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Madhya Pradesh High Court · body

2020 DIGILAW 224 (MP)

Kishan v. State of M. P.

2020-02-11

S.K.AWASTHI

body2020
ORDER 1. This criminal revision has been preferred by the applicant under section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 being aggrieved by the order daed 2.11.2019 passed by II Additional Judge to the Court of I ASJ, Jhabua in Special case No.6/2019 whereby the claim of the juvenility of the applicant has been disallowed. 2. Brief facts of the case are that crime No. 758/2019 for the offence under sections 305, 376(2) of IPC and section 5(L)/6 of POCSO Act has been registered against the applicant at P.S. Jhabua. After completion of the investigation charge sheet was filed against the applicant and the case was committed for trial to the Sessions Court. During the trial, an application has been moved on behalf of the applicant under section 94 of the Juvenile Justice (Care and Protection of Children) Act (in short 'the Act') claiming that the applicant was juvenile at the time of incident, therefore, his case be sent to the Juvenile Justice Board for hearing. 3. The application was opposed by the respondent/State contending that there is no document available on record to establish the date of birth of the applicant and the entry made in the Aadhaar Card regarding date of birth is not a conclusive proof of his age, therefore, prayer was made for dismissal of the application. 4. Learned Addl.Sessions Judge directed for conducting the ossification test of the applicant for determination of his age and according to the report received from District Medical Board, Jhabua, the radiological age of the applicant is above 16 years but below 18 years, however learned Addl.Sessions Judge was of the view that this report is not sufficient for determining the age of the applicant and rejected the claim of the applicant. Being aggrieved by the aforesaid order, the instant revision petition has been filed. 5. Learned counsel for the applicant submits that impugned order is illegal and contrary to the settled principles of law and learned trial Court has ignored the provisions of section 94 of the Juvenile Justice Act and wrongly held that ossification test report is not enough for accepting the age of the applicant below 18 years, therefore the aforesaid finding deserves to be set aside and the impugned order be quashed and the applicant be declared to be juvenile at the time of incident. 6. 6. Learned Public Prosecutor supported the impugned order and submitted that trial Court has not committed any error in rejecting the claim of the applicant. 7. I have considered the submissions advanced by learned counsel for the parties and perused the documents filed along with the petition. 8. Before going into the controversy involved in the matter, it would be useful to reproduce the relevant provision to arrive at just conclusion. Section 94 of the Juvenile Justice Act reads as under: S.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 of 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. 9. In the case of Abuzar Hussain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489 , a three Judges Bench of apex Court has summarized the position for determining the juvenility of an accused. 9. In the case of Abuzar Hussain @ Gulam Hossain v. State of West Bengal, (2012) 10 SCC 489 , a three Judges Bench of apex Court has summarized the position for determining the juvenility of an accused. In para 39.3 of the judgment it has been held as under: 39.3 As to what material would prima facie satisfy the Court and/or are sufficient for discharging the initial burden cannot be catalogued nor can if be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the Court about the age of the delinquent necessiating further enquiry under rule 12. The statement recorded under section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters'list etc. obtained after conviction would depend on the fact and circumstances of each case and no hard and fast rule can be prescribed that they must be accepted or rejected. In Akbar Sheikh (AIR 2009 SC (supp) 1638 and Pawan (2000 AIR SCW 2171) these documents were not found prima facie credible while in Jitendra Singh (AIR 2011 SC (Cri) 51) the documents viz. School leaving certificate, mark sheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the Court, the Court may act upon such documents for the purpose of section 7A and order an enquiry for determination of the age of the delinquent." 10. Now coming to the present case, the trial Court held a summary enquiry for determination of the age of the applicant and statement of Jania (PW1), the father of the applicant and Kanju Bhuria (PW2), Sarpanch of village panchayat, Kalapipal were recorded. Jania(PW1) deposed that his son Kishan never went to the school and his son is illiterate and presently he is aged about 16 years and 10 months. To prove the date of birth of the applicant, he submitted Aadhaar card (Ex.P-1) and birth certificate issued by the Sarpanch village Panchayat, Kalapipal. Jania(PW1) deposed that his son Kishan never went to the school and his son is illiterate and presently he is aged about 16 years and 10 months. To prove the date of birth of the applicant, he submitted Aadhaar card (Ex.P-1) and birth certificate issued by the Sarpanch village Panchayat, Kalapipal. In the cross examination he accepted that he is not having birth certificate of the applicant and on the basis of presumption he is saying that his son is aged about 16 years and 10 years. Kanju Bhuria (PW2) stated that he is presently working as Sarpanch of village Panchayat, Kalapipal. Applicant and his father Jania are resident of said village. He has issued birth certificate (Ex.P-2) of the applicant, according to which his date of birth is 1.1.2003 and thus, he is aged 16 years and 10 months of age. In the cross examination he has admitted that birth and death register is duly maintained in the village Panchayat but he had not brought the aforesaid register. He has further accepted that on the basis of entry of date of birth mentioned in the Aadhaar Card he has issued the aforesaid certificate. 11. After examining the statement of aforesaid witnesses, it is clear that no birth certificate of the applicant is available. He was never admitted in the school and, therefore, there is no document available on record regarding the proof of date of birth of the applicant. In these circumstances, looking to the provisions of section 94(2)(iii) of the Act, the trial Court chose to send the applicant to District Medical Board for ossification test for determining his age. As per ossification test report, the age of the applicant is above 16 years and below 18 years. 12. In these circumstances, the trial Court has no option but to accept the opinion given by the District Medical Board, Jhabua regarding the age of the applicant looking to the provisions of section 94(2)(iii) of the Act. 13. Considering the aforesaid analysis, this Court is of the view that learned trial Court has committed error in not considering the ossification test report furnished by the District Medical Board after examining the applicant, according to which the age of the applicant has been found between 16-18 years at the time of alleged incident, which was committed on 12.7.2019, the applicant was below 18 years. Hence, he was a juvenile at the time of alleged incident. Hence, the present revision petition is allowed and the order dated 2.11.2019 passed by II Addl. Judge to the Court of I ASJ, Jhabua in Special Case No. 6/2019 is hereby set aside. The trial Court is directed to transfer the matter of the applicant to Juvenile Justice Board, Jhabua for trial according to the law.