Awdhesh Kumar Dwivedi vs State Of U.P. And 2 Others
2021 Latest Caselaw 4233 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved on 01.02.2021
 
Delivered on 22.03.2021
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 2296 of 2018
 
Revisionist :- Awdhesh Kumar Dwivedi
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Jai Bahadur Singh,P.K. Singh
 
Counsel for Opposite Party :- G.A.,Jitendra Singh,Rajesh Kumar Dubey,Sudheer Rana
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Shekhar Kumar Yadav,J.

Although, the instant revision is cognizable by a Single Judge, the same has, under orders passed earlier, been connected with the criminal appeals, which are cognizable by a Division Bench. We have therefore heard the revision and are deciding it finally.

During the pendency of Criminal Appeal No. 3509 of 2008 directed against conviction of Awdhesh Kumar Dwivedi in ST No. 82 of 1996- an application raising the issue of his juvenility on the date of incident was filed and the issue was remitted to the Juvenile Justice Board.

The Juvenile Justice Board found Awdhesh Kumar Dwivedi son of Shiv Balak one of the accused in Sessions Trial No. 82 of 1996, under Sections 364, 302, 201 I.P.C., P.S. Kotwali, District Fatehpur to be a juvenile. The appeal preferred against the said order by the revisionist was also dismissed by the Additional Sessions Judge, Court No. 1, Fatehpur. Hence this revision challenging the two orders.

The case before the Juvenile Justice Board, Fatehpur was that accused and convict Awdhesh Kumar was born on 06.07.1978 as recorded in his school certificate and that he was only 16 years and 5 months old on the date of incident. It was also the case that the opposite party studied up to the primary level in Maa Sharda Flower Public School, Ganga Nagar, Fatehpur. While leaving the said institution, no transfer certificate was obtained. As a result he studied the course of class 6th and 7th at home. He was admitted in class 8th in Rashtriya Madhyamik Vidyalaya/Maa Chandra Rani Inter College Fatehpur on the basis of an affidavit. Apart from the above, opposite party had not obtained education elsewhere.

It appears that the Juvenile Justice Board in accordance with Section 7-A of the Juvenile Justice Act, 2000 and Rule 12(3) of the Rules of 2007, dealt with the evidence on record including the Scholar Register, wherein the name of the opposite party was found at Sr. No. 22293 and the date of birth was recorded as 06.07.1978. This evidence was discarded by the Board on the ground that although Shivpal Singh Gautam, Head Master of the Institution stated that the opposite party was granted admission on the basis of an affidavit, he also stated that date of birth of Awdhesh Kumar Dwivedi was not mentioned in the affidavit dated 17.09.1990. Therefore, the date of birth recorded in the Scholar Register as 06.07.1978 was found to be without any basis and, accordingly, discarded.

The Headmaster also stated that no transfer certificate was issued to the opposite party nor any document regarding his date of birth was present in the institution.

The Headmaster of Maa Chandra Rani Gupta Inter College/Rashtriya Madhyamik Vidyalaya, Fatehpur stated that the name of Awdhesh Kumar Dwivedi, caste Brahmin, religion Hindu, son of Shiv Balak, is to be found at Sr. No. 2503 of the Scholar Register. His date of birth, is recorded as 06.07.1978. Awdhesh Kumar was admitted on 01.08.1989 in class 8th and passed the same on 19.05.1990. This witness admitted that in the admission register there is cutting as regards the page numbers and this is in different ink. The page of which the name of Awdhesh Kumar is to be found at Sr. No. 2503, at its beginning contains Sr. No. 2500. Thereafter, in Sr. No. 2501 there is overwriting. There is overwriting also on Sr. Nos. 2504 and 2505. He has also stated that Awdhesh Kumar obtained transfer certificate from the institution at least four times. It has also been admitted that the Scholar Register mentions the name of the earlier, institution attended as Subhash Junior High School Ramva and that Awdhesh Kumar was admitted on the basis of a class 7th transfer certificate, but no document regarding the admission is available in the institution. The witness was also unable to explain as to how and on what basis the date of birth was recorded as 06.07.1978.

It was also recorded in the order of the Board that the Scholar Register of Rashtriya Madhyamik Vidyalaya, Fatehpur, contains entries at S. No. 2415 regarding Sushil Kumar Gupta, Ramshankar is recorded as S. No. 2597, Sandeep Uttam at S. No. 2498, Anil Kumar at S. No. 2500, Vijay Bahadur at S. No. 2502, Awdhesh Kumar Dwivedi at S. No. 2503, Munnalal at S. No. 2504, Subhash Chandra at S. No. 2505, Deshraj at S. No. 2512, Ramesh Chandra at S. No. 2513 and Shyam Babu at S. No. 2514. Before each of their names, the earlier school is shown to be Subhash Junior High School Ramva. Not even one of these persons had ever studied in Subhash Chandra Junior High School, Ramva. Consequently, a finding was recorded that the date of birth set-up by the opposite party , namely, 06.07.1978 was not established by the documents obtained from the schools and that the evidence was not admissible in view of Section 35 of the Indian Evidence Act.

Consequently, during the course of inquiry, records were summoned from Devendra Pratap Singh, Head Master of Subhash Junior High School, Ramva. The said Headmaster appeared before the Board and denied that Awdhesh Kumar had ever obtained education in his institution between 01.07.1988 and 31.07.1989 and stated that his name was not recorded in the Scholar Register.

Since the educational evidence was not found to be reliable, the juvenility of the opposite party has been determined on the basis of medical evidence and on its basis, the age of the opposite party, Awdhesh, on the date of incident, namely 06.07.1994, has been held to be 11 years 4 months 9 days.

Assailing the order of the Board as also the order dismissing the consequential appeal, the submission of Shri P.K. Singh, learned counsel for the revisionist is that the authorities below have not proceeded in accordance with law. For this purpose, he has placed before the Court, Rule 12 of 2007, Rules, which reads as follows:-

"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.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

The contention of learned counsel for the revisionist is that the claim of juvenility was on the basis of educational records. These records were found to be unreliable and not worthy of credence. Under the circumstances and in view of the words "in absence thereof" occurring in clauses 3(a) (i) (ii), it was not open for the Juvenile Justice Board to have determined, the juvenility on the basis of medical evidence. Medical evidence could be looked into or could be the basis of determining juvenility only in complete absence of the matriculation certificate, educational records or records like birth or family register certificates/records. The same interpretation emerges from Rule 12 (3) (b).

He has next submitted that records produced from the Panchayat have been wrongly and illegally discarded. The original family register maintained in the Panchayat was produced and proved by the Gram Panchayat Adhikari who had appeared before the Board. The original record produced by her was duly signed and sealed. It was a document prepared during the normal course of maintenance of such a record. The same was therefore admissible and liable to be taken into account in view of Section 35 of the Indian Evidence Act, 1872 and in failing to do so the Juvenile Justice Board committed manifest illegality. The Board wrongly discarded the original register merely on the ground that the Gram Panchayat Adhikari, Anuradha Yadav was not able to state as to the year in which this register was prepared.

It has also been submitted that the question of juvenility was not raised either before or after the trial. It was also not raised when the appeal against the conviction was filed in the year 2008. This plea has been raised at a very belated stage and is therefore, clearly mala-fide. In any case, the opposite party has not come with clean hands and has been raising varying claims as regards his date of birth at different stages.

Shri Jitendra Singh, learned counsel appearing for the revisionist, Awdhesh Kumar Dwivedi has supported the impugned orders and has prayed for dismissal of the revision.

We have considered the submissions made by learned counsel for the parties and perused the record.

We find merit in the submission of learned counsel for the revisionist that the Juvenile Justice Board has wrongly and illegally discarded the family register produced and proved by the Gram Panchayat Adhikari.

It is not disputed that this document was signed and sealed. It is a document, which was prepared in the normal course of business. The Juvenile Justice Board was not justified in not relying upon it on the specious reasoning that the Gram Vikas Adhikari was not able to state the year in which this register was prepared. In any case, maintenance of the family register is a continuous process and therefore, the question as to when it was prepared was wholly irrelevant. It is clearly a public record made it performance of duty. Section 35 of the Indian Evidence Act in this regard is relevant and the same is reproduced below:-

"35. Relevancy of entry in public 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."

The family register is prepared in discharge of official duty and therefore, the same in the absence of any other reasoning except that the Gram Vikas Adhikari was not able to state as to when the register was prepared, could not have been discarded. The Juvenile Justice Board has therefore discarded evidence, which were not only relevant but was clearly admissible, and in doing so has committed a jurisdictional error, which warrants interference. As per this official record, which has been wrongly discarded, Awdhesh Kumar Dwivedi was clearly not a juvenile on the date of incident as his date of birth therein is recorded as 06.07.1978.

Moreover, not only has relevant and admissible evidence been wrongly discarded, we also find substance in the contention of learned counsel for the revisionist that once there was evidence available in the form of the family register, it was not open for the Juvenile Justice Board to have taken recourse to medical evidence for determining the question of juvenility. Medical evidence could be relied upon only in the complete absence of evidence referred to in Rules 12(1) a (i) (ii) and (iii). This clearly emerges from a bare perusal of Rule 12 of the 2007 Rules quoted in the earlier part of this order and is supported by the observations made in paragraph 32 of the judgment by the Apex Court in Ashwani Kumar Saxena vs. State of M.P. 2012 Law Suit (SC) 607, which is extracted below:-

"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 (underline for emphasis). 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."

The Juvenile Justice Board or the Committee has to determine the question of juvenility on the basis of (i) matriculation certificate and if the same is not available on the basis of the date of birth as recorded in the school first attended and in its absence on the basis of birth certificate or record maintained by a Corporation or Municipal authority or a Panchayat.

Rule 12 (1) (b) clearly provides that it is only in the absence either 1, 2 or 3 of clause A of the Rule 12, medical opinion be sought from a duly constituted Medical Board for determining the age of the juvenile.

In our considered opinion, the words "in absence of" cannot be read to mean evidence, which has been discarded. Therefore, it is only when neither the matriculation certificate nor the date of birth certificate from the school nor the date of birth given by a corporation or a municipal authority or a Panchayat is completely non existent, can juvenility be decided on the basis of the opinion of a Medical Board.

It is true that the matriculation certificate of the Awdhesh Kumar Dwivedi was not available as he has not studied up to that level. The date of birth certificate of the school was rightly discarded as it appeared to be manipulated. However, as already noticed above, the date of birth recorded in the family/register of birth and death has wrongly been discarded. This document proved that the opposite party was not a juvenile on the date of incident.

Under the circumstances, the order of the Juvenile Justice Board dated 07.02.2018 holding the opposite party to be a juvenile on the date of incident as also the order of the appellate authority dated 26.05.2018 affirming it, are both vitiated by jurisdictional errors. They, therefore, cannot be sustained and are, hereby set aside.

Accordingly, the revision is allowed and on the basis of the evidence wrongly discarded by the two authorities below, it is held that the opposite party was not a juvenile on the date of the incident.

Order Date :- 22.3.2021

RKM/ Mayank