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2022 DIGILAW 1938 (ALL)

Rajat Upadhyay v. State of U. P.

2022-12-08

JYOTSNA SHARMA

body2022
JUDGMENT : JYOTSNA SHARMA, J. 1. Heard Sri Raj Kumar Kesari, learned counsel for the revisionist, Sri Sunil Kumar Singh, learned counsel for the opposite party no. 2 and Sri O.P. Mishra, learned A.G.A. for the State in both the matters. 2. Perused the record. 3. These criminal revisions have been filed on behalf of the alleged minor through his natural guardian/mother challenging the order dated 05.10.2021 passed by the learned Additional District and Sessions Judge/Special Judge (POCSO Act), Court No. 2, Varanasi in both the matters in Criminal Appeal Nos. 96 of 2020 and 97 of 2020 affirming the order dated 19.11.2020 and 11.11.2020 passed by the Juvenile Justice Board, Varanasi respectively, by which the applications presented by the revisionist for declaring him juvenile were rejected and he was declared an adult. 4. Facts in brief leading to filing of these revisions are as below: Two FIR were lodged against the revisionist as Case Crime No. 247 of 2019, under section 3/25 Arms Act and Case Crime No. 227 of 2019, under sections 302, 307, 34, 504, 506 I.P.C. After investigation, charge-sheets were filed and cognizance was taken by the court concerned; thereafter, applications were moved before the Juvenile Justice Board for declaring him juvenile along with affidavit supported by certain papers like matriculation certificate and school certificate showing his date of birth as 02.09.2002; the statement of CW-1 mother Pooja Upadhyay, CW-2 Clerk from Harsewanand Public School, Varanasi, CW-3 Rishikant Sharma, a Clerk from Nagar Nigam Varanasi and CW-4 Anand Sharma, a Clerk from Annie Besant Primary School were examined. The Juvenile Justice Board was of the view that on the date of occurrence the accused was above 18 years of age and passed the order in both the matters on 19.11.2020 and 11.11.2020, respectively; appeals were preferred against the aforesaid orders passed by the Juvenile Justice Board; the appellate court dismissed the appeal and also dismissed the application filed on behalf of the juvenile for his medical examination moved for the purpose of determination of age. 5. 5. The contentions of the revisionist are as below: Firstly that the birth certificate issued by the Nagar Nigam Varanasi, High School certificate, certificate from school where he studied from class-6 to class-8 showing his date of birth as 02.09.2002 were produced; however, the court committed a grave error in not relying on them; the Juvenile Justice Board and the appellate court instead relied on the papers of Annie Besant Primary School, where he studied from class-1 to class-5; in continuation of this argument, it is contended that there has been ample evidence to show that in that school the date of birth was wrongly recorded. To support this contention, it is stated on oath by mother of the minor that she infact gave birth to her second child on 02.09.2001 and that male child died within 15-20 days. Therefore, the birth registration in Nagar Nigam Varanasi showing date of birth as 02.09.2001 is of her second child and not of present minor accused, who is her third child; during the pendency of the appeals, an application dated 04.09.2021 supported with the affidavit annexing another birth certificate (showing date of birth 02.09.2002) issued by the Nagar Nigam Varanasi was filed in the appellate court by the revisionist; the appellate court took no notice of that birth certificate showing the minor-revisionist’s date of birth same as recorded in matriculation certificate; the impugned order is silent about filing of that paper therefore the order cannot be sustained in law; the application is still pending. It is vehemently contended that where clear and unambiguous documents pertaining to middle school as well as high school are available supported by a birth certificate, the court could not ignore them; the findings are arbitrary and against the evidence on record, therefore, the revision deserves to be allowed. 6. For the purpose of checking the legality and propriety of the order, I went through both the impugned orders as well as the material which was placed before the Juvenile Justice Board and the appellate court. 7. Before proceeding to draw an inference, it will be useful to briefly refer to the evidence and material which was available before the Juvenile Justice Board and the appellate court with reference to findings given by both the courts. 7. Before proceeding to draw an inference, it will be useful to briefly refer to the evidence and material which was available before the Juvenile Justice Board and the appellate court with reference to findings given by both the courts. The Juvenile Justice Board noticed the facts that as per oral evidence of Pooja Upadhyay, mother of the minor, she gave birth to four children, minor being the third one; all her children were born in a hospital except this minor, who was born in her house; the date of birth were recorded of all the children in the register of Nagar Nigam Varanasi but no birth certificate showing date of birth 02.09.2002 allegedly of her third child was produced then. It was noticeable that the date of death of second child who allegedly died within two weeks was not recorded though his date of birth was admittedly recorded. 8. It may be noted that there is a serious dispute on the point that whether she ever gave birth to a male child who died within 15-20 days of his birth or not. It is vehemently contended by the other side that no such thing ever happened; infact the second child was the present revisionist whose date of birth in Nagar Nigam Varanasi was recorded as 02.09.2001 and on the basis thereof, he was admitted in class-1 in Annie Besant Primary School and this fact is amply proved by the Clerk of that school. Contradicting the above stand, it is contended on behalf of the revisionist that exactly a year after i.e. 02.09.2002 present revisionist was born and the similarity in the dates of birth is just a co-incidence. The Juvenile Justice Board found the evidence from certificates of Annie Besant School, Kamachha, Varanasi, where the juvenile admittedly studied from LKG to class-5 reliable. It has come in evidence of CW-4 Clerk from Annie Besant Primary School that juvenile was admitted in that institution in July, 2005 in LKG and his date of birth 02.09.2001 was mentioned on the basis of birth certificate issued by Nagar Nigam Varanasi. It has also come in evidence that the admission form bore signature of Rajendra Kumar Upadhyay and Pooja Upadhyaya, the parents of the child. The witness not only produced the admission form but also the date of birth certificate annexed therewith. It has also come in evidence that the admission form bore signature of Rajendra Kumar Upadhyay and Pooja Upadhyaya, the parents of the child. The witness not only produced the admission form but also the date of birth certificate annexed therewith. There is no theory or possibility that at the time of his admission a wrong birth certificate was produced. The child studied upto class-5 and was issued transfer certificate in April, 2012. It has clearly come in evidence of CW-4 that no other paper except the birth certificate from Nagar Nigam was produced at the time of his admission. Further, it has also clearly come in evidence that CW-2 Ashok Kumar Yadav, Clerk of Harsewanand Public School (where admittedly the minor studied from class-6 onwards) that at the time of admission in that institution no transfer certificate from any school much less from Annie Besant School was ever produced and that the date of birth 02.09.2002 was recorded in school record on the basis of admission form only. The witness has also stated that the parents assured of producing the transfer certificate but they never produced any. Most important evidence has come from CW-3 Rishikant Sharma-Clerk from Nagar Nigam Varanasi, who produced the birth and death register before the court and gave evidence that on 02.09.2001, a male child was born to Rajendra Upadhyaya and Pooja Upadhyaya and on the basis of this information, a birth certificate was issued. Here, it may be noted that as per the version of the revisionist, the minor was third child, their second child died within 15-20 days. It does not appeal to reason that birth registration was made of an infant who allegedly died within 15-20 days of his birth. 9. Before proceeding further, it will be useful to refer to settled position of law relating to age determination as to acceptance of documents and as to need to go for medical opinion. 10. The judgment in Parag Bhati vs. State of U.P. (2016) 12 SCC 744 has been referred to support the contention that in case High School certificate is available, other evidence may not be taken into consideration. In the light of above contention, I went through the judgment of the Court in Parag Bhati case. 10. The judgment in Parag Bhati vs. State of U.P. (2016) 12 SCC 744 has been referred to support the contention that in case High School certificate is available, other evidence may not be taken into consideration. In the light of above contention, I went through the judgment of the Court in Parag Bhati case. In the aforesaid case, the High School certificate was found quite doubtful, therefore, a medical examination of the minor was conducted and he was declared adult; on the basis of medical opinion, the appellate court had upheld the order of the Juvenile Justice Board; the criminal revision preferred against the two judgments was dismissed and the matter went before the Supreme Court; the Supreme Court framed a question in para-5 “whether the facts and circumstances of the present case when the date of birth mentioned in matriculation certificate is doubtful, ossification can be the last resort to prove the juvenility of the accused.” In the aforesaid case of Parag Bhati, the Apex Court considered several important judgments and gave an observation that where doubts are raised as to matriculation certificate, the medical examination of the juvenile can form a basis of his age determination. It may be very importantly be noted that the Apex Court nowhere said that the High School or the matriculation certificate shall be given primacy over other certificates. 11. In a very recent judgment of Apex Court in Writ Petition (Criminal) No. 121 of 2022 (Vinod Katara vs. State of U.P.) the Court had an opportunity to consider several judgments as regards determination of age. The Apex Court while referring to another recent judgment of the Supreme Court in Rishipal Singh Solanki vs. State of U.P. 2021 (11) ADJ 489 agreed upon following observation that Section-94 of the Juvenile Justice Act, 2015 does not give precedence to the matriculation certificate over other certificates to determine the age of the person, since the said section only dealt with the matter of procedure. 12. 12. The dictum of Hon'ble Apex Court in Rishi Pal Singh Solanki case (supra) has been cited before me wherein the Hon'ble Apex Court had considered the judgments given in Parag Bhati vs. State of U.P. (2016) 12 SCC 744 , Sanjeev Kumar Gupta vs. State of U.P. and Another, (2019) 12 SCC 370 and Abuzar Hossain vs. State of West Bengal, (2012) 10 SCC 489 , Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 , Babloo Pasi vs. State of Jharkhand, (2008) 13 SCC 133 , Arnit Das vs. State of Bihar, (2000) 5 SCC 488 , Jitendra Ram vs. State of Jharkhand, (2006) 9 SCC 428 and several others. 13. In Para-25 of the above judgment (Rashipal Singh Solanki), the Hon'ble Apex Court has pointed out the difference in the procedure under the two enactments i.e., the Juvenile Justice Act, 2000 and the Juvenile Justice Act, 2015, as to inquiry into determination of age of the juvenile and also the power to seek evidence, how and when to exercise that power and when to go for ossification test. The Hon'ble Court, in nutshell, held that each case may be dealt in the light of its own peculiar facts and circumstances while keeping certain principles as guiding factor in mind as described in concluding Para of the judgment of Hon'ble Apex Court. The Supreme Court in concluding Para-29 (vi) of Rishi Pal Singh Solanki (supra) observed as below: “(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.” 14. In Sanjeev Kumar Gupta vs. State of U.P. (2019) 12 SCC 370 , the credibility and authenticity of the matriculation certificate for the purpose of determination of age under Section 7(A) of the Juvenile Justice Act, 2000 came up for consideration. In the said case, the Juvenile Justice Board had rejected the claim of the juvenility and that decision of the Juvenile Justice Board was restored by the Hon'ble Apex Court by rejecting the order of the Hon'ble High Court. In the said case, the Juvenile Justice Board had rejected the claim of the juvenility and that decision of the Juvenile Justice Board was restored by the Hon'ble Apex Court by rejecting the order of the Hon'ble High Court. It was observed therein that the records maintained by the C.B.S.C. were purely on the basis of final list of the students forwarded by the Senior Secondary School where the juvenile had studied from Class-5 onwards and not on the basis of any other underlying documents. On the other hand, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of another school, which the second respondent therein had attended till Class 4th and which was supported by voluntary disclosure made by the accused while obtaining both, Adhaar Card and driving license. It was observed that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible. 15. To sum up, besides several other facts and circumstances, the Juvenile Justice Board found this fact conspicuous that the birth of rest of the three children came to be registered in the Nagar Nigam Varanasi except the birth registration of present juvenile; that all the children of Pooja Upadhyay were born in a hospital except the present revisionist; the admission form submitted to Annie Besant School at the time of admission of present juvenile bore signature of both the parents and date of birth therein was mentioned as 02.09.2001 and when he was admitted in another institution in class-6 no transfer certificate or any other document was produced before that institution and a different date of birth 02.09.2002 from now on was mentioned. 16. It may be noted that there is a glaring gap and discrepancy between dates of birth recorded upto class-5 as compared to date which came to be recorded in class-6. In my view, to fill this gap a story was made up by the revisionist side that exactly on same date and month (but a year ago) mother of minor gave birth to another male child, who died within a few weeks. That theory cannot be accepted in view of overwhelming evidence to disbelieve the same. 17. In my view, to fill this gap a story was made up by the revisionist side that exactly on same date and month (but a year ago) mother of minor gave birth to another male child, who died within a few weeks. That theory cannot be accepted in view of overwhelming evidence to disbelieve the same. 17. Another contention is based on a birth certificate, again issued by Nagar Nigam produced for the first time by mother of the revisionist before the appellate court, which showed his date of birth as 02.09.2002. I heard both the sides on this point. Admittedly, this birth certificate was not produced before the Juvenile Justice Board. Admittedly, there has not been any statement on oath given by mother of the revisionist that infact the birth of her third child was registered in Nagar Nigam Varanasi though belatedly. Copy of this paper is on record which indicates that birth was registered on 17.04.2012 i.e. almost 10 years after his birth; this certificate was issued on 01.09.2021 i.e. after about 10 months of passing of the impugned order by the Juvenile Justice Board. The contention is that this paper was produced before the appellate court but the appellate court wrongly did not took that paper into consideration. In my view, the production of this paper was just a next step in the chain of a concocted theory put up from the revisionist side. The story given by the revisionist as to birth and death of second child has no legs to stand and has been rightly discarded by the appellate court too as is very clear from Para-22 of the impugned order. In my view, this birth certificate is a waste paper on which no reliance can be placed. As far as the request for medical examination is concerned, in view of unambiguous school papers from Annie Besant school, there was no need to go for medical examination. Hence, the court has committed no fault in rejecting the request for medical examination. 18. I do not find any illegality or impropriety in the order. The revision is therefore dismissed.