Allahabad High Court
Ajay Kumar @ Bachcha Yadav @ ... vs State Of U.P. & Another on 20 December, 2017
Bench: Ravindra Nath Kakkar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
A. F. R.
Court No. - 55
Case :- CRIMINAL REVISION No. - 4681 of 2015
Revisionist :- Ajay Kumar @ Bachcha Yadav @ Krishnanand Yadav
Opposite Party :- State Of U.P. & Another
Counsel for Revisionist :- Shiv Prakash Chaudhary
Counsel for Opposite Party :- G.A.,M.K.Tiwari
Hon'ble Ravindra Nath Kakkar,J.
Heard Sri Shiv Prakash Chaudhary, learned counsel for the revisionist as well as learned A.G.A. for the State.
This criminal revision has been preferred against the order dated 24.10.2001 passed by the District & Sessions Judge, Kaushambi in Session Trial No. 79 of 2001 (Case Crime No. 49 of 2001), State Vs. Ajay Kumar, under Section 25 Arms Act, Police Station- Charwa, District-Kaushambi connected with S.T. No. 84 of 2001 (Case Crime No. 45 of 2001), State Vs. Sushil Kumar and another, under Section 302/34 I.P.C., PS-Charwa, District- Kaushambi whereby the application of the revisionist for declaring him as juvenile has been rejected.
The relevant facts of the case are that the opposite party no. 2 lodged First Information Report against the revisionist which is registered as Case Crime No. 45 of 2001, under Section 307 I.P.C., PS-Charwa, District-Kaushambi. The injured Ram Samunder Yadav @ Kallu died while he was taken to the hospital and case was converted under Section 302 I.P.C. On the recovery of the country made pistol from the possession of the revisionist First Information Report has been lodged as Case Crime No. 49 of 2001, under Section 25 Arms Act, PS-Charwa, District-Kaushambi.
After completion of the investigation, the charge-sheet against the revisionist and other co-accused Sushil Kumar Srivastava, under Sections 302/34 I.P.C. was filed by the Investigating Officer.
It is contended by learned counsel for the revisionist that on the date of incident revisionist was juvenile as his date of birth is 11.04.1985. It is further contended that revisionist moved an application before the trial court to declare him as juvenile. It is further contended that revisionist appeared in the U.P. Board of High School Examination, 2000 and his date of birth as mentioned in the High School Marksheet is 11.04.1985 and in Transfer Certificate of Class 5th also his date of birth is recorded as 11.04.1985. It is further contended that revisionist was also medically examined on 21.08.2001 and as per radiologist report the age of the revisionist was determined as above 16 years and below 18 years on the date of the incident. It is further contended that all these documents filed in support of the application of the revisionist have not been considered in the legal prospective and learned trial judge illegally rejected the application moved on behalf of revisionist which is against the weight of evidence on record. Hence, prayer has been made to allow the revision and set aside the order dated 24.10.2001 passed by the District & Sessions Judge, Kaushambi.
In support of the above arguments, learned counsel for the revisionist has cited certain judgement of Hon'ble Apex Court i.e. 2013 Law Suit (SC) 587, Jitendra Singh @ Babbo Singh & Another Vs. State of U.P. and 2010 (1) SCCrR386, Hari Ram Vs. State of Rajasthan and another.
Per contra learned A.G.A. supports the impugned order of the learned trial judge and made submission that there was material contradictions in the documents produced before the trial judge as prosecution has produced extract of the family register regarding the date of birth of the revisionist and according to this document the date of birth of the revisionist was found to be 02.04.1981. Further, a copy of the amended Voter list shows that age of the revisionist was 19 years on the date of incident. So, revisionist was not juvenile on the date of incident and trial court has rightly ordered to face the trial in accordance with the procedure as laid-down under the Code of Criminal Procedure.
In light of the aforesaid contention as raised by both parties, I have perused the record .
The extract of scholar register and the transfer certificate shows the date of birth of the revisionist is 11.04.1985. The medical report shows that revisionist-applicant was above 16 years and below 18 years on the date of incident i.e. 26.04.2001. High School certificate which is to be given preference for determination of the juvenality under the rules of the Juvenile Justice (Care and Protection of Children) Rules shows that the date of birth of the revisionist-applicant is mentioned as 11.04.1985. This fact goes to establish that date of birth of the revisionist is found to be 11.04.1985 and the alleged incident is of 26.04.2001. On mathematical calculation it is an established fact that on the date of incident revisionist-applicant is below the age of 18 years.
It is relevant to mention that definition of juvenile given under Section 2 K of the Juvenile Justice (Care and Protection of Children) Act, 2000 is that "juvenile" "child" means a person who has not completed the 18 years of the age. Further to add that Hon'ble Apex Court in Jitendra Singh @ Babbo Singh (supra) in para 9 of the judgement has observed that-:
" The upshot of the above discussion is that while the appellant was above 16 years of the age on the date of the commission of the offence, he was certainly below 18 years and hence entitled to the benefit of the 2000 Act"
In Hari Ram (supra) cited above the Hon'ble Apex Court has held that:-
" Since the appellant was below 18 years of the age at the time of the commission of the offence even of the Act 2000 would apply and remitted the matter to the Board for reconciliation."
Applying the above legal propositions as laiddown by the Hon'ble Apex Court, I find that inescapable conclusion which could be arrived at is that on the date of incident the accused-appellant (revisionist) herein was above 16 years of age and below 18 years at the time of the commission of the offence. So the provision of the Act, 2000 is squarely applicable.
In view of the aforesaid discussion, I am of the view that impugned order dated 24.10.2001 is not sustainable in the eye of law and deserves to be set aside.
In light of the observations made above, the revision is allowed and the matter is remitted back to the trial court for considering the application of the revisionist afresh after giving an opportunity of hearing to both the parties, expeditiously preferably within a period of one month after the receipt of the order.
Order Date :- 20.12.2017
AKT
