Madhya Pradesh High Court
Manvendra Singh vs The State Of Madhya Pradesh on 28 April, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Criminal Revision No.2609/2021
(Manvendra Singh Vs. State of M.P. and another)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
SINGLE BENCH
JUSTICE G.S. AHLUWALIA
Criminal Revision No.2609/2021
Manvendra Singh
Vs.
State of M.P. and another
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Shri Sarang Gupta, learned counsel for the applicant.
Shri C.P. Singh, learned counsel for the State/respondent No.1.
Shri Arun Pateriya, learned counsel for the respondent No.2.
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Date of Hearing : 27/04/2022
Date of Judgment/Order : 28th/04/2022
Whether Approved for Reporting :
ORDER
th 28 - APRIL- 2022 This criminal revision under Section 397 of CrPC read with Section 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short "Act, 2015") has been filed against the order dated 01.02.2021 passed by 7th Additional Sessions Judge, Morena, in Criminal Appeal No.5/2021, by which the appeal preferred by the revisionist was dismissed and the order dated 09.11.2020 passed by the Juvenile Justice Board, Morena in Case No.123/2020, by which respondent No. 2 Satyabhan was declared as a Juvenile has been affirmed.
2 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another)
2. It is not out of place to mention here that on 14.03.2022 counsel for the applicant had submitted that he does not want to press present criminal revision. However, the important question of fact and law was involved and this Court was of the considered opinion that a suo motu cognizance of the revision can be taken. Accordingly, the prayer for withdrawal of criminal revision was rejected.
3. It is submitted by the counsel for the applicant that applicant is the son of complainant Gabbar Singh and nephew of deceased Padam Singh. It is submitted that the FIR was lodged on 01.08.2020 by the complainant Gabbar Singh on the allegation that on 30.07.2020 he was going on his tractor from Pachekha village to his field. Near the field of Gopal Sikarwar, one road of mud was under construction. Because of loose earth kept on the road, some earth fell in field of Gopal Sikarwar and on this issue, there was a hot talk between him and Gopal Sikarwar and the matter was pacified with the intervention of the family members. On 01.08.2020 at about 07:30 in the morning, his elder brother Padam Singh was going to his field and as soon as he reached in front of the house of Gopal Singh, then on the previous enmity, Gopal Sikarwar as well as Awadhesh Sikarwar, Ramniwas, Sonu, Ajab Singh, Rahul, Gaurav, Manoj, Raghvendra, Tunda @ Vikas and Vivek came there with Lathi and Farsa and in furtherance of common intention, they attacked his elder brother Padam Singh. After hearing the screams, of elder brother Padam Singh, complainant 3 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) and his son Shaymveer, Manvendra and nephew Jaipal and Veer Singh went there. At that time, Awadhesh with an intention to kill Padam Singh gave a Farsa blow on his head. Another Farsa blow was given by Sonu on the head of Padam Singh, as a result, Padam Singh fell down on the ground. These persons intervened in the matter and accordingly, Ajab Singh gave a Farsa blow on his head, Vivek gave a Lathi blow on his right hand. Shyamveer was assaulted by Ramniwas by Farsa on his head. His nephew Jaipal was assaulted by Rahul and Gaurav by Farsa, as a result, he sustained injury on his head. His nephew Veer Singh was assaulted by Monu and Raghvendra by Farsa who too sustained injury on his head. His son Manvendra was assaulted by Gopal Sikarwar by Lathi causing injury on his hand. Tunda @ Vikas fired from his firearm. In the meanwhile, his brother Ramratan and nephew Monu and other family members came on the spot and intervened in the matter.
4. The police after completing the investigation was of the view that respondent No. 2 is a Juvenile and, accordingly, he was sent to the Juvenile Justice Board, Morena. Father of the applicant preferred an application under Section 14 of the Act, 2015 alleging therein that respondent No. 2 is major person and, therefore, he should be tried as an adult along with other accused persons. However, the Juvenile Justice Board by the impugned order dated 09.11.2020 passed in Case No.123/2020 came to the conclusion that respondent No. 2 was aged 4 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) about 17 years, 5 months and 22 days on the date of incident and, thus, it was directed that he was Juvenile on the date of incident and shall be tried by the Juvenile Justice Board. The order passed by the Juvenile Justice Board was challenged by the applicant. However, by the impugned order dated 01.02.2021 passed by 7th Additional Sessions Judge, Morena in Criminal Appeal No.5/2021 has rejected the said appeal. Since the prayer for withdrawal of the revision was already rejected by this Court, therefore, Shri Sarang Gupta argued the matter.
5. It is submitted by the counsel for the applicant that as per the admission register of Class-I of Government Higher Secondary School, Pachekha, District Morena, date of birth of the respondent No. 2 was mentioned as 08.12.1998. Since the incident took place on 01.08.2020, therefore, it is clear that the respondent No. 2 was major above the age of 18 years. However, respondent No. 2 relied upon the mark-sheet of Class-10th of the respondent No. 2 to claim that his date of birth was 09.03.2003 and claimed that the respondent No. 2 was minor on the date of incident, i.e., 01.08.2020. It is submitted that the Juvenile Justice Board had recorded the evidence of the witnesses in an enquiry conducted by it to verify the age of the respondent No. 2 and the mother of the respondent No. 2 did not clarify that under what circumstance, different date of birth was mentioned in the mark-sheet of Class-10th specifically when in the admission register of 5 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) Government School, the date of birth of the respondent No. 2 was mentioned as 08.12.1998. It is further submitted that when the documents as mentioned in Section 94 of the Act, 2015 were available, then there was no need for the Trial Court to look for the ossification test of the respondent No. 2. It is further submitted that in absence of any explanation as to how the different date of birth of the respondent No. 2 was mentioned in the mark-sheet of Class-10 th, the Juvenile Justice Board should have given preference to the admission register of the Government School, according to which, the date of birth of the respondent No. 2 was 08.12.1998. To buttress his contention, counsel for the applicant has relied upon the judgments passed by the Supreme Court in the case of Ashwini Kumar Saxena Vs. State of MP reported in (2012) 9 SCC 750, Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and another reported in AIR 2009 SC 2805, Sanjeev Kumar Gupta Vs. State of Uttar Pradesh and another reported in (2019) 12 SCC 370 and by a coordinate Bench of this Court in the case of Vipin @ Chotu Bhadouriya Vs. State of MP reported in 2020 (I) MPWN (SN) 3.
6. Supporting the orders passed by the Board as well as the Court below, it is submitted by the counsel for the respondent No. 2 that this Court had directed the Juvenile Justice Board, Morena to submit a report as to whether the order under Section 15 of the Act, 2015 was ever been passed or not, but since the said report has not been 6 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) received, therefore, hearing of this revision may be deferred. However, he fairly conceded that even if an order under Section 15 of the Act, 2015 has been passed, still it will not have any bearing on the outcome of this revision. It is submitted that when two different dates of birth are mentioned in the admission register of Class-I of Government School as well as mark-sheet of Class-10 th of the respondent No. 2, then the Court below did not commit any mistake by relying upon the ossification test report of the respondent No. 2, according to which, the age of the respondent No. 2 was in between 17 - 18 years.
7. Heard the learned counsel for the parties.
8. Kailash Chandra Sharma (PW-1) who is posted as Principal, Government Higher Secondary Schoool Pachekha, District Morena has proved the admission register of school by producing the original register starting from the year 2004 till 2018. The name of respondent No.2 is mentioned at serial No.1847. According to which, the date of birth of respondent No.2 is mentioned as 08.12.1998 and the respondent No.2 had taken admission in class 1 on 29.07.2004. It was further alleged that the above mentioned entries are made in normal course of business, and therefore, they are true and correct and there is no possibility of manipulation or interpolation. The copy of the admission register is Ex. P/1 and the certificate with regard to the date of birth is Ex. P/2. In cross-examination, he admitted that earlier whatever date is disclosed by the parents was mentioned in school 7 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) record but now the children are given admission only after receiving the certificate from Anganwadi. He further admitted that at the time of admission of respondent No.2 in class 1, he was not posted in school. He denied that in case if parents are illiterate then they disclose the age of their ward out of their own assessment and he also denied that some times the teachers also record the incorrect date of birth of students. Thus, as per school register of Government Higher Secondary School Pachekha district Morena, the date of birth of respondent No.2 is 08.12.1998 and he got admission in class 1 on 29.07.2004 i.e. at the age of approximately 6 years.
9. Narmada (PW-2) who is mother of respondent No.2 has claimed that the date of birth of respondent No.2 is 09.03.2003 and his father had gone to school to get him admitted and she had delivered the child in house itself. The mark-sheet of class 10 th was also produced by this witness which was marked as Ex. P/4 and it's photocopy was marked as Ex. P-4 (c).
10. In cross-examination by the Counsel for respondent No.2 himself, she claimed that she is an illiterate lady and except the date of birth of her youngest son Satyabhan (respondent No.2), she does not remember the date of birth of her other children. Although she has four children. She claimed that the age of her youngest son (respondent No.2) is 17 years and the documents which she has produced are correct.
8 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another)
11. In cross-examination by the complainant, she was not in a position to disclose the date of her marriage. She claimed that the name of her eldest son is Awdhesh, the name of her second child is Ragini, the name of her third child is Rakhi and respondent No.2 is her youngest son. She was unable to disclose the name of school in which respondent No.2 had studied. She further claimed that she had never gone to school to leave her son as she never went out of her house. She denied that the date of birth of respondent No.2 is 08.12.1998.
12. Dr. R.C. Mishra (PW-3), who had conducted the x-ray of teeth of respondent no.2, has stated that the age of the respondent no.2 is in between 17-18 years, whereas Dr. V.K. Som (PW-4) is a Radiologist and according to him, the age of the respondent no.2 is in between 17- 18 years.
13. If the mark-sheet of Class-10th produced by respondent no.2 is considered, then according to said mark-sheet, his date of birth is 9/3/2003 and he had appeared in Class-10 th examination conducted in the year 2017. Therefore, in case if the date of birth of the respondent no.2 is considered as 9/3/2003, then he should have got admission in Class-1 at the age of 4 years only, which is not legally permissible. A child is given admission in Class-1 at the age of 5 years. Similarly, if the school admission register, Annexure P/1, is considered, then according to the same, the respondent no.2 was given admission in 9 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) Class-1 on 29/7/2004 and his date of birth was 8/2/1998, i.e. more than 5 ½ years, approximately six years. Thus, the school admission register appears to be more convincing and in accordance with law. Although the father of the respondent no.2 is also one of the co- accused and is in jail, but still he could have been examined by the respondent no.2, but that was not done for the simple reason that he could not have avoided certain adverse questions by saying that he had never gone to the school of respondent no.2.
14. Be that whatever it may.
15. So far as the ossification test report is concerned, Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (in short "the Act of 2015") is specifically clear on this issue. Section 94 (2) (iii) of the Act of 2015 specifically provides that only in absence of documents mentioned in (i) and (ii) of Section 94 (2) of the Act of 2015, the age shall be determined by ossification test or any other latest medical determination test conducted on the orders of the Committee or the Board.
16. In the present case, the school admission register of Class-1 was available on record. Furthermore, the respondent no.2 did not try to explain as to how his different date of birth was mentioned in the mark-sheet of Class-10th. At what stage and under whose orders the date of birth in school record was changed, has also not been clarified by respondent no.2. The mark-sheet of Class-10 th was issued on 10 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) 12/5/2017. Furthermore, from the mark-sheet of Class-10 th, it is clear that the examination was conducted in the year 2017 and, therefore, if the date of birth of respondent no.2 is considered as 9/3/2003, then he must have been given admission in Class-1 at the age of 4 years, i.e. in the year 2007, which was not legally permissible, as the respondent no.2 had not attained the minimum age for admission in Class-1. Thus, the mark-sheet of Class-10th produced by respondent no.2 suffers from various suspicious circumstances, which have not been clarified and explained by respondent no.2. Under these circumstances, the Juvenile Justice Board, Morena should have relied upon the date of birth mentioned in the admission register of Government Higher Secondary School, Pachekha, District Morena, according to which, the respondent no.2 was given admission in Class-1 on 29/7/2004. Since this incident took place on 1/8/2020, therefore, it is clear that the respondent no.2 was more than 21 years of age and thus, he was an adult. Both the Courts below have committed material illegality by giving undue importance to the ossification test report, which was otherwise not to be considered in the light of Section 94 (2) (iii) of the Act of 2015. The Courts below have given an incorrect finding that there is a discrepancy in the date of birth mentioned in the school admission register of respondent no.2 as well as in the mark-sheet of Class-10 th. Whenever there is a discrepancy between the documents, then the Court must give a 11 Criminal Revision No.2609/2021 (Manvendra Singh Vs. State of M.P. and another) specific finding that which document which is more reliable and is in accordance with law. The Juvenile Justice Board as well as the Court below ignored the provisions of Section 94 of the Act of 2015.
17. Under these circumstances, the order dated 1/2/2021 passed by 7th Additional Sessions Judge, Morena in Criminal Appeal No.5/2021 and order dated 9/11/2020 passed by Juvenile Justice Board, Morena in case No.123/2020 are hereby quashed.
18. The respondent no.2 is declared to be an adult on the date of incident, i.e.1/8/2020 being more than 21 years of age. Accordingly, the JJB, Morena is directed to stop proceeding with the trial of the respondent no.2 and transfer the charge-sheet to the regular Court for trial of the respondent no.2 along with other co-accused persons, as he too was an adult on the date of incident.
15. With aforesaid, the Criminal Revision succeeds and is hereby allowed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2022.04.28 10:27:01 +05'30'