Jharkhand High Court
Nayan Mandal vs State Of Jharkhand on 20 August, 2009
Author: Pradeep Kumar
Bench: Pradeep Kumar
Criminal Revision No.52 of 2009
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Against the judgment dated 9.9.2008 passed by the
learned Sessions Judge, Sahibganj in Cr. Appeal No.34 of
2008.
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Nayan Mandal --- Petitioner
-Versus-
The State of Jharkhand --- Opposite Party
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For the Petitioner : M/s Ranjan Kr. Singh, D.D. Saha &
P.K. Mishra, Advocates
For the State : Mr. J. Mahto, A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
By Court: Heard learned counsel for the petitioner and learned
counsel for the State.
2. This revision is directed against the judgment dated 9.9.2008 passed by the learned Sessions Judge, Sahibganj in Cr. Appeal No.34 of 2008, by which judgment, he found that the appellant is not a juvenile and his claim is based on a school register, which is not correct and he is more than eighteen years of age and thereby he confirmed the order passed by A.C.J.M. Rajmahal dated 5.12.2007, whereby learned A.C.J.M had also found that as per the medical board, petitioner is aged about 18 and 1/2 years on the date of occurrence i.e. 13.10.2007.
3. It has been submitted by the learned counsel for the petitioner that petitioner who was made accused in Rajmahal (Radha Nagar), P.S. case No.172 of 2007, under Section 302/34 of the Indian Penal Code, claimed vide his petition dated 21.9.2007, that he is a juvenile, aged about 14 years and he is a student of class-7 of Radha Nagar High School. The petitioner claimed that his date of birth is 5.12.1994 and hence claimed that an enquiry may be made with regard of his age and he may be declared juvenile. On the basis of the said claim, inquiry was started by learned A.C.J.M. and learned A.C.J.M., in course of enquiry, examined three witnesses. Inquired Witness No.1 is Niren Mandal, father of the petitioner, Inquired witnesses No.2 is Jhapani Devi, mother of the petitioner and inquired witness No.3 is Dharnidhar Ravidas, teacher of the middle school, Begamganj. Learned A.C.J.M. after considering the evidence of the witnesses, found that the evidence of age, given by witnesses are not -2- reliable and since medical board was also held and which was duly constituted by civil surgeon, found petitioner aged about 19 and half to 20 years and hence the court found that on the date of occurrence, the appellant was aged about 18 and 1/2 years. The Medical Board was held on 13.10.2007 and the date of occurrence is 23.8.2007, which is two months before and hence rejected the petition and found that the appellant is not a juvenile. Learned Sessions judge also after discussing the evidence, found that the witnesses are not reliable and hence relied upon the medical evidence and passed the impugned order, dismissing the appeal and confirmed the order.
4. It has been submitted by learned counsel for the petitioner that as per the Juvenile Justice Rule, Chaptar-2, Section 22(5) which correspond to chapter12 (3) of the Juvenile Justice, care and protection Rule, 2007, it is stated that in an enquiry, the court will first rely upon birth certificate granted by municipality or its equivalent or birth certificate given by corporation or municipal authority and if they are not available, then they will rely on Medical Board which declares the age of a Juvenile on the basis of exact assumption. It is further submitted that since the age as per the school certificated was available, learned A.C.J.M as also learned Sessions Judge wrongly relied on medical certificate and thus passing the impugned order is bad and fit to be set aside.
5. On the other hand, learned counsel for the State submitted that it appears from the prosecution case itself that the petitioner is fully grown up, adult man as per the first information report. The petitioner was caught red handed while committing murder of the deceased Adhir Mandal in the field and when the villagers caught him, he stated that he along with his wife Rupali Committed the murder shows that the petitioner has grown up man and he was having affair with a married lady and when he was caught by her husband, he committed his murder along with his wife Rupali. It has been further submitted that the witnesses came in the inquiry, have given contrary statement. Neither petitioner's father P.W.1, nor his mother, P.W.2 has been able to give the correct date of birth of the petitioner and the register brought by P.W.3 is also not reliable and thus, the Trial Court rightly rejected the evidences of witnesses and relied upon the -3- medical evidence, hence the impugned order requires no interference by the court.
6. After hearing both the parties and going through the records, I find that during the inquiry, the prosecution has examined three witnesses.
(i) P.W.1, Niren Mandal, father of the petitioner, has stated that he was married thirty years ago and he has got seven children. Nayan Mandal is a student of class-8 and he was aged about fourteen years. In his cross-examination, he stated that the petitioner is not going to school since last month. He was student of Begamganj Primary School and when he first went to school, he was aged about eight to nine years. He stated that he does not remember his date of birth and his elder son is aged about 27 years.
(ii) P.W.2, Jhapani Devi, mother of the petitioner has also stated that Nayan Mandal is the youngest son among the seven and he is aged about fourteen years. In her cross-examination by court, she stated that earlier he was a student Begamganj Primary School and when he first went to school, he was aged about eight to nine years and what she had given his date of birth in the primary school, she does not remember. She stated that he studied in Begamganj Primary School till class seven. Thereafter, he was sent to Radha Nagar High School, where he was a student of class-8.
(iii) P.W.3 is Dharnidhar Ravidas, teacher of the middle school, Begamganj. He produced the admission register of 2002, in which, the name of petitioner found place in serial Number 143 and his age was recorded as 5.12.1994. He was admitted on 13.4.2002.
7. Thus, it appears that as far as petitioner No.1 and 2 are concerned, they have failed to give his date of birth and they have also failed to state that when he was born. His father has stated that he was married thirty years back that brings the date of marriage to 1997 since the father was examined in court on 27.9.2007. Thirteen years back, seems that he was married in 1977 and petitioner's age is 14 years but he has got no basis for giving his age. His mother has also not given the exact date of birth but both of them has stated that he was registered firstly in the primary school at Begamganj as well as the teacher brought a -4- register of 2002, belongs to middle school of Begamganj, which was also not complete. As per the cross-examination made by court the admission register has serial No.142 and 143 as a last number and the full register of 2002 has not been brought by him. In view of the aforesaid contradiction, the trial court as well as appellate court failed to rely on the evidences adduced by the petitioner. Petitioner was examined by the medical board and came to conclusion that the petitioner was aged about 19 years and half and below 20 years on 23.10.2007. It is relevant to note that as per the rule itself, if certain date of birth is not available, then the next thing is to rely for date of birth is from the first school, attended by a child. In this case, the register produced by the witness No.3 was not a complete register and the court has rightly left the oral evidence and relied on the medical evidence. Moreover, the petitioner has relied in a rule reported in 2008, eastern India Criminal Cases, page 253 and on a policy decision in the case of Pradeep Singh Vs. State of Jharkhand, reported in 2002, Eastern India Criminal Cases, page 244, it was held as under-
"Learned counsel for the State has held that the court should not only rely upon school register alone but the court has to see all other facts and circumstances along with other material placed on record". The court also found that there should not be more gaps between medical Boards and other document filed related to that. Here also, I found that there is long guess work. Parents have given the petitioner's age i.e. 14 years but it has not been proved and medically the petitioner was aged about twenty years.
9. In that view of the matter, I find no illegality in the impugned order and the same is confirmed. Accordingly, the revision application is dismissed.
[Pradeep Kumar,J.] Jharkhand Hig Court, Ranchi Dated: 20th August, 2009.
R.Kumar/N.A.F.R.