Amit Kumar vs State Of U.P. And Anr.
2014 Latest Caselaw 1963 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 13.5.2014
 
Delivered on 23rd May, 2014
 
Court No. - 21
 
Case :- CRIMINAL REVISION No. - 702 of 2012
 
Revisionist :- Amit Kumar
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Tara Chandra Bhardwaj,Raj Singh
 
Counsel for Opposite Party :- Govt. Advocate,Ajit Kumar
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

The instant criminal revision is preferred against the judgement and order dated 21.10.2011 passed by Sessions Judge, Aligarh in Criminal Appeal No.102 of 2011 (Amit vs. State of U.P.) whereby the order dated 9.6.2011 passed by Principal Magistrate, Juvenile Justice Board, Aligarh in Misc. Case No.37 of 2011 under sections 376, 302 IPC, rejecting the application of revisionist to declare him juvenile was confirmed by learned Sessions Judge.

I have heard learned counsel for the revisionist, learned AGA and perused the record.

Some background facts in brief are that on 12.7.2010, an FIR was lodged by the complainant (opposite party no. 2 in the instant revision) under sections 302 and 376 IPC for rape and murder of his minor daughter alleging that on 11.7.2010 at about 5:00 p.m. his daughter Km. Anita, aged about 16 years, had gone to collect woods in the jungle. When she did not return till night, the complainant searched for her and found her semi naked dead body with her 'Salwar' tied around her neck. The case was registered and investigated. The revisionist was found involved in the occurrence who took the plea of being a juvenile and moved an application before C.J.M., Aligarh to declare him juvenile. Learned C.J.M. vide order dated 14.10.2010 declared the revisionist, a juvenile on the basis of a school leaving certificate, which school was admittedly not the first school attended by the revisionist ignoring the medical examination report in which the age of revisionist was found to be of 21 years.

The aforesaid order passed by C.J.M. Aligarh was challenged by the complainant, preferring revision No.769 of 2010 before the Court of Sessions, Aligarh, but the said revision was dismissed. Being aggrieved by the orders of both the courts below, the complainant filed application No.6561 of 2011 u/s 482 Cr.P.C. before this Court and this Court, vide order dated 24.3.2011 remanded the case to CJM, Aligarh for reconsideration of the age of revisionist. As by that time, Juvenile Justice Board had been constituted at District Aligarh, learned C.J.M. vide order dated 20.4.2011 sent the file to Juvenile Justice Board for determining the question of juvenality of the revisionist.

Before the Juvenile Justice Board, the revisionist filed two school leaving certificates one of Saraswati Gyan Mandir and second of Narsingh Vidyalaya Kasiso, Aligarh in proof of his juvenality but the learned Magistrate did not rely upon any of the school leaving certificates due to the reason that the certificates issued by Narsing Vidyalaya, Kasiso, Aligarh revealed that prior to his admission in Narsingh Vidyalaya, Kasiso, Aligarh, the applicant/revisionist was a student of Saraswati Gyan Mandir, Aligarh, but the revisionist could not adduce any evidence to prove the certificate of Saraswati Gyan Mandir because Saraswati Gyan Mandir, Aligarh was found to be closed for ever, due to death of its proprietor. As no reliable evidence was available about the date of birth of the revisionist from the school first attended and the revisionist had not filed any other evidence e.g. Matriculation or equivalent certificate or his birth certificate issued by Municipality, the learned Magistrate ordered for his medical examination.

The revisionist was medically examined three times firstly on 4.9.2010, thereafter on 20.5.2011 and and lastly on 21.5.2011. According to first medical test report, he was found to be of about 21 years in the second medical report he was found to be of 20 years and in the third medical report his age was found to be of only 18 years.

Learned Magistrate did not rely upon the third medical examination report on the ground that the conclusions in third medical report dated 21.5.2011 are based on the fusion of only long bones of the body whereas in the earlier two reports, the fusion of clavicle bones have also been mentioned. The fusion of long bones takes place in the age of 18 years, whereas fusion of clavicle bones takes place at the age of about 22 years. As in the third report the doctor had not mentioned anything about the fusion of clavicle bones, the learned Magistrate did not place reliance on the third medical report and relying upon the first two medical reports assessed the age of the revisionist as 20 years and six months. Accordingly, the learned Magistrate while holding the revisionist a major on the date of occurence declined to give him any benefit out of the Juvenile Justice Act.

The learned lower appellate court also confirmed the order of the Board by expressing its view that as the applicant has not filed any matriculation or equivalent certificate or any certificate from the school first attended, the transfer certificate of Narsingh Vidyalaya, Kasiso, Aligarh filed by him is of no use. The learned Session Judge too, did not rely on the third medical examination report/radiological report on the same ground that there was no mention of fusion of clavicle bones in the third medical report. One more fact was also observed by learned lower appellate court that by physical appearance too, the revisionist does not appear to be a juvenile.

In the instant revision, both the aforesaid orders have been challenged by the revisionist on the ground that the courts below have committed error by not relying upon the transfer certificates of Narsingh Vidyalaya, Kasiso Aligarh, according to which the date of birth of the revisionist comes to 17 years four months and seven days on the date of occurrence. It has further been contended that out of three medical reports, the lower courts have wrongly relied upon only two earlier medical reports ignoring the third latest medical report. On the aforesaid grounds it has been prayed that the order passed by both the courts below be set aside and the revisionist be provided the benefit of Juvenile Justice Act because he was juvenile on the date of occurrence.

Per contra, learned AGA has vehemently opposed the revision on the ground that the revisionist is an accused of heinous crime of rape and brutal murder of a minor girl and he is trying to shield himself from legal consequences by taking undue advantage of the provisions of the Juvenile Justice Act.

After giving my thoughtful consideration to the arguments advanced from both sides and keeping in view the relevant legal provisions, I am of the considered view, that the revision has no force and it is liable to be dismissed for the following reasons:-

The procedure to be followed for determination of age of a juvenile has been provided under Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007. The relevant part of which is quoted below:-

"12 (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, 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."

The record shows that revisionist in proof of his age had filed two transfer certificates before the Board. One of Saraswati Gyan Mandir, Aligarh and the second of Narsingh Vidyalaya, kasiso, Aligarh. The certified copy of both the transfer certificates are available on record as Annexure 2 to this revision. In both the transfer certificates, his date of birth is mentioned as 4.3.1993. The transfer certificate of Narsingh Vidyalaya, Kasiso Aligarh shows that prior to Narsingh Vidyalaya, Aligarh, the revisionist was a student of Saraswati Gyan Mandir. Therefore, Saraswati Gyan Mandir was the first school the revisionist had attended. The record shows that revisionist had failed to adduce any evidence to prove the transfer certificate of Saraswati Gyan Mandir as it was found that due to death of its proprietor, Saraswati Gyan Mandir School was closed long back. Narsingh Vidyalaya Kasiso, Aliagrh admittedly, being not the first school attended by the revisionist, the learned Magistrate did not rely on school leaving certificate given by Narsingh Vidhyalaya, Aligarh. The revisionist had neither filed any matriculation or equivalent certificate nor he had filed any birth certificate issued by Municipal Corporation or Panchayat. In such situation, as per the provisions of Rule 12 of Juvenile Justice Rules, medical evidence was sought. There were three medical tests of the revisionist out of which the learned Magistrate relied on those tests in which a detailed report about the fusion of all the bones including the clavicle bones was also mentioned. Learned Board did not rely on the medical report dated 21.5.2011 despite its being latest report because nothing about the fusion of clavicle bones was mentioned in that by the medical Board either deliberately or by inadvertence.

According to the chart given in Chapter X of Modi's jurisprudence about the ossification of bones, the fusion of long bones e.g. humerus, radius, ulna, femur etc., takes place between 11-18 years in males but the fusion of clavicle bones takes place at the age of 22 years in males. The third medical report dated 21.5.2011 is silent about the fusion of clavicle bones.

Under this situation, both the Courts below rightly disbelieved the medical report dated 21.5.2011. Besides it the learned lower appellate court has confirmed the order passed by the Board on one more ground of physical appearance of the revisionist.

The impugned orders which are well reasoned, speaking and detailed orders have been passed, keeping in view the legal provisions by the courts below and appears just and proper. There appears no illegality or irregularity in any of these orders requiring any interference by this revisional court.

Accordingly, the revision is liable to be dismissed and is, hereby, dismissed.

Dt./23rd May, 2014.

Ps.