Allahabad High Court
Ajay Pal And Anr. vs State Of U.P. And Anr. on 12 April, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 5.03.2018 Judgement Delivered on 12.04.2018 In Chamber Case :- CRIMINAL REVISION No. - 1299 of 2014 Revisionist :- Ajay Pal And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Upendra Upadhyay,Dalvir Singh Counsel for Opposite Party :- Govt. Advocate,Raj Narayan Gupta Hon'ble Dinesh Kumar Singh-I,J.
1. Heard the arguments of learned counsel for the revisionists, Sri Dalvir Singh and Sri Raj Narayan Gupta, learned counsel for the opposite party.
2. This criminal revision has been preferred against judgment and order dated 22/02/2014 passed by Special Judge (SC/ST) Act/Additional Sessions Judge, Etah in ST No. 400 of 2009, State vs Ajai Pal and Another, praying that the said order be set aside.
3. The facts of the case are that the opposite party No. 2, Man Singh, the first informant had lodged an F.I.R. at PS Nayagaon, District Etah on 05/08/2009 at about 9.45 PM that his daughter (name is not being mentioned by this Court) aged about 9 years had gone in the evening at about 7 PM to ease herself out in the field of corn belonging to Sarvesh resident of Nagaria Sikandarpur and when she did not return till late, he along with Ramesh, bearing torching in their hands, went in search of her and saw that Ajay Pal and Bhovraj Singh of his village had murdered his daughter strangulating her. They had seen these persons fleeing from the place where dead body of his daughter was lying, at about 8.15 p.m., the panty of his daughter was lying on the spot. On the said report case crime No. 52/2009 under section 302 IPC was registered against the above accused persons. The police investigated the case and submitted charge sheet against both the above accused under sections 302 and 376 IPC. The trial Court had commenced the trial and had recorded as many as 6 witnesses of the prosecution side.
4. Thereafter, the mother of the accused Bhovraj Singh moved an application 27 B dated 18.08.2010, supported with an affidavit, stating therein that her son was in prison for last one year. She had six children. Her eldest son Umesh was aged about 22 years, daughter Devki was aged about 20 years, Bhovraj was aged about 18 years, Pankaj was aged about 14 years, Nanhe was aged about 8 years and Neelam was aged about 5 years. Since her son Bhovraj was illiterate, she had no certificate pertaining to his age. At the time of occurrence he was a minor, therefore it was necessary to get him medically examined through CMO, Etah to ascertain his correct age.
5. Similarly, the father of the other accused, Ajay (revisionist No. 1 ) also moved an application No. 28 B dated 12.08.2010, supported with an affidavit, stating therein that his son was detained in district jail, Etah for last one year. He had six children. Eldest son was Indrapal, aged 26 years, Amarpal (dead), aged 24 years, Pramila aged 22 years, Jaipal aged 20 years, Rajni aged 19 years and Ajay Pal aged 17 ½ years. It was further stated that the accused Ajay Pal was only 16 ½ years old at the time of occurrence and that there being no certificate available regarding his age, it was essential that he should be medically examined through CMO to ascertain his correct age.
6. The trial Court recorded the statements of APW 1 Tularam, father of the accused Ajay Pal and Shyama, mother of the accused Bhovraj (revisionist No. 2). The trial Court considered it necessary to examine the statements before calling for medical report regarding age of the accused persons. Thereafter CMO was directed to constitute a Medical Board for determining the age of the accused persons, which was constituted accordingly and the medical report was submitted on 15/06/2011, in which both the accused were opined to be about 18 years old on 15/06/2011. Therefore trial Court held, vide order dated 09/08/2011, their age to be approximately 16 years, as on date of occurrence i.e. on 05/08/2009, because no contrary evidence was provided from the side of prosecution nor from the side of the counsel privately engaged from the side of the complainant, except that a suggestion was made that the age of the accused was more than 18 years on the date of occurrence. It was directed by the trial Court that the file be sent to the Juvenile Justice Board for further necessary action.
7. The said order dated 09/08/2011 was assailed before High Court in criminal revision No. 3380 of 2011, Man Singh vs State of U.P. and others by the first informant - O P No. 2, in which the said order was set aside on the ground that no opportunity of hearing was given to the first informant - revisionist, with the direction that the fresh order shall be passed on the applications of the opposite parties - accused, in accordance with law, after giving opportunity of hearing to the first informant - revisionist within a period of 3 weeks.
8. Pursuant to the above direction, CW 1, Man Singh, Asstt. teacher, Pathamik Vidyalaya, Ubhai, Asad Nagar, CW 2, Ram Bbharose Lal, retired teacher of the said school and CW 3, Hrihar Verma, the then Asstt. teacher, Pathamik Vidyalaya, Ubhai, Asad Nagar were examined.
9. As regards revisionist No. 2 - Bhovraj Singh, the trial Court has noted down in the impugned order that his mother stated the age of Bhovraj at the time of occurrence to be 17 years and that he was illiterate, as he had not received education in any school. But from the side of the complainant - O P No. 2, CW 1, Manpal Singh was examined, who had appeared before Court with admission register of the year 1991 of Pathamik Vidyalaya, Ubhai, Asad Nagar, Etah and stated in examination in chief that at serial No. 4703, the name of Bhovraj Singh son of Munna Lal resident of Nagla Mai was registered, in which his date of birth was entered as 10/10/1991. A photocopy of the said admission register was proved by him and was filed as Exhibit Kha - 2. Therefore it was clear that Bhovraj Singh had taken admission in the said school on 15/07/1997. In this regard the learned counsel for the accused/revisionist had argued that though he had not received any formal education in any primary school, even then if the entry of date of birth in Exhibit Kha - 2 i.e. 10/10/1991 be believed, even that would prove that on the date of occurrence i.e. on 05/08/2009, the age of accused - revisionist Bhovraj was 2 months less than 18 years, therefore he would be treated to be a juvenile on the date of occurrence. In this regard the learned counsel for the first informant - opposite party No. 2, relied upon Brij Mohan Singh Vs. Priya Brat Narain Sinha, AIR 1965 (SC) 282, in which in Para 20 following was held "in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed. The Court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the Court to base any conclusion on the basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive." The Court further records in the judgment that if in the light of above observation of the Apex Court, consideration of the age of accused - revisionist, Bhovraj be made, then it would appear from the evidence on record that his mother Smt. Shyama (APW - 2) did not know his age, rather on the basis of conjecture she stated his age to be 17 years approximately. Therefore the possibility may not be ruled out that the age of the accused - revisionist, Bhovraj might have been entered in the school on the basis of conjecture and hence there could be a difference of two months. The above-mentioned citation of the Supreme Court was also followed in Sushil Kumar Vs. Rakesh Kumar, AIR 2004 (SC) 230. Therefore it was evident from the evidence which has come on record that the accused - revisionist Bhovraj had taken admission in the said school and that on the date of occurrence his age was 18 years, hence he was not a juvenile.
10. It is further mentioned in the said judgment that even if for the sake of argument, it be conceded that the said accused did not receive education in any school, even then in the medical report, paper No. 46 A/4 dated 15/06/2011, it was recorded that he had 16+16 i.e. 32 teeth in his jaws. Besides that the lower end of his radius and ulna bones had joined; similarly his bone of the joint of right knee had also joined and the joint of right elbow had also joined, on the basis of which the Doctor had opined his age to be 18 years on 15/06/2011. Further it is mentioned in the said judgment that he had found in Medical Jurisprudence by Modi in sixth edition of the Year 2011, in the concerned chapter on page 286, that the fusion takes place 2 years early in the boys and girls of the State of U.P. Normally, compared to other states. In other states Epiphyseal union happens little later in time. At the same page in paragraph 3, it has been narrated that in a survey conducted by Riwan Medical College, MP it was found that Epiphyseal union in boys happens between the age of 19 - 20 years, in the knee joints between the age of 20 - 21 years. In the case at hand of the accused - revisionist Bhovraj Singh, from the perusal of medical report, fusion was found not only of bones of the wrist, elbow, rather also of the bones of knee joint, therefore it was evident that on 15/06/2011 the age of Bhovraj Singh must have been about 20 - 21 years.It is further mentioned in the said judgment that from the side of the accused - revisionist reliance was placed upon Sheo Shankar alias Budha Vs State of U.P., 2000 (40) ACC - 571 (Allahabad); and Satpal Singh Vs State of Haryana, 2010 (70) ACC 874 (SC). It was mentioned citing above rulings from the defence side that if 2 years be reduced from the estimated age of the accused, then the accused could be a minor on the date of occurrence. But the said argument has been discarded stating that in State of U.P. vs Chhotey Lal, AIR 2011 (SC) 697, the Supreme Court had made it clear that there was no such rule that while deciding age on the basis of medical examination, a difference of two years should be made admissible. Therefore, in the end it has been concluded that not only on the basis of documentary evidence but also on the basis of medical evidence, the age of accused- revisionist Bhovraj stood more than 18 years, hence he was not a juvenile.
11. As regards the other revisionist/accused Ajay, it is recorded in the judgment that from the side of complainant - opposite party No. 2 transfer certificate of accused Ajay Pal was produced, in which the date of birth of Ajay Pal (Ajay Kumar) son of Tularam was shown as 10/10/1988 and in the admission register his name was entered at serial No. 5200. In this regard it was argued before Court by the learned counsel for the accused - revisionist that he had not received education in any school and that the said certificate was a forged one. In this regard CW 1, Manpal Singh had stated in examination in chief that in the admission register of Pathamik Vidyalaya, Ubhai, Asad Nagar the name of Ajay Kumar son of Tularam was not entered at serial No. 5200, rather entry was that of the name of Sudhir Kumar son of Man Singh. He could not say whether the entry of the date of birth 10 - 10 - 1988 in the school leaving certificate, 63 - B/3 was correct or not. Similarly CW 3, Harihar Verma had stated that he had not issued the said school leaving certificate. Therefore, even if it be assumed that accused - revisionist Ajay Pal did not receive education in any school and that the certificate filed from the side of the complainant/opposite party No. 2 was wrong, then too from the medical examination report, 46 - A/3, it was evident that on the date of occurrence the age of Ajay Pal was more than 18 years. In his medical examination report it is mentioned that he had 16 +16 i.e. 32 teeth in his jaws and the lower end bones of not only his wrist, rather of elbow joint and knee joint were also found fused. Therefore, on the date of occurrence, the age of this accused - revisionist was also above 18 years and hence he was not a juvenile.
12. It is mentioned in the impugned judgment that in another ruling of the Supreme Court, Ashwini Kumar Saxena vs State of MP, AIR 2013 (SC) 593, in Para 6 it was mentioned that the Doctor had found 32 teeth in the jaws of accused and on that basis the age of accused was held to be 21 years. Similarly on the basis of x-ray report, the bones of wrist, elbow and knee were found fused and the Doctor had assessed the age of accused to be more than 20 years.
13. Thus, in the case at hand it has been recorded by the trial Court that since both the revisionist - accused had 32 teeth and bones of their wrist, elbow and knee were found fused, in the light of Modi's Medical Jurisprudence, even Ajay Pal was more than 18 years old on the date of occurrence and hence an adult. APW 1, Tularam could not tell the date of birth of Ajaypal correctly nor could he file any copy of the family register and thus both the applications 27 B and 28 B had been dismissed and the file had been fixed for remaining evidence.
14. Heard the arguments of the learned counsel for the revisionist, Shri Vinod Singh holding brief of Shri Rahul Pandey as well as the learned counsel for the opposite party No. 2, Raja Narain Gupta and the learned AGA and perused the record.
15. The learned counsel for the revisionist has mainly argued that both the revisionist - accused were illiterate, had never been to school, therefore in accordance with the interpretation of the section 7 - A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ''Act of 2000') and the Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short to be referred as ''the Rules of 2007') made by the Apex Court in Ashwini Kumar Saxena vs State of MP, AIR 2013 Supreme Court 553 , the revisionists-accused should be treated to be juvenile on the basis of medical report, hence the revision deserves to be allowed and should be allowed.
16. On the other hand from the side of learned AGA as well as the learned counsel for the first informant - O. P. No. 2, it is argued that there is no infirmity in the impugned order and that the learned lower Court has rightly held the revisionist-accused to be major on the date of occurrence, hence the revision deserves to be dismissed and should be dismissed.
17. First of all, this Court would like to reproduce, for the sake of convenience, the relevant law for determining the age of juvenile. The relevant provisions in this regard are section 7A of the Act of 2000 and rule 12 of the Rules of 2007.
18. Section 7A of the Act of 2000 reads as under:
"7A. Procedure to be followed when claim of juvenility is raised before any court-(1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:
Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the Rules made thereunder, even if juvenile has ceased to be so on or before the date of commencement of this Act.
(2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court shall be deemed to have no effect."
19. Rule 12 of the Rules of 2007 provides as under:
"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 or as the case may be the Committee referred to in rule 19 of these Rules shall determine the age of such juvenile or child ar a juvenile in conflict with law within a period of 30 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 appearance 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 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, interalia, in terms of section 7A, section 64 of the Act and these Rules, no further enquiry 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 of 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."
20. Now, this Court would like to refer to the case laws which have been mainly relied upon by the learned counsel for the revisionist, i.e., Ashwini Kumar Saxena's case (supra). In this judgment it has been clarified by the Hon'ble Apex Court that while making enquiry in respect of adjudging juvenility of an accused, the procedure which has been provided in the JJ Act has to be followed strictly and not a roving enquiry or an enquiry as mentioned in the Criminal Procedure Code should be made. It is mentioned in the said judgment that a large number of courts are holding enquiry in a manner as if trial of a case was being held, which was improper. The relevant paragraphs need be quoted herein below:
"27 . Section 7A, obliges the Court only to make an enquiry, not an investigation or a trial, an enquiry not under the Code of Criminal Procedure, but under the JJ Act. Criminal courts, JJ Board, Committees etc., we have noticed, proceed as if they are conducting a trial, inquiry, enquiry or investigation as per the Code. Statute requires the Court or the Board only to make an ''inquiry' and in what manner that inquiry has to be conducted is provided in JJ Rules. Few of the expressions used in section 7A and rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression "Court shall make an inquiry", "take such evidence as may be necessary" and "but not an affidavit". The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence.
28 . Rule 12 which has to be read along with Section 7A has also used certain expressions which are also to be borne in mind. Rule 12 (2) uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule 12 (3) uses expression "by seeking evidence by obtaining". These expressions in our view re-emphasise the fact that what is contemplated in section 7A and Rule 12 is only an inquiry. Further, the age determination enquiry has to be completed and age be determined within 30 days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word ''inquiry' has not been defined under the JJ Act, but section 2 (y) of JJ Act says that all words and expressions used and not defined in JJ Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meaning respectively assigned to them in that Code.
32. Consequently, the procedure to be followed under the JJ Act in conducting an enquiry is the procedure laid down in that statute itself i.e. rule 12 of 2007 Rules. We cannot import other procedures laid down in the Code of Criminal procedure or any other enactment while making an enquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the Court exercising powers under section 7A of the Act. Many of the Cases, we have come across, it is seen that the criminal courts are still having the hangover of the procedure of trial or enquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with rule 12.
33. We also remind all courts/JJ Board and the Committees functioning under the Act that duty is cast on them to seek evidence by obtaining the certificate etc. mentioned in rule 12 (3) (a) (i) to (iii). The courts in such situation act as a parenspatriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
34. "Age determination enquiry" contemplated under section 7A of the Act read with rule 12 of the 2007 Rules enables the Court to seek evidence and in that process, the Court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the Court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the Court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the Court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
35. Once the Court, following the above mentioned procedures, passes an order that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in sub section (5) or rule 12 that no further enquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub rule (3) of rule 12. Further, section 49 of the JJ Act also draws a presumption of the age of juvenility on its determination.
36. Age determination enquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations like entry in service, retirement, promotion etc.. 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 municipal authority or a panchayat may not be correct. But Court, JJ Board or a Committee functioning under the JJ 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 JJ Board or the Committee need to go for medical report for age determination."
21. In the light of above position of law the trial Court was required to assess the juvenility of the revisionists. This Court has to examine as to whether the trial Court has committed error in following the procedure prescribed for determining the age of juvenile under section 7A of the Act of 2000 and rule 12 of the Rules of 2007?
22. First of all, the case of accused - revisionist No. 2 Bhovraj is being taken up. It is evident from the record that though the mother of the accused has denied that accused had ever gone to any school for studying, rather asserted that he was absolutely illiterate because of which she could not submit any certificate of high school (matriculation) or that of the school first attended, other than play school. This claim of the mother of the accused has been challenged by the complainant - opposite party No. 2 by producing evidence of his having studied in Pathamik Vidyalaya, Ubhai, Asad Nagar, by examining CW 1, Man Pal Singh, who presented before Court the admission register of the said school of the year 1991, which the accused first attended, in which at serial No. 4703, the name of the present accused has been found recorded and his date of birth is found entered as 10/10/1991 in the said register, photo copy of the relevant page of which has been proved as Exhibit Kha - 02 by this witness. It was found proved by the Court below that the said document did prove that he had taken admission in the said school on 15/07/1997, therefore if his age is computed on the date of occurrence (05/08/2009) on the basis of the date of birth recorded in the said admission register i.e. 10/10/1991, his age would be less than 18 years (it would stand at 17 years 10 months and 25 days to be exact). But the learned lower Court has held him to be major by relying upon the law laid down in Brij Mohan Singh's case (supra) holding that it was often seen that for ensuring advantage to the child later in life in public service, the parents generally record the age of their child on the lower side. This logic of the trial Court does not stand to reason in the light of the legal position as to the claim of juvenility as summarised by the Supreme Court in Abuzar Hossain vs State of W.B., (2012) 10 SCC 489, which has been reiterated by Supreme Court in Mukarrab and others vs State of Uttar Pradesh, (2017) 2 Supreme Court Cases 210 in Para 15 as follows:
"15.Summarising the legal position as to the claim of juvenility and observing that such plea can be raised at any stage and after referring to various decisions, a three Judge Bench of this Court in Abuzar Hossain vs State of W.B. held as under: (SCC pp. 509 - 10, Para 39) "39 . Now, we summarise the position which is as under:
..............................
39.5. The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of the 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered primafacie on the touchstone of preponderance of probability.
.................................."
23. Therefore, in the light of above position of law, the view of the trial Court that the date of birth 10/10/1991 recorded in the admission register of the school cannot be taken as alleged, because there could be possibility of the parents of the accused - revisionist having understated his age by one or two years, does not stand to reason nor would that be treated to be a correct interpretation.
24. It may also be mentioned here that when the trial Court had on the basis of Exhibit Kha - 2 held that the accused - revisionist had received education in the said school, there was no occasion for the court to consider the medical examination report submitted in respect of determination of age of the revisionist, because as per law cited above, only if there was no evidence available with regard to matriculation or equivalent certificate or the school first attended excluding play school or any certificate issued by a corporation or a municipal authority or a panchayat, then only recourse could be adopted of calling for a report from Medical Board in respect of age determination. Therefore this Court does not deem it proper to discuss the evidence of the Medical Board on record in respect of the present accused - revisionist and holds that the finding given by the Court below in respect to the juvenility of the present accused on the basis of report of Medical Board was undesirable. Therefore the accused - revisionist Bhovraj is held to be a juvenile on the date of occurrence as per the record of the school he first attended. The finding of the Court below to the contrary deserves to be set aside.
25. Now, with regard to the other accused - revisionist Ajay pal, the matter is being taken up. Concerning this accused, the version from the side of the accused was that he had never studied in any school, but from the side of the complainant - opposite party No. 2 school leaving certificate was produced issued by the same school i.e. Pathamik Vidyalaya, Ubhai, Asad Nagar, in which the date of birth of Ajay Pal (Ajay Kumar) son of Tularam was recorded as 10/10/1988 and his name was found entered at serial No. 5200. CW 1, Man Pal Singh had stated in examination in chief that the name of Ajay Kumar son of Tularam was not registered at serial No. 5200 of the admission register of the said school, rather on the said serial, the name of one Sudhir Kumar son of Man Singh was entered. Further he had stated that he could not say whether the school leaving certificate, paper No. 63 - B/3 contained the correct date of birth of Ajay Kumar as 10/10/1988 or not. Similarly CW 3, Harihar Verma had also stated that the said document, paper No. 63 - B/3, TC of Ajay Kumar was not issued by him. Therefore, the learned Court below had rightly discarded the said document as a forged document and therefore there being no other evidence of the category mentioned in rule 12 (3) of the Rules of 2007, consideration was made of the opinion of Medical Board, paper No. 46 A/3, given in respect of this accused.
26. In the said document, the relevant facts were recorded as below: teeth 16/16; x-ray examination report No. MR 1501 the joint AP view - Epiphysis of lower end of radius and ulna fused with their respective diaphysis Epifyseal line is still seen. MR 1502 joint AP view - all Epiphysis around the knee joint have fused with their respective diaphysis. MR 1503 - right elbow AP and lateral view - all epiphysis round the elbow joint have fused with their respective diaphysis. From above datal and general appearance his age is about 18 years as on 15/6/2011.
27. On the basis of above report, the trial Court has expressed opinion that on the basis of medical evidence as contained in paper No. 46 A/3, it was evident that the age of accused was more than 18 years on the date of occurrence i.e. 05/08/2009, hence he was not a juvenile. Further it is mentioned by the trial Court that in Ashwani Kumar Saxena vs State of MP, 2013 (SC) 593 in Para 6, the dental Surgeon had opined about the age of accused to be 21 years on the basis that the 32 teeth were found in his jaws and that in an x-ray report the bones of wrist, elbow and knee were found fused, on the basis of which Doctor had opined about the age of the accused to be more than 20 years, therefore in the case on hand also the learned trial Court has opined that the accused was more than 18 years of age on the date of occurrence and hence was an adult. Otherwise also APW 1, Tularam, father of the accused could not tell his age nor could he file any family register.
28. This Court is not inclined to accept the view of the learned trial Court as mentioned above because in the case mentioned above by him, the Doctor had been examined and on the basis of his statement the said opinion was recorded, but in the case at hand the evidence on record does not indicate that any Doctor of the Medical Board was summoned by the trial Court for examining him on the point as to how the Board was rendering its opinion that the accused was about 18 years old on the date of examination i.e. on 15/6/2011. The facts of no two Cases are comparable ever. Each case has its own peculiarities. In the case at hand the opinion expressed by the trial Court is on the basis of conjecture and not on the basis of medical examination report held by the Medical Board. No sound reasoning has been assigned for discarding the said opinion. The eruption of all the 32 teeth takes place between the age group of children of 17 years upto 21 years normally, therefore simply because the accused was found to have 32 teeth should not lead the Court to the conclusion that he may have been about 21 years, because he could be 17 years old as well. In Abuzar Hossain vs State of W.B (supra) it is laid down as a guiding principle that "the courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima-facie on the touchstone of preponderance of probability." It is true that the medical opinion is not binding upon the Court in respect of age of the accused and the same is only a tentative opinion which may not be accurate, but to discard that opinion some reasonable evidence was required to be gathered by the prosecution. In the case at hand no such evidence has been adduced by the prosecution which could be credible to disbelieve the medical evidence in respect of this accused/revisionist, nor the trial Court deemed it proper to summon any of the Doctors who were member of the Medical Board to cross-examine on this point. Therefore due to lack of any contrary piece of evidence, discarding the said opinion of the Medical Board was unjustified. It is also a settled principle of law that in borderline Cases as to the age, the benefit should be extended to the accused. In Rajinder Chandra vs State of Chhatisgarh & Anr., 2002 (1) JIC 609 (SC) it is held that while dealing with the question of determination of age of the accused for the purposes of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. Similar was also the view of this Court in Ram Janam vs State of U.P., 2003 (46) ACC 1150 (Allahabad). Therefore in view of above position of law, this Court is of the view that if he was found to be about 18 years of age on the date of his medical examination i.e. on 15/6/2011, his age on the date of occurrence i.e. on 05/09/2009 would certainly be few months above 16 years and hence he would be treated to be a juvenile on the date of occurrence.
29. In view of above analysis of the evidence on record, this Court is of the view that the impugned order dated 22/02/2014 needs to be set aside and both the accused - revisionists are found to be juvenile in conflict with law on the date of occurrence. The trial shall be conducted by the Juvenile Justice Board from the stage which it has reached. The trial Court is directed to transmit the record to the Juvenile Justice Board for expeditious disposal of this case according to law at the earliest. The lower Court record be transmitted back immediately with a copy of the judgment and order of this Court for compliance. This revision is accordingly allowed.
Order Date :- 12.04.2018 A. Mandhani