Allahabad High Court
Ajay Kumar Singh @ Babloo Singh vs State Of U.P. And Anr. on 5 April, 2022
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED ON 6.10.2021
DELIVERED ON 5.4.2022
A.F.R.
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD ( BENCH AT LUCKNOW)
Court No. - 13
Case :- CRIMINAL REVISION No. - 140 of 2021
Revisionist :- Ajay Kumar Singh @ Babloo Singh
Opposite Party :- State Of U.P. and Uday Pratap singh
Counsel for Revisionist :- Kailash Nath Mishra, Rahul Mishra
Counsel for Opposite Party :- G.A.,Gaurav Misra,Rama Pati Shukla
connected with
Criminal Revision No.143 of 2021
Ajay Kumar Singh alias Babloo Singh vs. State of U.P. and Pushpendra Singh
Hon'ble Karunesh Singh Pawar,J.
1. These two revisions arise out of same crime number and the offence(s) in which both the private respondents have been implicated are the same, they are taken up together and are being decided by the present common order.
2. Both the Criminal Revisions have been preferred challenging orders dated 29.7.2020 passed by Juvenile Justice Board, Gonda in Misc. Case No.15 of 2020 State versus Uday Pratap Singh and others and the judgment and order dated 21.11.2020 passed by Addl. Sessions Judge/Special Judge, POCSO Act, Gonda in Criminal appeal Nos. 29 Ajay Kumar Singh versus State of U.P. and Pushpendra Singh, and 30 of 2020 Ajay Kumar Singh alias Babloo Singh versus State and Uday Pratap Singh, arising out of Case Crime No.66 of 2020, under sections 147, 148, 149, 307, 302, 504, 506 I.P.C. and 7 Criminal Law Amendment Act, P.S. Umari Begum Ganj, district Gonda.
3. By orders dated 29.7.2020 (supra), the Juvenile Justice Board has declared both the private respondents, i.e. Uday Pratap Singh and Pushpendra Singh as juvenile on the basis of High School Mark Sheet and by appellate order dated 21.11.2020, learned Addl. Sessions Judge/Special Judge, POCSO Act, Gonda while upholding the order dated 29.7.2020 has dismissed the appeal preferred by the informant/revisionist Ajay Kumar Singh alias Babloo Singh.
4. Heard learned counsel for the revisionist as well as learned counsel appearing for private respondents and learned Addl. Government Advocate for the State.
5. The private respondents, i.e. respondent No.2 in both the criminal revisions moved an application for declarating them juvenile. The said applications were decided on the basis of evidence adduced by the private respondents by the Juvenile Justice Board vide order under challenge. The date of birth of Pushpendra Singh in High School mark sheet has been mentioned as 10.7.2002. The incident took place on 3.4.2020. On the basis of this date of birth as recorded in the High School mark sheet, it has been held by Juvenile Justice Board that Pushpendra Singh was 17 years 8 months and 24 days on the date of incident and thus, he has been declared as juvenile.
The date of birth of other accused/respondent No.2 Uday Pratap Singh as recorded in the High School Mark Sheet is 5.7.2002 and on the date of incident, he has been declared as juvenile being his age as 17 years 8 months and 29 days. For determination of age, the learned court below has also considered the evidence given by C.W.1 mother(s) of private respondents and C.W.2 Maan Singh, Incharge Principal of Shri Parashar Rishi Uchchtar Madhyamik Vidyalaya, Paras Gonda and other educational certificates. As said above, the appeals preferred against the order passed by the Juvenile Justice Board have been rejected.
6. Learned counsel for the revisionist submits that on the date of incident, i.e. on 3.4.2020, the respondents No.2 were major. The real grandfather of Pushpendra Singh was Head Master in Primary School and he has got recorded the date of birth of Pushpendra Singh. He received initial education from Primary to Tenth class in Raghukul Vidya Peeth, Gonda and since he was not successful in Tenth Class, hence he took his admission in Parashar Rishi High School, Paras Patti and cleared the High School examination in 2018. It is submitted by learned counsel for the revisionist that although he has submitted before the Board to summon the transfer certificate from the Primary School, however, the Board did not accede the prayer made by the revisionist.
Learned counsel for the revisionist further submits that both the Courts below also did not consider the objection raised by the revisionist that the both the accused/respondents No.2 are major. To substantiate his argument, the revisionist's counsel has submitted before the Courts below that it is necessary that the private respondents be sent to undergo medical examination to be conducted by Medical Board so as to assess their correct age. However, during the course of hearing, the juvenile has produced school certificate issued by Raghukul vidya Peeth. Thus, it was opined by the Board that the objection is quite formal in nature. Learned lower appellate court has also failed to consider the grounds taken in the appeal.
Learned counsel has next submitted that the source of information on the basis of which entry of date of birth of respondent No.2 in the school record has not been furnished and there is no evidence on the record which can be said to be source of information regarding date of birth of respondent No.2. In support of his submission, learned counsel has relied on a judgment dated 21.1.2020 rendered in Criminal Revision No.2881 of 2019 Atul Singh Sengar versus State of U.P. and another and judgment and order dated 24.9.2018 passed in Criminal Revision No.3188 of 2017 Irfan versus State of U.P. and another.
Supplementing his arguments, learned counsel has submitted that the certificate/mark sheet issued by the school or the school record cannot be relied upon blindly and in case of any doubt, the court is empowered to ignore it. In this context, learned counsel has relied on a judgment of this Court dated 12.9.2019 passed in Criminal Revision No.1472 of 2014 Yalajindra Kaur versus State of U.P. and another.
Learned counsel for the revisionists has submitted that the learned appellate court while passing the impugned judgment dated 21.11.2020 has failed to consider the grounds mentioned in the appeal and rejected the same by a cryptic order with the observation that there is no infirmity and illegality in the order dated 29.7.2020 passed by the Juvenile Justice Board.
7. On the other hand, learned counsel appearing on behalf of respondents No.2 submits that the both the courts below have appreciated the evidence on record and have rightly declared the private respondents/accused as juvenile on the basis of the date of birth as recorded in the High School certificate. The Board has examined C.W.1 Kiran wife of Dinesh Singh and C.W.2 Maan Singh, Incharge Head Master of Sri Parashar Rishi Higher Secondary School, Paras, District Gonda in the case of Pushpendra Singh. They stated in unambiguous terms that the date of birth as recorded in the High School certificate is correct.
In the case of Uday Pratap Singh, C.W.1 Yashoda Singh who is his mother and Maan singh, who is Incharge Head Master of Sri Parashar Rishi Higher Secondary School, Paras, district Gonda were examined. They proved the date of birth of Uday Pratap Singh as recorded in the certificate as correct.
It is next submitted on behalf of private respondents that the provisions of Section 102 of The Juvenile Justice (Care and Protection of Children) Act, 2015 are pari-materia with the provisions of Section 397 CrPC and as such, it is submitted that the findings of facts cannot be interfered without showing that the findings are perverse. In this context, learned counsel has relied on Jai Nand Sharma versus The State of U.P. and another 2009(6) AdJ 723(relevant para 5), Sher Singh alias Sheru versus The State of U.P. 2017 Crl. L.J. 233 (relevant paras 60, 67, 68).
It is further submitted that there is no illegality in the orders passed by both the courts below as regards the determination of age of the accused on the basis of the date of birth as recorded in the matriculation certificate and the evidence(s) adduced before it. In this context, learned counsel has relied on Shailendra Kumar Yadav versus The State of U.P. and another 2014(8) ADJ 329 (para10) and Kallu Yadav alias Balram versus The State of U.P. and another 2017(6) ADJ 81 (relevant paras 14, 15, 16).
The respondents No.2 in both the cases are languishing in jail since 4.4.2020, i.e. for the last about two years and under the statute, three years punishment to the juvenile has been provided and thus, the accused/juveniles have already undergone a substantial period in jail.
8. I have considered the arguments advanced by the learned counsel for the parties.
9. A perusal of the order dated 29.7.2020 passed by the Juvenile Justice Board reveals that in case of Uday Pratap Singh, the Board has considered the Transfer Certificates issued by Raghukul Vidya Peeth and Shri Parashar Rishi Uchchtar Madhyamik Vidyalaya, Paras, Gonda and the Assessment Report Card as also the table register (Sarniyan Panjika) of Madhyamik Shiksha Parishad, U.P. Examination, 2018 which has been counter signed by the Principal and District Inspector of Schools, Gonda. In all these documents, the date of birth of the juvenile has been recorded as 5.7.2002. The Board has also considered the evidence of C.W.1 Yashoda Singh, mother of the juvenile and C.W.2 Man Singh, incharge Principal, Shri Parashar Rishi Uchchtar Madhyamik Cidyalaya Paras, Gonda.
C.W. 1 Yashoda Singh has proved the date of birth of her son Uday Pratap Singh as 9.7.2002. She stated that Uday Pratap Singh had studied from class First to Fifth in Raghukul Vidya Peeth and at the time of his admission, she had got recorded his date of birth. Uday Pratap Singh has studied from Sixth to Tenth class in Parashar Rishi School.
C.W.2 Maan Singh also substantiated the date of birth of Uday Pratap Singh as 5.7.2002. The juvenile Uday Pratap Singh had taken his admission in Shri Parashar Rishi Uchchtar Madhyamik vidyalaya, Gonda in Class-IX and at the time of his admission, transfer certificate of Class-VIII was submitted in the school and the date of birth recorded in the transfer certificate was recorded in the school register, i.e. the scholar register which has been duly counter signed by District Inspector of Schools.
10. After considering all the certificates, evidence adduced before it as also the objections raised by the informant/revisionist, the Board by means of order under revision has declared the private respondent as juvenile.
Likewise, in the case of Pushpendra Singh, the Juvenile Justice Board after considering the transfer certificate issued by Shri Parashar Rishi Uchchtar Madhyamik vidyalaya, Gonda, the table register (Sarniyan Panjika) of Madhyamik Shiksha Parishad, U.P. Examination, 2018 which has been counter signed by the Principal and District Inspector of Schools, Gonda in which the date of birth of the accused has been recorded as 10.7.2002 as also the statement of C.W.1 Kiran, mother of Pushpendra Singh and C.W.2 Maan Singh, has come to the conclusion that Pushpendra Singh was a juvenile at the time of the incident, being his age as 17 years 8 months and 24 days.
11. The orders passed by the Juvenile Justice Board were challenged before the learned lower appellate court who found no illegality in the orders passed by the Board and thus rejected both the appeals.
12. Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015 provides the procedure to be followed by the courts or the Boards for the purpose of determination of age in every case concerning a child in conflict with law. The said provision is extracted below :
"94. 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;
(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."
(Emphasised) A perusal of sub section (2) of Section 94 provides that the Court or the Board shall determine the age by undertaking the process of age determination by seeking evidence by obtaining the date of birth certificate from the school, matriculation or equivalent certificate from the concerned examination Board if available, and in absence thereof and in case the certificate as given in Clause (i) above, is not available, then the birth certificate of a corporation or a municipal authority or a panchayat can be made the basis of determination of age of a juvenile. Further, in case the document(s) as given in clauses (i) (ii), above extracted, are not available, then the age shall be determined by an ossification test to be conducted on the order of the Board.
13. In the case in hand, the Board was having the matriculation certificate or equivalent certificate of the concerned examination and since they were available, there was no occasion for the Board to have gone into the other documents, such as birth certificate issued by the local bodies or even electoral roll etc.
14. The argument of the learned counsel for the revisionist that the juvenile should have been produced before the Medical Board for ossification test is mis-conceived in the light of specific provision given in Clause (iii), above extracted, which provides that age shall be determined by an ossification test to be conducted on the order of the board in case the documents as provided in Clause (i) and (ii) of Sub Section (2) of Section 94 are not produced before the Board or the Committee as the case may be. The medical test of the minor is the last measure to be adopted by the Board or the Court in case no authentic document is available before it as provided in section 94 of the Act.
15. As regards the judgment in Valajindra Kaur's case (supra), particularly para 14 thereof, relied on by revisionist's counsel, it would be appropriate to refer the said para which is extracted below :
"14. The purpose of the above discussion is that the age of juveni1ity can be determined on the basis of high school certificate/marks-sheet or school record if there is no doubt with regards to genuineness and authenticity thereof. When there arises reasonable doubt in respect thereof, the same cannot be relied blindly and the court is empowered under law to ignore the same. "
From the above extracted finding, it is evident and has no doubt that the age of juvenality at the first instance can be determined on the basis of High School mark sheet or the school record in case there is no doubt regarding its genuineness or authenticity. The said document can only be ignored if there is any doubt about its genuineness.
16. In the present case, there was no doubt regarding the correctness of the matriculation certificate produced on behalf of the juvenile. The date of birth recorded in the High School certificate has been further fortified by the evidence of C.W.1 and C.W.2 and other educational cerficates. Thus, there was no occasion for the Board to have sent the accused/juvenile for ossification test.
17. As regards the argument that the learned Court below should have summoned the original document of the school in which the private respondents had first taken admission and the case relied on in this respect, i.e. Atul Singh Sengar's case (supra), it is significant to mention that in the case of Atul Singh Sengar, there were tampering and manipulation in the school register qua the date of birth of the accused/juvenile as also false averment was made by the accused and in those circumstances, the Court has relied on the date of birth as recorded in the school where the juvenile first attended. It is not the case here in the present case, as elaborated above and need not be repeated, and therefore, the case relied on by the learned counsel is also not applicable in the present case.
18. The judgment relied on by the learned counsel for the revisionist in the case of Irfan (supra) is also not of any help to the revisionist in the present case as the facts of the said case were quite different from the case in hand. In that case, a transfer certificate was filed by the applicant claimed to have been issued by Madan Junior Basic School with respect to his schooling prior to his admission in High School in Prem Prayag Kanya Inter College, Bhogaon, Mainpuri. A suspicion was raised on the veracity of the High School record and the very important witness C.W.4 Principal of Madan Junior Basic School revealed that the juvenile had never studied in Madan Junior Basic School, Bhagaon, Mainpuri and the transfer certificate allegedly issued by the school is fake. In such circumstances the Juvenile Justice Board did not give effect to the date of birth found recorded in the High School certificate of the applicant and instead gave effect to the date of birth found recorded in the record of the Primary School, Muitra Chak.
19. Further, in this case, C.W.2 Maan Singh Incharge Principal of Shri Parashar Rishi Uchchatar Madhyalaya, Paras, Gonda has testified before the Juvenile Justice Board and has proved the date of birth of both the juveniles as correct as recorded in matriculation certificate.
20. Similarly, C.W.1 who are mother of the private respondents have adduced their evidence and have proved the date of birth of the juveniles.
21. Supreme Court in the case of Sri Ganesh versus State of Tamilnadu and another Criminal appeal No.39 of 2017 while relying on the judgment in Ashwani Kumar Saxena versus State of Madhya Pradesh (2012)9 SCC 750 has held in paras 32 and 33 as under :
"32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry 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 inquiry under the code 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/J.J. Board and the Committees functioning under the Act that a 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 situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.
34. "Age determination inquiry" contemplated under section 7A 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 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.
From the above extracted judgment, it is evident that only in absence of a matriculation or equivalent certificate or date of birth of 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 court further held that in case the above referred document is not available then only the age determination can be made on the basis of the report of the Medical Board constituted for the purpose.
22. As said above, in the present case, the matriculation certificate and the other school records as also the testimony of C.W.1 and C.W.2 were there before the Board, therefore, there was no occasion for the Board to call for the records of Primary School or the school where the juvenile had first attended. There was also no justification at all to send the juveniles for ossification test as the sufficient evidence was available before the Board to determine the age of the juveniles.
23. Section 102 of Indian Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability depends on existence of facts which he asserts, must prove that those facts exist. Thus, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the burden of proof would ordinarily be on the party who asserts the affirmative of the issue.
24. In the present case, the case of juvenility has been proved by both the accused persons/private respondents. Contrary to it, the informant revisionist was under legal obligation to prove by cogent evidence that respondents No.2 were not juvenile. No evidence has been adduced by the informant/revisionist to discharge his burden that the respondents No.2 were not juvenile. The application filed by the Juveniles for declaration of their being a juvenile will fail only if both the parties do not adduce any evidence in view of Section 102.
25. In the present case, the date of birth figuring in the High School certificate has been endorsed and affirmed by C.W.1, mother of the private respondents as also by C.W.2 Maan Singh, Incharge, Head Master of Sri Parashar Rishi Higher Secondary School, Paras, district Gonda. The informant/revisionist has not filed any document to prove that the date of birth of Pushpendra Singh and Uday Pratap Singh is different than recorded in High School mark-sheet and certificate. During enquiry before the Board and before the learned appellate court, no evidence to show that the date of birth is different or they are not juvenile could not be shown by the informant/revisionist.
26. The High School certificate as per the Juvenile Justice Act as also the various judgments of this Court as well as Supreme Court is a reliable document to determine the date of birth of the juvenile. The determination of the age has been done according to the date of birth recorded in the matriculation certificate and the other evidence adduced before the Courts below. Unless some documentary proof or evidence is produced before the Board or the lower appellate court which may negate the correctness of the High School certificate and mark sheet, no irregularity or illegality can be fastened to the finding given by the Board or the lower appellate Court while declaring the accused as juvenile.
27. I find no irregularity or illegality in the concurrent finding of fact arrived at by the Juvenile Justice Board and the lower appellate court.
28. The revisions, being devoid of merit, are dismissed.
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