Rizwan And 2 Others vs State Of U.P. And Another
2016 Latest Caselaw 6713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                                                      RESERVED
 
Court No. - 44
 

 
Case :- CRIMINAL REVISION No. - 3044 of 2015
 

 
Revisionist :- Rizwan And 2 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- J.K. Chakraborty
 
Counsel for Opposite Party :- Govt.Advocate,Chandra Bhushan Verma,R.L. Verma
 

 
Hon'ble Amar Singh Chauhan,J.

The revisionist Rizwan and two others have filed this criminal revision against the order dated 10.7.2015 passed by the Additional District & Sessions Judge, Court No. 24, District Shahjahanpur in Sessions Trial No. 392 of 2011 under section 302 Indian Penal Code (State vs. Mohd. Rajji and others), Police Station Ramchandra Mission, District Shahjahanpur whereby the application dated 4.7.2013 for declaring them as juvenile has been rejected.

The brief facts giving rise to the present revision is that on 20.3.2011 the informant Sharafat Ullah Khan son of Safi Ullah Khan lodged the First Information Report with the effect that on 20.3.2011, when he and his son Rifayat Khan Nazak, Phaisal Khan along with his brother-in-law Azaj Khan son of Anwar Khan were irrigating his field of sugarcane from pumping set about 9.15 in the morning then accused Mohd. Razi son of Mohd. Safi resident of the same village came and objected to stop the pumping set and began to give filthy abuses and after extending threat, he has gone from the place. Thereafter at about 10.00 A.M. the accused Mohd. Razi along with Mohd. Nabi, Mohd. Wali, Munaur Ali, Abdul alias Chhota sons of Mohd. Safi, Rizwan son of Mohd. Rafi, Mohd. Rafi son of Mohd. Safi Lala, Javed son of Wali Mohd, Babloo son of Wali Mohd, Yasin son of Mohd. Navi came armed with licencee Rifle, unlicensed Rifle, gun, country made pistol, lathi-danda etc. and in furtherance of common intention they assaulted with the intention of causing death and started firing which hit Nazakat and Phaisal. On raising alarm they ran away. Nazakat and Phaisal succumbed to fire arm injury

During trial accused-revisionist Rizwan, Mohd. Alam and Yasin moved application dated 04.7.2013 for declaring them juvenile with the averment that as per School Leaving Certificate the age of the accused-revisionists were below 18 years on the date of occurrence. Against the application complainant filed objection inter-alia on the ground that earlier the accused Babloo alias Alam and Yasin have also moved application dated 20.1.2013 for declaring them juvenile with the allegation that their date of birth is of the year 1995 but in support thereof no Certificate was filed. Thereafter the another School Leaving Certificate was filed showing the date of birth as 09.1.1996 which is self-contradictory and fake. In addition to in the voter list prepared in the State Assembly Election 2009, the age of Rizwan is shown as 23 years, age of Yasin 22 years and age of Babloo alias Alam 24 years. The application moved by Yasin dated 25.7.2013 has already been rejected. The School Leaving Certificate is not counter signed by the Basic Shiksha Adhikari and cannot be relied as being fake and forged. After hearing from both sides, the application was rejected.

Feeling aggrieved, this revision was filed by the revisionists/accused

Heard Sri J.K. Chakraborty, learned counsel for the revisionists, learned Additional Government Advocate for the State and Sri R.L. Verma, learned counsel for the opposite party no. 2

Learned counsel for the revisionists submitted that according to the statement of OPW-1 named as Munir who proved the admission register of the school Makhtab Islamia Nusaratpur @ Badigaon shows that the date of birth of Rizwan, the revisionist no. 1 at serial no. 429 is 20.1.1990, the date of revisionist no. 2, Babloo @ Mohd. Alam at serial no. 348 is 15.7.1986 and the date of birth of revisionist no. 3, Mohd. Yaseen at serial no. 470 is 19.12.1991. The court below has wrongly relied upon the authenticity of this register and after perusal of the same has wrongly made observation that when documents pertaining to register of two different schools are placed giving different dates of birth and as such it would not be justified to rely upon those documents. In this connection, it is submitted that statement of APW-3 and 4 namely Smt. Noor Fatma and Smt. Kaisar Jahan who are the mothers of revisionist nos. 3 and 1 stated that the accused were minor at the time of incident. The statements of APW-1, 2 and 3 clearly showed that the accused-revisionists have studied in Kamta Prasad Junior High School Dindarpur Kant, District Shahjahanpur and according to T.C. the date of birth of Rizwan is 06.4.1995, Mohd. Alam is 09.1.1996 and Yaseen is 01.6.1996. It is further submitted that on the date of occurrence the accused-revisionists were juvenile age below 18 years.

In this revision, the main point of determination is when varied age certificate of two different schools were filed by the parties and as such it would be justified to rely upon those documents. Whether ossification test report will give precedence over them and the impugned order does suffer from illegality.

Before adverting the claim of the parties, it is necessary to quote the provision of Section 7-A of the Act and Rule 12 (3) of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2007.

Section 7-A of the Act provides as under:-

"Section 7-A (1) 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 enquiry, 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 recognized 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."

It is clear from the aforesaid provision that whenever a claim of juvenility is raised, before any court, the same is bound to hold an enquiry, takes such evidence as may be necessary (but not an affidavit) so as to determine the age of such person. It is also provided that claim of juvenility may be raised before any court at any stage.

Rule 12 (3) provides as under :

"12 (3) Procedure to be followed in determination of Age :- 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."

According to Rule 12(3) of the Rules 2007, the age of an accused should be determined by seeking evidence by obtaining the matriculation or equivalent certificate in the absence thereof, on the basis of date of birth recorded in the first school attended and in the absence thereof, on the basis of birth certificate given by Corporation or Municipal authority or a Panchayat and in the absence of all three options mentioned above, the medical opinion shall be sought from a duly constituted Medical Board.

In the instant case, the revisionists relied upon the T.C. issued by Kamta Prasad Junior High School Dindarpur Kant, District Shahjahanpur whereas the School Certificate issued by Madarsa Makhtab Islamia Nusaratpur @ Badigaon was filed on behalf of the State and both indicating varied and self-contradictory date of births of the revisionists.

The Hon'ble Supreme Court in Om Prakash vs. State of Rajasthan and another, AIR 2012 SC 1608 wherein it has been held that in a situation when the school record itself is not free from ambiguity and conclusively prove the minority of the accused, the opinion of the medical experts based on x-ray and ossification test will have to be given precedence over the shaky evidence based on school records.

In the instant case, the Juvenile Justice Board disbelieved the self-contradictory School Certificate regarding age of revisionists issued by two different schools and sought opinion of medical expert. In view of the medical opinion dated 11.4.2014, the age of accused Rizwan, Babloo @ Mohd. Alam and Mohd. Yaseen was found 24 years, 25 years and 23 years respectively which clearly indicate that on the date of occurrence, the revisionists Rizwan, Babloo @ Mohd. Alam and Mohd. Yaseen were 21 years, 22 years and 20 years old. As per Rule 22(5)(IV) of Juvenile Justice (Care and Protection of Children) Rule 2007, after giving one year margin, age of accused on the date of occurrence, Rizwan, Babloo @ Mohd. Alam and Mohd. Yaseen were determined 20 years, 21 years and 19 years respectively.

In view of the above discussion, revisionists could not establish juvenility on the date of occurrence of the crime i.e. 20.3.2011.

Having considered the submissions of learned AGA, legality, propriety and correctness of the order impugned, I am of the view that the revision is liable to be dismissed.

The revision being lack of merit is dismissed.

There is no order for cost.

Order Date :- 27.10.2016

Puspendra