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2020 DIGILAW 1156 (ALL)

Jagarnath Chauhan v. State of U. P.

2020-09-23

ARVIND KUMAR MISHRA I

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JUDGMENT : ARVIND KUMAR MISHRA-I, J. 1. Heard Sri. Ramashray Tripathi, learned counsel for the revisionist-informant, Sri. Phool Chandra Singh, learned A.G.A. for the State and perused the material brought on record. 2. This revision has been preferred to quash/set aside the impugned order dated 06.01.2020, passed by the Chief Judicial Magistrate, Ghazipur in Case Crime No. 65 of 2019, under Sections 363, 366 I.P.C. and 7/8 POCSO Act, Police Station-Dullahpur, District- Ghazipur. 3. The contention, vehemently asserted and claimed in this case, is that prior to the passing of the aforesaid impugned order, some petition was preferred before this Court, wherein the Division Bench of this Court had clarified the situation and asked the Chief Judicial Magistrate, Ghazipur to consider and ascertain the age of the victim under the provisions of law, for which the parents of the victim shall also be heard. 4. In the backdrop of the aforesaid factual position, claim is that the order impugned is absolutely illegal and ex-parte, without giving and affording opportunity of hearing to the parents of the victim and that way, the custodial order is illegal. At this juncture, the Court repeatedly asked the learned counsel for the revisionist-informant not only to put his case afresh on the point of age of the victim, but also to treat this Court as the appropriate forum, where the revisionist-informant can raise each and every contention in his/her support on the merit. But the counsel for the revisionist-informant insisted that the only proper forum is the Magistrate's Court. However, the Court again clarified that the opportunity of hearing can be given by this Court straightway here. If the Court considers that any injustice has been done, then the injustice can be redressed properly by it after hearing the revisionist-informant more appropriately, than by the Chief Judicial Magistrate of the district concerned and the counsel for the revisionist-informant was, thus, asked to avail and exhaust this sanguine opportunity, which he reluctantly availed. 5. He contended on the meritorial count, the date of birth of the girl to be 25.01.2004. In support of his claim he relied on record-Class-VIII mark-sheet of Shri Ram Krishna Inter College, Sikhari, Ghazipur. That way, the victim should be treated to be minor on the date of occurrence. Apart from that, charge-sheet under the relevant provisions of the POCSO Act has also been submitted against the opposite party no. In support of his claim he relied on record-Class-VIII mark-sheet of Shri Ram Krishna Inter College, Sikhari, Ghazipur. That way, the victim should be treated to be minor on the date of occurrence. Apart from that, charge-sheet under the relevant provisions of the POCSO Act has also been submitted against the opposite party no. 2, which, ipso facto, shows that the victim was minor and to treat the victim to be major on the date of occurrence is altogether erroneous. 6. Retorting to the aforesaid argument, Sri. Phool Chandra Singh, learned A.G.A. has vehemently claimed that in this case, the document believed and acted upon indicate that the date of birth of the victim, as mentioned in her Class VIII mark-sheet presented before the learned Magistrate, was 01.01.2001 and the incident took place on 10th June, 2019. The court below, after considering the other relevant aspects and particularly, the medical examination report which assessed the victim about 18 to 19 years of age, passed the order impugned. However, he also acceded to the point that a direction was given to the learned Magistrate to call the parents of the victim, while considering the point of minority or majority of the victim at the time of the occurrence. He further claimed that in view of the medical examination report and in view of the document in shape of date of birth as 01.01.2001, the impugned order was passed under these circumstances. 7. I have considered the rival submissions and perused the entire record as brought forth before this Court. 8. Insofar as the opportunity of hearing to the parents is concerned, obviously, it is a factual situation but the grievance can be well redressed by according opportunity of fair hearing before this Court, when this application has been preferred by the father of the victim, thus redressing the point of hearing to the parents of the victim, at this juncture. Record reflects that two different mark-sheets were produced by both sides, which were taken into consideration and the medical examination report was also perused and considered. The law is well settled that in cases of dubious factual situation regarding conflicting date of birth, the medical examination report would prevail. Record reflects that two different mark-sheets were produced by both sides, which were taken into consideration and the medical examination report was also perused and considered. The law is well settled that in cases of dubious factual situation regarding conflicting date of birth, the medical examination report would prevail. On this point, the contention is that the medical examination was conducted after six months of the occurrence and that way, it cannot be accepted as such, but the contention does not carry substance, in view of fact that the medical examination report, unless challenged specifically, would stand and would become the foundation of the consideration on point of ascertaining age of the minor and can be acted upon by the court concerned in view of the conflicting claims regarding date of birth of the victim by both the sides. The Medical Board has assessed the age around 18 to 19 years. It means the factum of 19 years cannot be lost sight of and would prevail. That way, the margin of six months from the date of occurrence (10.06.2019) is well justified and it would not rate the calculation below 18 years in June, 2019. 9. Now, insofar as the medical examination report is concerned, then it can be observed that in the Medical Board of three doctors, the Radiologist had, in the Medical Examination Report, expressed clear-cut view that the wrist and the elbow epiphysis/joint, both were found to be fused and on the basis of the same, he opined that the person cannot be below 18 years of age. It is established position, insofar as the determination of the age of the victim under the Juvenile Justice (Care and Protection of Children) Act, 2015 is considered, that the margin of one year would be applicable in favour of the accused. That way also, the age of the victim can be said to be 18 or more on the relevant date of occurrence in June, 2019. 10. The point for consideration is the custody of the victim and with that view in mind, the age of the victim has got particular relevance. That way also, the age of the victim can be said to be 18 or more on the relevant date of occurrence in June, 2019. 10. The point for consideration is the custody of the victim and with that view in mind, the age of the victim has got particular relevance. But insofar as the impugned order is concerned, it can be said that the Magistrate faulted partly, when he did not call the parents, but the parents themselves moved up to this Court invoking powers under Section 482 Cr.P.C. and this Court was kind enough to the parents, while it accorded full opportunity of hearing on the issue of custodial order in question and its authenticity. 11. This Court after considering the entirety of this matter, in view of the factual dispute and conflicting claims raised by both the sides, concludes that the medical examination report would prevail and according to medical examination report, the Medical Board assessed the age to be around 18 to 19 years. On the basis of above, the order impugned is sustained and no interference is required. 12. However, it is open to the trial court to scrutinise the aspect of minority/majority and that question will remain open till evidence is adduced led by both the sides and scrutiny is done. This Court, accordingly, disposes of the custodial matter and for that reason alone, observations made hereinabove on point of age of the victim should never come in the way of the trial court, while ascertaining the question of minority/majority of the victim. 13. Consequently, the lower court is free to exercise its jurisdiction in right perspective in accordance with law in arriving at proper conclusion regarding the age of the victim. 14. With the aforesaid observations, this revision stands disposed of.