Allahabad High Court
Narendra Yadav vs State Of U.P. And Another on 15 March, 2019
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 07.01.2019 Judgment delivered on 15.03.2019 Court No. - 70 Case :- CRIMINAL REVISION No. - 2224 of 2017 Revisionist :- Narendra Yadav Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Vidhu Bhushan Singh Counsel for Opposite Party :- G.A., Devesh Kumar, Pt. S.P. Sharma Hon'ble Sanjay Kumar Singh,J.
1. Heard Sri Vidhu Bhushan Singh, learned counsel for the revisionist, Sri S.P. Sharma, learned counsel appearing on behalf of opposite party no. 2, learned A.G.A. for the State and perused the material available on record.
2. This criminal revision under Section 397/401 Cr.P.C. has been preferred by the revisionist against the impugned order dated 17.06.2017, passed by Additional Sessions Judge, Court No. 3, Jhansi, in Sessions Trial No. 127 of 2016, under Sections 498A, 304 B Indian Penal Code and Section ¾ Dowry Prohibition Act, Police Station-Sipari Bazar, District Jhansi, whereby the Additional Sessions Judge, Jhansi has declared the accused Rohit Yadav/opposite party no. 2 as juvenile on the date of occurrence/offence dated 24.02.2016.
3. Brief facts of the case are that marriage of the opposite party no. 2 (husband) was solemnized with Chhaya (daughter of the revisionist) aged about 20 years on 09.05.2015. Smt. Chhaya within ten months of her marriage died in her matrimonial house. On 24.02.2016, the revisionist lodged a first information report against opposite party no. 2 and his family members registered as Case Crime No. 104 of 2016, under Sections 498A, 304B I.P.C. and Section ¾ D.P. Act at Police Station-Sipari Bazar, District Jhansi making allegation that since the opposite party no. 2 and his family members were not satisfied with the dowry given by the revisionist in marriage of his daughter, therefore, there was consistent demand of four wheeler car and cash amount to the tune of Rs. 5 lakhs from the side of accused persons and due to non fulfillment of said demand of dowry, they used to assault the deceased (daughter of the revisionist). It is further said that on 24.02.2016, the revisionist on receiving information went to the matrimonial house of his daughter and saw that his daughter Chhaya was lying on the bed in dead condition. In the postmortem report dated 25.02.2016, age of deceased (wife of opposite party no.2) is mentioned as 20 years, cause of death was found "Asphyxia due to antimortem ligature strangulation", and viscera also preserved for criminal analysis.
4. The Investigating Officer, after investigation has submitted charge sheet against the accused persons including the opposite party no. 2 (husband of the deceased) on 27.04.2016, upon which the Magistrate took cognizance of the matter and committed the case to the court of session for trial of the accused persons. Before the sessions court, case was registered as Sessions Trial No. 127 of 2016 and trial was commenced.
5. On 02.01.2017, opposite party no. 2/Rohit Yadav had moved an application under Section 9(2) of The Juvenile Justice (Care and Protection of Children) Act, 2015 before the Additional Sessions Judge, Jhansi/Trial Court praying therein to declare him as juvenile claiming that on the date of occurrence i.e. 23/24.02.2016, the opposite party no. 2 was minor, as his date of birth is 21.10.1999. The opposite party no. 2 in support of his claim of juvenility has submitted the following documents :-
(i) Admission Register of Prathmik Vidayalaya Kot, from where the opposite party no. 2 studied from class II to IV (Papers No. 20-A/1 and 20-A/2, exhibited as Exhibit Ka-7 dated 04.02.2017) In the said documents, name of opposite party no. 2 is mentioned at serial no. 964 and his date of birth is mentioned as 21.10.1999, but there is over writing and interpolation on his date of birth, which is apparent from naked eyes.
Date of admission of the opposite party no. 2 in class II is mentioned as 06.07.2006, in class III as 01.07.2007 and in class IV as 01.07.2008.
(ii) Scholar Register of Primary School, Kot, from where opposite party no. 2 had studied class IV (Paper No. 22-A/Exhibit Ka-8 dated 04.02.2017) In the said document name of opposite party no. 2 is mentioned at serial no. 964/1108, which is not in order. Above the name of opposite party no. 2, serial no. 975/1105 has mentioned. In the said document, the date of birth of opposite party no. 2 is mentioned as 21.10.1999.
(iii) Affidavit of Ramji Saran (father of opposite party no. 2) dated 15.07.2010 given before Principal, Primary School, Kot, Baheta, Jhansi at the time of admission of opposite party no. 2 in class V (Paper No. 21-A/1/Exhibit Ka-9 dated 04.02.2017) The father of opposite party no. 2 in the said affidavit has mentioned the date of birth of opposite party no. 2 as 21.10.1999 but in para 3 of the affidavit mentioned that the opposite party no. 2 before taking admission in Class V had studied in his house and did not study in any school. As such, this averment on affidavit given by the father of the opposite party no. 2 is contrary to the documents, exhibited as Ka-7 and 8.
(iv) Transfer certificate dated 02.07.2011 issued by Prathmic Vidyalaya Koth, Jhansi, from where the opposite party no. 2 has passed class Vth (Paper No. 16-A/Exhibit Ka-5 dated 28.01.2017) In the said document, date of admission is mentioned as 16.07.2010 and last date of admission as 01.07.2010. Though date of birth of the opposite party no. 2 is mentioned as 21.10.1999, but this document has been attested by the Incharge Principal of Purva Madhyamik Vidyalaya (Behata), Block-Baragaon, Jhansi.
(v) Extract of admission register of Purva Madhyamik Vidyalaya, Baheta, Badagaon, Jhansi, where the opposite party no. 2 took admission in class VI (Paper No. 17-A/Exhibit Ka-6 dated 28.01.2017) In the said document, name of opposite party no. 2 is mentioned at serial no. 153 and his date of birth is mentioned as 21.10.1999.
(vi) School leaving certificate dated 03.07.2014 of Purva Madhyamik Vidyalaya, Baheta, Jhansi from where opposite party no. 2 had studied Classes VI to VIII (Paper No. 13-A/Exhibit Ka-3 dated 25.01.2017 In the said document, date of birth of opposite party no. 2 is mentioned as 21.10.1999. Date of first admission in school is mentioned as 05.07.2011. Date of last attendance of opposite party no. 2 is mentioned as 21.05.2014. Date of leaving school by the opposite party no. 2 is mentioned as 03.07.2014.
(vii) Admission form of Class IX of Shashikiya Ucchatar Madhyamik Vidyalaya, Unnao, District Datia, Madhya Pradesh, Sessions 2014-15 (Paper No. 11-A/Exhibit Ka-2 dated 25.01.2017) In the above document the date of birth of opposite party no. 2 is mentioned as 21.10.1999, but no date is mentioned on the admission form. The said admission form also does not bear the signature of Principal of the school. It appears that the Principal of the school has attested the documents but there is no date on the attestation.
(viii) Photocopy of extract of class IX of scholar register of Shashikiya Ucchatar Madhyamik Vidyalaya, Unnao (paper no. 10-A/Exhibit Ka-1 dated 25.01.2017) In the above document date of birth of Rohit Yadav/opposite party no. 2 is mentioned as 21.10.1999, date of admission of Rohit Yadav/opposite party no. 2 in Class IX is mentioned as 30.06.2014. Date of pass out of Class IX is mentioned as 30.04.2015.
The date of admission in Class X is mentioned as 10.07.2015 with further endorsement that on account of long absence of student, the admission was cancelled on 29.02.2016 and scholar number is mentioned as 12414.
(ix) Mark sheet of class IX of opposite party no. 2 (Paper No. 12-A/Exhibit Ka-4 dated 25.01.2017) In this mark sheet, scholar number is mentioned as 12415, while in the scholar register (Exhibit Ka-1), scholar number is mentioned as 12414.
6. From the side of revisionist, series of objections were raised that on the date of offence, the opposite party no. 2 was not juvenile but he was major. The revisionist has also file the following documents to establish that the date of birth as mentioned by the opposite party no. 2 in his application dated 02.01.2017 is incorrect and false :-
(i) Copy of ration card dated 30.01.2006 (Paper No. 7-A) In the ration card, the age of opposite party no. 2 is mentioned as 10 years on 30.01.2006.
(ii) Horoscope of opposite party no. 2 (Exhibited as Exhibit Kha-1 on 20.03.2017) In the above document, the date of birth of opposite party no. 2 is mentioned as 29.11.1997.
(iii) Original Aadhar Card No. 863509161118 of opposite party no. 2 (Paper No. 26B) In the Aadhar Card, the date of birth of the opposite party no. 2 is mentioned as 01.01.2000.
7. The trial court for disposal of aforesaid application dated 02.01.2017 of opposite party no. 2 recorded the statements of Pt. Bali Prasad Chaturvedi as PW-2 on 27.03.2017, Sunil Yadav as DW-1 on 21.03.2017, Ramji Saran as CW-1 on 21.01.2017, Sunil Shukla as CW-2 on 25.01.2016, Vinita Saran as CW-3 on 28.01.2017 and Suman Shukla as CW-4 on 04.02.2017.
8. The Additional Sessions Judge, Court No. 3, Jhansi considering the aforesaid materials and statements has allowed the application dated 02.01.2017 (Application No. 3-A) of the opposite party no. 2 by order dated 17.06.2017 declaring him as juvenile on the date of offence and directed to refer his matter before the Juvenile Justice Board.
9. The revisionist has preferred the present revision against the aforesaid impugned order dated 17.06.2017 before this Court. On 21.08.2017, the present revision was admitted by the coordinate Bench of this Court granting interim stay directing that till the next date of listing the operation of the impugned order shall remain stayed. Opposite party no. 1 has filed counter affidavit dated 07.05.2018 with the stand that on the date of incident, the opposite party no. 2 was minor aged about 16 years 4 months and 3 days. The opposite party no. 2 also filed counter affidavit dated 06.09.2017 with same stand that his date of birth is 20.10.1999, therefore, he was minor on the date of incident.
10. On 16.07.2018, following order was passed by this Court :-
"The core issue of the case appears to be the determination of the age of the opposite party no. 2. At present, the impugned order in the present revision appears to have arisen on the basis of the school documents.
In view of the provisions of the Supreme Court in the case of Suhani Vs. State of U.P. and another in Civil Appeal No. 4532 of 2018 decided on 26.4.2018, it is considered appropriate that the medical examination of the opposite party no. 2 be got conducted by the C.M.O., Jhansi.
Consequently, let the medical examination of the opposite party no. 2 be got conducted by the D.P.O., Jhansi, by the C.M.O., Jhansi on or before 23.7.2018 and the report of the C.M.O., Jhansi be produced before this Court in a sealed cover by the learned A.G.A. on 30.7.2018.
List on 30.7.2018 in top ten cases.
Let a copy of the order be supplied to learned A.G.A. within 24 hours.
Interim order is extended till the next date of listing."
11. Pursuant to the aforesaid order dated 16.07.2018 of this Court, the Chief Medical Officer, Jhansi, produced the report dated 28.07.2018 in a sealed cover and according to the said report, the age of opposite party no. 2 has been estimated between 23-24 years. The aforesaid medical examination report dated 28.07.2018 of the accused/opposite party no. 2 is reproduced herein below :-
"Office of the Chief Medical Officer, Jhansi No. CMO/E Date : 28 July, 2018 Certified that Sri Rohit Yadav, S/o Sri Ramji Saran Yadav, R/o Village Kot, Police Station Sipari Bazar, through Jail Superintendent, District Jail, Jhansi, Police Station Sipari Bazar, Distt. Jhansi appeared before me for his age certificate.
I examined his/her and found as following :
Hight : 173 Cm.
Weight : 66 Kg.
Teeth : 16/16 Head Hair : Black Pubic Hair : Present Axillary Hair : Present Breast : X Moustache : Present M.I. : A black mole on neck about 105 cm. Above the medial area of Lt. Clavicle. X-Ray no. 769/18, Date 28.07.2018, Distt. Hospital Jhansi.
RADIOLOGIST DISTRICT HOSPITAL, JHANSI 1- X-ray Rt. Elbow joint AP Epiphyses around the elbow joint have fused. 2- X-ray Rt. Wrist joint AP Epiphyses of lower ends of radius & ulne bones have fused. 3- X-ray Inner ends of Clivicle Epiphyses of inner ends of both clavicles have fused. 4- X-ray Pelvis AP Secondary ossification centre of iliac crest have fused. 5. X-ray Rt. Knee AP Epiphyses around the knee joint have fused.
According to above findings his/her age is between 23-24 years (Between twenty three to twenty four years)"
12. As per above medical report dated 28.07.2018, on the date of incident i.e. 23/24.02.2016, the age of the opposite party no. 2 would be about 21-22 years.
13. On 20.08.2018, when the case was heard at length, a doubt arose before this Court as regards the consistency in the school record of opposite party no. 2 pertaining to his class Vth. Therefore, this Court passed the following order on 20.08.2018, summoning the original record of the case :-
"Heard learned counsel for the revisionist and learned A.G.A. for the State.
The present revision has been filed against the impugned order dated 17.06.2017, passed by the learned Additional Sessions Judge, Court No.3, Jhansi, in S.T. No. 127 of 2016, arising out of Case Crime No. 104 of 2016, under Sections 498-A, 304-B, IPC and 3/4 D. P. Act, Police Station- Sipari Bajar, District-Jhansi.
While the matter has been heard at length on an earlier date, upon further hearing on today, a doubt has been raised as to the consistency in the school record of the opposite party no.2 pertaining to his Class-5. In this regard learned counsel for the revisionist submits that while the scholar register discloses that the said opposite party no.2 had left his studies at the Prathmik Vidyalaya, Kote, after completing Class-3, the transfer certificate issued by that college discloses that he had passed Class-5 from that school. Also it has been submitted that even in the scholar register that appears to be overwriting in so far as the date of birth of the opposite party no.2 is concerned.
In view of such objection being raised, it is desirable that original record of the case be produced before this Court for proper adjudication.
Consequently, list this case again on 11.09.2018, on which date the record of the lower court may be summoned and produced before this Court.
Interim order, if any, shall continue till the next date of listing."
14. Before delving into the issue, it would be appropriate and useful to refer certain relevant provisions of The Juvenile Justice (Care And Protection of Children) Act, 2015, which are as under :-
Section 2. Definitions :-
(12) "child" means a person who has not completed eighteen years of age; (13) "child in conflict with law" means a child who is alleged or found to have committed an offence and who has not completed eighteen years of age on the date of commission of such offence; (33) "heinous offence" includes the offences for which the minimum punishment under the Indian Penal Code (45 of 1860) or any other law for the time being in force is imprisonment for seven years or more; (35) "juvenile" means a child below the age of eighteen years;
Section 9. Procedure to be followed by a Magistrate who has not been empowered under this Act (1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made there under even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person's claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.
Section 94. Presumption and determination of age (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.
The only question to be determined in this case is "whether on the date of occurrence, i.e., 23/24.02.2016, the accused/opposite party no. 2 was juvenile or not."
15. After going through the stands taken by the revisionist as well as opposite parties and the material evidences brought on record by the parties concerned in support of their stands, I find that the date of birth of opposite party no. 2 in the lower rungs of school records below matriculation (from class II to class IX) produced on behalf of the opposite party no. 2 is shown as 21.10.1999 but the date of birth of the opposite party no. 2 as mentioned in his Aadhar Card are entirely different and shown as 01.01.2000. Apart from this considering the over all facts and circumstances of the case, the documents and evidences produced on behalf of the accused/opposite party no. 2 do not inspire confidence due to following reasons :-
(i) It is the case of opposite party no. 2 that first time he straightway took admission in class II.
(ii) There is overwriting and interpolation on the date of birth of the opposite party no. 2 in admission register of Prathmik Vidayalaya Kot (Papers No. 20-A/1 and 20-A/2, Exhibit Ka-7), from where it is said that opposite party no. 2 studied from class II to IV.
(iii) In the scholar register of Primary School, Kot (Paper No. 22-A/Exhibit Ka-8), from where, the opposite party no. 2 had studied class IV, the name of opposite party no. 2 is mentioned at serial no. 964/1108 but the same is not in order because above the name of opposite party no. 2, serial no. 975/1105 is mentioned.
(iv) From the affidavit (Paper No. 21-A/1/Exhibit Ka-9) of Ramji Saran (father of opposite party no. 2) dated 15.07.2010 given before the Principal of Primary School, Kot, Baheta, Jhansi at the time of admission of opposite party no. 2 in class V , it is apparent on record that the father of opposite party no. 2 in para 3 of the said affidavit mentioned that opposite party no. 2 before taking admission in class V had studied in house and did not study in any school. As such, this averment on affidavit given by the father of opposite party no. 2 is self contradictory, because it is the case of opposite party no. 2 that he had studied classes II to IV in Primary School, Kot and documents in this regard has been produced as Paper No. 20-A/1-2, Exhibit Ka-7 and Paper No. 22-A/Exhibit Ka-8).
(v) In the admission form of class IX of Shashikiya Ucchatar Madhyamik Vidyalaya, Unnao, District Datia, Madhya Pradesh, Sessions 2014-15 (Paper No. 11-A/Exhibit Ka-2) no date is mentioned on the admission form. Even the admission form also does not bear the signature of Principal of the school.
(vi) In the photocopy of extract of class IX of scholar register of Shashikiya Ucchatar Madhyamik Vidyalaya, Unnao (paper no. 10-A/Exhibit Ka-1), scholar number of the opposite party no. 2 is mentioned as 12414, while in the mark sheet of class IX of opposite party no. 2 (Paper No. 12-A/Exhibit Ka-4), the scholar number of the opposite party no. 2 is mentioned as 12415.
(vii) From the side of the revisionist/complainant, original Aadhar Card (paper No. 26-A) of the opposite party no. 2 was produced, in which date of birth of the opposite party no. 2 is mentioned as 01.01.2000. This document has not been denied from the side of opposite party no. 2.
(viii) In the ration card (Paper No. 7-A), age of opposite party no. 2 is mentioned as 10 years on 30.01.2006, as such, on the date of offence i.e. 24.02.2016, age of the opposite party no. 2 become more than 20 years.
(ix) As per horoscope of opposite party no. 2 (Exhibit Kha-1), date of birth of the opposite party no. 2 is 29.11.1999.
(x) There is no evidence on record that on which material, age of the opposite party no. 2 was recorded in the school register. It is also not a case of the Principal of the college that before making entries in the school records he had verified the age of opposite party no. 2.
(xi) The author of the register who has maintained the entry has also not been examined.
16. Regarding entry relating to date of birth made in the school register, the Apex Court in the case of Bhola Bhagat etc. vs. State of Bihar, 1998 AIR (SC) 236, has observed that "an obligation has been cast on the court that where such a plea is raised having regard to the beneficial nature of the socially-oriented legislation, such a plea should be examined with great care. We are, however, of the opinion that the same would not mean that a person who is not entitled to the said benefit would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit. Each case has to be considered on the basis of the materials brought on record."
17. The Apex Court in the case of Om Prakash vs. State of Rajasthan & Anr., 2012 (5) SCC 201, while considering the scope and object of Juvenile Justice (Casre & Protection of Children) Act, 2000 has held as under :-
" 18. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates ad school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution."
" 21. The benefit of the principle of benevolent legislation attached to Juvenile Justice Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodege or dupe the arms of law, cannot be allowed to come to his rescue. Hence if the plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the event it is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused."
18. It is well settled that where the courts cannot clearly infer in spite of available evidence on record that the accused is a juvenile or the said plea appears to have been raised merely to create a mist or a smokescreen so as to hide his real age in order to shield the accused on the plea of his minority, the attempt cannot be allowed to succeed so as to subvert or dupe the cause of justice.
19. The three judges Bench of the Apex Court recently on 18.04.2018 in the case of Suhani and another vs. State of U.P. and others in Civil Appeal No. 4532 of 2018 decided the controversy with regard to age of victim on the basis of Radiological Examination of victim. In the said case, victim has taken stand that she is about 19 years of age, while as per certificate issued by the Secondary School Examination, the age of victim was 13 years and 8 months. Under the facts and circumstances of that case, Apex Court directed that victim should be examined by the concerned department of All India Institute of Medical Sciences, New Delhi. Thereafter, on the basis of physical, dental and radiological examination, the age of the victim was found between 19 to 24 years. The Apex Court considering the medical opinion decided the case with the conclusion that victim is an adult. The relevant observations and findings of the Apex Court in the said case are reproduced herein-below:-
"We have received the report from the All India Institute of Medical Sciences, New Delhi, which has examined the petitioner no. 1. The radiological examination and the final report/opinion on the same reads as follows:-
"Radiological Examination X-Rays advised for age estimation:-
X-Ray Medial End of Clavicle, Sternum AP & Lat. view, Pelvis AP view, L.S. Spine -Lat. View, Wrist & Elbow-AP & Lat. View, Shoulder-AP view, were done in Radiology Department. Report of Radiological Examination-
All epiphysis at elbow, shoulder and wrist joint fused, suggestive of age 16.5 years. Fusion of iliac crest epiphysis, suggestive of age 19 + 1 years. Medial end of clavicle not fused, suggestive of age 22-27 years. S1 of sacrum not fused with S2, suggestive of age 17-24 years. Imp.:-Estimated Bone age is between 19-24 years.
FINAL REPORT/OPINION:
Considering the findings of physical, dental & radiological examinations we are of the considered opinion that the bone age of petitioner Miss Suhani is between 19-24 years."
In view of the conclusion arrived at by the All India Institute of Medical Sciences, we are of the considered opinion that the petitioner no. 1 is a major, and the High Court was not correct in directing her to stay in the Nari Niketan, Allahabad. The petitioner no. 1 admits the factum of marriage, before us. Therefore, she is entitled to accompany the petitioner no. 2, who is her husband.
In view of our conclusion that she is an adult and she had gone voluntarily with the petitioner no. 2 and entered into wedlock, the criminal proceedings initiated under Sections 363 and 366 of the Indian Penal Code against the petitioner no. 2 stands quashed. We have passed this order of quashing the proceedings to do complete justice.
The appeal is accordingly allowed and the impugned order passed by the High Court is set aside. Pending interlocutory applications, if any, shall stand disposed of."
20. It is well settled that the principles applicable to the determination of age in the case of a juvenile would in terms apply to cases of determination of the age of a victim as well. The Apex Court in the case of Jarnail Singh vs. State of Haryana, 2013 (83) ACC 36 (SC) has held that the Rule 12(3) of the Juvenile Justice (Care & Protection of Children) Rules, 2007 must apply both to a child in conflict with law as well as to a victim of crime. The relevant observations made by the Apex Court in para 23 of the said judgment are reproduced herein below :-
"23. The next contention advanced at the hands of the learned counsel for the accused-appellant Jarnail Singh was, that the oral testimony of the prosecutrix VW - PW6 ought not to be accepted as sufficient to return a finding of guilt against the accused-appellant Jarnail Singh. Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is pointed that there were a number of discrepancies and contradictions therein. It was submitted, that such discrepancies can be seen on a comparison of her deposition before the trial Court, with the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure on 6.4.1993, as also, the statement of the prosecutrix recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure on 29.3.1993."
21. Learned counsel for the opposite party no. 2 has placed reliance upon the judgment of this Court in the case of Jai Prakash Tiwari vs. State of U.P. & Another, 2016 Law Suit (All.) 2940, while the learned counsel for the revisionist has submitted that the said judgment is entirely on different footing and is not applicable on the facts and circumstances as well as issue involve in the present case, because in the said case the issues before the court was as under :-
"1.Whether the U.P. Juvenile Justice (Care & Protection of Children ) Rules 2004 need be recast consequent upon addition of Section 7-A of the Juvenile Justice (Care & Protection of Children) Act, 2000 (as amended by Act No. 33 of 2006).
2.And in case it is found that they need not be recast whether the U.P. Juvenile Justice (Care & Protection of Children) Rules 2004 framed by State Government or The Juvenile Justice (Care & Protection of Children) Rules 2007 framed by the Central Government shall apply to the matter, in Uttar Pradesh."
22. Learned counsel for the revisionist has placed reliance upon the judgment of the Apex Court in the case of Parag Bhati (Juvenile) Through, Legal Guardian Mother Smt. Rajni Bhati vs. State of U.P. and Another, 2016 (95) ACC 552, wherein, the Apex Court has observed that it is clear that under Section 7A of the JJ Act, the court is enjoined to make an inquiry and take such evidence as may be necessary to determine the age of the person who claims to be a juvenile. However, under Rule 12, the Board is enjoined to take evidence by obtaining the matriculation certificate if available, and in its absence, the date of birth certificate from the school first attended and if it is also not available then the birth certificate given by the local body. In case any of the above certificates are not available then medical opinion can be resorted to. However, if the Board comes to the conclusion that the date of birth mentioned in the matriculation certificate raises some doubt on the basis of material or evidence on record, it can seek medical opinion from a duly constituted medical board to determine the age of the accused person claiming juvenility.
23. The Apex Court in the case of NagendraAlias Wireless vs. State of Uttar Pradesh, (2017) 11 Supreme Court Cases 598, has held that school leaving certificate is not relevant consideration to determine the juvenality of the accused. The relevant observation made by the Apex Court in para 3 of the said judgment is reproduced herein below :-
"3. Having given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the appellant, we are satisfied, that a school leaving certificate is not a relevant consideration to determine the juvenality of an accused/convict under Rule 12(3) thereof. The aforementioned statutory provision was not considered by this Court while deciding Ranjeet Goswami vs. State of Jharkhand, (2014) 1 SCC 588. The same cannot therefore be any presidential value in terms of the statutory provisions, referred to herein above."
24. In the present case, the accused neither filed date of birth certificate of class Ist nor matriculation or equivalent certificate of any examination Board. The accused also did not file any birth certificate given by Corporation or a Municipal Authority or a Panchayat. In this regard, it is alleged on behalf of the accused that he directly took admission in class IInd and studied up to class Ixth.
25. As discussed above, I am of the view that the lower rungs of school record, on which accused placed reliance do not inspire confidence and can not be said to be free from all ambiguity, hence, such documents can not be accepted as conclusive proof of age of accused in a case of heinous offence.
26. Considering the provisions of Section 94 of Juvenile Justice (Care & Protection of Children) Act, 2015, I find that in this case there is no matriculation or equivalent certificate of the opposite party no. 2 issued by any examination board. It is admitted case of the opposite party no. 2 that he had not taken admission in Ist class, straightway he took admission in class IInd. This stand of the accused is also contrary to the affidavit dated 15.07.2010 of Ramji Saran (father of opposite party no. 2). There is no birth certificate issued from by any corporation, Municipal Authority or Panchayat, therefore, in the absence of aforesaid documents this Court feels that the medical opinion can be taken into consideration in order to reach on correct conclusion about the age of opposite party no. 2, which is the best and highest rated option under the facts and circumstances of this case.
27. Accordingly, this Court is of the view that the documents on which opposite party no. 2 has placed reliance do not inspire confidence and appears to be doubtful on account of the reasons mentioned above in preceding paragraph no. 15, therefore, in the opinion of this Court, the Medical Report dated 28.07.2018 submitted by Chief Medical Officer, Jhansi, before this Court, pursuant to order dated 16.07.2018 of this Court shall prevail over the date of birth as claimed by the opposite party no. 2. As such, on the date of offence dated 23/24.02.2016, the opposite party no. 2 is declared major aged about 21-22 years because as per medical report dated 28.07.2018, the age of opposite party no. 2 has come on record as 23-24 years.
28. In view of above, the presumption drawn and findings recorded in the impugned order dated 17.06.2017 are not sustainable and is not liable to be upheld. Accordingly the impugned order dated 17.06.2017 passed by Additional Sessions Judge, Court No.3, Jhansi in Session Trial No. 127 of 2016, Police Station-Sipari Bazar, District Jhansi is set aside and the present revision preferred by the revisionist is allowed.
29. Office shall remit the original record of this case immediately to the court concerned.
Order Date :- 15.03.2019 sailesh