Kanchal Lal Juvenile vs State Of U.P. & Another
2015 Latest Caselaw 1730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 
Case :- CRIMINAL REVISION No. - 2272 of 2015
 
Revisionist :- Kanchal Lal, Juvenile
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Indrajeet Singh
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Shashi Kant,J.

1. Heard Sri Shamsher Singh, Advocate, holding brief of Sri Indrajeet Singh, learned counsel for the Revisionist, Sri Ajay Kumar Srivastava, learned counsel for the opposite party no.2, learned A.G.A. for State of U.P. and perused the record.

2. This Criminal Revision under Section 53 of the Juvenile Justice (Care & Protection of Children) Act, 2000 ( hereinafter referred to as 'Act, 2000') has been filed against the judgment and order dated 01.06.2015 passed by Additional District & Sessions Judge / Fast Track Court, Pilibhit in S.T. No.167 of 2012 ( State Vs. Kanchan Lal and others), whereby the application of the revisionist for declaring him Juvenile has been rejected, in case Crime No.1158 of 2011, under Sections 498-A, 304-B I.P.C. and Section 3/4 of D.P. Act, Police Station - Nuria, District Pilibhit.

3. Learned Counsel for the revisionist contends that :

3.1 The revisionist is a juvenile in conflict with law in respect of case Crime No.1158 of 2011, under Sections 498-A, 304-B I.P.C. and 3/4 D.P. Act, Police Station Nuria, District Pilibhit and is in custody since 19.12.2011. He is entitled to the benefits of the provisions of the Act, 2000.

3.2 He further urged that the First information report in respect of above case was lodged by the opposite party no.2 on 19.12.2011 at 12.45 Hrs for the incident alleged to have taken place on 18/19.12.2011 at unknown time, the date of birth of the revisionist is 15.08.1994 and at the time of the incident his age was near about 17 years and as such at the time of incident the revisionist was juvenile. An application dated 15.05.2015 has been moved on behalf of the revisionist to declare him Juvenile, before the learned trial Court which was rejected vide impugned order on the basis of inadmissible evidence and irrelevant consideration. Impugned order is wrong, illegal and liable to be set-aside.

4. Above arguments of learned counsel for the revisionist are strongly opposed by opposite party no.2 and learned A.G.A. on the ground that impugned order is perfectly right, justified and based on evidence available on record. Sufficient reasons have been given in support of impugned order. This revision is devoid of merit and liable to be dismissed.

5. For proper appreciation of aforesaid rival arguments relevant rules and decisions of Hon'ble Apex Court and other Courts are required to be taken into consideration, which are being referred hereinafter.

6. Section 7A of Act, 2000 and Rule 12 of the Juvenile Justice ( Care and Protection of Children) Rules, 2007 (hereinafter referred to as "Rules 2007") read as follows :-

7A. Procedure to be followed when claim of juvenility is raised before any Court -

(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.

Rule 12 of Rules, 2007 :-

"12. Procedure to be followed in determination of age - (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(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.

7. In Rajendra Chandra Vs. State of Chhattishgarh and another, (2002) 2 SCC 28, the Court has considered the effect of overwriting in mark-sheet and doubted on the date of birth entered in his birth and death register and while appreciating the evidence, adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases, held as follows :-

"4. The High Court, in exercise of its revisional jurisdiction, found the findings arrived at by the learned Sessions Judge and the Magistrate to be legally infirm and hence not sustainable. The High Court noticed that although in the mark sheet of Class VIII there appeared to be some over writing on the year 1981 but the same attested by the officer who had issued it. Moreover, the date of birth was entered in figures and words both. While in the figures there was an overwriting but there was no overwriting the words wherein the date was clearly mentioned as "thirtieth September nineteen eighty-one" and, therefore there was no room  for doubt. In the birth and death register kept by Kotwar, there was some doubt whether the date of birth was recorded as 30.06.1981 or 30.09.1981 but the doubt was removed by reference to other entries in vicinity. The factum of Gopal Prasad Tiwari, father of the accused, having begotten a son, was entered at Sl.No.29. The proceeding two entries referable to other children born to others, at Sl.Nos. 27 and 28 were dated 23.08.1981 and 15.09.1981 only and not of 30.06.1981. Thus, in substance, the High Court has concluded that the doubts assumed to be in existence by the learned Sessions Judge were not reasonable doubts and in the light  of the explanation furnished by the accused, there was hardly any room for doubt and a high degree of probability was raised that the date of birth of the accused was 30.09.1981. In our opinion, the High Court has not erred in arriving at the conclusion which it has reached and it rightly interfered with the orders of the two courts below because if allowed to stand they would have occasioned failure of justice.

5. It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das Vs. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case. "

8. In Hariram Vs. State of Rajasthan and others (2009) 13, SCC 21, the Court has considered the amended provisions of Sections 2(k), 2(1), 7-A and 20 of Act, 2000, said as follows :

"60. The instant case is covered by the amended provisions of Sections 2(k), 2(1), 7-A and 20 of the Juvenile Justice Act, 2000. However, inasmuch as, the appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence, the High Court was of the view that the provisions of the Juvenile Justice Act, 1986, would not apply to the appellant's case. Of course, the High Court, while deciding the matter, did not have the benefit of either the amendment of the Act or the introduction of the Juvenile Justice Rules, 2007

61. Even otherwise, the matter was covered by the decision of this Court in Rajinder Chandra case, wherein this Court, inter alia, held that when a claim of juvenility is raised and on the evidence available two views are possible, the court should lean in favour of holding the offender to be a juvenile in borderline cases.

62. In any event, the statutory provisions have been altered since then and we are now required to consider the question of the claim of the appellant that his date of birth was Kartik Sudi 1, Samvat Year 2039, though no basis has been provided for the fixation of the said date itself in the light of the amended provisions. Often, parents of children, who come from rural backgrounds, are not aware of the actual date of birth of a child, but relate the same to some event which may have taken place simultaneously. In such a situation, the Board and the courts will have to take recourse to the procedure laid down in Rule 12 (emphasised by this Court), but such an exercise is not required to be undertaken in the present case since even according to the determination of the appellant's age by the High Court the appellant was below eighteen years of age when the offence was alleged to have been committed...............

70. In the instant case, there is no controversy that the appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age. In view of Sections 2(k), 2(l) and 7-A read with Section 20 of the said Act, the provisions thereof would apply to the appellant's case and on the date of the alleged incident it has to be held that he was a juvenile."

9. In Raju Vs. Union of India (2010) 3 SCC 235, the Court relying on the judgment of Hari Ram Case (supra) held the appellant no.1 juvenile on the basis of his being juvenile on the date of occurrence, the Court held as follows :

"17. As far as appellant 1 is concerned, let his case is referred to the Juvenile Justice Board concerned in terms of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000, to be dealt with under the provisions of the said Act in keeping with the provision of Section 15 thereof and having particular regard to the period of detention already undergone by him during the course of the investigation and trial. The Registry is directed to take immediate steps for transmission of the records to the Juvenile Justice Board concerned, as far as Appellant 1 is concerned."

10. In Shah Nawaz Vs. State of Uttar Pradesh and another (2011) 13 SCC 75, after considering effect entries of date of birth in marksheet, school leaving certificate, the Court said as follows :

"24. We are satisfied that the entry relating to date of birth entered in the mark-sheet is one of the valid proofs of evidence for determination of age of an accused person. The school leaving certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark-sheet produced by the appellant has duly been corroborated by the school leaving certificate of the appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-o-Kalan and recorded by the Board. The date of birth of the appellant has also been recorded as 18.06.1989 in the school leaving certificate issued by the Principal of Nehru preparatory school, Dadheru, Khurd-o-Kalan, Muzaffarnagar as well as the said date of birth mentioned in the school register of the said School at Sl.No.1382 which have been proved by the statement of the Principal of that School recorded before the Board.

25. Apart from the clerk and the Principal of the School, the mother of the appellant has categorically stated on oath that the appellant was born on 18.06.1989 and his date of birth in his academic records from preparatory to Class X is the same, namely, 18.06.1989, hence her statement corroborated his academic records which clearly depose his date of birth as 18.06.1989. Accordingly, the appellant was a juvenile on the date of occurrence, that is, 04.06.2007 as alleged in the F.I.R. Dated 04.06.2007.

26. We are also satisfied that Rule 12 of the Rules which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report.

27. In the light of the above discussion, we hold that from the acceptable records, the date of birth of the appellant is 18.06.1989, the Additional Sessions Judge and the High Court committed an error in taking a contrary view. While upholding the decision of the Board, we set aside the orders of the Additional Sessions judge dated 13.01.2009 and the High Court dated 10.12.2010. Accordingly, the appellant is declared to be a juvenile on the date of commission of the offence and may be proceeded In accordance with law. The appeal is allowed."

11. In Ashwani Kumar Saxena Vs. State of M.P., 2012 (9) SCC 750, the Court has considered cumulative effect of Section 7A of Act, 2000 and Rule 12 of Rules, 2007. The court also considered the scope of enquiry, investigation and trial in detail in paras 27, 28, 29 & 30 of the judgment and thereafter, in paras 29 to 43, held as follows :

"29. The Code lays down the procedure to be followed in every investigation, inquiry or trial for every offence, whether under the Indian Penal Code or under other Penal laws. The Code makes provisions for not only investigation, inquiry into or trial for offences but also inquiries into certain specific matters. The procedure laid down for inquiring into the specific matters under the Code naturally cannot be applied in inquiring into other matters like the claim of juvenility under Section 7-A read with Rule 12 of the 2007 Rules. In other words, the law regarding the procedure to be followed in such inquiry must be found in the enactment conferring jurisdiction to hold inquiry.

30. 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 as 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.

31. 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 Rules 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.

32. "Age determination inquiry" contemplated under section 7-A of the Act read with 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.

33. Once the court, following the above mentioned procedures, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) or Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

34. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.

35. We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.

36. We notice that none of the above mentioned principles have been followed by the courts below in the instant case. The court `examined the question of juvenility of the appellant as if it was conducting a criminal trial or inquiry under the Code. Notice was issued on the application filed by the juvenile and in response to that State as well as the widow of the victim filed objection to the application. The father of the appellant was cross examined as PW 1 and was permitted to produce several documents including the mark sheet of class five marked as exhibit P-1, mark sheet of class eight marked as exhibit P-2, mark sheet of Intermediate Education Board, MP, marked as exhibit P-3, horoscope prepared by Daya Ram Pandey marked as exhibit P-4. Further, the mother of the appellant was examined as PW 4, Transfer Certificate was produced on the side of the appellant which was marked as exhibit P-6. Noticing that the parents of the appellant were attempting to show a lesser age of the child so as to escape from the criminal case, the Court took steps to conduct ossification test. Dr. R.P. Gupta was examined as PW 2 who had submitted the report. Dr. S.K.Sharma was examined as PW 3. Placing considerable reliance on the report submitted after conducting ossification test, the application was dismissed by the trial court.

37. We find that the appellate court, of course, thought it necessary to summon the original register of Jyoti English School where the appellant was first admitted and the same was produced by the Principal of the School. We have called for the original record from the Court and perused the same. On 4.09.2009, the Sessions Judge passed the following order:

"04.02.09.

The court found it necessary to call for the Admission Register of the appellant in Jyoti High Secondary School and ordered the production of the Register of Admission, from the concerned school in ST. No. 29/09.

Sd/-

Judge"

On 09.02.2009, another order was passed as follows:

"From Jyoti High Secondary School, the Principal of the school was present along with the concerned admission register. He produced the copy of the admission register before the court after proving its factum. Register was returned after the perusal. The Counsel is directed that if he wants to produce any other evidence/documents, he may do so.

Sd/-

Judge"

(emphasis added)

On 11.02.09, after hearing the counsel on either side, the Court passed the order:

"The counsel for the state Shri Nayak, APG stated/conceded that in respect to refute/rebuttal of the Admission Register the state do not wish to file further Evidence/documents.

Sd/-

Judge

(emphasis added)

On 12.02.2009, after hearing counsel on either side, the Court again passed the order:

"In presence of the advocates, order pronounced in the open court that this Appeal is hereby Dismissed.

Sd/-

Judge"

38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the principal of school and having noticed the fact that the appellant was born on 24.10.1990, what prompted the Court not to accept that admission register produced by the principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11.02.2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the School Admission Register. We are of the view the above document produced by the principal of the school conclusively shows that the date of birth was 24.10.1990, hence, Rules 12(3)(a)(i) and (ii) of the 2007 Rules has been fully satisfied.

39. The Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register, which prompted the father of the appellant to produce a horoscope. The horoscope produced was rejected by the Court stating that the same was fabricated and that the Pandit who had prepared the horoscope was not examined. We fail to see what types of inquiries are being conducted by the trial courts and the appellate courts, when the question regarding the claim of juvenility is raised.

40. Legislature and the Rule making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time limit of thirty days to determine the age of the juvenility from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his / her age on lower side within the margin of one year.

41. The Court in Babloo Parsi v. State of Jharkhand and Another, (2008) 13 SCC 133 held, in a case where the accused had failed to produce evidence/certificate in support of his claim, medical evidence can be called for. The court held that: (SCC p. 142, para 22)

"22. ... The medical evidence as to the age of a person, though a useful guiding factor is not conclusive and has to be considered along with other cogent evidence."

This court set aside the order of the High Court and remitted the matter to the Chief Judicial Magistrate heading the Board to re-determine the age of the accused.

42. In Shah Nawaz v. State of Uttar Pradesh and Another (2011) 13 SCC 751, the Court while examining the scope of Rule 12, has reiterated that medical opinion from the Medical Board should be sought only when matriculation certificate or equivalent certificate or the date of birth certificate from the school first attended or any birth certificate issued by a Corporation or a municipal authority or a panchayat or municipal is not available. The court had held entry related to date of birth entered in the mark sheet is a valid evidence for determining the age of the accused person so also the school leaving certificate for determining the age of the appellant.

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."

12. In Jarnail Singh Vs. State of Haryana, 2013 (7) SCC 263 the Court has considered order of preference, provided in the scheme of Rule 12(3), and held as follows :

" ....In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion." (emphasis added by this Court)

13. In the present case, perusal of record reveals that in support of the application, revisionist has filed Transfer Certificate, admission form, mark sheet of intermediate and High School and character certificate of D.P.P. Inter College and examined DW-1 Manoj Kumar, Principal, D.P.P. Inter College, who stated in his evidence that revisionist was the student of his school from July, 2008 to June, 2012. He has also verified various certificates filed by the applicant. Other witness namely Lalaram DW-2 has told in his evidence that domicile certificates and School Certificate filed by prosecution are forged. In the certificates submitted by the revisionist, his date of birth was shown as 15.08.1994 while in the objections and certificates filed by the complainant, his date of brith has been shown as 20.03.1991 and 25.07.1991.

14. For proper appreciation, relevant portion of the judgement is reproduced herein below :-

^^ vfHk;qDr dapu dh rjQ ls fn;s x;s vkosnu i= ,oa izek.ki= esa tUe frfFk 15-08-94 fn[kkbZ xbZ gS ,oa oknh i{k dh rjQ ls nh xbZ vkifRr ,oa izek.ki= esa mldh tUe frfFk 20-03-91 ,oa 25-07-91 fn[kkbZ xbZ gSA vfHk;qDr bl eqdnesa esa ngst gR;k dk vfHk;qDr gS vkSj mldh iRuh oknh ckcwjke dh yMdh jkecsVh dh e`R;q 'kknh ds rhu o"kZ ds vUrjky ij gqbZ gSA cgl ds nkSjku ;g crk;k x;k fd ;g 'kknh nksuksa i{kksa ds ekrk&firk dh lgefr ds vk/kkj ij gqbZ FkhA e`rdk dh e`R;q ds mijkar mldk iksLVekVZe fd;k x;k ftlesa e`rdk dh mez 25 o"kZ fn[kkbZ xbZ gS vkSj ikjEifjd 'kkfn;ka tks ekrk&firk dh lgefr ls dh tkrh gS mlds vk/kkj ij ;g fd vfHk;qDr dks 18 o"kZ ls de vkSj vfHk;qDr ds }kjk nh xbZ tUefrfFk fnukad 15-08-94 ekuk tk, rc nksuksa dh mez esa yxHkx 08 o"kZ dk vUrj jgrk gS tks lgefr ds vk/kkj ij laHko ugha gSA ;|fi vfHk;qDr dh rjQ ls ;g rdZ fn;k x;k fd mldh rjQ ls nkf[ky izek.ki=ksa dks iz/kkukpk;Z ,oa mlds firkth }kjk lkfcr fd;k x;k gS vkSj oknhi{k dh rjQ QthZ vfHkys[k nkf[ky fd; x;s gS rFkk mUgsa lkfcr ugha fd;k x;k gSA blds foijhr oknh dh rjQ ls ,d rdZ fn;k x;k fd vfHk;qDr us iwoZ esa fd'kksj vipkjh ?kksf"kr djus ds fy;s vkosnui= fn;k Fkk tc mlus vkifRr izLrqr dh rc mlus ml izkFkZuki= ij cy ugha fn;kA blfy, ,d ckj mlds }kjk vkosnui= ij cy u nsus vkSj iqu% vkosnui+= bu vfHkys[kksa ds lkFk nkf[ky djus ftlesa Mh-MCyw-&1 iz/kkukpk;Z eukst dqekj us dgk gS fd mlds lkeus uke ugha fy[kk x;k vkSj dkSu uke fy[kkus vk;k Fkk ugha ekywe rFkk fdl Ldwy ls uke fy[kk;k x;k ugha ekywe] tcfd oknh dh rjQ ls nkf[ky vfHkys[kksa ls nkf[ky vfHkys[kksa esa izkFkfed fo|ky; ejkSyh esa 01-07-96 fn[kkbZ xbZ vkSj mlesa tUefrfFk 20-07-91 gSA ;|fi ml Ldwy dks vfHk;qDr ds firk us badkj fd;k gSA ;|fi mlesa mlds firk dk uke] xkao dk uke ,d gksus ls vkSj ftykf/kdkjh }kjk fuxZr izek.ki= esa Hkh uke] firk dk uke o xkao ,d gksus ls vfHk;qDr dh rjQ ls ;g rdZ fd og QthZ gS] ;g ekU; ugha gS rFkk Ldwy esa izos'k izek.ki= esa mfYyf[kr tUefrfFk vf/kd egRoiw.kZ gksxh] gkbZLdwy ds izek.ki= esa mfYyf[kr tUefrfFk ls vkSj lk{; ds vkk/kkj ij vfHk;qDr dapu o;Ld ekuk tkrk gSA blfy, vfHk;qDr dapu dks fd'kksj vipkjh ugha ik;k tkrk gS rFkk mlds }kjk izLrqr izkFkZuki= fujLr djuk mfpr le>rk gwWA

vkns'k

izkFkZuki= [k79 rnuqlkj fujLr fd;k tkrk gSA i=koyh okLrs cgl gsrq fnukad 09-06-2015 dks is'k gksaA ^^

15. From perusal of the above referred portion of the impugned order it is evident that application of revisionist to declare him juvenile has been rejected on the following grounds :-

15.1. In the post mortem report, age of the deceased has been shown 25 years. The date of birth of the accused, if taken to be 15.08.1994 then he will be less than 18 years and there will be difference of 8 years of age between the accused and the deceased. Traditional marriages are conducted on the basis of consent of mother and father and on the basis of consent, such a difference in age is not possible.

15.2. Though the documents filed on behalf of complainant's side are not proved and those are denied by father of the complainant but in those certificates issued by District Magistrate, name, father's name and village is common. Therefore, argument advanced on the side of accused that the documents of complainant side are forged is not acceptable.

15.3. Earlier also, accused had filed an application for declaring him juvenile but after filing an objection, he has not pressed that application.

15.4. DW-1, Principal Manoj Kumar has stated in his evidence that name was not written before him, who came for admission is not known and he is also not aware that from which school he has taken earlier education, while from the documents filed from the side of the complainant, initial education has been shown in Primary School Marauli up to 01.07.96, and therein his date of birth has been shown as 20.07.1991.

15.5. The date of birth mentioned in admission certificate would be more important than the date of birth mentioned in the High School certificate and relying on the above reasoning, application of the revisionist to declare him juvenile has been rejected, whereagainst this revision has been filed.

16. It is clear from facts, referred to above, that learned lower Court has placed reliance on an unproved school certificates produced on behalf of complainant side, recorded finding against Rule 12 of Rules 2007 and guidelines provided by Hon'ble Apex Court and this Court, as referred earlier. Not only this while passing the impugned order, learned lower court has also adopted hyper technical approach to arrive at the conclusions, which are neither justified nor permissible.

17. For the facts and reasons stated above, impugned order is wrong, illegal, not sustainable in the eyes of law and is liable to be rejected.

18. Accordingly, this Revision is allowed. Impugned order dated 01.06.2015 passed by Additional District & Sessions Judge/ Fast Track Court, Pilibhit in S.T. No.167 of 2012 (State Vs. Kanchan La, & Ors.) is hereby set-aside. Revisionist- Kanchal Lal is held juvenile on the date of occurrence on the basis of his date of birth which is 15.08.1994, as recorded in his High School mark sheet duly proved by DW-1.

19. Registrar General of the High Court is directed to circulate copy of this judgement to all the Sessions Judge of the State.

Order Date :- 10.8.2015

RKM