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2023 DIGILAW 2853 (ALL)

Keshav Singh v. State of U. P.

2023-12-18

SUBHASH CHANDRA SHARMA

body2023
JUDGMENT : (Subhash Chandra Sharma, J.) 1. Heard Sri Rajeev Kumar learned counsel for the revisionist, Sri Firoz Ahmad Khan learned counsel for the opposite party as well as learned A.G.A. and perused the record. 2. The present criminal revision has been preferred by the revisionist with a prayer to allow this revision and set aside the judgment and order dated 15.04.2023 passed by learned Additional District and Sessions Judge Agra in Criminal Appeal No. 137 of 2022 as well as order dated 20.10.2022 passed by Juvenile Justice Board, Agra in Case Crime No. 58 of 2022 under Sections 363, 366, 376-D, 328 I.P.C. and 3/4 of POCSO Act, Police Station Kheragarh, District Agra by which opposite party No. 2 was declared to be juvenile. 3. It is submitted by learned counsel for the revisionist that this criminal revision has been preferred on the part of complainant/informant against the order passed by the learned J.J. Board as well as Children's Court by which the opposite party has been declared to be juvenile on the basis of date of birth as recorded in matriculation certificate while ignoring the date of birth which was recorded in primary school record that is from Class First to Class Fifth. 4. It is further submitted that the opposite party first studied in Primary School Kukandai, Kheragarh, Agra run by government in Class First and continued his studies up to Class Fifth where his date of birth was got recorded as 17.07.2003 by father of the opposite party then in Class Fifth he discontinued his studies that was the reason his name was discontinued from the record but no any transfer certificate was obtained by him from that school and he came in some other school that is Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra and took admission in Class Third at the instance of his uncle Kedar Singh and continued his further studies up to Class Tenth where his date of birth was recorded as 17.09.2006 while concealing the date of birth and the previous education record in aforesaid primary school. No any other proof of date of birth was provided by the opposite party to the subsequent school. In this way he changed his date of birth and after adding three years in his age he got the date of birth registered as 17.09.2006 on the place of 17.07.2003. No any other proof of date of birth was provided by the opposite party to the subsequent school. In this way he changed his date of birth and after adding three years in his age he got the date of birth registered as 17.09.2006 on the place of 17.07.2003. Before the learned J.J. Board both the records were produced and this fact was brought on record on the part of the revisionist and the documents were also proved by C.W. 3 the Head Master of Primary School Kukandai, Kheragarh, Agra Sri Jag Mohan Singh and certified copy of S.R. Register was also filed. C.W. 4 Keshav Dev Saraswat, Head Master of Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra was also examined and he also filed copy of S.R. Register showing the date of birth as 17.09.2006 and also the admission form which was signed by the uncle of the opposite party and also stated before the learned Board that no proof of date of birth of opposite party was provided to him by either the opposite party or his uncle and his admission was taken in Class Third on the basis of test. This fact was not disclosed by the revisionist before the subsequent school that he already studied in Primary School Kukandai, Kheragarh, Agra. In this way he made addition in his date of birth by concealing the previous record and passed matriculation. All these facts were also on record but not taken into consideration by the learned J.J. Board while passing the order but on the basis of date of birth as recorded in matriculation certificate he held him to be juvenile whereas on the basis of previous academic record he was major. This fact was also not considered by the learned appellate court but appeal was dismissed which cannot be said to be lawful and based on material on record, therefore request to set aside the orders passed by the learned Board as well as learned appellate court and to allow the appeal. 5. Sri Firoz Ahmad Khan learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid. 5. Sri Firoz Ahmad Khan learned counsel for the opposite party as well as learned A.G.A. opposed the prayer as aforesaid. It was contended by learned counsel for the opposite party that in the record of Primary School Kukandai, Kheragarh, Agra the mother's name of the opposite party was recorded as Golu Devi whereas his mother's name is Laxmi Devi and it was got registered in the record of subsequent school by uncle of the opposite party. No any other documentary evidence regarding date of birth of the opposite party was produced by the revisionist before the learned Board to doubt the genuineness of date of birth as recorded in subsequent school except S.R. Register. There was no any other document in Primary School to show that the opposite party studied there from Class First to Fifth but true fact was that he studied in Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra from Class Third to Class Tenth on the basis of test and he never attended the Primary School Kukandai, Kheragarh, Agra. Learned J.J. Board as well as learned appellate court considered all these facts and passed the orders as aforesaid. In this way the orders passed by the learned courts below cannot be said to be illegal but this revision being devoid of merit is liable to be dismissed. 6. Section 94 of the Juvenile Justice Act contains the procedure for determination of age of the child as under: (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. 7. In this regard Para 14 and 15 of the judgment in the case of Sanjeev Kumar Gupta Vs. State of U.P and others AIR 2019 Supreme Court 4364 is noteworthy which is as under:- 14. Now it is in this background that it becomes necessary for the Court to determine whether the High Court, in the exercise of its revisional jurisdiction, was justified in reversing the view of the learned Sessions Judge that the second respondent was not a juvenile on the date of the incident. In seeking to place reliance on the date of birth (17 December 1998) recorded in the CBSE matriculation certificate, learned counsel appearing on behalf of the second respondent has submitted that under the provisions of Rule 12(3)(a) the said certificate has precedence over any other evidentiary document. In the course of the hearing of the appeal, we directed the CBSE to produce its records and to file an affidavit indicating the basis on which the date of birth was recorded in the matriculation certificate. In the course of the hearing of the appeal, we directed the CBSE to produce its records and to file an affidavit indicating the basis on which the date of birth was recorded in the matriculation certificate. The affidavit filed by the CBSE indicates that the date of birth in the records maintained by the CBSE was recorded purely on the basis of the final list of students forwarded by Maa Anjani Senior Secondary School, Etah Road, Shikohabad. The affidavit of the Assistant Secretary, CBSE states: "? Maa Anjani Senior Secondary School, Etah Road, Shikohabad, sent Final list of Students registered for Class IX (2011-12) as (Eligible for Class X Examination Year 2013) of the School to the Central Board of Secondary Education, Regional office, Allahabad. In the said Final List of Students registered for Class IX (2011-12) (Eligible for Class X Examination for year ? 2013) at Serial No 00068 shows the name of Puneet Yadav son of Shri Rameshwar Singh and Smt Vishesh Devi and his date of birth has been shown as 17.12.1998 which contain the Signature and Photograph of Puneet Yadav. The date of Entry has been shown as 08.09.2011." "... the Principal, Maa Anjani Senior Secondary School, Shikohabad, vide letter dated 04.02.2013 sent Roll Number ? wise List of 248 candidates for class X-2013 to the Assistant Secretary (Examination), C.B.S.E., Allahabad. Name of Puneet Yadav son of Rameshwar Singh and Mrs Vishesh Devi, Roll No 5156848 has been shown with date of birth as 17.12.1998 at page No 896 of the List, with the signature of Puneet Yadav." "? the Certificate for Secondary School Examination (Session 2011-13) (true copy of which was been appended as Annexure CA-1 received by the Central Board of Secondary Education with the Order dated 16.04.2019 of this Hon'ble Court) showing the Date of Birth of Puneet Yadav as 17.12.1998 was issued on the basis of aforementioned records of the Central Board of Secondary Education." CBSE has stated before this Court that the date recorded in the matriculation certificate was purely on the basis of the final list of students forwarded by the Headmaster of Maa Anjani Senior Secondary School, Shikohabad. The Headmaster of the Maa Anjani Senior Secondary School, Shikohabad deposed during the enquiry before the JJB, Firozabad. The Headmaster of the Maa Anjani Senior Secondary School, Shikohabad deposed during the enquiry before the JJB, Firozabad. In the course of her examination, Headmaster Dipti Solanki stated: "...We note down the date of birth of the student at the time of admission as per the information given by the parents and at the same time we obtain an affidavit but we could not procure an affidavit from this student. I have committed a mistake by not procuring an Affidavit from this student. The date of birth was entered on the basis of the information given by the parent/father." The Headmaster further stated: "...The father did not produce any record at the time of admission in respect of the date of birth of the student. They would have been asked to produce the record of class 4 at the time of admission but they did not. I cannot tell the reason thereof. The students are admitted without any document upto class 5." The above deposition indicates that the second respondent was admitted to Maa Anjani Senior Secondary School, Shikohabad in the fifth standard and was a student of the school until he completed his matriculation. The second respondent attended the Saket Vidyasthali, Jedajhal, Firozabad until the fourth standard. The school register and transfer certificate form of that school specifically contains an entry in regard to the date of birth of the second respondent as 17 December 1995. Mr Ravindra Singh, learned senior counsel appearing on behalf of the second respondent has urged that the discrepancies which have been brought out in the course of the cross-examination of the former Manager of the school would indicate that there is a doubt in regard to the authenticity of that certificate. However, in our view, what must weigh against the second respondent's submission is that the date of birth which has been recorded in the certificate of the Saket Vidya Sthali completely matches the date of birth which was voluntarily disclosed by the second respondent both while obtaining his driving licence as well as the Aadhaar card. In both those documents, the originals of which were seized during the course of the investigation and have been produced before this Court, the date of birth is reflected as 17 December 1995. The driving license and the Aadhaar card are not standalone documents. In both those documents, the originals of which were seized during the course of the investigation and have been produced before this Court, the date of birth is reflected as 17 December 1995. The driving license and the Aadhaar card are not standalone documents. The submission of the learned senior counsel that the date of birth in those documents may have been furnished by the accused to obtain an undue advantage cannot simply be accepted since it tallies with the date of birth indicated in the school records of Saket Vidya Sthali school. It is evident from the above analysis that the date of birth which was forwarded in the roll of students of Maa Anjani Senior Secondary School, Shikohabad was the sole basis of the date of birth which was recorded in the matriculation certificate. The date of birth in the records of Maa Anjani Senior Secondary School where the second respondent was a student from Class V to Class X is without any underlying document, as stated by the Principal in the course of the enquiry before the JJB. On the other hand, there is a clear and unimpeachable evidence in the form of the date of birth which has been recorded in the records of Saket Vidya Sthali school which is supported by the voluntary disclosure made by the second respondent while obtaining both the Aadhaar card and the driving licence. The High Court reversed the findings of the Sessions Judge purely on the basis of the matriculation certificate. For the reasons which we have indicated, the date of birth as reflected therein cannot be accepted as authentic or credible. Once we come to the conclusion, as we have, that the date of birth of the second respondent is 17 December 1995, he was not entitled to the claim of juvenility as of the date of the alleged incident which took place on 18 August 2015. 15. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 14 November 2018. Criminal Revision 2952 of 2017 shall in consequence stand dismissed. The order passed by the Sessions Judge, confirming the decision of the JJB rejecting the claim of juvenility is accordingly maintained. 15. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 14 November 2018. Criminal Revision 2952 of 2017 shall in consequence stand dismissed. The order passed by the Sessions Judge, confirming the decision of the JJB rejecting the claim of juvenility is accordingly maintained. The second respondent shall accordingly be dealt with in accordance with law on the basis of the finding recorded in the present judgment, rejecting the claim of juvenility. 8. From perusal of record it appears that the father's name of the opposite party was Sri Ashok Kumar and his mother was Golo Devi as shown in the Ration card belonging to his family which is on record. Even in the Voter list the name of the mother of the opposite party is entered as Golo Devi. In the Ration card the name of opposite party has also been entered as son of Ashok in which mother's name Golo Devi has been entered as Mukhiya of the family. It establishes well that Golo Devi is the mother of the opposite party and she has been named as Laxmi Devi in subsequent academic record of the opposite party. In this way, the contention made by learned counsel for the opposite party cannot be accepted that Golo Devi and Laxmi Devi are two ladies and Golo Devi is not mother of the opposite party. 9. There is statement of C.W. 3 Head Master of Primary School Kukandai, Kheragarh, Agra Sri Jag Mohan Singh who clearly stated that the opposite party took admission in his school on 13.07.2009 in Class First whose date of birth as got registered was 17.07.2003 and it was also entered in the S.R. Register at Serial No. 1569. He studied there up to standard Fifth. Copy of S.R. Register was marked as Exhibit Ka 1. Opposite party passed Class Fourth and took admission in Class Fifth but he became absent that was the reason his name was discontinued and no any transfer certificate was taken by him. 10. C.W. 4 Sri Keshav Dev Saraswat, Head Master of Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra stated that the opposite party took admission on 01.07.2014 in his school in Class Third and studied till Class Fifth up to 30.03.2017 and then he took his transfer certificate on 16.09.2017. 10. C.W. 4 Sri Keshav Dev Saraswat, Head Master of Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra stated that the opposite party took admission on 01.07.2014 in his school in Class Third and studied till Class Fifth up to 30.03.2017 and then he took his transfer certificate on 16.09.2017. On admission his date of birth was entered as 17.09.2006 but no any certificate in support thereof was given by him. His admission was taken on the basis of test in Class Third. Sri Kedar Singh made his signature in the admission form as guardian. He also filed copy of S.R. Register and the admission form and no any certificate regarding date of birth was filed in his school. In the admission form the date of birth of the opposite party was mentioned as 17.09.2006 by Sri Kedar Singh but it was not written by his father Sri Ashok Kumar. C.W. 2 Manoj Kumar, Head Master of Sri Pooran Chand Ramesh Chand Saraswati Vidya Mandir Kheragarh, Agra was also examined who made statement regarding education of opposite party from Class Sixth to Class Tenth and also filed copy of S.R. Register in which in support of his date of birth transfer certificate from the school Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra was attached. C.W. 1 Ashok Kumar, father of the opposite party was also examined who stated about the education of opposite party in Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra and also stated that admission form was filed by his younger brother Sri Kedar Singh and said that he did not know about the date of birth mentioned by him in the school. 11. In Exhibit Ka 1, certified copy of S.R. Register which was filed by Head Master of Primary School Kukandai, Kheragarh, Agra Sri Jagmohan Singh, on Serial No. 1569 the name of opposite party has been entered and his date of birth is 17.07.2003 in figures and also in words. Father's name is Ashok Kumar and mother is Golo Devi. Date of admission in the school is 13.07.2009 in Class First, 01.07.2010 in Class Second 01.07.2011 in Class Third and in Class Fourth 01.07.2012 and 01.07.2013 in Class Fifth and his name was discontinued on 31.01.2013 on account of continuous absence. The education record was also got verified through B.S.A. By the learned Board in which the record was found as aforesaid. 12. The education record was also got verified through B.S.A. By the learned Board in which the record was found as aforesaid. 12. In Primary School record, date of birth was recorded as 17.07.2003 and in subsequent school that is Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra where date of birth was recorded as 17.09.2006. 13. On considering the statements of C.W. 1, C.W. 3, C.W. 4 and the entries made in S.R. Registers of previous and subsequent schools it is established that in this case the opposite party first attended Primary School Kukandai, Kheragarh, Agra in Class First on 13.07.2009 and continued his studies up to 31.01.2013 and then he took admission in Class Third in Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra in Class Third on the basis of test and without providing any document relating to his date of birth including the transfer certificate issued from Primary School Kukandai, Kheragarh, Agra as aforesaid where his date of birth was recorded as 17.07.2003 but his uncle Sri Kedar Singh by mentioning his date of birth as 17.09.2006 got his admission done in the school Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra while concealing the previous educational studies and the date of birth. In this way, for determining the age of the child/opposite party the date of birth as mentioned in first attended school is relevant and can be relied on. The learned J.J. Board as well as learned appellate court did not consider all these facts while passing the orders in question that cannot be said to be based on the material on record and also in conformity with relevant provisions of law as contained under Section 94 of the Act and in view of the ratio in Sanjeev Kumar Gupta Vs. State of U.P and others AIR 2019 Supreme Court 4364. As a result this revision being forceful is hereby allowed and order dated 20.10.2022 passed by learned J.J. Board as well as order dated 15.04.2023 passed by learned Appellate Court are hereby set aside and the age of the opposite party on the basis of his date of birth as mentioned in first attending school that is 17.07.2003 is determined which comes as 18 years 8 months and 8 days i.e. more than 18 and he is held major. 14. Accordingly, learned Board is directed to proceed further.