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2024 DIGILAW 166 (UTT)

Abid Alias Guddu v. State of Uttarakhand

2024-03-06

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) : The challenge in this revision is made to the following:- (i) Order dated 19.06.2010, passed in Case No.763 of 2010, State Vs. Abid @ Guddu (Case Crime No.55 of 2010, under Section 376(2)(f) IPC, Police Station Bhagwanpur, Distrit Haridwar), by the Juvenile Justice Board (“the JJ Board”), Haridwar. By it, the bail application of the revisionist has been rejected. And ; (ii) Order dated 10.04.2014, passed in Criminal Appeal No.113 of 2012, Abid @ Guddu Vs. State and Another, by the I Additional Sessions Judge, Haridwar (“the appeal”). By it, the order dated 19.06.2010 passed by the JJ Board was affirmed. 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, on 06.03.2010, at 4:00 PM, the revisionist along with co-accused raped the victim, a young girl of 6 years. The revisionist was arrested by the police on 10.03.2010. In his first remand sheet, which is available on record and is before this Court, his age is recorded as 14 years. He was then sent to Children Observation Home. During the hearing, the revisionist moved an application before the JJ Board, Haridwar, for declaring him juvenile. The following records were available before the JJ Board:- (i) The family register of Village Mohana, Tehsil Roorkee, District Haridwar, in which the revisionist has been shown to have born in the year 1993. (ii) The scholar register of Madarsa Islamia Arabia Madina-Tul-Ulum, Kishanpur, Puhana, Haridwar (“the school”), in which the date of brith of the revisionist is recorded as 04.04.1996. (iii) The transfer certificate from the school recording the age of the revisionist as 04.04.1996. And; (iv) The medical examination test done on 05.04.2010. It records the age of the revisionist about 18 years. 4. After hearing the parties and considering the evidence, the JJ Board held that the principal of the school has stated that the age at the time of admission is entered on the basis of estimation. Accordingly, the age recorded in the school record was not accepted. In the family register, the age of the revisionist was recorded as 17 years. The JJ Board also did not believe it on the ground that this date of birth is different than the date of birth of the revisionist, as recorded in the school record. Accordingly, the age recorded in the school record was not accepted. In the family register, the age of the revisionist was recorded as 17 years. The JJ Board also did not believe it on the ground that this date of birth is different than the date of birth of the revisionist, as recorded in the school record. Thereafter, the JJ Board adverted to the Ossification test and noted that it is a settled position of law that an error of two years in determining the age on the basis of medical report is possible. But the JJ Board held that if a document is proved to be genuine and satisfy the requirement of law, it should be, subject to just exceptions, to be relied upon. Accordingly, the JJ Board observed that, “as the date of birth of the revisionist in the school record of Madarsa Islamia Arabia Madina-Tul-Ulum, Kishanpur, Puhana, Haridwar, has been recorded on the basis of estimation, as per the principal of the school, and other evidences disclosing his age to be higher than the age that is claimed by the applicant................................the age of the applicant Abid cannot be held to be ascertainable below eighteen years on the date of incident”. 5. The revisionist challenged the finding recorded by the JJ Board in Case No.763 of 2010, State Vs. Abid Alias Guddu, in the appeal, which upheld the order dated 19.06.2010, passed by the JJ Board. 6. The court in appeal relied upon the principles of law, as laid down in the case of Om Prakash Vs. State of Rajasthan and Another, AIR 2012 SC 1608 , and referred that according to this judgment, the Hon’ble Supreme Court held that in serious cases like rape, if an accused intends to take benefit of legal position and produces documents, which creates doubts, in such circumstances, medical report should be given importance. Challenge in this revision is made to these orders by which the revisionist was denied benefit of juvenile. 7. Learned counsel for the revisionist would submit that the age of the juvenile could have been ascertained in view of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (“the 2007 Rules”), as framed under the Juvenile Justice (Care and Protection of Children) Act, 2000 (“the Act”). 8. It is argued that the revisionist did file the school records as well as the family register. 8. It is argued that the revisionist did file the school records as well as the family register. They could have been relied upon and the revisionist could have been declared juvenile, but it was not done. It is argued that even the Ossification test has not conclusively determined that the revisionist is above 18 years of age. It only claims that the age of the revisionist is about 18 years. It is argued that in the Ossification Test, there is a margin of 2 years on both the sides. Therefore, in view of the other documents filed by the revisionist, his age cannot be assessed above 18 years. In all cases, it could be less than 18 years, which makes the revisionist entitled to be declared juvenile on the date of incident. 9. Learned counsel for the revisionist would also argue that Rule 12(b) of the 2007 Rules provides that a juvenile should be given benefit of 1 year margin on the lower side. In support of his argument, he places reliance on the principles of law, as laid down by the Hon’ble Supreme Court in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh, (2012) 9 SCC 750 . In the case of Ashwani Kumar (supra), the Hon’ble Supreme Court, in Para 40, inter alia, observed as follows:- 40. The legislature and the rule-making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time-limit of thirty days to determine the age of the juvenile from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his/her age on lower side within the margin of one year. 10. On the other hand, learned State Counsel would submit that the school record, filed by the revisionist, was not found reliable, as the principal of the school has stated that the age was recorded on the basis of estimation and is not based on any document. Therefore, it is argued that the age, as fixed by the Ossification test, is to be considered for determining the age of the revisionist and that has been done in the instant case. 11. Therefore, it is argued that the age, as fixed by the Ossification test, is to be considered for determining the age of the revisionist and that has been done in the instant case. 11. The JJ Board has to determine the age of a person, who claims juvenility at the time when the offence was allegedly committed. The guidelines has already been given under Rule 12 of the 2007 Rules. It reads as hereunder:- “12. Procedure to be followed in determination of Age. (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 12. In the instant case, admittedly, the school record was filed by the revisionist to reveal his date of birth as 04.04.1996, but the principal of the school has stated that there was no concrete basis for recording such age; it is based on estimation. It is so recorded in the impugned order of the JJ Board. 13. In the instant case, admittedly, the school record was filed by the revisionist to reveal his date of birth as 04.04.1996, but the principal of the school has stated that there was no concrete basis for recording such age; it is based on estimation. It is so recorded in the impugned order of the JJ Board. 13. The revisionist has also filed the extract of the family register, in which his date of birth is as such not recorded, but the birth year is recorded as 1993. The birth register may not simply be ignored on the ground that it has recorded the date of birth, which is distinct from the date of birth, as recorded in the school record. After all, the court has to examine the document and to ascertain the age of a person, who claims juvenility on the date when the offence was committed. 14. In the case of Manoj Vs. State of Haryana and Another, (2022) 6 SCC 187 , a person claimed juvenility and based on Ossification test, the court of sessions declared him juvenile, but the High Court, relying on the family register prepared under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970, denied the benefit of juvenility to such person. In that case, on the question of admissibility and reliability of the family register, the Hon’ble Supreme Court observed as follows:- “35. In Krishna Pal v. State of U.P., 2010 SCC OnLine All 695, the learned Single Judge of the Allahabad High Court held that a family register is a public record in terms of the Evidence Act inasmuch as the same is prepared under the statutory provisions of Section 15(xxiii)(e) of the U.P. Panchayat Raj Act read with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat Raj Rules, 1947. The family register is prepared under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be noted that Form (A) also records the date of death of a family member. There is yet another form, namely, Form (D) which is for registering the date of birth and death. Both these forms, therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the Rules are framed by the State Government and the registers prescribed for particular purposes are notified under the Rules. Both these forms, therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the Rules are framed by the State Government and the registers prescribed for particular purposes are notified under the Rules. Reference may be made to Section 110(vii) of the 1947 Act for the said purpose. 36. The Court held as under: Krishna Pal v. State of U.P., 2010 SCC OnLine All 695 “In my opinion, a presumption has to be drawn in respect of the said public document and it cannot be merely disbelieved if the Gram Panchayat Adhikari had not been produced to prove it. The copy of the family register is a public document and a presumption as to its genuineness is accepted under Section 79 of the Indian Evidence Act.” 37. In Shiv Patta v. State of U.P., 2013 SCC OnLine All 14202, it was held that the family register is maintained in discharge of statutory duties under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly, date of death is maintained in discharge of statutory duty under the Registration of the Birth and Deaths Act, 1969 and it is a public document within the meaning of Section 74 of the Evidence Act, 1872. The certified copy of these documents is admissible in evidence under Section 77 of the Evidence Act and carry presumption of correctness under Section 79 of the Act. The High Court held that in the absence of any evidence to prove that it was incorrect, its correctness is liable to be presumed under Section 79 of the Evidence Act, 1872. 38. Therefore, such Rules are not irrelevant as argued by Mr Bhargava. This family register does not only contain date of birth but also keeps the records of any additions in the family, though the evidentiary value needs to be examined in each case. 39. We are unable to approve the broad view taken by the High Court in some of the cases that family register is not relevant to determine age of the family members. It is a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. It is a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. The entries made in the regular course of the affairs of the Panchayat would thus be relevant but the extent of such reliance would be in view of the peculiar facts and circumstances of each case.” 15. In the case of Manoj (supra), the Hon’ble Supreme Court also observed that, “Needless to say, the plea of juvenility has to be raised in a bonafide and truthful manner. If the reliance is on a document to seek juvenility which is not reliable or dubious in nature, the appellant cannot be treated to be juvenile keeping in view that the Act is a beneficial legislation. As also held in Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 , the provisions of the statute are to be interpreted liberally but the benefit cannot be granted to the appellant who has approached the Court with untruthful statement.” 16. It is also settled law that the age determined on the basis of Ossification test, has error of 2 years on either side. 17. Under the Act, juvenile or child means a person, who has not completed 18 years of age. 18. In the instant case, it is not conclusively determined that the school record, that was placed by the revisionist was false or dubious. It was not believed on the ground that there was no document in support of the entry pertaining to the date of birth in the school record and the principal has stated that the date of birth was recorded on the basis of estimation. At the most, it can be said that the date of birth, so recorded in the school register, may not be accepted as the actual date of birth of the revisionist. But the documents, per se, may not be termed as dubious or suspicious or one created for the purpose of claiming the benefit of juvenility. 19. The entry in the family register does not record the date of birth, as such. It records the birth year, which is 1993. But the documents, per se, may not be termed as dubious or suspicious or one created for the purpose of claiming the benefit of juvenility. 19. The entry in the family register does not record the date of birth, as such. It records the birth year, which is 1993. As stated, such entry in the family register may not be discarded merely on the ground that the date of birth recorded in it is different than that, which is recorded in the school record. It requires deliberation, which was not done in the instant case. 20. Even if Ossification test in the instant case is taken as a factor to determine the age of the revisionist, according to it, the age of the revisionist was about 18 years on 05.04.2010. 2 years’ error may be accepted in this age determination, which means that the revisionist may be of 16 years as well as of 20 years. But how to determine it? In fact, this is a situation, which warrants that all the attending factors should be taken into consideration so as to come at a conclusion as to whether the revisionist is entitled to claim juvenility. 21. The relevant factors to assess the Ossification test would be as follows:- (i) On 10.03.2010, when the revisionist was arrested, in the remand sheet, his age was recorded as 14 years, and he was sent to children home. At that time, the revisionist did not claim juvenility. The Investigating Officer recorded his age. Has he done so on mere appearance or has he asked the age or is it combination of both? Whatever the case may be, it shows that on that date, he was looking like a child. (ii) In the school record, the date of birth is recorded as 04.04.1996. It is not supported with any document, as stated by the principal of the school. (iii) In the family register, the birth year is 1993. 22. The above record along with the Ossification test definitely commands the Court to make error on the lower side, which means the revisionist was less than 18 years of age on the date of the incident. He was about 16 years. Therefore, the JJ Board as well as the court in appeal committed an error in appreciating the legally admissible evidence. Both the impugned orders deserve to be set aside. 23. He was about 16 years. Therefore, the JJ Board as well as the court in appeal committed an error in appreciating the legally admissible evidence. Both the impugned orders deserve to be set aside. 23. Both the impugned orders dated 10.04.2014 and 19.06.2010 are set aside. 24. The revisionist is declared a juvenile on the date of incident. His date of birth, on the alleged date of incident, i.e. on 06.03.2010, may be assessed about 16 years. 25. The revision is allowed accordingly.