Allahabad High Court
Kallu Yadav @ Balram vs State Of U.P. And Another on 27 October, 2016
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 44 Case :- CRIMINAL REVISION No. - 3291 of 2014 Revisionist :- Kallu Yadav @ Balram Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Ram Sharan Singh Counsel for Opposite Party :- Govt.Advocate,Vijay Bahadur Shivhare Hon'ble Amar Singh Chauhan,J.
The revisionist Kallu Yadav @ Balram has preferred this criminal revision against the judgement and order dated 19.7.2014, passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 23 of 2014 (Kallu Yadav @ Balram vs. Sukkhu @ Pushpendra Yadav and another) under section 52 of Juvenile Justice (Care and Protection of Children) Act, 2000 whereby the appeal of the appellant was dismissed and confirmed the order dated 03.04.2014, passed by Principal Magistrate, Juvenile Justice Board, Hamirpur in Misc. Case No. 07/11/2014, (State vs. Sukkhu @ Pushpendra Yadav), arising out of Case Crime No. 62 of 2014 under section 302 IPC, Police Station Sumerpur, District Hamirpur by which the opposite party no. 2 Sukkhu @ Pushpendra Yadav was declared as juvenile by Juvenile Justice Board.
Brief facts of the case which give rise to the revision are that on 13.1.2014 at about 10.45 A.M an FIR was lodged by the informant Kallu bearing Case Crime No. 62 of 2014 under section 302 IPC at Police Station Sumerpur, District Hamirpur to the effect that on 12.1.2014 at about 1.30 (noon) his son Radha Yadav aged about 8 years was going accompanied with his Nana. On the way his cousin brother Deepu met his son Radha Yadav and told him not to go with his Nana but he denied and thereafter Deepu went towards his house. On 13.1.2014 at about 9.00 A.M. the dead body of Radha Yadav was found in the field of Indrajeet Singh Parmar.
Pursuant to FIR, the Investigation Officer after conducting investigation filed charge sheet against Sukkhu @ Pushpendra Yadav under section 302 IPC. During trial, the father of the accused made an application on 30.4.2014 in the court of Chief Judicial Magistrate for declaring the accused Sukkhu @ Pushpendra Yadav as juvenile. Revisionist filed objection and prayed for rejecting the application.
Accused-opposite party submitted School Leaving Certificate of Class-V of Basic Shiksha Parishad Uttar Pradesh of Prathmik Vidyalaya, Hamirpur in support of his contention wherein his date of birth has been recorded as 02.07.1998. The statement of Bardani Yadav, father of opposite party no. 2, and statement of Shiv Kumar, Headmaster Prathmik Vidyalaya Pachkhura Bujurg were recorded in the court of Juvenile Justice Board as C.W.1 and C.W.2. After hearing the parties the Juvenile Justice Board allowed the application vide order dated 3.4.2014.
Aggrieved by the said order, the revisionist preferred an appeal under section 52 of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act 2000') in the court of Sessions Judge dated 19.7.2014 which was also dismissed.
Aggrieved from the said order impugned, the informant/revisionist preferred this revision.
Heard Sri Ram Sharan Singh, learned counsel for the revisionist, Sri Vijay Bahadur Shivhare, learned counsel for the opposite party no. 2, learned Additional Government Advocate for the State and perused the material on record.
It is submitted by learned counsel for the revisionist that date of birth of the accused-opposite party no. 2 recorded in School Leaving Certificate was not correct but recorded at the speculation, therefore, it cannot be taken into consideration for determining age of the opposite party no. 2. It is further contended that age of the accused-opposite party no. 2 is recorded 10 years in the ration card of 2005 of family of father of accused-opposite party and, therefore, he was ten years of age in 2005 and was 20 years on the date of occurrence. The Juvenile Justice Board allowed the application on 03.04.2014 on erroneous consideration in illegal and arbitrary manner. The learned Sessions Judge has also committed illegality in placing reliance on paper no. 13 Kha School Leaving Certificate of Prathmik Vidyalaya Pachkhura Bujurg Sumerpur, Hamirpur.
In this revision, the main point of determination is that whether the impugned order by which the opposite party no. 2 Sukkhu @ Pushpendra Yadav has been declared juvenile does not suffer from illegality.
Before adverting the claim of the parties, it is useful to quote the provision of Section 7-A of the Act and Rule 12 (3) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2007.
Section 7-A of the Act provides as under:-
"Section 7-A (1) 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 recognized 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 the juvenile has ceased to be so on or before the date of commencement of this Act."
It is clear from the aforesaid provision that whenever a claim of juvenility is raised, before any court, the same is bound to hold an enquiry, takes such evidence as may be necessary (but not an affidavit) so as to determine the age of such person. It is also provided that claim of juvenility may be raised before any court at any stage.
Rule 12 (3) provides as under :
"12 (3) Procedure to be followed in determination of Age :- 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."
According to Rule 12(3) of the Rules 2007, the age of an accused should be determined by seeking evidence by obtaining the matriculation or equivalent certificate in the absence thereof, on the basis of date of birth recorded in the first school attended and in the absence thereof, on the basis of birth certificate given by Corporation or Municipal authority or a Panchayat and in the absence of all three options mentioned above, the medical opinion shall be sought from a duly constituted Medical Board.
In the instant case, the date of birth in admission register of the school in which the candidate first attended is a relevant piece of evidence. The reasoning that the parents could have entered a wrong date of birth in the admission register is equal to thinking that parents would do so in anticipation that child would commit a crime in future and in that situation, they could successfully raised a claim of juvenility. The Hon'ble Supreme Court in case of Aswani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 held that Juvenile Justice Board or a Committee functioning under the Juvenile Justice Act is not expected to conduct a roving enquiry so as to go behind the correctness of the entry made in the document and register kept during the normal course of business. Apex Court observed that only in cases where those documents or certificates are found fabricated or manipulated, the court, the Juvenile Justice Board to go for medical report of age determination.
Therefore, the inquiry conducted by the Juvenile Justice Board is proper and in view of the procedure laid down in Section 7-A and Rule 12(3) of the of Rules, 2007, the contention of the revisionist is that ration card of the family of the father of 2005 wherein the age of the accused is recorded 10 years in 2005 is to be considered, has no substance and opposite party has successfully established his juvenility.
Having considered the submissions of learned AGA, legality, propriety and correctness of the order impugned, I am of the view that the revision is liable to be dismissed.
The revision, being lack of merit, is dismissed.
There is no order for cost.
Order Date :- 27.10.2016 Puspendra