Madhya Pradesh High Court
Rajendra vs The State Of Madhya Pradesh on 16 March, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
CRR 693/2020
Rajendra vs. State of MP and Anr.
Gwalior, Dated :16/03/2021
Shri Brajesh Kumar Tyagi, counsel for the applicant.
Shri RB Tripathi, Panel Lawyer for the respondent No.1/
State.
Shri Mahesh Goyal, Counsel for the respondent No.2. This Criminal Revision under Section 397/401 of CrPC has been filed against the order dated 09/12/2019 passed by First Additional Sessions Judge, Sabalgarh, District Morena in Sessions Trial No.315/2017, by which it has been held that the respondent no.2 is a juvenile, being aged about 17 years and 11 months and accordingly, it was held that the Trial Court has no jurisdiction to hear the matter and the same was transferred to the Juvenile Justice Board.
It is the case of the prosecution that the dead body of one unknown person was found. During merg investigation, it was found that the respondent no.2, who is the wife of the deceased and other co-accused persons have committed his murder and accordingly, FIR in Crime No.307/2017 was registered at Police Station Sabalgarh, District Morena for offence under Sections 302, 201, 120-B, 506, 34 of IPC. The charge sheet was filed against the respondent no.2 by showing that she is major.
The respondent no.2 filed an application under Section 7- THE HIGH COURT OF MADHYA PRADESH 2 CRR 693/2020 Rajendra vs. State of MP and Anr.
A of the Juvenile Justice (Care and Protection of Children) Act, 2015, alleging that on the date of incident, the respondent no.2 was 17 years and 11 months old and, therefore, she was juvenile and thus, she may be tried by the Juvenile Justice Board. The statements of the witnesses on the question of juvenility of the respondent No.2 were recorded.
The statement of the respondent no.2 was recorded in which she has stated that as per the school record, her date of birth is 20/07/1999 and, therefore, she was 17 years and 11 months old on the date of incident.
The statement of Mahesh Meena (PW2) was recorded, who has proved the School Register, according to which the date of birth of the respondent no.2 was recorded as 20/07/1999.
Immamuddin Khan (PW3) has also proved the date of birth of the respondent No.2 recorded in the school register.
The statement of Bheralal Rawat (NA1), the father of the respondent No.2, was recorded. In examination-in-chief itself, he has specifically stated that the date of birth disclosed by him at the time of admission of the respondent no.2 was not correct and the correct date of birth of the respondent no.2 was one year older than what was disclosed by him in the school at the time of admission. The father of the respondent no.2 was extensively THE HIGH COURT OF MADHYA PRADESH 3 CRR 693/2020 Rajendra vs. State of MP and Anr.
cross-examined by the respondent no.2, however, he stuck to his stand that the date of birth of the respondent no.2 which was disclosed by him at the time of her admission is not correct, and he had falsely disclosed the age of the respondent No.2 which was one year younger than her actual date of birth.
The prosecution had also filed a copy of the voter list of Tahsil Sabalgarh, District Morena in which the age of the respondent no.2 was shown as 18 years.
The Trial Court, after considering the ocular as well as the documentary evidence, came to a conclusion that if the voter list which has been placed on record by the prosecution is considered, then it is clear that it was issued in the year 2013 and according to that voter list, the age of the respondent no.2 was 18 years which does not match with the date of birth mentioned in the School Register or the age as claimed by her father. The Trial Court did not give any cogent reason for disbelieving the statement of the father of the respondent no.2 in which he had stated that he had disclosed incorrect date of birth of the respondent no.2 at the time of her admission in the School and the date of birth which was disclosed by him was one year younger than the correct date of birth of the respondent no.2.
Without specifically disbelieving the statement of the THE HIGH COURT OF MADHYA PRADESH 4 CRR 693/2020 Rajendra vs. State of MP and Anr.
father of the respondent no.2,who himself had got the respondent no.2 admitted in the School, the Trial Court relied upon the school certificate according to which, the date of birth of the respondent no.2 was 20/07/1999 and on the date of incident, she was about 17 years and 11 months old and accordingly, it was held that since on the date of incident the respondent no.2 was minor and, therefore, she is liable to be tried by the Juvenile Justice Board.
Challenging the order passed by the Court below, it is submitted by the Counsel for the applicant that when there is a doubt with regard to genuineness and correctness of the date of birth of the respondent no.2 disclosed at the time of admission in the School, then the Court should have directed for ossification test of the respondent no.2 and should not have disbelieved the statement of the father of respondent no.2 who has specifically stated that he had disclosed incorrect date of birth of the respondent no.2 and in fact, the respondent no.2 is older by one year than the date of birth which was mentioned in the school record.
It is further submitted that so far as the voter list of the year 2013 of Tahsil Sabalgarh, District Morena is concerned, the name of the respondent no.2 has been mentioned at Serial No. THE HIGH COURT OF MADHYA PRADESH 5 CRR 693/2020 Rajendra vs. State of MP and Anr.
651 and in the said voter list, the name of her husband has been mentioned which clearly shows that the voter list of Tahsil Sabalgarh, District Morena was prepared after marriage of the respondent No.2.
Per contra, it is submitted by the Counsel for the respondent No.2 that the Trial Court has committed no mistake in relying upon the date of birth recorded in the School register.
Heard the learned Counsel for the parties. Section 94 of the Act, 2015 reads as under:-
Presumption and determination of age:(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;THE HIGH COURT OF MADHYA PRADESH 6 CRR 693/2020
Rajendra vs. State of MP and Anr.
(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.'' The Supreme Court in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh, reported in (2012) 9 SCC 750 has held as under:-
''32. ''Age determination inquiry" contemplated under Section 7-A of the Act r/w 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 needs 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 needs to 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.'' THE HIGH COURT OF MADHYA PRADESH 7 CRR 693/2020 Rajendra vs. State of MP and Anr.
Thus, it is clear that if the documents mentioned in Section 94 (2) (i) (ii) are not available, then the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.
In the present case, the father of the respondent no.2 has stated that the date of birth disclosed by him at the time of admission of the respondent no.2 was not correct but he has claimed that the respondent no.2 was older by one year. Thus, it is clear that the father of the respondent No.2 has disowned the date of birth disclosed by him and thus, the very authenticity of the date of birth mentioned in the school record becomes doubtful. The prosecution had also filed a copy of voter list of Tahsil Sabalgarh, District Morena of the year 2013, in which the name of the respondent no.2 was mentioned at Serial No. 651 and her age was shown as 18 years.
Thus, it is clear that there is a sufficient doubt regarding the correct date of birth/age of the respondent no.2. Further, the respondent no.2 has not filed the birth certificate given by a Corporation or a Municipal Authority or a Panchayat.
Under these circumstances, where the date of birth certificate issued by the School is not reliable in the light of the THE HIGH COURT OF MADHYA PRADESH 8 CRR 693/2020 Rajendra vs. State of MP and Anr.
evidence of the father of the respondent no.2 and as the birth certificate given by a Corporation or a Municipal Authority or a Panchayat is not available, then under these circumstances, the Trial Court should have directed for conducting an ossification test or any other latest medical age determination test for ascertaining the age of the respondent no.2.
Under these circumstances, this Court is of the considered opinion that the First Additional Sessions Judge, Sabalgarh, District Morena committed a material illegality by holding that the respondent no.2 was minor on the date of incident.
Accordingly, the order dated 09/12/2019 passed by First Additional Sessions Judge, Sabalgarh, District Morena in Sessions Trial No.315/2017 is hereby set aside.
The matter is remanded back to the First Additional Sessions Judge, Sabalgarh, District Morena to adjudicate the age of the respondent no.2 after receipt of ossification test of the respondent no.2. The First Additional Sessions Judge, Sabalgarh, District Morena shall fix a date for production of the respondent no.2 before the Medical Board for conducting her ossification test.
Let the entire exercise be completed within a period of one month from today.
THE HIGH COURT OF MADHYA PRADESH 9CRR 693/2020
Rajendra vs. State of MP and Anr.
Till the age of the respondent no.2 is authoritatively adjudicated by the Court of First Additional Sessions Judge, Sabalgarh, District Morena, the further proceedings before the Juvenile Justice Board, Morena which are reported to be going on against the respondent no.2 shall remain in abeyance.
The applicant is directed to produce the certified copy of this order before the Court of First Additional Sessions Judge, Sabalgarh, District Morena as well as before the concerning Juvenile Justice Board for necessary compliance and information.
With the aforesaid observations, this revision is finally disposed of.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2021.03.19 18:14:20 +05'30'