Allahabad High Court
Bhupendra Kumar Sharma @ Bhupendra ... vs State Of U.P. And Another on 22 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:69170 Reserved on- 19.03.2024 Delivered on-22.04.2024 Court No. - 84 Case :- CRIMINAL REVISION No. - 5473 of 2023 Revisionist :- Bhupendra Kumar Sharma @ Bhupendra Kumar @ Ballu Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Rajneesh Pratap Singh Counsel for Opposite Party :- Chhaya Gupta,G.A. Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri V.P. Srivastava, leaned Senior Counsel assisted by Sri Rajneesh Pratap Singh, counsel for the revisionist, Ms. Chhaya Gupta, learned counsel for respondent no.2 and learned A.G.A. for the State.
2. This criminal revision has been filed by the revisionist challenging an order dated 18.07.2023, passed in Criminal Appeal No. 102 of 2023 (Kamlesh Kumar Sharma Vs. State of U.P. and Another) whereby the order passed by the J.J. Board dated 31.01.2023 by which he was declared a juvenile, has been set aside and the appeal allowed.
3. The relevant facts of the case are as below:
(i) The revisionist who has been accused for an offence under section 302 I.P.C. in case crime no. 204 of 1994 under section 302 I.P.C., faced trial and was convicted; he filed an appeal before the High Court which was decided on 03.01.2020; the accused persons put up a challenge to the order passed by the High Court and filed an appeal no. 1589 of 2021 before the Supreme Court; during the hearing of the appeal before the Supreme Court, a plea has been taken for the first time that the accused Bhupendra Kumar Sharma @ Ballu was a juvenile at the time of incident and that his high school certificate has recorded his date of birth as 16.07.1976 and that the incident occurred on 12.04.1994 therefore he was merely 17 years 8 months and 26 days on the date of incident; the Supreme Court directed the J.J. Bord to conduct an inquiry as regard his juvenility; the accused therefore moved an application before the J.J. Board on 07.11.2022 stating therein that his date of birth is 16.07.1976 and that he studied at Vidya Mandir Inter College, Mauchirayal, District Hathras and passed his high school examination in 1990; he produced certain other papers to prove his date of birth.
(ii) From the side of the first informant/the victim, a written objection has been filed in which it has been submitted that Ballu s/o Ram Datt Sharma is a dreaded criminal with a criminal history of 26 serious cases which include incidents of murder, bank robbery, loot, kidnapping etc. and that in three of such cases he has been sentenced to life imprisonment and in three others he has been convicted and sentenced to terms of imprisonment; his real name is Ballu s/o of Ram Datt Sharma and that till yet such a fact never came in the notice of the police authorities or the first informant that he has been even known as Bhupendra Kumar Sharma also. The High School certificate of 1990 is a false and fabricated document; had he really appeared in such an examination in 1990, he would certainly have produced that certificate much earlier, during the hearing of trial court proceeding or even during the proceeding of the appeal before the High Court; this fact is enough to demonstrate that such a paper has been prepared afterwards to mislead the legal authorities to obtain undue benefit of law; the high school certificate has been prepared in connivance with Principal of the concerned Inter College; the perusal of the papers goes to show that it has been prepared by manipulation as the second copy of the certificate shows name of Bhupendra Kumar Sharma with a smaller font size though, the font size of the other entries are bigger; one copy is a computerized copy and second copy is hand written; the minimum age for appearing in high school examination is 14 years but the accused seems to have cleared the examination when he was merely 13 years 8 months; the Regional Office, Meerut of Madhyamik Shiksha Parishad, Uttar Pradesh has clarified vide its later no. 9839 dated 27.09.2022, that his office has no such record and this proves that the high school papers have been prepared in connivance with the concerned Principal of the school; the accused has got prepared papers like Aadhar Card, Pan Card etc. by subsequently adding the second name Bhupendra Kumar Sharma therefore these papers wrongly show his name as Ballu @ Bhupendra Kumar Sharma. The first informant also produced copy of history sheet i.e. No. HS9A P.S. Sikandra Rao, District- Hathras showing that at least 27 cases of different years have been registered against accused Ballu s/o Ram Datt and that in three of them he has been sentenced to life imprisonment and three others with different periods of imprisonment.
(iii) After hearing, the J.J. Board passed an order on 31.01.2023 declaring him a juvenile. Before the J.J. Board, three witness CW-1 Somwati, mother of the accused, CW-2 Anil Kumar Singh, Principal of Vidya Mandir Inter College, Hathras, CW-3 Jitendra Kumar, Principal/teacher at Junior High School, Kapasiya, Hathras have been examined and several documentary evidence have been produced (which shall be referred to as and when required) the J.J. Board considered the provisions of Rule-12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 and relied upon his High School certificate, holding him 17 years 8 months 26 days on the date of the incident. The first informant Kamlesh Kumar Singh preferred an appeal no.102 of 2023. The learned appellate court did not agree with the view taken by the J.J. Board and allowed the appeal. Now, the accused is before this Court in this revision.
4. Heard both the sides and perused the papers on record.
5. This is an admitted position that an F.I.R. under section 302 I.P.C in case crime no. 105 of 1994 had been registered against him in 1994 with the name of Ballu s/o Ram Datt Sharma and that he faced trial and has been convicted. The matter went up to Supreme Court and for the first time before the Supreme Court, the accused took a plea that he is also known with the name of Bhupendra Kumar Sharma and that his date of birth has been 16.7.1976. The Supreme Court therefore passed an order dated 20.09.2022 in Criminal Appeal No. 1589 of 2021 as below:
" On the conspectus of matter, we are of the view that the appropriate course of action would be to refer the matter to the Juvenile Justice Board to give its opinion in respect of the aspect of juvenility. The Board would also verify the name and identity of the appellants in view of there being a dispute as to how he was described in the earlier proceedings and what he claims now.
All the relevant material would be considered by the Juvenile Justice Board. The Board will endeavour to conclude the enquiry as possible."
6. The revisionist, to prove his claim of juvenility mainly relies upon a high school mark sheet of the year 1990, mentioning his date of birth 16.07.1976. This plea was taken for the first time before the Supreme Court after his conviction under section 302 I.P.C vide an order dated 03.01.2020. On the other hand a vehement and forceful contention from the side of the first informant is that he has been known as Ballu only and that he was never known by an alias name Bhupendra Kumar Sharma and further that the testimony of the Principal of Vidya Mandir Inter College, Mauchirayal proves that the statement of marks/certificates of the college relate to one Bhupendra Kumar Sharma and that he had no record to show that Bhupendra Kumar Sharma and Ballu are one and the same person. A report submitted by S.P. Hathras mentioned that in none of the records maintained by Police, he has been shown keeping an alias of Bhupendra Kumar Sharma and even the pariwar register did not show any person with the name of Bhupendra Kumar Sharma @ Ballu. The first informant seriously disputes the fact that Ballu had kept another name Bhupendra Kumar Sharma and argument is that the high school record in the name of Bhupendra Kumar Sharma is not of the accused Ballu.
7. From the arguments of both the sides following issues appear to have been involved. First, whether the high school papers are genuine one; second, whether Ballu has also been known as Bhupendra Kumar Sharma and therefore, the academic record pertains to him. Third, whether the provisions of law with regard to determination of age have been followed.
8. During the hearing of this criminal revision, the first informant has given a counter affidavit in which in nutshell, it is said that Ballu is not Bhupendra and that he gave his another name only when his bail application stood rejected by the Apex Court. He never mentioned his alias name for the last so many years since 1994, the year when the instant criminal case was registered against him. He is a clever manipulator and got issued four Aadhar cards with different names and different birth dates. First Aadhar Card was submitted in jail record in 2012 in which he has been mentioned simply as Ballu and his date of Birth is shown 16.07.1971. The second Aadhar card available in jail records again mentions his name as simply Ballu Sharma and date of birth is again 16.07.1971 and this aadhar card was issued on 19.03.2015. Third aadhar card which does not bear the date of issue, mentions his date of birth as 16.07.1976 and name as Bhupendra @ Ballu and the fourth one has been issued in the name of Sunil Sharma. This Aadhar Card bears name of Sunil Sharma but the photograph is of Ballu and date of birth is 10.09.1980. He had absconded from jail and during this period he got issued a SIM card in the name of Sunil Sharma with UID XX2633. He got issued a marriage certificate mentioning his date of birth as 01.07.1980. He also got issued a high school certificate which mentions his date of birth as 01.05.1985. The contention is that if the high school certificate of the 1990 produced by him in the proceedings before the J.J. Board is taken as correct (wherein his date of birth is 16.07.1976) this obviously means that he was less than 14 years at the time of taking examination in March-April 1990! He took admission in class 10th on 18.05.1989 meaning thereby he was merely12 years 10 months at that time, which appears to be improbable proposition. Another important and interesting argument of respondent is that the accused has 25 criminal cases registered against him and all the criminal cases show his name 'Ballu' and nowhere he ever claimed himself to have another name 'Bhupendra'. It is also argued that medical board has given an opinion that he is 49 years of age and by that standards he should be taken as major on the date of incident.
9. One more important argument is that some of the papers produced by the accused like Khatauni and voter list showed his name simply as Bhupendra and nowhere as 'Bhupendra Kumar Sharma'. No birth certificate or family register has been produced to even prima facie demonstrate that he was ever known also as "Bhupendra Kumar Sharma''.
10. In the counter affidavit mentioned above, the respondent has annexed all the copies of the papers on which he relies. This is significant to note that the incident in question occurred in the year 1994 and controversy as regard his alias erupted only sometime in the year 2021.
11. The procedures to be followed in determination of age, as given in Rule-12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 are as below:
"12. Procedure to be followed in determination of age.
(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-
(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.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
12. The papers i.e. the documentary evidence as described in Rule 12 of Rules 2007 can only be relied upon, if they are found genuine, not fabricated and which could pass the test as laid down by section 35 of the Evidence Act. The accused claims that his name is Bhupendra Kumar Sharma @ Ballu and that he passed his high school examination in the year 1990 and that his certificate, which forms the basis of his claim, is of no other but him.
13. The Supreme Court in Om Prakash Vs State of Rajasthan [2012] 0 AIR (SC) 1608, decided on 13.04.2012 has observed in paragraph no. 18 as below:
" 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."
14. Further in Ashwani Kumar Saxena Vs. State of M.P. (2012) 9 SCC 750, decided on 13.09.2012, the Supreme Court has observed as below:
" 36. ............. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination."
15. The Hon'ble Apex Court proceeded to observe an essential difference between the words 'inquiry', 'investigation' and 'trial', as has been defined in Cr.P.C. and thereafter held that the procedure to be followed under the J.J. Act, in conducting the inquiry, is a procedure as laid down in the statute itself i.e. Rule 12 of 2007, Rules and held that the age determination inquiry contemplated under the J.J. Act, and Rules had nothing to do with the inquiry under other legislations like entry in service, retirement and promotion etc. The Court, in my view, has been of the opinion that once, date of birth is mentioned in a school certificate it should be taken as correct date of birth however, if the certificate itself is found not genuine, the court is not obliged to rely upon the same. A difference has been maintained between the correct date of birth mentioned in the paper with the genuineness of the paper itself.
16. The Hon'ble Apex Court in Sanjeev Kumar Gupta Vs. State of U.P. and Another (2019) 12 SCC 370 considered the judgment in Ashwani Kumar Saxena (supra) and also judgment in Abuzar Hossain @ Gulam Hossain Vs. State of West Bengal; (2012) 10 SCC 489 and observed that the credibility and acceptability of the documents including the school leaving certificate would depend on the facts and circumstances of each case and no hard and fast rule as such could be laid down in that regard.
17. The Hon'ble Apex Court in Rishipal Singh Solanki (supra), after considering all the judgments held in paragraph no. 29 as below:
"29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:
(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after a final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of such claim. It can also be raised for the first time before this Court.
(ii) An application claiming juvenility could be made either before the Court or the JJ Board.
(ii-a) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies.
(ii-b) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub-section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.
(ii-c) When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).
(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of juvenility may be raised.
(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.
(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.
(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.
(vii) This Court has observed that a hyper-technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.
(viii) If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.
(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.
(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015."
18. The Court held that directing for inquiry is one thing and a finding as regard juvenility, which required an adjudication on the basis of evidence, is a different thing. For the former prima facie satisfaction may be sufficient but for the later the adjudication may eventually depend on the evaluation of material on record. The Hon'ble Apex Court has clearly said that only those documents which are authentic and admissible as per the provisions of Indian Evidence Act viz. Section 35 can only be relied upon.
19. In the instant case the appellate court found a number of facts and circumstances compelling it to give a finding that the accused Ballu was never known as alias "Bhupendra Kumar Sharma" for the last 20-30 years. These facts and circumstances included the fact that none of the police records mentioned his second name, though not less than 26 F.I.R.s had been lodged against him by different persons/first informant and that in none of the cases in which he was prosecuted and has been convicted he was ever known by another name. One of the circumstances noted by the appellate court is that as per the version of the accused, he took admission in class 6th in July, 1985 and passed out from class 8th in May, 1987 meaning thereby that he passed three classes i.e. 6, 7 and 8th in a span of two years, which is an impossible proposition. Only the papers issued after the year 2016 showed his two names and that there is a strong probability that he obtained such papers by manipulation and fabrication. Perusal of the appellate court's order shows that a number of strong, good and logical reasons have been given to disbelieve the plea that Ballu @ Bhupendra are one and the same person and to form an opinion that the educational certificate showing his date of birth as 16.07.1976 is either obtained by manipulation and did not belong to instant accused Ballu.
20. The first informant-respondent no.2 has filed a counter affidavit annexing therewith a number of documents which show different dates of birth in 4 Aadhaar cards, issued in his name and other papers bearing his name, issued subsequently, to support his argument that accused is highly manipulative and that he can manage and arrange forged and fabricated documents using different tactics. I went through all the papers filed by the respondent along with the counter affidavit. The revisionist has vehemently opposed the filing of new papers at this stage, submitting that these papers cannot be filed and taken into consideration.
In my opinion, even if such an objection that papers filed with the counter affidavit at this stage cannot be considered, is accepted, even then there are numbers of facts and circumstances which prove that the claim of juvenility is not at all bona fide and that appellate court has given adequate reasons supported by the evidence on record, in disbelieving the claim of the juvenile.
21. I do not find any good reason to interfere in the findings given by the appellate court in exercise of the revisional powers of this Court, hence, the revision is hereby dismissed.
Order date :- 22.4.2024/Sumit Kumar