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Manipur High Court · body

2022 DIGILAW 52 (MAN)

Yumnam Swamy Singh v. State of Manipur

2022-04-12

SANJAY KUMAR

body2022
JUDGMENT 1. By order dated 08.05.2019, the learned Special Judge (POCSO), Imphal East, dismissed Criminal Misc. Case No.156 of 2018 (Ref: Special Trial (POCSO) No.13 of 2015). Aggrieved thereby, the applicant therein, the accused in the main case, filed this revision under Section 397 Cr.P.C. 2. By order dated 11.06.2019, this Court granted stay of further proceedings in Special Trial (POCSO) No.13 of 2015 on the file of the learned Special Judge (POCSO), Imphal East. 3. Heard Mr. N.Surendrajit Singh, learned counsel for the petitioner; and Mr. R.K.Umakanta, learned Public Prosecutor, appearing for the State. 4. Special Trial (POCSO) No.13 of 2015 arose out of FIR No.14(9)2014 WPS-IE, registered under Sections 366, 366-A and 376 IPC along with Section 4 of the Protection of Children from Sexual Offences Act, 2012. The accused allegedly committed criminal acts upon the complainant's minor daughter. However, a charge was framed against the accused by the learned Special Judge only in relation to the offence alleged under Section 4 of the Protection of Children from Sexual Offences Act, 2012. After the examination of 8(eight) witnesses during the trial, the case was fixed for final arguments. At that stage, the accused moved the subject application under Section 7A of the Juvenile Justice (Care and Protection of Children) Act, 2000, (for brevity, 'the Act of 2000') and Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, (for brevity, 'the Rules of 2007') to medically ascertain the age of the victim girl. 5. Perusal of the order under revision reflects that the learned Special Judge noted that the prosecution had produced the victim girl's Admit Card for appearing at the HSLC Examination (Ex.P-3), wherein her date of birth was shown as 23.09.1998. Further, upon the filing of the subject application, the learned Special Judge conducted an inquiry and in the course thereof, the Headmaster of Heingang High School, Heingang, and the Headmistress of Y.Tampha High School, Kontha Ahallup, where the victim girl had studied, were examined as CW-1 and DW-1 respectively. CW-1 deposed that as per the Admission Register of his school (Ex.C-1), the victim girl's date of birth was 23.09.1998. This Register reflected that the victim girl had come from Y.Tampha High School on transfer. DW-1, the Headmistress of the said school, brought the Admission Register pertaining to the years 2003-2007 (Ex.D-1). CW-1 deposed that as per the Admission Register of his school (Ex.C-1), the victim girl's date of birth was 23.09.1998. This Register reflected that the victim girl had come from Y.Tampha High School on transfer. DW-1, the Headmistress of the said school, brought the Admission Register pertaining to the years 2003-2007 (Ex.D-1). Therein, it was recorded that the victim girl's date of birth was 23.09.1998. However, there was some amount of overwriting in this Register in relation to her date of birth, apart from others. DW-1 claimed that she had no knowledge about the same. Further, the list of names of Class-VIII students of the school, submitted to the Board of Secondary Education, Manipur (Ex.D-2), was produced by DW-1. Therein also, the date of birth of the victim girl was recorded as 23.09.1998. The counterfoil for issuing the Provisional Certificate in respect of the victim girl was produced by DW-1 and marked as Ex.D-3. This document also reflected the date of birth of the victim girl as 23.09.1998. This document was issued when the victim girl left the school. The learned Special Judge noted that though there was overwriting in Ex.D-1, pertaining to the academic years 2003-2007, the Admission Register (Ex.C-1) of Heingang High School showed that her date of birth was 23.09.1998 and this document was issued later. As all the documents reflected the same date as the date of birth of the victim girl, the learned Special Judge opined that there were no grounds to suspect any fabrication or manipulation of the records, in spite of the overwriting in Ex.D-1. It is on the strength of this reasoning that the learned Special Judge dismissed the application. 6. Mr. N.Surendrajit Singh, learned counsel, would argue that once a reasonable doubt was raised as to the date of birth of the victim girl, the benefit thereof ought to have been given to the accused by determining her age medically. On the other hand, Mr. R.K.Umakanta, learned Public Prosecutor, would point out that the school records consistently showed the same date as the date of birth of the victim girl and contend that no grounds are made out to initiate a roving inquiry into her age at the relevant time. 7. On the other hand, Mr. R.K.Umakanta, learned Public Prosecutor, would point out that the school records consistently showed the same date as the date of birth of the victim girl and contend that no grounds are made out to initiate a roving inquiry into her age at the relevant time. 7. At the outset, it may be noted that the case on hand would be governed by the Act of 2000 and the Rules of 2007 and not by the Juvenile Justice (Care and Protection of Children) Act, 2015, or the rules framed thereunder, as these later enactments came into force only in the year 2016. Section 7A of the Act of 2000 details the procedure to be followed when a claim of juvenility is raised before a Court. Sub-section (1) thereof states to the effect that when a claim of juvenility is raised before any Court or the Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an inquiry by taking such evidence as may be necessary, not being an affidavit, to determine the age of such person and shall record a finding whether such person is a juvenile or not, stating his age as nearly as may be. Rule 12 of the Rules of 2007 details the procedure to be followed for determination of age. Rule 12(1) provides that in every case concerning a child or a juvenile in conflict with law, the Court/ Board/Committee shall determine the age of such child or juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. Rule 12(3)(a) provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court/Board/Committee by seeking evidence by obtaining (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Rule 12(3)(b) states that only in the absence of these documents, medical opinion should be sought from a duly constituted Medical Board, which would declare the age of the juvenile/child. 8. Rule 12(3)(b) states that only in the absence of these documents, medical opinion should be sought from a duly constituted Medical Board, which would declare the age of the juvenile/child. 8. Though the aforestated provisions speak of age determination being undertaken only in relation to an accused who claims to be a juvenile, in Jarnail Singh v. State of Haryana [ (2013) 7 SCC 263 , the Supreme Court, in its infinite wisdom, held that though the statutory provisions would be strictly applicable only to determine the age of a child in conflict with law, the said provisions should be the basis for determining the age even of a child who is a victim of crime. The Supreme Court observed that there was hardly any difference in so far as the issue of minority is concerned between a child in conflict with law and a child who is a victim of crime and, therefore, it would be just and appropriate to apply Rule 12 of the Rules of 2007 to determine the age of a victim. This interpretation of the statutory provisions by the Supreme Court would be binding upon this Court under Article 141 of the Constitution. 9. In consequence, the petitioner, being the accused in the case, had locus standi to maintain an application in relation to the age of the victim. However, the mere fact that such an application was maintainable would not automatically entail that the Court concerned must direct medical examination of the victim to determine her age. That would depend upon whether or not adequate documentary evidence is available to ascertain the victim's age independently. In Ashwani Kumar Saxena v. State of Madhya Pradesh [ (2012) 9 SCC 750 , the Supreme Court noted that it is only in the absence of a matriculation or equivalent certificate or the date of birth certificate from the school first attended that the Court would need to obtain a birth certificate given by a corporation/municipal authority/panchayat and the question of obtaining medical opinion from a duly constituted Medical Board would arise only if these documents are unavailable. In that case, the Admission Register of the school where the appellant had first studied was produced and the Supreme Court held that the date of birth entered therein should have been accepted. In that case, the Admission Register of the school where the appellant had first studied was produced and the Supreme Court held that the date of birth entered therein should have been accepted. This principle was affirmed in Parag Bhati (Juvenile) through Legal Guardian-Mother-Rajni Bhati v. State of Uttar Pradesh & another [ (2016) 12 SCC 744 . 10. In Abuzar Hossain alias Golam Hossain v. State of West Bengal [ (2012) 10 SCC 489 , the Supreme Court affirmed that the claim of juvenility may be raised at any stage, including even after the final disposal of the case, and the delay in raising such a claim cannot be the ground for rejection thereof. This decision also affirmed that if there are documents evidencing the date of birth, in terms of Rules 12(3)(a), determination of the age on the basis of medical examination would not arise. 11. Applying the statutory standards, as adumbrated by the above case law, the evidence in the case on hand may be examined. The Admit Card (Ex.P-3) was issued by the Board of Secondary Education, Manipur, to enable the victim girl to appear for the HSLC Examination-2014. This document recorded her date of birth as 23.09.1998. Therein, her school was shown as Heingang High School, Heingang. The Transfer/Provisional Certificate issued by Heingang High School to the victim girl shows that she was a student of Class-X during the Academic Year 2013-2014 and had left the school on 31.12.2013. Her date of birth therein, as per the School Admission Register, was recorded as 23.09.1998. [12] Mr. N. Surendrajit Singh, learned counsel, would point out that, upon medical examination of the victim girl on 04.09.2014 after the incident, a report was prepared. Therein, the Doctor had entered her age as 16 years (as stated by the police) and as 18 years (as stated by the victim girl). However, it may also be noted that, in the history portion, it was recorded that the victim and the accused were known to each other for the last 5 months and that they first eloped on 10.08.2014 but were separated as the victim was a minor and the accused was divorced. This document is therefore of no avail. 13. The deposition of DW-1 is placed on record. Therein, she stated that the victim had attended Class-III in Y.Tampha High School, Kontha Ahallup, in the year 2005. This document is therefore of no avail. 13. The deposition of DW-1 is placed on record. Therein, she stated that the victim had attended Class-III in Y.Tampha High School, Kontha Ahallup, in the year 2005. She agreed that the date of birth of the victim girl was overwritten in the Admission Register for the years 2003-2007, but disclaimed any knowledge in relation thereto. A suggestion was put to her whether she agreed that the date of birth of the victim girl was 04.03.1997 but was overwritten as 23.09.1998. She answered that she had no knowledge about the correction and stated that sometimes, the date of birth of the students was corrected in order to tally with the date of birth sent up in the list of students to the Board of Secondary Education, Manipur. She further stated that she had brought the list of Class-VIII registered students of her school, which was submitted to the Board of Secondary Education, Manipur, and as per the said list, the victim's date of birth was recorded as 23.09.1998. She also spoke of counterfoils for issuing Provisional Certificates for students, maintained by the school, and as per the said counterfoil, the victim passed Class-VIII examination in the year 2011 and her date of birth was recorded as 23.09.1998. The Admission Register for the years 2003-2007 was marked as Ex.D-1 while the photocopy of the list of Class-VIII registered students was marked as Ex.D-2. The photocopy of the counterfoil for issuing a Provisional Certificate to the victim girl was marked as Ex.D-3. 14. Mr. N.Surendrajit Singh, learned counsel, would place reliance upon another admission register of Heingang High School, Heingang, wherein the date of birth of the victim girl is shown as 04.03.1997. It is not clear as to whether this document was produced before the learned Special Judge during the inquiry as it does not form part of the record. In any event, even if this date of birth is accepted, the victim girl would still be a minor at the time of the incident in September, 2014. This Court therefore fails to see how this document would benefit the petitioner. 15. Given the totality of the circumstances obtaining, this Court finds that no error was committed by the learned Special Judge in rejecting the request of the petitioner to direct determination of the age of the victim girl through medical examination. This Court therefore fails to see how this document would benefit the petitioner. 15. Given the totality of the circumstances obtaining, this Court finds that no error was committed by the learned Special Judge in rejecting the request of the petitioner to direct determination of the age of the victim girl through medical examination. Having considered the school records available, which consistently showed her date of birth to be 23.09.1998, the learned Special Judge also undertook an inquiry and examined witnesses, including the Headmaster and the Headmistress of the schools where the victim girl had studied. In the light of the decision of the Supreme Court in Ashwani Kumar Saxena (supra), it is not necessary to insist upon a matriculation certificate, more so when the student failed the matriculation examination, and it would suffice if consistent school records are produced in proof of the date of birth to satisfy Rule 12(3)(a) of the Rules of 2007. On the above analysis, this Court holds that the order under revision brooks no interference, be it on facts or in law. Criminal Revision Petition No.9 of 2019 is accordingly dismissed. Interim order dated 11.06.2019 shall stand vacated.