Delhi District Court
Rajesh S/O Ram Singh vs Government Of Nct Of Delhi on 26 April, 2017
IN THE COURT OF ADDITIONAL SESSIONS JUDGE-01
SOUTH EAST DISTRICT, NEW DELHI
Criminal Appeal No. : CA 26/2017
CNR Number : DLSE01-000241-2017
in case FIR No. 632/2016
PS Kalkaji
u/s 363/377 IPC r.w 6 POCSO Act
Rajesh S/o Ram Singh
r/o D-440, Navjeevan Camp,
Govindpuri, Kalkaji, New Delhi
through Pinki D/o Late Sh. Ram Singh, elder sister ....... Appellant
Versus
Government of NCT of Delhi ...... Respondent
Date of Institution : 09.01.2017
Date of Reserving Order : 21.04.2017
Date of Decision : 26.04.2017
Appeal against the order dated 25.11.2016 passed by the Juvenile
Justice Board II, Delhi Gate, Delhi.
ORDER
1. The present appeal has been filed on behalf of appellant by his elder sister against the orders passed by learned Juvenile Justice Board-II, Delhi vide which the appellant has been found not to be a juvenile on the date of commission of offence for the purposes of CA No. 26/17 Rajesh vs Govt of NCT of Delhi Page No. 1 of 5 Juvenile Justice (Care and Protection of Children) Act, 2015.
2. Briefly stated facts of the case are that the appellant was apprehended by the police on the allegation that he took one boy aged 7 years forcibly to jungle area in Kalkaji and forcibly sexually assaulted him by committing unnatural sex with him on 25.10.2016 at about 6.00 PM. The child raised alarm and the appellant was caught by passer by and was given beatings and was handed over to the police by public person. After completion of inquiry police filed report before the Board and the Board after conclusion of age inquiry passed the order in question.
3. The appellant has challenged the said order submitting that the Board has not conducted any proper enquiry at the time of age enquiry and there is apparent infirmity or illegality in the impugned order. That assessment of age was required to be determined on the basis of evidence that may be adduced and other material in support thereto and that the evidence on record is not sufficient to arrive at the conclusion arrived at. It is submitted that Board has simply summoned CW1 and has failed to appreciate that entry in the school record is not based on any authentic document and that the Board has not summoned any witness who has got the child admitted in the school. It is submitted that no material having been submitted at the time of admission and mother being illiterate lady there is every scope of incorrect recording of date of birth and thus the entry is not worth of credence. It is further submitted that the Board has failed to appreciate that mere entry regarding date of birth of a person in school register is of not much evidentiary value to prove the age of the person in absence of reliable evidence to accept the correctness of the date of birth recorded in the school register. It is submitted that the Board has not decided the issue with utmost care and sensitivity, invoking CA No. 26/17 Rajesh vs Govt of NCT of Delhi Page No. 2 of 5 meticulous deliberation and divulgence and that the person who has got the child admitted in school has also not been examined. It is submitted that there is nothing to show that any verification of age was done before recording age in school records and that the Board without summoning of parents of child who are best witness has just on evidence of CW1 has jumped to a conclusion that the child is major. It is submitted that the Board failed to appreciate that legal counsel provided has hardly defended the case and the parties were not give adequate opportunity to adduce evidence. It is prayed that the order be set aside and order for conducting ossification test to ascertain exact age of the child be passed.
4. I have heard the submissions of the learned counsel of appellant and of learned Addition Public Prosecutor for the State and have gone through the written submissions filed by the learned counsel for appellant and the case file.
5. The learned Board during the inquiry has examined one witness from the school in which the child was admitted in first class. As per record produced by the witness the date of birth is recorded as 01.10.1997. As per record the father's name is Ram Singh and mother's name is Mohini. The Board has also recorded the statement of elder sister of child through whom the present appeal is filed. She has admitted the address mentioned in the school record but had denied that name of her mother is Mohini. The Board has also considered the admission documents of the child pertaining to class 6 th verified form the school administration by the IO in which the date of birth of child is mentioned as 01.10.1997. In these documents the name of mother is mentioned as Munni Devi.
5.1 The learned Board has considered the submission made on behalf of child that in view of discrepancy in the name of mother in CA No. 26/17 Rajesh vs Govt of NCT of Delhi Page No. 3 of 5 school record of class 1st medical opinion as regard his age be obtained. The learned Board find the submission meritless in view of the law laid down in case Ashwani Kumar Saxena vs State of MP (2012) 9 SCC 750 in which it is held by the Hon'ble Supreme Court that the Board is not expected to conduct such a roving enquiry and to go behind the certificates to examine the correctness of the documents kept during the normal course of business and only in cases where the documents or certificates are found to be fabricated or manipulated the Board need to go for medical report for age determination. 5.2 The learned Board has considered the discrepancy in the name of mother in the record and has hold that a minor discrepancy in record will not persuade the Board to hold that such records are forged and fabricated. The Board has considered the particulars in the record about the name of father and the address of child which are correctly mentioned. The Board has considered the school leaving certificate in which the name of mother is written as Munni Devi and has opined that it is very-very probable that at the time of filling of form in class 1st due to inadvertence the mother's name was wrongly entered. 5.3 The learned Board has hold that even if the record of class 1 st is discarded yet the outcome would not be any different reason being that the child had taken admission in class 6 th and therein all the particulars are very correctly mentioned and the date of birth is 01.10.1997.
6. This court provided opportunity to the appellant to examine his mother as witness and she has appeared in the witness box. Even she has not given any date of birth of her son different to the date recorded in school records. The appellant is not able to bring on file any piece of evidence to show that the school record of the appellant is forged and fabricated by the police thus in the absence of such evidence the CA No. 26/17 Rajesh vs Govt of NCT of Delhi Page No. 4 of 5 findings given by learned Board can not be discarded and can not be said beyond the record. Thus, on the basis of material and documents available on case file, I find no ground to take a different view than to taken by the Board and of the view that there is no infirmity in the order passed by the learned Board. Accordingly the appeal stand dismissed and the appellant is found not to be a child on the date of offence i.e. 25.10.2016 as he has completed 18 years on that day.
File be consigned to the record room.
Announced in Open Court (Sunil Chaudhary)
On 26th April, 2017. ASJ-01 (South East), Delhi.
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