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Madhya Pradesh High Court · body

2019 DIGILAW 855 (MP)

Vipin @ Chotu Bhadouriya v. State of M. P.

2019-12-10

SHEEL NAGU

body2019
ORDER 1. Inherent powers of this Court under section 482 CrPC are invoked assailing the order of the revisional Court dated 28.4.2018 vide P-1 dismissing revision of petitioner and upholding the order of learned trial Judge dated 23.3.2018 rejecting application of petitioner praying for declaring him a juvenile on the date of incident i.e., 18.10.2017 which led to registration of Crime No. 59/17 alleging offences punishable under sections 302, 307, 147, 148 and 149 IPC. 2. Learned counsel for the rival parties are heard. 3. Petitioner herein claims to be a juvenile based on the High School mark-sheet reflecting his date of birth as 15.2.2002 as against the prosecution alleging that in the face of school entry register/certificate, the date of birth is revealing as 30.6.1999. 3.1 The bone of contention between the rival parties is as to whether in the given facts and circumstances and the evidence adduced for and against the contentions, which of the two dates of birth, one reflected in the High School market-sheet and the other in the school entry register/certificate can be used as foundation for determining juvenility on the date of incident. 3.2 Learned counsel for petitioner has relied upon decisions of apex Court in Rajinder Chandra v. Stae of Chhatitisgarh and another (2002)2 SCC 287 , Mukarrab Etc v. Stat ef U.P. (2017)2 SCC 210 and of this Court in Devendra Singh v. State of M.P. and another 2017 (1) MPWN 23 to contend that High School mark-sheet is a conclusive proof of date of birth and that when two views are possible in the attending facts and circumstances and evidence the one leaning towards accused ought to be adopted. It is further submitted that standard of proof required for determining the age is degree of probability and not proof beyond reasonable doubt. 3.3 Per contra, the prosecution relied upon decision of apex Court in State of Madhya Pradesh v. Anoop Singh 2015 (3) JLJ 102 = (2015) 7 SCC 773 . 3.4 Before dealing with facts and evidence it would be apt to reproduce section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads thus : "94. 3.3 Per contra, the prosecution relied upon decision of apex Court in State of Madhya Pradesh v. Anoop Singh 2015 (3) JLJ 102 = (2015) 7 SCC 773 . 3.4 Before dealing with facts and evidence it would be apt to reproduce section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads thus : "94. Presumption and determination of age - (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining - (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available, and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board; Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose or this Act, be deemed to be the true age of that person." 3.5 From the above it is evident that the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available, are the primary evidence which determine the age under the 2015 Act. 3.6 In the present case the competing claims of the rival parties are founded upon the High School mark-sheet on one side relied upon by the defence while on the other side prosecution relies upon school entry register/ certificate. 3.7 The prosecution produced the school entry register Ex.P-1 and Ex.P-1-C reflecting date of birth as 30.6.1999 and mentioning the date of admission to class 1 as 2.8.2004. Ex.P-1 and Ex.P-1-C were proved by PW2 Ram Ashrya Singh, the Head Master of the concerned school. This witness further reveals that elder brother of petitioner namely Sachin also studied in the same school and his date of birth in the school entry register is recorded as 21.5.1998. This witness denied knowledge of the date of birth of petitioner recorded as 12.9.1999 in the High school mark-sheet. 3.8 Learned counsel for petitioner has tried to punch holes in the testimony of PW2 by pointing out to certain embellishments and contradictions. 4. After having gone through Ex.P-1 and Ex.P-1-C the fact which comes out loud and clear is that if the contention of petitioner i.e. the date of birth as reflected in the High School mark-sheet as 15.2.2002 is relied upon then the petitioner was merely 2 ½ years when he was admitted in class 1 on 2.8.2004 as per the school entry register. The petitioner has no where denied the fact of being admitted in class 1 on 2.8.2004. Thus, the entire edifice created by petitioner by banking upon the High School mark-sheet crumbles down. 5. In view of above, the impugned decision of the trial Court and as well as revisional Court finding the petitioner not to be juvenile based on his date of birth as 30.6.1999 as against date of incident being 18.10.2017 cannot be found fault with. 6. In view of above discussions there is no need to discuss the decisions relied upon by the rival parties. 7. Thus, this Court does not find any occasion of injustice or failure of justice and, therefore, no case is made out for exercise of inherent jurisdiction under section 482 CrPC by this Court. 8. The petition fails and is dismissed, sans cost. ..............