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2021 DIGILAW 441 (RAJ)

Prakash Chandra v. State Of Rajasthan

2021-02-19

DEVENDRA KACHHAWAHA, SANDEEP MEHTA

body2021
JUDGMENT 1. The appellant has moved an interlocutory application (No.01/2020) seeking inquiry regarding his date of birth and to declare him to be a juvenile as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'the Act of 2015')- 2. Shri Shambhoo Singh, learned counsel representing the appellant submits that the appellant was arrested in this case on 03.09.2018 and his date of birth was mentioned in the arrest memo (Ex.P/25) as 06.08.2000 without any basis. As per Shri Rathore, neither the admission form or any other authentic proof regarding the date of birth of the appellant at the time of his initial admission in the school was collected by the police during investigation nor was any such document proved at the trial. He further submits that the application for determination of age filed on behalf of the appellant was mechanically rejected by the trial court vide order dated 02.11.2018 without getting him examined by a Medical Board. It is also submitted that even after conviction, looking to his tender age, the appellant has been sent to the Children's Observation Home, Jaitaran, District Pali where he is undergoing sentence. He submits that as the evidence collected regarding the date of birth of the accused during trial is unreliable, other collateral documents viz. date of birth certificate issued by the Gram Panchayat, Hospital, Nagar Palika and horoscope should be taken on record and the age be determined accordingly. His alternate submission was that ends of justice require that a Medical Board should be constituted and his date of birth be determined on the basis of his medical examination by the Board. He also urged that the appellant was arrested and presented before the Juvenile Justice Board and even the charge-sheet was filed before the Board and thus, the trial of the appellant by the Special Judge, POCSO Act Cases No.2, Udaipur is vitiated. In support of his contentions, Shri Rathore placed reliance on the Supreme Court Judgment in the case of Ashwani Kumar Saxena Vs State of Madhya Pradesh reported in AIR 2013 SC 553 and the Allahabad High Court Judgment in the case of Surendra Vs. State of Uttar Pradesh reported in 2014 (3) ALJ 188. 3. In support of his contentions, Shri Rathore placed reliance on the Supreme Court Judgment in the case of Ashwani Kumar Saxena Vs State of Madhya Pradesh reported in AIR 2013 SC 553 and the Allahabad High Court Judgment in the case of Surendra Vs. State of Uttar Pradesh reported in 2014 (3) ALJ 188. 3. Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel and urged that an application with this very prayer was filed on behalf of the appellant before the trial court wherein, it was asserted that the appellant's father got him admitted in the school but because he was illiterate, an estimated date of birth was given out, whereas actually the appellant was just 13 years of age on the date of the incident. This application was rejected by the trial court vide a well reasoned order dated 02.11.2018 which has attained finality. Thus, he sought dismissal of the application filed on behalf of the appellant for fresh age determination. 4. We have heard and considered the submissions advanced at bar and have gone through the material available on record. 5. The allegation against the appellant is of committing sexual assault on the victim Mst. 'R' who was just about 12 years of age on the date of the incident. We have carefully perused the order dated 02.11.2018 passed by the Special Judge, POCSO Act Cases No.1, Udaipur whereby the application for determination of age of the accused on the basis of a Medical Board examination was dismissed. In this order, the trial court took note of the fact that the documents/school certificates in accordance with Section 94 of the Juvenile Justice Act, 2015 were available on record which firmly established that the accused was 18 years and 1 month of age as on the date of the incident i.e., 01.09.2018. Section 94 of the Act of 2015 reads as below:- "Section 94. Presumption and determination of age. Section 94 of the Act of 2015 reads as below:- "Section 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 of this Act, be deemed to be the true age of that person." 6. As per Section 94(2)(i) of the Act of 2015 and Section 35 of the Evidence Act, primacy is given to the date of birth of the person concerned as recorded in the school where he/she was first admitted. In this regard, documents (Ex.P/20) being a certificate issued from the Government Senior Secondary School, Godana and the scholar register of the said school (Ex.P/21A) are available on record and were proved by the evidence of the concerned headmaster. The date of birth of the appellant is recorded in these documents as 06.08.2000. The appellant was admitted in the said school in the year 2007. The date of birth of the appellant is recorded in these documents as 06.08.2000. The appellant was admitted in the said school in the year 2007. Thus, if the plea of the appellant's counsel that the appellant was just 13 years of age on the date of the incident is accepted, for the sake of arguments, manifestly, as the incident took place in the year 2018, the appellant would be just around two years of age in the year 2007 and there could have been no probability of him being admitted in the school. It is relevant to mention here that the appellant was arrested vide arrest memo Ex.P/25 and therein, his date of birth has been recorded as 06.08.2000. The Investigating Officer, while arresting the appellant had no means to know the date of birth of the appellant and thus, it can be safely presumed that it is he who disclosed the said date to the Investigating Officer. The order dated 02.11.2018 passed by the trial court was never challenged and thus, has attained finality. The contention of Shri Rathore that the appellant was arrested and presented before the Juvenile Justice Board is also misplaced because the First Remand Application dated 05.09.2018 available on record establishes the fact that the accused, after being arrested was presented before the Special Judge, POCSO Act Cases, Udaipur. We are duly satisfied that the date of birth of the appellant was proved by the prosecution as being 06.08.2000 as per Section 94 of the Act of 2015 beyond all manner of doubt. Accordingly, the appellant had crossed the age of 18 years on the date of incident. 7. In this background, we are of the firm opinion that there is no justification whatsoever warranting a direction for medical examination of the appellant and for undertaking a fresh inquiry to determine his age. Accordingly, the interlocutory application filed by counsel Shri Rathore is dismissed as being devoid of merit. 8. Considering the assertion of Shri Rathore that the appellant has been kept in Child Observation Home, Jaitaran, District Pali, the learned Public Prosecutor is directed to submit a factual report on the next date of hearing. List on 03.03.2021.