Allahabad High Court
Sher Khan vs State Of U.P. And Anr. on 12 July, 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED JUDGMENT Court No. - 82 Case :-CRIMINAL APPEAL No. - 7354 of 2018 Appellant :- Sher Khan Respondent :- State Of U.P. And Another Counsel for Appellant :- Rajesh Singh Counsel for Respondent :- G.A. Hon'ble Pradeep Kumar Srivastava, J.
1. Heard learned counsel for the appellant and learned A.G.A. and perused the record attached by the appellant with this appeal.
2. This criminal appeal has been preferred against the impugned judgment and order dated 17.10.2018, passed by Sessions Judge, Hapur, in ST No. 160 of 2018, arising out of Case Crime No. 326 of 2017, under Sections 302, 307, 147, 148, 149, 323, 324 I.P.C., Police Station: Simbhawali, District Hapur, whereby the application filed by the mother to declare Sher Khan to be juvenile has been rejected.
3. As per first information report, on 31.08.2017 at about 04:00 PM Tajmohammad cut away CHARA (grains) from the field of Intezar and on making complainant by Jishan & Shahvej, younger brother of Intezar, whereupon both were beaten by Tajmohammad, Raju and Adil. Intezar, Shahvej and Ejaz went to police station to lodge report against them. On 06:30 P.M., Ejaz, Tajmohammad, Yameen, Adil, Farman, Waseem, Raju, Bazmohammad, Sher Khan (appellant) and Niyaz Mohammad came to the house of Rohil with danda and knife and assaulted on Rohil, Shadab, Nafees and Zahid with intention to cause death and stabbed Zahid and Nafees and went away. Consequently, Zahid died.
4. In Criminal Misc. Bail Application No 4579 of 2018, the appellant Sher Khan was directed to be released on bail by order of this court dated 21.03.2018. On 25.08.2018, mother Ruqayya on behalf of the accused-appellant gave an application in the court of Session Judge, Hapur for declaring him juvenile alleging that the accused-appellant is born on 15.8,2002 and the date of incident is 31.08.2017 and such her son was 15 years and 16 days and therefore he was juvenile at that time. His marks-sheet of high school of year 2017-18 along with affidavit of applicant has been attached in support.
5. An objection was filed with affidavit by complainant Nadeem for prosecution stating that the application has been given on false ground and the high school marks-sheet filed by applicant is forged. The roll no. 06516175 of Samaj Kalyan Inter College, Bangouli, Hapur shown on the marks-sheet has been issued by UP Board in the name of Samiya Almash for class X Examination 2017 and the same has been shown to have been of 2018 whereas no such marks-sheet is found to have been loaded on the web-site of year 2018 of UP Board whereas all marks-sheets from year 2013 to 2018 have been loaded on the web-site. The marks-sheet filed by applicant does not bear any signature of Secretary and seal of UP Board. The forged marks-sheet has been attested by the principal. As per voter list, accused Sher Khan is above 23 years in age and in his Aadhar Card, his date of birth has been mentioned to be 01.01.1995 which makes his age above 23 years. In support, extract of voter list, pan card, aadhar card, marks-sheets of Saniya Aalmas, Shahrukh Khan, Sanu Chauhan, information of voter regarding Sher Khan, Pan application status and aadhar card of Nadeem.
6. After hearing both the parties and perusing the record, the learned court below passed the impugned order rejecting the application for the declaration of juvenility of Sher Khan.
7. Aggrieved by the impugned order, the appellant has filed this appeal on the ground that the order has been filed without application of mind and is based on surmises and conjecture and against evidence on record. It was the jurisdiction of the Children Court to entertain and decide such application and as such the order of the court below is without jurisdiction. A decision on juvenility has to be based on high school marks-sheet and other document filed by opposite party are irrelevant. The matter should have been sent to J.J. Board for inquiry under law in juvenility of the appellant. Therefore, the order is not sustainable and is liable to be set aside.
Determination of the question of Juvenility
8. Section 2(l3) of the Juvenile Justice (Care and Protection of Children) Act, 2015 defines a child in conflict with law "as 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". Section 2(35) defines juvenile as "a child below the age of eighteen years."
9. Section 9(2) makes provision for a claim of juvenility to be raised before any court at any stage, even after final disposal of a case and sets out the procedure which the court is required to adopt, when such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the person in question is a juvenile or not. Therefore, the argument of the learned counsel that the court was not authorized to decide the plea of juveni1ity has got no force.
10. The proviso adds that a claim of juvenility may be raised before any court at any stage, even after final disposal of the case. The claim of such a juvenile shall be considered, even if the juvenile has ceased to be so on or before the date of commencement of this Act.
11. Section 94 of the Act provides the procedure to be followed by the courts or the Boards for the purpose of determination of age in every case concerning a child in conflict with law. It provides that the Court or Board shall determine the age by undertaking the process of age determination by seeking evidence by obtaining as follows:-
(i) he date of birth certificate from the school, 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;
12. It has been further provided that such age determination shall be completed within 15 days from the date of order of the Board and the age so determined shall be deemed to be true age of the person for the purpose of this Act.
13. In Shah Nawaz vs. State of U.P. (SC), 2011(5) ALJ 580, referring to Raju and Anr. vs. State of Haryana (2010) 3 SCC 235 where the Court had admitted "mark sheet" as one of the proof in determining the age of the accused person, Hari Ram vs. State of Rajasthan & Anr., (2009) 13 SCC 211, Ravinder Singh Gorkhi vs. State of U.P. (2006) 5 SCC 584 where the issue of School Leaving Certificate was involved and the Court took the view that such certificate in order to become evidence of age, it should be shown that it was issued in the ordinary course of business of the school and the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Evidence Act. It was held that the entry relating to date of birth entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. Therefore, the matriculation marks-sheet and certificate is a conclusive evidence of age and there remains no further need to seek any other proof of age. Again, in Ashwani Kumar Saxena vs State of MP (2012) 9 SCC 750 and Jodhbir Singh vs State of UP2013(1) SC Cri. R36, it has been held that if matriculation certificate/marks-sheet is available, there is no opportunity for the Board to go for other evidence for the determination of the age of juvenile. Even though, new Act has been enforced, the above view still holds the field as there is hardly any difference in respect of determination of age of juvenile.
14. But having said so, the court has to be sure about the genuineness and authenticity of such certificate/marks-sheet, particularly when there is sufficient material on record to create doubt on such certificate/marks-sheet. In Om Prakesh vs. State of Rajasthan, 2012(77) ACC 654 (SC), the trial court itself could not arrive at a conclusive finding regarding the age of the accused on the basis of school record and therefore, it was held that the opinion of the medical experts based on X-ray and ossification test will have to be given precedence over the shaky evidence based on school records. The Supreme Court remarked 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 like 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. 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 dodge or dupe the arms of law, cannot be allowed to come to his rescue.
15. The purpose of the above discussion is that the age of juveni1ity can be determined on the basis of high school certificate/marks-sheet if there is no doubt with regards to genuineness and authenticity thereof. When there arises reasonable doubt in respect thereof, the same cannot be relied blindly and the court is empowered under law to ignore the same. In the case in hand, the appellant claimed him to be juvenile only on the basis of high school/ matriculation marks-sheet. From the perusal of the record attached with this appeal and the impugned order passed by the learned court below, it is clear that the marks-sheet of appellant has been issued bearing signature and seal of the principal, Samaj Kalyan Inter College, Bangouli and the same has been further attested by him. It has been argued by the OP that, now, the UP Board issues marks-sheet cum certificate and that has not been filed by the appellant. This argument finds further support from the three marks-sheets cum certificates of Saniya Aalmas, Shahrukh Khan & Sanu Chauhan for the year 2017 and 2018. No such marks-sheet cum certificate has been produced by the appellant till date. If his marks-sheet was genuine, he could have filed the certificate also. Till date, no such certificate has been produced by the appellant. Therefore, the learned court below rightly concluded it to be a suspicious document. Moreover, the Aadhar Card, information of voting, extract of voting list and Pan card also shows that the appellant was more than 18 years in age.
16. There is one more reason which makes the contention of the appellant suspicious. The date of incident as per FIR is 31.8.17. The plea of juveni1ity has been raised for the first time by giving application dated 25.8.2018. Prior to that, the appellant was granted bail by order of this court dated 21.3.2018 passed in Criminal Misc. Bail Application No 4579/2018. The mark-sheet filed by the appellant is in respect of examination of high school for the year 2018 the examination of the same took place in February, 2018, almost after six months from the date of occurrence and therefore, there is weight in the argument of the learned A.G.A. that the possibility is there that the appellant appeared in such examination to manipulate and obtain a proof of age to make him eligible for the benefit of the provisions of the Juvenile Justice Act. No doubt that there is no stage provided under law for the claim of juvenility and such plea can be raised at any time during trial or even at appellate stage. But, a belated claim surrounded by such suspicious circumstances, aggravates the doubt, as is the situation in the present case.
17. On the basis of above discussion, I find no illegality and perversity in the impugned order and the appeal has got no force and is liable to be dismissed.
18. The appeal is dismissed.
19. Office is directed to transmit the certified copy of this order to the court concerned for information.
Order Date :- 12.07.2019 sailesh (Hon'ble Pradeep Kumar Srivastava, J.)