Abdul Hakim Ansari vs State Of U.P. And Anr.
2017 Latest Caselaw 8157 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 55
 
Reserved
 

 

 
Case :- CRIMINAL REVISION No. - 1000 of 2014
 

 
Revisionist :- Abdul Hakim Ansari
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Praveen Kumar Singh,Pradeep Kumar Singh
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Ravindra Nath Kakkar,J.

This criminal revision has been filed against the judgment and order dated 23.05.2013 passed by learned Sessions Judge,Varanasi in Criminal Appeal No. 83 of 2013 (Abdul Hakim Ansari Vs. State) and order dated 20.4.2013 passed by learned Judicial Magistrate, Court No. 1, Varanasi in Case Crime No. 300 of 2012, under section 302 IPC and section 4/25 Arms Act, Police Station Maduadeeh, District Varanasi.

The relevant facts of this revision is that the learned Judicial Magistrate, Varanasi vide order dated 20.4.2013 declared the accused Rustam Ali as delinquent juvenile and the appellate court dismissed the appeal and confirmed the order of Judicial Magistrate declaring the accused as juvenile. Aggrieved against the same, this revision has been filed.

It is contended on behalf of learned counsel for the revisionist that the order of Magistrate is illegal, without application of judicial mind and against the evidence on record. Further contended that the order of constituting a medical board for determination of the age of the opposite party No. 2 and as per opinion of the board dated 20.3.2013, the age of the opposite party No. 2 was found to be about 18 years, but in spite of this, the court below acted totally in mechanical fashions and solely relying upon the medical certificate, had given the benefit of one year grace in favour of opposite party no. 2 declaring the accused as juvenile and also appellate court dismissed the appeal on 23.5.2013 without appreciating the material on record. It is next contended that opposite party no. 2 had deliberately tried to hide its actual age and the conduct of opposite party no. 2 is malafide. The order of the court below has been passed only on assumption and presumption without considering the nature of the offence.

In support of his arguments, learned counsel for the revisionist has cited the law laid down by the Hon'ble Apex Court in Parag Bhati (Juvenile) through Legal Guardian- Mother-Smt. Rajni Bhati Versus State of Uttar Pradesh and others, Criminal Appeal No. 486 of 2016 passed on 12.05.2016.

Per contra, learned A.G.A. and learned counsel for opposite party No. 2 state that the declaration of accused as a juvenile and the order passed by the court below to this effect, neither suffers from any illegality nor there is any perversity. Both the courts below has appreciated the material available on record on the basis of statements of P.W. 1 Mohiuddin and P.W. 2 Yogesh Kumar Sahu and further on the basis of statements of Dr. R.P. Tiwari and Dr. D.N. Gupta who were examined before the court below as C.W. 1 and C.W. 2 substantiated by the medical opinion in which it was found that the age of the opposite party No. 2 was not less than 18 years. Relying the material available on record the court below has passed the impugned order which does not require any interference by this Court. Both the courts below appreciated the facts in its legal perspective and arrived to the same conclusion. There is concurrent finding of fact on the issue of determination and prayed for dismissal of the revision.

I have considered the contentions as raised by both the parties and perused the record.

Before proceeding further, I would like to refer establish legal preposition of law on the plea of declaration of the age of juvenile. Under section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000, the court is enjoyed to make an inquiry and take such evidence as may be necessary to determine the age of the person who claims to be a juvenile. Under Rule 12, the Board is enjoyed to take the evidence by obtaining the matriculation certificate if available and in its absence, the date of birth certificate from the school first attended and if it is also not available then the birth certificate given by the local body. Further, in case any of the above certificate is not available then medical opinion can be resorted to. Further, if the Board comes to the conclusion that the date of birth mentioned in the matriculation certificate raises some doubt on the basis of material or evidence on record, it can seek medical opinion from a duly constituted medical board to determine the age of the accused person claiming juvenility.

Further, in Rajinder Chandra Vs. State of Chhattisgarh an another, (2002) 2 SCC page 287, the Hon'ble Apex Court 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.

Considering the above said legal preposition, firstly I would like to refer that only in cases where the documents or certificates are found to be fabricated or manipulated. The court, the Juvenile Justice Board or the committee need to go for medical report for the age of determination.

Perusal of the order dated 20.4.2013 would reveal that an application to declare juvenility was filed before the Judicial Magistrate stating therein that the date of birth of the accused is 30.07.1997. The court below found that the scholar register are not sufficient to legally establish the date of birth of the accused as 30.07.1997 by a detailed order. The court below has passed the order to call for a medical report from the Board and the medical board by its report dated 20.03.2013 stated the age of accused Rustam Ali to be found 18 years. Dr. R.P. Tiwari and Dr. D.N. Gupta, who were initially examined before the court below have stated that age of the accused Rustam Ali is about 18 years. The court below after referring to the decision of the several cases that medically the date of birth of the accused was determined on 20.3.2013 and giving the margin of grace of one year held that on the date of occurrence i.e. 5.11.2012 the accused was juvenile.

It is relevant to mention that the court below after perusing the materials found that the scholar register filed by accused in support of his claim was not reliable, hence he proceeded for medical opinion. The rules clearly prove, in case there is any doubt in the scholar register with regard to the age, the court or board can opt to opinion of the medical board.

Perusal of the statement of the doctors shows that there is two statements given by the Doctor, one is that accused is may be about 18 years and the another opinion is that accused is not less than 18 years. The date of occurrence is 05.11.2012, after calculating the age on the date of order, the court below found it to be less than 18 years. Now, the question arises that two opinion have been expressed by the doctors and the accused has been given preference to the age by the doctors and the accused has been given a margin of grace and given preference after calculating the age on the date of occurrence.

In these facts situations, it can not be said to be any illegality in the order. Further, it is relevant to mention that the application for declaring the juvenility and in support of it scholar register stating that the date of birth of the accused is 30.07.1997 and the date of occurrence is 05.11.2012. In view of these facts, the age of the accused if calculated be approximately in between 15 to 16 years, although as I have already stated that the court below did not find the scholar register before the sufficient prove of his claim directed constitution of medical board and as per medical report found to be about or less than 18 years giving one year's benefit of grace period. Learned court below found the age of the juvenile at the time of occurrence less then 18 years and further, I would like to add that the point which have been raised in this revision has already been discussed in the order of the appellate court and the findings recorded by the court below is based on the evidence available on record and in accordance with law. The age of the juvenile is above 18 years on the date of occurrence on the basis of expert opinion of the medical evidence tendered before the court below has been correctly and legally appreciated. So, I hold that neither there is any infirmity nor any perversity in the impugned order. The contention of learned counsel for the revisionist is devoid of merit.

Accordingly, this revision is dismissed.

Interim order, if any, is hereby vacated.

Let a copy of this order be sent to the court concerned for necessary compliance and proceedings in accordance with law.

Order dated:20.12.2017

RPD/