Saddan Alias Sonu vs State Of U.P. And Anr.
2011 Latest Caselaw 6154 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
                                                                                AFR
 

 
Criminal Revision No.1370 of 2011
 

 

 
Saddam @ Sonu ...................................................Revisionist
 

 
Versus
 

 
State of U.P. & another ..................................Opposite Parties.
 

 

 
Hon'ble Vinod Prasad, J.

Once again to be or not to be a juvenile is the question, which has been mooted for consideration by the revisionist Saddam @ Sonu in the instant revision whereby he has challenged the order dated 19.02.2011 passed by lower appellate court/Additional Session's Judge, court no.2, Saharanpur in Criminal Appeal No.99/2010, Muneer Vs. Saddam @ Sonu. By the impugned order lower appellate court had reversed Juvenile Justice Board's order dated 14.10.2010 passed in Miscellaneous Case No.30/11 of 10, State Vs. Saddam @ Sonu relating to crime no.86 of 2010, under Sections 147, 148, 149, 452, 302, 307, 506/34 IPC, Police Station Deoband, District Saharanpur and has rejected revisionist claim of being a juvenile and has declared him to be an adult.

Unfolded background facts indicate that the revisionist was an accused in a murder incident regarding which crime no.86 of 2010, U/Ss 147, 148, 149, 452, 302, 307, 506/34 IPC was registered at P.S. Deoband, District Saharanpur. Factual matrix about the incident is not very relevant for deciding present revision and hence detail narration of the same is hereby eschewed. However back ground facts indicate that incident in question was that of murder and attempt to murder after trespassing into informant Muneer's house by forming an unlawful assembly armed with blunt and deadly weapons vide Annexure No.1. In that incident on 7.2.2010, which occurred at 11.30 a.m. one Kafeel was annihilated and injuries were caused to Muneer and Saleem by the revisionist and his associate accused.

Revisionist in that crime moved an application supported with an affidavit(Kha5), before Juvenile Justice Board, herein after referred to as the Board, for being declared to be a juvenile. On such a claim Board conducted an inquiry, during course of which revisionist examined his mother EW-1 Rizwana, EW-2 Praveen Kumar, Clerk of J.J. Happy Junior High School, Industrial Estate, Deoband and EW-3 Narendra Kumar, Principal, Bharat Public School, Labkari, Deoband, district Saharanpur to substantiate his plea of being a juvenile. EW-2 Praveen Kumar, Clerk of J.J. Happy Junior High School, Industrial Estate, Deoband had proved T.C. Exhibit Kha-1 S.R. Register from serial number 778 as Exhibit Kha-2. EW-3 Narendra Kumar, Principal,Bharat Public School, Labkari, Deoband, district Saharanpur had proved T.C. of class-V of Bharat Public School, Labkari, Deoband Exhibit Kha-3 and S.R. register from serial number 143 as Exhibit Kha-4.

Informant contested claim of juvenility and as documentary evidence had filed voters list of 2001 prepared during Panchayat election. At serial number 1356 regarding house no.192 name of the revisionist was printed mentioning his age as 20 years. Besides above evidences, age of the revisionist was also got determined by constituting a medical board and according to it's report dated 31.3.2010 revisionist was aged about 18 years. Various decisions were cited before the Board by either side. Board vide it's order dated 14.10.2010 concluded that on the date of the incident 7.2.2010 revisionist was a juvenile in conflict with law.

Aggrieved by Board's decision informant Muneer challenged it under section 52 of Juvenile Justice Act by preferring Criminal Appeal No.99 of 2010 Muneer Vs. Saddam @ Sonu before Session's Judge, Saharanpur and Additional Session's Judge, court no.2, Saharanpur allowed informant's appeal, reversed Board's decision dated 14.10.2010 and declared the revisionist to be major being more than 18 years of age vide impugned judgement and order dated 19.2.2011.Hence, this revision by accused revisionist, challenging lower appellate court's order.

In the background of aforementioned facts, Sri V.M. Zaidi, learned senior counsel for the revisionist, urged that the lower appellate court erred and committed mistake in upturning Board's order by misreading evidences and recording facts contrary to the material available on the record. Learned senior counsel further submitted that Rule 12(3)of Juvenile Justice Rules provides for the procedure to be observed while determining age of an accused or a child and hence no opinion/decision can be rendered without following such a procedure. Learned senior counsel further contended that besides the documents mentioned in the aforesaid Rule, no other document can be considered during enquiry contemplated under J.J.Act while determining the age. It was submitted that mother's evidence corroborated with scholar's register proved by EW-2 and EW-3 conspicuously establish that revisionist was a juvenile and therefore, lower appellate court committed manifest error of law in upsetting order of the Board. For the aforesaid reason impugned order by lower appellate court cannot be affirmed and has to be substituted with that of the Board's by setting it aside. Learned senior counsel referred to certain depositions by the mother to butteress his argument and relied upon transfer certificates filed by the revisionist. Lastly he concluded by submitting that impugned lower appellate court's order be set aside and Board's order be restored.

Learned AGA refuting revisionist's contentions submitted that mother's evidence is contradictory, unconvincing, incredible and shaky and it does not inspire any confidence. It failed to establish that the revisionist was juvenile on the date of the incident. Documents produced by the revisionist contradicts mother's evidence and are sham and manufactured. Mother had no knowledge as to whether the revisionist, who was her eldest son, was born at the house or in the hospital, she did not remember his date of birth nor could tell how his date of birth was mentioned in school register. She only spelt out the year of the birth as 1994 but was unable to tell preceding and succeeding digits. She could not state date of birth. It was argued that mother is a tutored witness who testified wrong facts just to save his son from punishment of life imprisonment or death for the charge of murder and attempt to murder. Supporting the judgement of lower appellate court, it was contented that appellate court considered each and every aspect of the claim from correct prospective and none of it's conclusions can be castigated as wrong or against the evidence of record and therefore instant revision being meritless be dismissed.

I have considered the arguments raised by both the sides and have gone through the material on record, a perusal of which indicates that revisionist in support of his plea that he was a juvenile on the date of the incident tendered oral evidences of EW-1 Rizwana, his mother, EW-2 Praveen Kumar, Clerk of J.J. Happy Junior High School, Industrial Estate, Deoband and EW-3 Narendra Kumar, Principal, Bharat Public School, Labkari, Deoband, district Saharanpur, besides relying upon transfer certificates issued from the two institutions and on some pages of scholar's register.

An analysis of mother's depositions, vide Annexure No.3, indicate that her testimonies are wholly unsatisfactory, contradictory, inconsistent and exaggerated on which no reliance can be placed. Mother had stated that she was illiterate and cannot state date of birth of any of her three issues. Albeit, she stated year of revisionist birth as 1994 but was unable to the tell the date. She could not state digits prior or subsequent to said year. She further admitted that revisionist was got admitted in the school by his father but was unable to disclose the name of the school. She had no knowledge about the school transfer certificates and scholar register pages filed and relied upon by the revisionists. Regarding the transfer certificates, she testified that the same was brought by her devar (brother-in-law). She did not remember as to whether revisionist, who is her eldest son, was born in the house or in the hospital. She showed ignorance regarding date of birth of her other two issues. An overall analysis of her testimonies indicates that she is a got up witness and revisionist date of birth was not known to her and she was tutored about the same. She is a hopeless witness and not credibility can be attached to her testimonies. The suggestion to her that revisionist was major aged above 19 years and just to save him from punishment that she was telling his age to be below 18 years is much convincing.

Medical report also does not support revisionist claim. According to it revisionist was 171 c.m.in height, with 65 kg. of weight and had an adult voice. He had a grown up beard and moustaches with developed body hair. Doctor noticed that all the epiphysis of his knee, elbow and wrist bones joint were fused but medial end of his clavicle was not fused. Medical Board estimated the age of the revisionist to be 18 years. The dated supplied by the medical board, by no hypothesis, can be consistent with age claimed by revisionist that is 15 years and 7 months. At such a age ossification of joints of bones mentioned above starts setting in. Fusion of those joints are complete after 18 years. Medical report in conjunction with voter's list filed by the prosecution contradicts revisionist claim. Grown up beard, moustaches with adult voice further refutes age of the revisionist to be 15 years and 7 months. Medical board, thus contradicts oral evidence of mother as well as school transfer certificates filed by the revisionist in respect of his age.

Turning towards transfer certificate, Annexure no. 2, which was issued from Bharat Public School, Labkari, Deoband, district Saharanpur, it does not seems to be genuine document. Lower appellate court has correctly rejected it for good and sustainable reasons.It is shown therein that revisionist was admitted in the school on 1.7.1999 and he left the school on 12.5.2003. How in four years, revisionist could pass five classes. Lower appellate court is right in observing that in four years revisionist could not have crossed five classes. Further it has not been stated by any witness as to how revisionist date of birth was got recorded in the school. Who intimated the school about the same. Mother had stated the father got revisionist admitted in the school, but father Mohd. Sikandar, never came forward and entered into witness box to support such a claim. Even Principal, EW3 stated the date of birth was recorded as was informed by the father but no birth certificate or family register was annexed or produced by the father and even no admission form was filled. Such depositions do not authenticate claimed date of birth nor fixes it with exactitude. Evidence of the Principal and the documents from Bharat Public School, Ext. Kha 3 & 4, therefore are of no help to the revisionist. The second transfer certificate from J.J. Happy Junior High School and copy of it's register, Ext. Kha 1 &2, also does not lend credence to the revisionist claim. These documents were proved by EW2 Pravin Kumar. Entire cross examination of this witness indicate that these documents are forged and fabricated. EW 2 has also not disclosed as to on what basis age was entered in his school. He is an un authorized person who had deposed in the trial. He had purchased the TC from open market. School had no TC book. On the said TC there is no date of it's issuance, no mention as to whom it was issued nor it is mentioned as to who collected it. The documents on whose basis TC was issued was neither produced nor exhibited. Scholar register also seems to be a sham document. No reliance , therefore can be placed on these documents.

There is another disquieting feature in relying upon these school documents. They do not come within the purview of section 35 of the Evidence Act, which provides for a presumption in cases of public documents only. In absence of any evidence as on what basis age of the revisionist was recorded in the two institutions, no worth can be attached to any of the school documents filed by the revisionist.

Further there is a difference of more than three years in the age of the revisionist recorded in the school documents and the medical certificate. Under Juvenile Justice Act, grace of one year can only be granted in medical age.

Next aspect of relevance is that in a revision independent marshaling of facts is impermissible unless the opinion by the trial Judge or the lower appellate court is shown to be wholly perverse and against the merits of the evidences on record, but in the present case none of the aforesaid two legal flaws exist. Critical appreciation of evidences and summation of facts by the lower appellate court is just, proper and are based on correct reading of facts. Castigation of the impugned judgment by the revisionist counsel for the reason that the same is not borne out from the record is not correct. During course of argument learned counsel failed to point out any single opinion which can be castigated because of the aforesaid reason.

An argument by learned senior counsel that but for the documents mentioned in Rule 12(3) of the J.J. Rules, no other document can be relied upon in an age determining inquiry of a juvenile offender, the said contention is bereft of any reasoning at all. Enquiry for determining age of a juvenile has to be a meaningful enquiry and all the relevant documents which may affect the decision and ultimately conclusion on the said aspect has to be taken note off and considered. Rule 12(3) does not put an embargo on consideration of other relevant documents in that inquiry.

Juvenile Justice Act is a beneficial legislation for the benefit of juvenile offenders. It cannot be transformed into a protective shield for major accused to escape rigours of punishment. Determination of age under the J.J.Act has to be proximate determination. Conferring unwarranted latitude under to the Act to undeserved accused offenders will diminish the very purpose of the J.J.Act for which it was enacted. In my this view I draw support from various apex court decisions. In Ravindra Singh Gorkhi Vs. State of U.P.: AIR 2006 SC 2157 apex court has not relied upon school certificate filed by accused and had refused to grant him benefit of J.J.Act. In Birad Mal Singhvi v. Anand Purohit:AIR 1988 SC 1796 apex court held in Para 15 as under:-

"To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."

In Jyoti Prakash Rai Vs. State of Bihar:AIR 2008 SC 1696 it has been held by the apex court as under:-

"9. The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of Interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a juvenile on the date of commission of the offence or not is essentially a question of fact which is required to be determined on the basis of the materials brought on records by the parties. In absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Indian Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant."

In the same decision apex court went further to observe :-

"21. The courts have considered this aspect of the matter on earlier occasions also. If, thus, on the basis of several factors including the fact that school leaving certificate and the horoscope produced by the appellant were found to be forged and fabricated and having regard to two medical reports the courts below have found the age of the appellant as on 1-04-2001 to be above 18 years, we are of the opinion that no exception thereto can be taken."

In Jabar Singh Vs. Dinesh and others: 2010 Cr.L.J. 2043 apex court has held as under:-

"12. We are of the considered opinion that the High Court was not at all right in reversing the findings of the trial court in exercise of its revisional jurisdiction. The entry of date of birth of Respondent No. 1 in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and, therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent No. 1 at the time of commission of the alleged offence. As has been held by this Court in Ravinder Singh Gorkhi (AIR 2006 SC 2157 : 2006 AIR SCW 2648) and Jyoti Prakash (AIR 2008 SC 1696 : 2008 AIR SCW 1985) (supra) the age of Respondent No. 1 was a question of fact, which was to be decided on the evidence brought on record before the court and it was for the trial court to appreciate the evidence and determine the age of Respondent No. 1 at the time of commission of the alleged offence and in this case, the trial court has arrived at the finding that the claim of Respondent No. 1 that he was less than 18 years at the time of commission of the alleged offence, was not believable. While arriving at this finding of fact, the trial court had not only considered the evidence produced by Respondent No. 1 but also considered the fact that either in the earlier cases or during the investigation of the present case, the Respondent No. 1 had not raised this plea. While arriving at this finding of fact, the trial court had also considered the physical appearance of Respondent No. 1. Such determination on a question of fact made by the trial court on the basis of the evidence or material before it and other relevant factors could not be disturbed by the High Court in exercise of its revisional powers.

13. A plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the court that a person was not a juvenile at the time of commission of the offence. Section 53 of the Act which is titled "Revision", however, provides that the High Court may at any time, either of its own motion or on an application received on that behalf, call for the record of any proceeding in which any competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit. While exercising such revisional powers, the High Court cannot convert itself to an appellate court and reverse the findings of fact arrived at by the trial court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or propriety of the order passed by the trial court. The trial court, as we have discussed, has given good reasons for discarding the evidence adduced by the Respondent No. 1 in support of his claim that he was a juvenile at the time of commission of the alleged offence and there was no scope to hold that the order of the trial court was either illegal or improper and the High Court should not have substituted its own finding for that of the trial court on the age of Respondent No. 1 at the time of commission of the alleged offence by re-appreciating the evidence."

In view of above discussion since I find that in the present case revisionist has failed to establish that he was a juvenile on the date of the incident, lower appellate court committed no illegality in passing the impugned order and reversing the opinion of the Board and therefore do not find any infirmity in the impugned order passed by lower appellate court.

For the aforesaid reasons this revision, being merit less, stands dismissed.

Dt.25.11.2011

Rk/AKG/-