Parashu Ram Singh & Another vs State Of U.P.
2013 Latest Caselaw 4612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved 
 
AFR
 
In Chamber
 
Case :- CRIMINAL REVISION No. - 1745 of 2010
 

 
Revisionist :- Parashu Ram Singh & Another
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Kameshwar Singh,I.K.Upadhaya,Rajul Bhargava
 
Counsel for Opposite Party :- Govt. Advocate,Ranjay Kumar
 

 
Hon'ble Vinod Prasad,J.

Hon'ble Anjani Kumar Mishra,J.

(Delivered by Hon. Anjani Kumar Mishra, J)

This Criminal Revision is directed against the impugned judgment and order dated 9.4.2010 passed by Sessions Judge, Court No. 3, Ballia in Session Trial No. 127 of 2008 whereby claim of revisionists for being declared a juvenile has been rejected.

The revisionists along with three others were accused in an incident alleged to have taken place on 14.1.2008 at 12:45 pm FIR of which was registered as Case Crime No. 2 of 2008, at Police Station Bansdih Road, District Ballia. This incident after submission of charge-sheet and committal of case to the Sessions Court gave rise to Session Trial No. 127 of 2008 under Sections 147, 148, 302/149 I.P.C.

During the pendency of the trial aforesaid, the revisionists filed applications claiming themselves to be juveniles on the date of the incident, which applications have been rejected by the order under challenge.

The instant revision was filed on 27.4.2010. During the pendency of the revision, since the plea of juvenility had been turned down and there was no stay order operating staying the trial before the court below, therefore trial appears to have proceeded and by the judgment and order dated 9.6.2010 the revisionists were convicted. They preferred Criminal Appeal No. 4491 of 2010 against the order of their conviction.

When the instant revision came up before the Court on 28.9.2012 it was directed to be connected with the criminal appeal. It is account of the order dated 28.9.2012 that this criminal revision, which is cognizable by a single Judge, has been placed before us along with the connected Criminal Appeal. Since, under law the question of juvenility is to be determined first, we have proceeded to hear the counsel for the revisionists on the merits of the revision, in agreement with counsel for the respondents.

In support of their claim of juvenility, the revisionists filed two documents. First, an affidavit of Raj Kumar who happens to be the cousin of the revisionists. Transfer certificates of the two revisionists issued from Aadarsh Maha Vidhyalaya Gausala, Chowk, Jamshedpur wherein date of birth of revisionists Parshuram Singh and Rohit Singh are recorded as 5.1.1992 and 2.3.1993 respectively. Apart from the documentary evidence aforesaid, revisionists accused examined Ravindra Kumar Singh a teacher in the Aadarsh Maha Vidhyalaya, Gausala, Chowk, Jamshedpur as DW-1 and Raj Kumar Singh, cousin of the revisionists as DW-2, to establish his claim.

On behalf of the prosecution, Umesh Prasad (CPW-1), the Headmaster of Primary School Bajha, District Ballia has been examined who has produced and proved the original admission register of his school, wherein the date of birth of the revisionists is recorded as 1.10.1983 and 4.8.1989 respectively. The second witness, Dhiresh Kumar Gupta (CPW-2), has been examined to prove the original family register produced by him. According to the family register, the dates of birth of the revisionists are 28.8.1984 and 17.3.1984 respectively.

Apart from the aforementioned evidences, the Age Certificates issued by the Chief Medical Officer, Ballia, obtained on the application by the revisionists, are also on record as Paper Nos. 91 Ka/2 and 91 Ka/3 respectively. According to the said certificates the age of the revisionists is approximately 19 years.

We have heard Sri Rajul Bhargava, learned counsel for the revisionists, Sri Ranjay Kumar, learned counsel for the informant, and learned AGA for the State.

Learned counsel for the revisionists has assailed the order impugned on the ground that as per the age certificates, the age of the revisionists was found to be approximately 19 years on the date of medical examination i.e. on 30.3.2010 and therefore since the incident was of 14.1.2008 both the revisionists were juvenile on the date of incident. It is further contended that the statement of Raj Kumar Singh, the cousin of the revisionists as regards the date of birth of the revisionists was within his special knowledge and therefore the same should not have been discarded by the Court below. The medical evidence in the form of the age certificates remained uncontroverted and should have been relied upon. The family register produced consisted of lose sheets which were not even numbered, did not bear any signature of the person who had prepared them and therefore were not worthy of being relied upon. Lastly, it was contended that the approach of the Court below while considering the question of juvenility was not in accordance with law and more specifically the same was vitiated in view of the judgment of the Apex Court reported in (2012) 9 Supreme Court cases 750, Ashwani Kumar Saxena vs. State of Madhya Pradesh. He has invited our attention specifically to paragraphs 30 to 35 of the said judgment. He has also relied upon 2002 (9) Supreme Court Cases 768, Anil Agarwala and another vs. State of West Bengal.

Learned AGA and the learned Counsel for the informant have vehemently defended the impugned order. They have urged that the order has been rightly passed on a correct and proper appraisal of evidences on record. The approach of the Court below is in consonance with the legal provisions and the order impugned does not suffer from any jurisdictional error and is therefore, liable to be affirmed.

A perusal of the impugned order shows that the revisionists claim that their dates of birth are 5.1.1992 and 2.3.1993 respectively as per the transfer certificate filed on their behalf. On the contrary, the evidence of the prosecution in the form of the original admission register of the Primary School, Bajha, Ballia records to dates of birth of the revisionists as 1.10.1983 and 4.8.1989 respectively.

Before dealing with the rival submissions and the reasoning as are contained in the impugned order, it would be proper to refer to the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007. Sub rule 3 of rule 12 is being quoted below:-

"(3) 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."

A reading of the provision quoted above makes it clear that the first document to be considered while deciding the question of juvenility is the matriculation certificate, which in the instant case is not available as the revisionists are not matriculates. The next document that can be relied upon is the date of birth certificate from the school first attended. In the instant case, both the parties have produced documents falling in this category, but the dates of birth in these two sets of school records show a very wide variation of several years. Confronted with this situation, the Court below was left with no option but to consider the reliability of the two sets of documents and was, in the circumstances, left with no option but to consider their relative efficacy for deciding the question of juvenility, by considering the oral testimony on record. After dealing with the oral depositions of Raj Kumar Singh (DW-1) in detail, the Court below has, for cogent reasons, discarded the transfer certificates produced on behalf of revisionists. It was found that a specific date of leaving the school was mentioned in the transfer certificates but in the admission register only the year was mentioned. The Court below has categorically recorded that on the basis of the the documents, exhibits Kha-1 and Kha-2 the dates of birth of the revisionists cannot be said to be 5.1.1992 and 2.3.1992 respectively. To our mind there is no illegality in the approach. The reasonings and the findings arrived at are neither illegal nor perverse.

At this stage it would be relevant to point out that there appears to be no serious challenge to the reasoning in the impugned order in so far as it relates to the non-acceptance of the transfer certificates from Aadarsh Maha Vidyalaya, Gausala Chowk, Jamshedpur filed on behalf of the revisionists. The main attack thrust of criticism is upon the Court below having placed reliance on the Pariwar Register for the reasons which have already been noted above. There was also no submission, at the time of arguments, nor has any ground been taken in the memo of revision indicating as to why the evidence of CPW-1 Umesh Prasad, the Headmaster, Primary School, Bajha, Ballia and the original admission register and its extracts be not relied upon.

To our mind, another very potent reason for accepting the entries in the admission register produced by the prosecution is the legal requirement that the age is to be determined on the basis of the "the date of birth certificate from the school (other than a play school) first attended;" The admission register of Primary School Bajaha, being of a date earlier in time, was in fact the relevant document and unless disbelieved for cogent reasons, was the one to be relied upon. This view is also fortified by paragraph 43 of Ashwani Kumar Saxenas' case, (supra) relied upon by the Counsel for the revisionists. The said paragraph is being reproduced below:

"43. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth 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 raise a claim of juvenility."

As regards the submission of the Counsel for the revisionists that the testimony of Raj Kumar regarding the date of birth of the revisionists has been wrongly discarded is concerned, the same has been discarded as it has rightly not been found to be plausible for the reasons mentioned in the impugned order and therefore the submission of the learned Counsel for the revisionists on this count cannot be accepted.

Coming to the submission of the Learned Counsel for the revisionists' that the medical evidence in the form of the age certificates remained uncontroverted and the same should have therefore been relied upon also cannot be accepted. Under the relevant Rules, the opinion of the medical board can be called for only when other evidences namely the matriculation certificate, school leaving certificate or birth certificate issued by a Municipal or other local authority are not available. This was not so in the instant case. Here, documentary evidence in the form of transfer certificates and admission registers were filed by both the sides. Under the circumstances, there was no necessity of calling for the medical report regarding the age of the revisionists and even if the same were obtained, maybe by way of abundant caution, the same was not required to be taken into consideration while deciding the question in issue in the instant case.

Even otherwise, the age certificate could not have been relied upon as the same was by the Chief Medical Officer and not by "a duly constituted Medical Board" as mandated under the relevant provision of law.

The last submission on behalf of the revisionists that the family register produced was not worthy of reliance as it consisted of unnumbered loose sheets which did not bear any signature, it would suffice to observe that the Court below has rightly observed that the family register cannot be relied upon to determine the age of the revisionists and can at best be construed as proof of residence.

The admission register produced and proved by CPW-1, Umesh Kumar, Head Master, Primary School, Bajaha, records the dates of birth of the revisionists as 1.10.1983 and 4.8.1989 respectively. Since the entry in this register is of a date earlier in time than the documents produced on behalf of the revisionists and are therefore the record of the school first attended, the same have been rightly believed to hold that the revisionists are not juveniles. Moreover, as already observed above, there is no ground taken in the memo of revision nor has any submission been made during arguments as to why the same should not be relied upon.

The judgment cited on behalf of the revisionists deals with a situation where only one school admission register was filed and the entry therein was not countered or controverted by the opposite parties. The situation is totally different here as both parties have filed admission registers and the Court has after considering then accepted one document and discarded the other for cogent reasons. Therefore, there appears to be no illegality in the approach of the Court below while deciding the question of juvenility and the submissions of the counsel for the revisionists in this regard are repelled.

In view of the discussion and the reasons given above, we are of the view that the revision lacks merits and the impugned order deserves to be affirmed.

The revision is accordingly dismissed.

It will now be open for the revisionists / appellants to prosecute and press their bail applications filed in the connected Criminal Appeal, on merits, before the appropriate Bench.

Order Date :- 26.7.2013

Priyanka