Madhya Pradesh High Court
Wajid Khan @ Bhayyu Musalman vs The State Of Madhya Pradesh on 13 January, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.37648/2020
Wazid Khan alias Bhaiyu Musalman Vs. State of M.P.
Through Video Conferencing
Gwalior, Dated:13-01-2022
Shri Anshu Gupta, Advocate for applicant.
Shri APS Tomar, Panel Lawyer for respondent/State.
This application under Section 482 of Cr.P.C. has been filed against the order dated 29/2/2020 passed by Second Additional Judge to the Court of First Additional Sessions Judge, Ashoknagar in ST No.69/2019, by which the application filed on behalf of the son of the applicant, namely, Sameer Khan for declaring him as a juvenile has been rejected.
2. The necessary facts for disposal of the present application in short are that the son of the applicant, namely, Sameer Khan alias Babu Khan is facing trial for offence under Sections 302, 307, 323, 34 of IPC and Section 25 (1-B) of the Arms Act and Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The incident is alleged to have taken place on 15/8/2019. The applicant filed an application before the Trial Court claiming that his son Sameer Khan alias Babu Khan is a juvenile, therefore, he should be sent for trial before the Juvenile Justice Board. The Trial Court conducted an enquiry and recorded the statements of the witnesses of the applicant and after perusing the documents relied upon by the applicant, rejected the claim of the ARUN KUMAR MISHRA 14.01.2022 20:05 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. applicant that the son of the applicant, namely, Sameer Khan alia Babu Khan was juvenile on the date of the incident.
3. Challenging the order passed by the Court below, it is submitted by the counsel for the applicant that the Court below has not appreciated the evidence led by the applicant as well as the documentary evidence relied upon by the applicant in true perspective. The date of birth of the son of the applicant is 20/9/2001, whereas the incident took place on 15/8/2019 and thus, it is clear that the son of the applicant was 17 years and 11 months of age on the date of incident.
4. Heard learned counsel for the applicant.
5. The applicant, in support of his claim, examined himself as PW-1, Iqbal Pathan (PW-2) and Saiyada Harshi Hashmi (PW-3) and relied upon the admission register Ex.P/1, mark-sheets of Class 1 to 4 Ex.P/2 to Ex.P/5 to show that the date of birth of his son, namely, Sameer Khan alias Babu Khan is 20/9/2001.
6. Iqbal Pathan (PW-2) has proved the admission register Ex.P/6 and the form filled up at the time of admission of Sameer Khan alias Babu Khan Ex.P/7.
7. Saiyada Harshi Hashmi (PW-3) has proved the admission register of Madarsa Darul Ulum Garib Nawaj Maidan Chanderi ARUN KUMAR MISHRA 14.01.2022 20:05 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. Ex.P/8.
8. Wajid Khan (PW-1) in his cross examination has admitted that he is aged about 47 years. He has three children. The date of birth of his eldest child is 24/9/2000, whereas the date of birth of his son, namely, Sameer Khan alia Babu Khan is 29/9/2001 and the date of birth of his youngest child is 29/4/2005, however, he was not in a position to disclose his own date of birth. He stated that he got married on 29/5/1998, however, was not in a position to disclose his age at the time of his marriage. He claimed that the age of his wife was 21 years and after two years of his marriage, his first child was born. However, he fairly conceded that he has not brought any documentary evidence to prove the date of birth of his eldest daughter and youngest son. He denied that the certificate Ex.P/1 has been obtained by him in a forged manner. He admitted that the dispatch number as well as the date of issuance of the certificate is not mentioned. He further admitted that Madarsa Raja-E-Hussain is a private institution of Muslim Community. He denied that he has got forged mark-sheets Ex.P/2 to Ex.P/5 prepared. He further denied that in the mark-sheet of Class-1, year 2000 has been manipulated to make it 2001. He further admitted that his son, namely, Sameer Khan alia Babu Khan had studied in Madarsa Darul Ulum Garib Nawaj ARUN KUMAR MISHRA 14.01.2022 20:05 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. Chanderi also, but he claimed that he had not disclosed the date of birth of his son, namely, Sameer Khan alia Babu Khan as 4/11/2001. He further stated that the delivery of all the three children had taken place in the house. He further stated that he had not obtained the birth certificate or any certificate of his son, namely, Sameer Khan alia Babu Khan. He denied that he had disclosed the date of birth of his son, namely, Sameer Khan alia Babu Khan as per his own assessment. He further stated that no Adhar Card of his son was prepared, however, he admitted that he is in possession of BPL card. He further admitted that the names of all the family members are mentioned in the BPL card. However, he claimed that he do not know as to whether the age of his son, namely, Sameer Khan alia Babu Khan mentioned in the BPL card. He said that he does not know that his son had disclosed his correct date of birth at the time of his arrest. He further stated that it is possible that his son may not be aware of his correct age.
9. Iqbal Pathan (PW-2) has stated that he had issued the date of birth certificate on the basis of the school record, according to which, the date of birth of Sameer Khan alias Babu Khan is 20/9/2001. The form submitted at the time of admission of Sameer Khan alias Babu Khan is Ex.P/7 and the mark-sheets of Sameer Khan issued by the ARUN KUMAR MISHRA 14.01.2022 20:05 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. school is Ex.P/2 to Ex.P/5-C. In cross examination he admitted that at the time of filling up the admission form Ex.P/7, no documentary evidence regarding the age was given. He further stated that the date of birth which was disclosed by his father was mentioned. He was also not in a position to say that who had filled the admission form Ex.P/7. He further admitted that the admission form Ex.P/7 does not contain the signature of Teacher. He denied that the certificate Ex.P/1 and the mark-sheets Ex.P/2 to Ex.P/5 are the forged documents. He admitted that Madarsa Raja-E-Hussain is a private institution. He further admitted that whenever a transfer certificate is issued by a Madarsa, then the same is also sent to BEO for his signature. He denied that the age of Sameer Khan alias Babu Khan is 20/1/2000, which is mentioned in his Adhar card. He further admitted that in the mark-sheet of Class-1 Ex.P/2 there is an overwriting on the year.
10. Saiyada Harshi Hashmi (PW-3) has stated that as per the admission register, the date of birth of Sameer Khan alias Babu Khan is 4/11/2001 Ex.P/8. In cross examination, she further submitted that the said entry was made on the basis of the transfer certificate. On cross examination by the accused, she further admitted that she has not brought the transfer certificate with her. She further admitted that in admission register Ex.P/8 the date of birth of Sameer Khan has ARUN KUMAR MISHRA 14.01.2022 20:05 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. been wrongly mentioned. She further stated that she came to know about the wrong mentioning of date of birth after she received the notice from the Court and she compared with the transfer certificate. She further submitted that in the transfer certificate the date of birth of Sameer Khan was mentioned as 20/9/2001. She further stated that now the entry shall be modified after taking permission from DEO.
11. It appears that the Adhar card of Sameer Khan alias Babu Khan was seized by the police in which the date of birth of Sameer Khan is mentioned as 1/1/2000. However, Wazid Khan (PW-1) who is the father of the Sameer Khan alia Babu Khan has claimed that the Adhar card of his son Sameer Khan alias Babu Khan was never prepared. This explanation given by Wazid Khan (PW-1) cannot be accepted. Further, Wazid Khan (PW-1) was not in a position to disclose his own date of birth. He was also not in a position to disclose his age at the time of his marriage. He did not bring any documentary evidence to show the age of his youngest daughter and youngest son. In her cross examination, he has admitted that his daughter had studied upto 8 th or 9th, whereas his younger son is studying in Class 6 th in any private school. Further, Wazid Khan (PW-1) had stated that the birth of all his children took place in the house. It is not out of place to mention here that the medical facilities have been provided by the government ARUN KUMAR MISHRA 14.01.2022 20:05 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. in the village itself and Asha Workers take care of the pregnant ladies and the record is always maintained at the village level.
12. Be that as it may. But, one thing is clear that although his eldest daughter and youngest son are studying, but still Wazid Khan (PW-1) did not care to produce the record of their school to show the date of birth of his eldest daughter and youngest son. The admission form dated 18/7/2007 Ex.P/7, which was produced by Iqbal Pathan (PW-2) does not contain the signature of the school teacher, although there is a place for his signature. Further, it is not the case of the applicant that the admission form was filled by Wazid Khan (PW-1) in his handwriting. It is also clear from the admission form that at the request of the father of the child, he was given admission in Class-1. Iqbal Pathan (PW-2) has specifically admitted that no document of age was taken at the time of admission.
13. So far as Saiyada Harshi Hashmi (PW-3) is concerned, she has admitted that in the admission register maintained in Madarsa Darul Ulum Garib Nawaj Maidan Chanderi the date of birth of Sameer Khan alias Babu Khan is mentioned as 4/11/2001. Although she has stated that she has not brought the transfer certificate which was issued by by Madarsa Raja-E-Hussain Primary School Badal Mahal Chanderi, but she claimed that the entry made in the admission ARUN KUMAR MISHRA 14.01.2022 20:05 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. register was incorrect, which was detected only after comparing the date of birth mentioned in the transfer certificate and the admission register of the said Madarsa.
14. Since Saiyada Harshi Hashmi (PW-3) has not produced the transfer certificate which was issued by Madarsa Raja-E-Hussain and even Iqbal Pathan (PW-2) has not produced the copy of transfer certificate issued by the said school, this Court is of the considered opinion that even in the documents produced by the applicant, different dates of birth of Sameer Khan alias Babu Khan are mentioned in different documents. Furthermore, the police had seized the Adhar card of Sameer Khan alias Babu Khan which is a part of the record and in the said Adhar card the date of birth of Sameer Khan alias Babu Khan is mentioned as 1/1/2000. It is true that the Adhar card is not the document of date of birth, but one thing is clear that Sameer Khan alias Babu Khan had himself got the Adhar card prepared on the basis of information given by him. Therefore, the date of birth mentioned in the Adhar card can be taken as an admission on the part of Sameer Khan alias Babu Khan.
15. Under these circumstances, this Court is of the considered opinion that the applicant has failed to prove that his son Sameer Khan alias Babu Khan was below the age of 18 years on the date of ARUN KUMAR MISHRA 14.01.2022 20:05 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.37648/2020 Wazid Khan alias Bhaiyu Musalman Vs. State of M.P. incident. No jurisdictional error in the order passed by the Court below could be pointed out by the applicant.
16. Ex consequenti, order dated 29/2/2020 passed by Second Additional Judge to the Court of First Additional Sessions Judge, Ashoknagar in ST No.69/2019 is hereby affirmed. Accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 14.01.2022 20:05