Delhi District Court
Sachin Panwar S/O Nirbhay Singh vs State on 22 March, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
Crl. Appeal No.49A/09
Sachin Panwar s/o Nirbhay Singh
....Appellant/accused
Vs.
State
...... Respondent
ORDER
The present appeal has been preferred against the order dated 20.05.2006 passed by Ms Illa Rawat, Principal Magistrate, Juvenile Justice Board thereby declaring appellant Sachin Panwar as adult on the date of commission of crime.
2. Briefly stated the facts of the case for giving rise to this present appeal are that appellant Sachin was transferred from adult court to Juvenile court as a school leaving certificate was filed wherein his date of birth was mentioned as 9.9.88. the date of offence of the case FIR no. 193/04 is 25.03.2004 and as the appellant appeared to be less than 18 years of age, his case was transferred to Juvenile Justice Board. One CW was examined on 4.2.05 for the purpose of age enquiry and on the same Sachin Panwar Vs. State CA no.49A/09 Page No.1 of 13 day appellant was declared juvenile on the basis of record produced by CW wherein date of birth was mentioned as 9.9.88. Thereafter SHO PS Vasant Kunj file an application on 4.3.05 wherein it was mentioned that the actual date of birth of delinquent was 9.9.83 and the matter was reconsidered. The said application was disposed off vide order dated 12.05.05 and application was allowed to reach a just decision on the point of age. After the application was allowed, five CW's were examined excluding one CW already examined for the purpose of age enquiry. CW1 Arun Kumar, CW2 Smt. Bala Devi, CW3 Yogender Singh, CW4 Ishwar Singh Tomar, CW5 Yogender Singh Talia and CW6 Champu Ram. Thereafter, arguments were heard by the Principal Magistrate and vide order dated 20.05.06, appellant was declared adult and was sent to the court of Ld. CMM. Feeling aggrieved by the said order dated 20.05.06, the appellant has preferred this present appeal for conducting his ossification test by taking the plea that there are two views in the evidence.
3. Notice to the appeal was issued to the State/ Respondents and after receiving the juvenile court record, the final arguments on the appeals were heard.
4. During the course of arguments it has been submitted by the Ld. Counsel that the appellant/accused was declared juvenile by the Juvenile Justice Board on 4.2.05 but thereafter he was declared major vide order Sachin Panwar Vs. State CA no.49A/09 Page No.2 of 13 dated 20.5.06. The appellant has moved an appeal through jail Superintendent on 24.6.06 for his ossification test to ascertain his correct age. u/s 383 Cr.PC. ON 31.10.06 father of the appellant moved an application for hearing the said petition but meanwhile at that stage it came to the knowledge that FIR no.212/4 u/s 25 Arms Act PS Vasant Kunj has already been disposed of by acquitting the accused by Ld.MM on 11.9.06 and said case reached to finality, pendency of application It has been further submitted that there are major contradictions between the facts and evidence which has been produced before the Juvenile Justice Board and without a medical opinion, the justice done is incomplete. The SHO PS Vasant Vihar had stated that juvenile had studied in another school in primary and Inter College Village Alaum in Muzaffar Nagar in the name of Sachin Kumar. Ld. Counsel has argued that the SHO has raised two points (i) that the juvenile Sachin Kumar s/o Nirbhey Singh had studied in Prathmic vidyalya, Alaum and Inter College Alaum and accordingly the date of birth of the inmate is 9.9.83 (ii) that the transfer certificate of inter college, Titoli (when accused had studied from standard six to standard nine is forged). He has further submitted that to verify about forged documents, CWS were examined but prosecution could not establish the link of Sachin Panwar with Sachin Kumar as per evidence of CW2. He has drawn the attention of the court on the testimony of CW2 and stated that the name of Sachin Panwar is not on record. Neither admission form number nor any transfer certificate has Sachin Panwar Vs. State CA no.49A/09 Page No.3 of 13 been shown. No signature, photo, statement of Guardian, when admitted in primary school at Alam has been shown. There is difference in the occupation of the father that one Sachin Kumar is agriculturist and Sachin Panwar's father is in service. There is no source of information on record showing the basis of which date of birth was entered in school placed by prosecution. He has also drawn the attention of the court on the testimony of CW3 who has stated that transfer certificate is genuine and has been issued by their school having date of birth 9.9.88. IT has further been argued that the Ld. Juvenile Board has miserably failed to appreciate the statements of CW1,3,5 & 6. It has further been submitted that the medical opinion is necessary to come to the conclusion about age of appellant. He has relied upon case laws 2001 Cr.L.J 2902, Ram Deo Chauhan Vs. State of Assam, Page 2903, Cr.L.J. 2001 Page 2910 in para 23, Crimes Volume 1989 in 2 roop Ram Vs. State of UP, & Bachey Lal Vs. State of UP, 1996 SCC (Crl.) 559.
5. On the other hand, Ld. APP for the State has strongly refuted the submissions made by the Ld. Counsel for the appellant and he has argued that the impugned order passed by the Ld. MM is a speaking order and it has been passed rightly after considering the evidence on record and with due diligence. There is no illegality or infirmity in the order and it does not required any interference by this court. So, the appeal of the appellant may kindly be dismissed.
Sachin Panwar Vs. State CA no.49A/09 Page No.4 of 13
6. In consideration of the submissions made by Ld. Counsels of Appellant as well as Ld.APP for the State, I have also perused the trial court record and documents available on it as well as the evidence adduced and their cross examination and the order passed by the Principal Magistrate dated 20.05.06. Rule 22 (5) of the Act, prescribes following documents to be taken into consideration for the purpose of determination of age.
(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.
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.
7. In view of the above provision for determination of age, firstly I have perused the evidence adduced in this respect. CW1 Arun Kumar is the Principal, National Children Academy, Shamli, Dharampura. He has Sachin Panwar Vs. State CA no.49A/09 Page No.5 of 13 stated that child Sachin Panwar s/o Nirbhay Singh was admitted in their school on 5.7.1993 vide sr.no.33 in class Nursery and his date of birth is 9.9.88. Copy of admission register is Ex.CW1/A. CW1 has not been cross examined.
8. CW2 Smt. Bala Devi, Head Mistress, Prathmik Vidyalya, LM no.1 has deposed that as per school record Sachin Kumar s/o Nirbhay Singh r/o LM Bhudara Mujaffarnagar was admitted to their school on 1.12.88 in class 1st and his date of birth is 9.9.83. The register is Ex.CW2/A. Sachin Kumar was admitted to school in Ist Class and studied upto 5th Class and left the school on 2.7.93. The admission register is Ex.CW2/A.
9. CW3 Yogender Singh, Teacher from Sushila Devi Rajender Lal Memorial, Navbharat Ucchtar Madhyamik Vidhyalya has deposed that Sh Nirbhey Singh had worked as Principal with the school upto 30.6.02 and thereafter Sh. Brijendra Pal was appointed as Principal. At Sr.no.3390 one Jamshed Chaudhary has been shown as student admitted to school on 1.7.97 in class 9th and it has been stated by Madan Singh. Sh Madan Singh has provided to IO the copy of register B. But copy of Register A was not provided. When Madan Singh disclosed about the enquiry by IO, maintenance of register A came in the knowledge. He has brought register A in which at sr.no.3390 one Sachin Panwar s/o Nirbhay Singh and Kela Devi r/o village & PO Alam, Mujaffarnagar was admitted to Sachin Panwar Vs. State CA no.49A/09 Page No.6 of 13 class 6th on the basis of school leaving certificate issued by National Children Academy Shamli. The date of birth as per school record is mentioned as 9.9.88. The copy of register is Ex.CW3/A. Copy of school leaving certificate is mark A and admission form is mark B.
10. CW4 Ishwar Singh Tomar has deposed that juvenile Schin Kumar s/o Nirbhay Singh was admitted to Inter college on 3.7.93. Sachin Kumar was admitted in class 6th and studied upto class 12th. The copy of the register is Ex.CW4/A. He has further stated that date of birth of Sachin Kumar is 9.9.83. Juvenile took admission in their Inter College in 6th Standard and prior to that juvenile have studied upto 5th class in HM Prathmik Vidyalya Alum no.1, district Muzafarnagar. He has brought the gazette of High School of UP Board in the year 1999 and in the year 1999 Sachin had appeared in 10th class examination wherein the date of birth has been shown as 9.9.83. The copy of gazette is Ex.CW4/B. He cannot produced the Board examination form. He admitted that in the gazette the name of juvenile has been mentioned as Sachin Panwar whereas in their school record the name has been mentioned as Sachin Kumar however, the entry in gazette Ex.CW4/B is of the same candidate as mentioned in their record Ex.CW4/A.
11. CW5 Yogender Singh Talia is the Principal of KHR Inter College, Khampur Lohari, District Bagpat and he has produced the admission Sachin Panwar Vs. State CA no.49A/09 Page No.7 of 13 record of Sachin Panwar Roll No. 2442253. He has deposed that Sachin Panwar was student as private candidate and he was not regular student in their college. He appeared in 10th class Board examination in the year 2004. He submitted the examination form in August 2003. His date of birth was recorded as 9.9.88 and on the basis of identity form he was allowed to sit in class 10th exams. The identify card is Ex.CW5/A. He has produced the original gazette Ex.CW5/B. As per Gazette juvenile appeared in only one paper and then he absented in other papers.
12. CW6 Champu Ram is the ExOfficer, Adhishashi Adhikari of Nagar Panchayat, Alum and he has stated that as per record, the DOB of Sachin Panwar is 9.9.88 which is mentioned at sr.no.6 on 31.5.90.
13. In view of the evidence available on file, I have also gone through the order passed by the Ld. Principal Magistrate. As per evidence there are two persons by the name of Sachin, one is Sachin Kumar and another is Sachin Panwar both sons of Nirbhay Singh. As per record the occupation of father of Sachin Kumar is agriculturist and occupation of father of Sachin Panwar is service. The date of birth has been mentioned as 9.9.83 of Sachin Kumar and 9.9.88 of Sachin Panwar. In the cross examination of PW4 he has stated that 'it is correct that document Ex CW4/B is of the same candidate as mentioned in their school record Ex.CW4/A. From the testimony of CW4 it is revealed that both Sachin Sachin Panwar Vs. State CA no.49A/09 Page No.8 of 13 Kumar and Sachin Panwar are the same persons but as per school certificate records their date of births are different. CW1 Arun, CW3 Yogender Singh, CW5 Yogender and CW6 Champu Ram have deposed in favour of the appellant while CW2 and 4 have deposed against the appellant. I have also perused the documents. Ex.CW1/A shows the date of birth of Sachin Panwar as 9.9.88 and occupation of father as service. In admission form and schooling leaving certificate the date of birth has also been shown as 9.9.88. In Ex.CW2/A which is the register of HM Prathmik Vidyalya the date of birth of Sachin Kumar has been shown as 9.9.83. But in this register, the occupation of father has been shown as agriculturist and name of appellant has been shown as Sachin Kumar. The correct name of present appellant is Sachin Panwar. Ex.CW3/A which is the transfer certificate of High School Titoli the date of birth of Sachin Panwar is mentioned as 9.9.88. PW3 has produced two certificate from register A and B. Both the certificates bearing register/sr. no.3390. One has been issued on 1.7.97 in favour of Jamshaid Chaudhary while other has been issued on 18.7.99 in favour of Sachin Panwar. Ex.CW4/A i.e. transfer certificate bears the name of Sachin Kumar showing date of birth as 9.9.83. It ha been issued from Inter College, Alum. Ex.CW4/B shows the name of Sachin Panwar s/o Nirbhay Singh showing date of birth as 9.9.83 and this has been issued by the Uttar Pradesh Education Board. But as per the deposition of CW4 admission was taken in the name of Sachin Kumar in class 6th but as per Board gazette the name has appeared as Sachin Panwar Vs. State CA no.49A/09 Page No.9 of 13 Sachin Panwar. However, CW5 Yogender Singh, Principal KHR Inter College has again controverted the deposition of CW4 by stating that Sachin Panwar s/o Nirbhay Singh has appeared under roll no. 2442253 as private candidate in 10th class in the year 2004 and Ex.CW5/A shows the date of birth as 9.9.83. Even CW5 has also produced the Board Gazette wherein the name of Sachin Panwar s/o Nirbhay Singh with date of birth as 9.9.88 is mentioned. Even the name of mother of Sachin Panwar as Kela Devi is also mentioned in this Board Gazette Ex.CW5/B. CW6/A also shows the date of birth of Sachin Panwar as 9.9.88 with father profession as Service. Some observations have been recorded regarding Ex.CW6/A by the Board and I have also considered the same. It has been submitted by the Ld. APP that father of the appellant was a influential man and he in connivance of CW1,3,5 & 6 have produced forged and fabricated record. This submission is declined because the parents cannot get record wrong date of birth in anticipation that his/her son would be involved in some crime at later stage. The evidence has been led by the prosecution to bring on record that appellant was not juvenile. But as per evidence available on file some of the witnesses have deposed in favour of the appellant and some have deposed in favour of the State. Now there are two view in this case. This is a peculiar type of situation where certificates showing birth of appellant had been produced but both are different. No certificate issued by the Municipal corporation has been produced. In Raja Janaki Nath roy Vs. Jyotish Chandra Acharya Sachin Panwar Vs. State CA no.49A/09 Page No.10 of 13 Chowdhury, AIR 1942 Cal 41, a Division Bench of Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made and this Principal has been accepted by almost all the High courts in the Country.
14. It is stated in case law Bhola Bhagat Vs. State of Bihar, (1997) Supreme Court Cases 720 that : 'Children Acts- Juvenile Justice Act, 1986 - Ss.32 and 2(h)- Plea that the accused was a child on the date of occurrence - Doubt regarding age of the accused - Duty of court - Held, in case of court entertains any doubt about the correctness of the plea it must make due enquiry by giving opportunity to the parties to establish their claims and record a positive finding regarding age of the accused - Benefit of children Act should not be refused on technical grounds - High Courts directed to issued administrative directions to the subordinate courts in this regard - Correctness of age given by the accused in trial court not assailed - Held, it must be assumed that on the date of offence each of the accused was a child...' In case Law Rajinder Chandra Vs. State of Chhattisgarh, AIR 2002 Supreme court 748 it is stated in head note that : 'Accused claimed himself to be juvenile - Onus lies upon him to prove that he was a juvenile - Oral and documentary evidence adduced by him not sufficient to discharge onus - sufficiency of - Two views possible Court should lean in favour of accused - On date of offence and his arrest, accused was less than 16 years by a few months only - Accused can be held to be a juvenile'.
In case law Savitri Devi Sharma Vs. State of UP and Anr., 2005 Supreme Court Cases (Cri) 1517 as under : 'Age of accused - Determination of - Offence committed on 23.21999 - Sachin Panwar Vs. State CA no.49A/09 Page No.11 of 13 Sessions court and High Court holding the accused to be juvenile by considering his date of birth to be 2.7.85 on the basis of school certificate and statements of the Principal and accused's brother and mother - petitioner (victim's mother ) placing on record certificate of another school in which according to her the date of birth of the accused was 3.5.78 - No affidavit filed by the accused - AS per petitioner, a fraud was committed on court by filing a certificate no pertaining to the accused - In these peculiar facts and circumstances of the case, matter as to age of accused directed to be examined afresh by the Magistrate.....'. In case Law Jyoti Prakash Rai Vs. State of Bihar, AI R 2008 Supreme Court 1696 it is stated in head note B that :
'Juvenile - Determination of age of offender - Delinquent examined by two different medical boards on two different dates - Both reached to identical opinion that age of delinquent was between 18 and 19 years - court may in facts and circumstances resort to some sort of hypothesis to arrive at definitive conclusion'.
In head note (C) it is stated that :
'Juvenile - Determination of age on date of crime - School leaving certificate and horoscope produced by delinquent was found to be forged and fabricated - reports of two medical boards dated 24.4.01 and 29.6.01 showing the age of delinquent between 18 and 19 years - Finding by courts that age of delinquent as on 1.4.2001 i.e. on the date of enforcement of Act to be above 18 years - held, not liable to be interfered with'.
In case Law Balu @ Bakthvatchalu Vs. State of Tamil Nadu, (2008) 14 SCC 463 it is stated in head note that : 'Juvenile Justice Act, 1986 -Ss 32 and 2(h) - doubt regarding age of accused on the date of occurrence - Duty of court to institute inquiry as regards age - Requirement of - conviction for murder - Rigour of sentence, factor to be considered for instituting an inquiry as regards age
- Juvenile offender having been tried and convicted for rigorous imprisonment for life by trial court and High court, held, an inquiry as regards the age of juvenile was essential'.
15. Considering the above case laws, entire testimonies of CWS their Sachin Panwar Vs. State CA no.49A/09 Page No.12 of 13 cross examination, exhibited documents and order passed by the Principal Magistrate and since there are two view before the court, it is necessary to establish the age of appellant by way of ossification test. I therefore, allow the appeal and Jail Superintendent is directed to get the ossification test done of appellant Sachin Panwar s/o Nirbhay Singh in AIIMS, New Delhi and notice be also issued to M.S, AIIMS to form a panel of five senior doctors from the concerned department to give opinion regarding the age determination of accused Sachin after conducting his ossification test within a week and submit the report before the court for finality of order on juvenility of appellant.
Announced in the Open Court on 22.03.2011.
(SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE (Fast Track CourtNew Delhi and South East District) NEW DELHI Sachin Panwar Vs. State CA no.49A/09 Page No.13 of 13