Ghan Shyam vs State Of U.P. And Another
2017 Latest Caselaw 6740 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 

 
Court No. - 17
 

 
Case :- CRIMINAL REVISION No. - 15 of 2015
 

 
Revisionist :- Ghan Shyam
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Sanjeev Kumar Pandey,Rohit Nandan Pandey
 
Counsel for Opposite Party :- Govt.Advocate,Upendra Upadhyay
 

 
Hon'ble Prabhat Chandra Tripathi,J.

Heard Sri Sanjeev Kumar Pandey, learned counsel for the revisionist, Sri Upendra Upadhyay, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the material placed on record.

The instant criminal revision has been preferred by the revisionist against the impugned judgment and order dated 06.12.2014 passed by the learned court of Additional Sessions Judge, Room No.-1, Etah in disposal of application No.17Ba which was presented by the Ghanshyam, father of the accused person Mauharpal @ Muharpal to declare his minor son Mauharpal "a juvenile in conflict with law" in Case Crime No. 161 of 2014 under Sections 363, 366, 376 I.P.C. and Section 4 POCSO Act, Police Station- Malawan, District- Etah.

The first information report in Hindi vernacular is enumerated as below:-

"The informant Ghanshyam s/o Leeladhar resident of village Dalelpur, Police Station- Malawan, District- Etah on date 04.08.2014 presented a written application scribed by Murari Lal s/o Parwat Singh resident of village Kagraul, Police Station- Malawan, Etah in the Police Station- Kotwali Malawan, Distict- Etah that applicant/informant Ghanshyam s/o Leeladhar resident of Dalelpur, Police Station Malawan, District Etah, had two daughters, named, Km. Rooma and Km. Sukhdevi, aged about 15 years and 12 years respectively. His both daughters studied at Siypur. Km. Rooma studied in class 9 and Km. Sukhdevi in class 6. On date 4.8.2014 his both daughters proceeded to school from their home. On the way, Mauharpal s/o Ghanshyam resident of Dalelpur, Malawan, Etah met and enticed away his elder daughter Km. Rooma at about 8:00 hours in the morning. His another daughter Km. Sukhdevi returned and narrated the incident. They were searching for his daughter Km. Rooma; she could not be traced out."

Learned counsel for the revisionist assailed the impugned judgment and order dated 06.12.2014 of the learned court of Additional Sessions Judge, Room No.1, Etah only on the sole ground of non-compliance of Section 35 of The Indian Evidence Act, 1872. No other points were raised. Whereas, learned counsel for the opposite party no.2 has forcefully opposed the arguments of the learned counsel for the revisionist and has submitted that Section 35 of The Indian Evidence Act, 1872 has been complied with.

Learned counsel for the revisionist has relied upon the following rulings:-

(i). Jabar Singh vs. Dinesh and another, 2010 (69) ACC 326

(ii). Vinod vs. State of U.P. and another; 2014 (2) JIC 72 (All)

Learned counsel for the opposite party no.2 has relied upon the following rulings:-

(i). Saddam @ Sonu vs. State of U.P. and another; 2012 (1) AWC 254

(ii). Jai Prakash Tiwari vs. State of U.P. and another; 2016 (9) ADJ 627

Section 35 of The Indian Evidence Act, 1872 is extracted as below:-

"35. Relevancy of entry in public [record or an electronic record] made in performance of duty.- An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact."

I have thoroughly perused the impugned judgment and order dated 06.12.2014 passed by the learned court of Additional Sessions Judge, Room No.-1, Etah. According to the facts which are mentioned in the aforesaid impugned judgment and order. The facts are enumerated as below:-

"The informant Ghanshyam, father of the accused person Mauharpal presented an application No. 17Ba supported with an affidavit that his son Mauharpal is minor and on the date of alleged incident, he was 17 years old and annexed the photocopies of the Transfer Certificate of class 5 and 6. According to which his date of birth was 10.8.1997. 27B objection was filed on behalf of the informant Ghanshyam s/o Leeladhar stating therein that accused person Mauharpal has presented an application No.17Ba dated 04.09.2014 on the basis of false and wrong facts. In the voter list dated 01.01.2013 accused Mauharpal was voter and at that time he was aged about 20 years. Thus, on the date of alleged incident, he was major aged about 21 years. As such, the application No.-13Ba presented by the applicant Ghanshyam is liable to be rejected.

It has been further mentioned that Ghanshyam, father of the accused person has presented paper No. 17K1/4 certificate issued by the Principal of Jan Kalyan Uchchtar Madhyamik Vidyalaya, Siypur, Etah and paper No. 17B1/5 certificate issued by the Principal of Saraswati Shishu Mandir, Dalelpur, Etah. According to the above mentioned both the papers, the date of birth of Mauharpal @ Muharpal is registered as 10.8.1997. A report of paper No. 17B1/2 was called for from the Police Station and according to which the above mentioned date was confirmed.

Father of the accused person has produced paper No. 17Ba1/6 Register and Transfer Certificate Form along with original papers of Jan Kalyan Uchchtar Madhyamik Vidyalaya, Siypur, Etah and Child Registration and Transfer Certificate paper no. 17Ba1/7 in the Transfer Certificate of Saraswati Shishu Mandir, Dalelpur, Etah. The first date of admission of the student has been mentioned as 5.10.2001 and date of birth has been entered on 10.8.1997. The prosecution has produced the identity card issued by the Election Commission of India of the accused person Mauharpal @ Muharpal and also detailed Election Rules, 2014 in which age of the accused person has been mentioned as 20 years. Before the learned court of Additional Sessions judge, Room No.1, Etah, C.W.-1 Govind Singh, Principal of Saraswati Shishu Mandir, Dalelpur, Etah has on oath verified the date of birth of Mauharpal as 10.8.1997 and also certified that Mauharpal took admission in preparatory class on date 05.01.2001. After passing class 5, left the school on date 20.5.2007. These facts was verified from the original school certificate brought before the learned court of Additional Sessions Judge, Room No.1, Etah. This fact is also verified from the Register and Transfer Certificate Form Dalelpur, Etah which is paper No. 23A. C.W.-2 Chob Singh, Principal of Jan Kalyan Uchchtar Madhyamik Vidyalaya, Siypur, Etah deposed on oath that the date of birth of the accused person Mauharpal @ Muharpal is as 10.8.1997. Further, facts of admission in his school in class 6 on date 03.07.2007 was also proved on oath by him. He has deposed on oath and proved the entry of date of birth on the basis of the original Register and Transfer Certificate Form before the learned court of Additional Sessions Judge, Room No.1, Etah. While passing the order, the learned court of Additional Sessions Judge, Room No.1, Etah has cited the ruling of Jabar Singh vs. Dinesh and another 2010 (69) ACC 326 in which  according to the Section 35 of The Indian Evidence Act, 1872, the date of birth entered in the Register and Transfer Certificate Form is genuine and also cited the ruling of Saddam @ Sonu vs. State of U.P. and another; 2012 (76) ACC 131. After making a detailed inquiry in the matter, learned court of Additional Sessions Judge, Room No.1, Etah has arrived at this conclusion that the date of birth of the accused person was 10.8.1997 and resultantly declared him juvenile in conflict with law on the date of alleged occurrence.

It is pertinent to mention here that no relevant documents were produced on behalf of the informant Ghanshyam regarding the question of date of birth of the accused person Mauharpal @ Muharpal.

Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 has specifically mentioned the procedure to be followed in determination of age. According to Rule 12 (3) (a) (ii) of Juvenile Justice (Care and Protection of Children) Rules, 2007, "the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;........" is applicable in this case.

Learned court of Additional Sessions Judge, Room No.1, Etah has adopted all the procedure which are enshrined in Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 35 of The Indian Evidence Act, 1872.

Thus, I do not find any illegality, impropriety or perversity in the impugned order dated 06.12.2014 passed by the learned court of Additional Sessions Judge, Room No.1, Etah and, therefore, no interference is warranted at this stage.

In view of the above, this instant criminal revision lacks merit and is liable to be dismissed.

Accordingly, the criminal revision is dismissed on merits.

Date :- 13.11.2017

Atmesh