X Juvenile vs State Of U.P. And Another
2022 Latest Caselaw 19481 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 91
 

 
Case :- CRIMINAL REVISION No. - 1827 of 2022
 
Revisionist :- X Juvenile
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Rohit Nandan Pandey
 
Counsel for Opposite Party :- G.A.,Kandarp Srivastava,Kaustubh Srivastava
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. None responded for respondent no.2.

2. Heard Sri Rohit Nandan Pandey, learned counsel for the revisionist and Sri Vinay Kumar Singh, learned A.G.A. for the respondent no.1.

3. The revisionist a juvenile has challenged an order dated 08.04.2022 passed by the Additional Sessions Judge-Ist/Special Judge (POCSO Act), Mathura in Criminal Appeal No. 80 of 2021 whereby the order declaring the revisionist a juvenile passed in a matter arising out of Case Crime No. 184 of 2020, under Sections 302 I.P.C. was set aside and the matter of age determination was remanded to the Juvenile Justice Board for deciding it afresh in the light of observations given in the appellate order.

4. The relevant fact leading to this criminal revision are as below:-

5. An F.I.R. was lodged naming juvenile accused under Section 302 I.P.C. The matter was investigated upon. Finding the assailant-accused a minor, she was produced before Juvenile Justice Board where age determination enquiry was conducted and she was declared aged 17 years, 3 months, 26 days thereby a minor below 18 years on the date of occurrence.

6. The informant preferred an appeal against the order of the Juvenile Justice Board. The appellate Court did not find the order sustainable in the eye of law and set-aside it remanding the matter to the Juvenile Justice Board for deciding it afresh.

7. Before dealing with the contentions of the revisionist, the basis of the two orders is briefly mentioned herein below:-

8. It is revealed from the order of the Juvenile Justice Board that certain papers from National Inter College, Jhakhera, Kasganj, from where she passed her High School examination and from R.S.S. Memorial Public Junior High School, Dholna, Kasganj from where she passed class 6th and 8th were produced to prove that her date of birth was 20.06.2003. The papers included a mark-sheet from High School, a T.C. from that very school and third paper T.C. issued by R.S.S. Memorial Public School which was issued on her passing class 8th supposedly on the basis whereof admission was taken in the subsequent school. It is also revealed from the order passed by the Juvenile Justice Board that certain papers from the side of the informant were also produced which showed that she took admission in Madhyamik Vidyalaya, Bhogipur, Gangiri, Aligarh and took education from class 1 to 5th. The papers which have been produced by the informant included the copy of admission form, copy of T.C., copy of S.R. Register and to prove those papers the Principal of that school Sandeep Kumar was examined. The date of birth in the school papers produced by the informant's side was mentioned as 20.06.2000. The Juvenile Justice Board found that at the time of admission in class 1, no birth certificate or Aadhar Card was produced and the admission form did not bear signature of her parents.

9. On the basis of above observations, the Juvenile Justice Board was of the view that academic papers from class 1st to 5th produced by the informant were less reliable than the papers produced on behalf of juvenile relating to her T.C. from class 8th and High School certificate and was also of the view that in case matriculation certificate was available that paper was to be given primacy over others and therefore declared her as below 18 years of age on the basis of her date of birth in matriculation certificate.The appellate Court independently assessed the oral and documentary evidence produced by both the sides and took notice of the academic papers from class 1st to class 5th of the juvenile and grappled with the discrepancy and difference in dates of birth in her school papers.

10. No evidence came forth before the Court to show that when the juvenile took admission in class 6th in R.S.S. Memorial Public School, Dholna, Kasganj, a T.C. from any previous institution was given. There is a missing link which was noticed by the appellate Court.

11. Admittedly, no paper was produced on behalf of juvenile-accused to show that the date of birth as recorded in R.S.S. Memorial Public School, Dholana, Kasganj was based on any paper from any previous institution. On the other hand there are papers from a Primary School which show a different date of birth.

12. This is not the case that the revisionist never studied in Madhyamik Vidyalaya, Bhogipur, Gangiri, Aligarh. In case, she did not took her primary education in the aforesaid school, the evidence could have been given to show that she studied in some other school. The revisionist side instead decided to keep mum. If some very material information/evidence is withheld by a party, adverse presumption can be drawn. While conducting an enquiry the Court is not expected to fall in a trap laid down by a party and draw inference in a mechanical manner without application of mind.

13. The revisionist has placed reliance on judgement of Allahabad High Court in Meghraj Sharma Vs. State of U.P. 2021 (116) ACC 802 in support of his contention that where the Matriculation/High School Certificate was available, it shall be given primacy over the other school certificates. I went through the aforesaid judgement, the opinion was given by the High Court on the basis of provisions of Juvenile Justice (Care and Protection) Act, 2000 read with Rules 2007 for determining the juvenality. It may be noted that there is a basic difference between the provisions of law as applicable under the Juvenile Justice (Care and Protection) Act, 2015 from those applicable under 2000 Act mentioned above.

14. In the case of Risipal Solanki Vs. State of U.P. and others, 2021 (11) ADJ 489, the Apex Court clearly observed that when a claim for juvenality is raised the burden falls on the person raising the claim to satisfy the Court. It is also said that presumption, though may be raised as per the provisions of law mentioned in Rule 12 (3) (A) (i) (ii) and (iii) of the Juvenile Justice Rules 2007 made under Juvenile Justice Act, 2000 or Sub-Section (2) of Section 94 of the Juvenile Justice Act, 2015. However, such presumption is not conclusive proof of the age of the juvenile and the same may be rebutted by contra evidence let in by the opposite side. The Hon?ble Apex Court in Para 29 of Rishipal Singh Solanki (supra), after considering all the judgments held as below:

?29. What emerges on a cumulative consideration of the aforesaid catena of judgments is as follows:

(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case.

(ix) That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.

(x) Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act viz., section 35 and other provisions.

(xi) Ossification Test cannot be the sole criterion for age determination and a mechanical view regarding the age of a person cannot be adopted solely on the basis of medical opinion by radiological examination. Such evidence is not conclusive evidence but only a very useful guiding factor to be considered in the absence of documents mentioned in Section 94(2) of the JJ Act, 2015.?

15. The essence of the judgement in my view is that Court/Juvenile Justice Board should apply its judicial mind and assess the evidence in its right perspective and then draw a conclusion based on evidence. The dictum in Rishipal Solanki's case is based on consideration of a catena of judgements.

16. In my view that the lack of continuity prompted the appellate Court not to agree with the finding of Juvenile Justice Board. In my view, this glaring gap put the Court on alert in not agreeing with the one sided finding given by the Juvenile Justice Board. I do not find any good ground to interfere in the order of appellate Court.

17. The revision is accordingly, dismissed.

Order Date :- 2.12.2022

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