claims to be a juvenile. However, under Rule 12, Juvenile Justice (Care and Protection of Children) Rules, 2007 (here-in-after referred to as "Rules of 2007"), the Juvenile Justice Board is enjoined to take evidence by obtaining the matriculation certificate if available, 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. In case any of the above certificates are not available, then medical opinion can be resorted to. However, 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 person claiming juvenility. Further, it is held that if there is a clear and unambiguous case in favour of the juvenile-accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the J.J. 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. Further, it is held that the benefit of the principle of benevolent legislation attached to the J. J. Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner, reflecting his maturity of mind rather than innocence, indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain [ (2012) 10 SCC 489 ], an enquiry for determination of the age would be permissible. 6. The above law is very much clear on the point that even if the accused wants to get himself declared juvenile on the basis of his date of birth in High School certificate, it would be open to the Juvenile Justice Board to hold an enquiry about his age in case it is found that there was serious doubt about correctness of the said date in High School certificate. In case at hand, learned court below has raised serious doubt because of non-submission of documents showing entry of age to have been made at the stage of primary school and from there onwards till the revisionist appeared in the examination of High School as a private candidate. It is held by the court below that in the case at hand, it would not be appropriate to rely upon the date of birth mentioned in the mark sheet of High School of the year of examination in which the accused appeared and failed. The line of reasoning of the court below is absolutely correct that unless it was provided by the revisionist as to what age was recorded in his transfer certificate which might have been submitted by him at the time of filling up the form of High School as a private candidate, showing his age, it would not be believable that the age recorded in the High School mark sheet be taken to be genuine. Besides that number of discrepancies have also been recorded in the impugned order, hence ultimately the court has relied upon the age which has been determined on the basis of his medical examination, on the basis of which he has been found to be 22 years and even after giving benefit of two years on the lower side, he is found to be above 18 years. No infirmity is found in the order of the court below in the light of the law cited above. There is no force in this revision and it is accordingly, dismissed.