Allahabad High Court
Atin Jaiswal vs State Of U.P. & Another on 19 January, 2012
Author: Vinod Prasad
Bench: Vinod Prasad
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.53 AFR Criminal Revision No.441 of 2011 Atin Jaiswal ........................................Revisionist Versus Sate of U.P. & another ...........................Opposite Party. Hon'ble Vinod Prasad, J.
Revisionist Atin Jaiswal has come up to this court in it's revisional jurisdiction u/s 53, Juvenile Justice Care and Protection Act, 2000 (hereinafter referred to as the 'Act'), being aggrieved by the impugned order dated 3.1.2011, passed by Additional Session's Judge/Fast Track Court court no.3, Kanpur Nagar, in S.T. No.260 of 1998, State Vs. Atin Jaiswal & others, relating to Crime No.264 of 1997,u/s 302 I.P.C., Police Station Pheelkhana, District Kanpur Nagar, by which order three applications preferred by the revisionist, being application no.76 dated 29.1.2002, application no.176 Kha dated 18.1.2010 and application no.186 Kha dated 24.5.2010 were considered and disposed off by the trial Judge, who held that the revisionist is not a juvenile nor can he be treated as such nor his trial can be separated from other accused.
Before delving and deliberating on contentious issues, a brief resume of preceding facts indicate that the revisionist along with his other compatriot assailants, Vishal Kumar Chaurasia and Vishal Jaiswal, indulged into a verbal tirade on the question of consuming non-vegetarian meal, on 21.12.1997 at 8.45 p.m., and in the midst of this verbal onslaught, revisionist whisked out a country-made pistol and shot dead Purshottam by firing on his temple from point blank range. Sustaining fatal gunshot injury, dead Purshottam squatted on the ground. Throwing away his pistol, all the three accused escaped from the incident scene.
Father Ram Ji Das Jaiswal scribed incident F.I.R., covered a distance of one and a half kilometres to Police Station Pheelkhana, District Kanpur Nagar, where he lodged his written FIR at 9.30 p.m. same day as Crime No.64 of 1997 under Section 302 IPC against the three named accused Vishal Kumar Chaurasia, Vishal Jaiswal and Atin Jaiswal (revisionist).
Crime was investigated and ultimately it culminated in charge sheeting all the three accused. Following the procedure laid down in Cr.P.C., in short code, for police challani cases, after compliance of Section 207 of the Code, case of accused was committed to Session's court for trial, where it was registered as S.T. No.260 of 1998, State Vs. Atin Jaiswal and others. Accused were charged with offences u/s 302 IPC.
It was at this stage, that an application, Annexure No.2, was filed by the revisionist on 19.1.2002 whereby he prayed that an inquiry be made for determining his age and his trial be separated from rest of the accused and it be transferred to the competent authority under the Act, ie: Juvenile Justice Board, for trial. Pending disposal of Annexure No.2, revisionist filed another application 176-Kha on 18.1.2010, copy of which has not been appended along with this revision, whereby he prayed that in view of decision in Hari Ram Vs. State of Rajasthan: JIC 2009 (3) 509 (SC), his application, Annexure No.2, be considered and decided. Pending consideration his both the aforesaid applications regarding his juvenility, revisionist moved a third application on 24.5.2010, vide paper no.186 Kha, Annexure No.IV, whereby he prayed that his application, Annexure No.2 and subsequent application dated 18.1.2010 be considered and decided simultaneously.
Contesting revisionist's claim and refuting it, informant filed objections vide paper no. 177 kha and 199 kha, appending therewith revisionist high school mark sheet, TC from Gyan Bharati Inter College, TC from Dayanand College of Law, Mark sheet of LLB 1st year course, on the basis of which revisionist had got himself enrolled as an advocate with UP Bar Council. In all these documents,which were prepared on the information supplied by the revisionist himself, his date of birth is recorded as 28.12.78. It was also objected that the certificate from Nagar Mahapalika does not contain his name Atin Jaiswal and it also does not contain name of mother and her age is recorded as 26 years. Letter by Dr. Mahmood Ali was criticised on the ground that it was a sham document and contained cuttings. There was no signature of the doctor nor his seal was affixed.
Besides above objections both the sides relied upon various judicial pronouncements by the Supreme Court and High courts, to countenance their submissions which are referred to in the impugned order.
Ld. Trial Judge, vide common impugned order dated 3.1.2011, decided all the three applications, viz Annexure No.2, application dated 18.1.2010 and Annexure No.4 against the revisionist and negated his claim of being declared to be a juvenile, and resultantly dismissed his prayer for separating his trial from rest of the accused and transferring it to the Board. Aggrieved by the aforesaid order, revisionist has approached this court in the instant revision u/s 53 of the Act.
I have heard Sri Rajiv Gupta, learned counsel for the revisionist, Sri Nirvikar Gupta, learned counsel for the informant and learned AGA for the State and have perused the entire material on record.
Revisionist counsel strenuously urged that the inquiry conducted by the trial Judge to determine revisionist's age was an improper inquiry. It was established through the depositions of C.W.4 Gyan Chandra Tiwari, Clerk, Health Department, Nagar Nigam and C.W.5 Dr. Mahmood Ali, that revisionist date of birth was 28.12.1979 but the same was wrongly mentioned as 28.12.1978, which is the date of birth of revisionist's elder brother namely Nitin Kumar Jaiswal. Elaborating further it was argued that date of birth of the two issues by the same parents cannot be the same and therefore, date of birth of the revisionist was wrongly recorded whereas it should have been 28.12.1979. Next it was contended that since documents brought on the record were paradoxical regarding revisionist date of birth, therefore it was imperative for the trial judge to have relied upon medically determined age, submitted learned counsel. Rejecting medically assessed age and negativing revisionist juvenility claim by the trial judge is a fallacious approach further contended learned counsel. On such submissions, learned counsel prayed that the impugned order be set aside and the revisionist be declared to be a juvenile and his trial be sent to the Board.
Refuting revisionist's submissions and arguing conversely informant's counsel Sri Nirvikar Gupta, and learned AGA harangued that there are enough reliable documentary evidences on record to dismiss revisionist claim. Evidences, both oral and documentary, without any ambiguity, establishes revisionist's date of birth as 28.12.1978. It was submitted that in the high school certificate, and in the other documents including registration in the U.P. Bar Council, as an Advocate, revisionist mentioned his date of birth as 28.12.1978 and therefore, he cannot be permitted to take incongruent opposite defences and blow hot and cold in the same breath. Supplementing the argument, it was vehemently argued that claim of juvenility by the revisionist in the murder crime was laid through Annexure No.2 in 2002, after an inordinate delay of five years, when the incident had occurred in 1997, to feign a defence to circumvent rigours of punishment of a murder crime. Two years after making a claim of juvenility in the Session's trial, through annexure no.2, that the revisionist moved his papers for registration as an advocate with U.P. Bar Council and in that form and affidavit he had mentioned his date of birth as 28.12.1978. It was next submitted that none of the documents, which were filed by the prosecution and by the accused, where his date of birth is recorded as 28.12.1978, were got cancelled nor it were challenged at any point of time nor, till date, any attempt was made to get it altered and/or corrected and therefore, revisionist accused himself had mentioned his date of birth as 28.12.78 and had taken advantage of it at various stages of his educational and professional career and therefore now he cannot be permitted to take a U turn and take inconsistent plea that his date of birth is wrongly recorded. No reliance can be placed on the revisionist claim of being a juvenile. Additionally it was contended that the evidences of witnesses, vis-a-vis voluminous documentary evidences dissipates revisionist's juvenility claim, which was raised after years, only when the trial was committed to Session's Court and this ostensibly was done to save the skin from the rigours of punishment of a murder crime. It was concluded by submitting that the revision, being merit less, be dismissed.
I have considered the arguments raised by both the sides and have perused the entire record including affidavit, counter affidavit and other documents. Preceding facts indicate that it is a revision against rejection of claim of juvenility by the revisionist u/s 53 of the Act. Law in respect of scope of revisional power, so far as re-appreciating evidences on record is concerned, is fairly well settled through catena of decisions, both by this court as well as by the apex court. It emerges from a quick glimpse of those judicial pronouncements that revisional courts should not sift, weigh and re-appreciate evidences unless it is shown that it's appreciation by the lower court is perverse or is against the merits of evidences on record or is totally uncalled for, which no prudent man would have arrived at. In Johar and Ors. v. Mangal Prasad and Anr:AIR 2008 SC 1165 it has been held by the apex court as under:-
"9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re-appreciate the whole evidence. One possible view was sought to be substituted by another possible view."
In State of Maharashtra, vs Jagmohan Singh Kuldip Singh Anand and others:AIR 2004 SC 4412 it has been observed by the apex court as under:-
"22. The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410, Cr.P.C. Section 401, Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397, Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
23.On this aspect, it is sufficient to refer to and rely on the decision of this Court in Dulichand v. Delhi Administration, (AIR 1975 SC 1960) in which it is observed thus:-
"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned additional Sessions Judge was correct. But even so the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."
In Sheo Nandan Paswan, vs. State of Bihar and others,:AIR 1987 SC 877 it has been laid down by the apex court as under:-
"73. There is no appeal provided by the Act against an order giving consent under S. 321. But the order is revisable under S. 397 of the Criminal P.C. Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior Court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising Court does not dwell at length into the facts and evidence of the case. The Court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
In Bakulabai versus Gangaram: 1988 SCC (Cr)189 it has been held by the apex court as under:-
"7. The other findings of the Magistrate on the disputed question of fact were recorded after a full consideration of the evidence and should have been left undisturbed in revision. No error of law appears to have been discovered in his judgement and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate."
Same view was expressed earlier in the decision of Pathumma versus Muhammad:1986SCC (Cr) 212 wherein it was held by the apex court as under:-
"We are afraid, the learned Judge of the High Court committed an error in making a re- assessment of the evidence and coming to a finding that the appellant no.2 was not the illegitimate child of the respondent no.2.......The High Court in it's revisional jurisdiction was not justified in substituting its own view for that of the learned Magistrate on questions of fact."
From the above views what is emerged is that without there being any reason to come to a conclusion that the appreciation of evidences by the lower court was perverse or that the order suffered from error of law, revisional courts should not interfere with lower courts order. No doubt revisional powers of this court are vide enough to judge correctness, legality or propriety of any finding, sentence or order or regularity of any proceeding, but this does not mean that revisional court should be transformed as a second appeal court.
Applying above parameters on the facts of the instant revision it is revealed that no such contention was harangued that analysis of evidences by the trial court was perverse or that the impugned order suffers from any error of law. Revisionist wants this court to re- appreciate evidences led by him and accept his version, which, I am afraid, is not permissible as one opinion cannot be substituted with another opinion, without holding prior opinion as perverse, unjust or illegal. Revisionist counsel failed to point out any illegality into the impugned order. He also could not submit that analysis of evidences by the trial Judge, while determining the age of the revisionist, was perverse or against the materials existing on the record. Consequently sifting and weighing of evidences and re-appreciation of the same is not possible. Trial court has considered question of revisionist's juvenility incisively and it is not possible to take a different view from that.
Coming to revisionist contention that since there were paradoxical evidences on record and hence medically determined age should have been preferred, the said contention is bereft of merits. It is the revisionist accused who had created such paradoxical situation. Only he is to be blamed and nobody else. On the one hand he had taken advantage of his age while passing various examinations and getting himself enrolled as an advocate and on the other hand he desires that very date of birth to be altered to suit his interest and rescue him from punishment of a murder charge. Nobody should be allowed to fiddle with law and take advantage of his own wrong. As submitted by the opposite counsel, till date no correction of date of birth has been moved by the revisionist. This court can take notice of the procedure for getting enrolled as an advocate, which requires a personal affidavit of the concerned person as well. If revisionist has mentioned his date of birth in that affidavit as 28.12.78, he now cannot be permitted to resile from it. He had already taken sufficient advantage of said date of birth. Further, no dispute regarding revisionist age was raised by the prosecution. It is the revisionist, who himself raised such a dispute by bringing on record, the entries by Nagar Palika, which were contrary to the entries of his educational career record as well as with U.P. Bar Council. Revisionist wanted to negate such entries, which were made by his parents and/or himself. Prosecution has never come up with a case that the revisionist was a minor. Revisionist wanted to take advantage of the Act and therefore, he has raised such a plea. The burden therefore, lied on the revisionist to establish that his date of birth recorded in the Nagar Palika was the correct date of birth and his date of birth in High School and other educational documents as well as his mentioning of date of birth while filling form for getting registered as an Advocate in U.P. Bar Council, which contained his personal affidavit as well, were wrong mentioning by him. Even in U.P. Bar Council he has not moved any application to that effect. No correction of his date of birth has been made till date. In such a view, when documents coming from the revisionist himself and his own affidavit records his date of birth as 28.12.78, medical opinion on this score cannot be given any preference, for two primary reasons, firstly that medical evidence is an assessment which may have variations of two years in fixation of age and secondly, unchallenged date of birth recorded for many years is more reliable than vacillating determinations in medical examination. Documents produced by the revisionist are self-contradictory and does not inspire any confidence. While determining the age of the revisionist, he is not entitled to get the benefit of Juvenile Justice Act because such right cannot be conferred when his own statement and the documents are contradictory to each other and are paradoxical.
Revisionist contentions cannot be accepted for other reasons also. Why his parents allowed four years to pass and trial be committed to Session's Court before raising such a plea and why they did not raise it at the earliest point of time? Why they have not raised such a plea at the bail stage? Why they made no attempt to get date of birth corrected in educational records? All these circumstances are indicative of the fact that the revisionist himself had accepted 28.12.78 as his correct date of birth and he had given an affidavit also mentioning in it the said date of birth. It seems that the parents were in the knowledge of the fact that the revisionist was major on the date of the incident and that is why, when he was summoned for the charge under Section 302 IPC, none of them appeared before the Court to raise a claim of his being a juvenile. Revisionist has failed to bring on record any cogent material to support his claim.
Opinion by the trial judge that entry of date of birth in the register with the Nagar Nigam was made by a different person than C.W.4 and since CW4 only testified that the register regarding date of birth is kept in his custody will not establish correct recording of date of birth is an infallible conclusion. Deposition of CW4 does not authenticate revisionist claim. A record keeper cannot prove entries not made by him. CW4 had testified that the revisionist date of birth was not entered by him. Revisionist failed to bring on record as to who had recorded his date of birth in the register. In absence of such primary and reliable evidences, plea of being minor raised by the revisionist cannot be attached with any credibility.
So far as C.W.5 is concerned, certificate issued by him also suffers from many vices. Ld. Trial Judge has deliberated on the said aspect of the matter by mentioning that it does not contain any seal or signature etc. and is not a reliable piece of evidence. I am unable to discard the findings recorded by the trial Judge on the said score. Ld. Trial Judge had taken pains to mention Rule-12 of the Juvenile Justice Rules framed under the Act. It has concluded that there are various channels to determine the age of a juvenile offender. If the age is determined under Clause-1, there is absolutely no need for the Court or the Board to delve and deliberate on other clauses. This opinion by the trial Judge also does not suffer from any error of law and has to be accepted as the correct proposition of law. This Court should refrain from interfering with trial courts order when it is sustainable.
After analysing impugned order from different facets, vis-a-vis evidences on record, I am of the opinion, that the impugned order does not suffer from any error of law nor is based on misreading or perverse appreciations of evidences.
I do not find any merit in this revision, which stands dismissed.
Incident is of 1997, more than a decade has already been lapsed and therefore it is desirable to direct the trial judge to expedite hearing of the trial, if possible on day to day basis, and endeavour to conclude it within shortest possible period, preferably within six months, from the date of production of certified copy of this order before him.
Dt.19.1.2012 Rk/Criminal Revision No.441 of 2011