Tarun Singh vs State Of U.P. Thru. Addl. Chief Secy. ...
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Allahabad High Court

Tarun Singh vs State Of U.P. Thru. Addl. Chief Secy. ... on 11 April, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:20671
 
Court No. - 12
 

 
Case :- CRIMINAL APPEAL DEFECTIVE No. - 71 of 2025
 

 
Appellant :- Tarun Singh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Lko. And 3 Others
 
Counsel for Appellant :- Ashutosh Kumar Shukla,Shreshth Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Alok Mathur,J.
 

C. M. Application No.2 of 2025 for condonation of delay.

1. Heard Sri Ashutosh Kumar Shukla, learned counsel for the appellant, learned A.G.A. for the State and Ms. Shivangi Kapoor, Advocate who has put in appearance on behalf of opposite party No.2 and filed vakalatnama which is taken on record.

2. The cause shown is sufficient. Application is allowed

3. The delay in filing the appeal is condoned.

Order on memo of the appeal.

1. Heard Sri Ashutosh Kumar Shukla, learned counsel for the appellant, learned A.G.A. for the State and Ms. Shivangi Kapoor, Advocate who has put in appearance on behalf of opposite party No.2.

2. Present appeal under Section 101 (5) of Juvenile Justice (Care and Protection of children) Act, 2015 against the judgment and order dated 4.9.2024 passed by additional Sessions Judge/Special Judge, POCSO Act, Raebareli whereby the application of opposite party No.2 has been allowed and he has been declared to be a juvenile.

3. It has been submitted on behalf of the appellant that an F.I.R. in case crime No.286/2023 under Sections 376 D, 506 IPC, Section 67A, IT Act and Section 5 g/6, POCSO Act was registered by the appellant against accused - opposite party No.2 on 24.7.2023 alleging therein that at 11.30 AM when the appellant's sister had gone to ease herself the three accused, who were waiting, forcibly took her to abandoned building of Lakshya Montessori Public School where she was gang raped by the accused. When she tried to run and escape they forcibly snatched her mobile and threw it. They also made obscene videos of her and threatened her not to disclose about the said incident to anybody. It has further been stated that medical examination was also conducted indicating injuries on the body of the prosecutrix and even the videos have been disclosed to the investigating officer.

4. Application was moved by opposite party No.2 under Section 9 (2) of the Juvenile Justice (Care and Protection of children) Act, 2015 claiming that he was a juvenile and was 17 years of age on the date of the incident i.e. 20.7.2023. In the said application it was stated that on the date of the incident opposite party No.2 was 17 years' 9 days and his date of birth as per the High Schools certificate is 11.7.2006. The petitioner had also opposed the said application under Section 9 and had filed his objection. Alongwith the objections the appellant had filed educational certificates which was issued from Saraswati Vidya Mandir, which was run by Jan Shiksha Samiti Awadh, Uttar Pradesh where date of birth of opposite party No.2 was recorded as 1st February, 2005 and it was the contention of the appellant that in case the date of birth of opposite party No.2 is 1.2.2005 then he would be above 18 years of age and would not be a juvenile on the date of occurrence of the said incident.

5. Additional District and Sessions Judge had duly recorded the evidence adduced by both the sides. In support of his submissions opposite party No.2 had produced the educational certificates of class 9th and 10th issued by Gyan Bharti Intermediate College, Parshdepur, Raebareli and in all the said education certificates date of birth of opposite party no.2 was recorded as 11.7.2006. In support of his evidence he had also produced Rajendra Parsad Srivastava, the Principal of Gyan Bharti Intermediate College, Parshadepur Deeh, Raebareli who had stated that as per the register maintained by them, the name of opposite party No.2 had occurred at serial No.15436 and copy of the same was also produced before the court and original admission form was also produced and it was stated that opposite party No.2 had studied from class 9th to 12th in the said institution and even in the transfer certificate of class 8th the date of birth of opposite party No.2 was recorded as 11.7.2006. All these documents were duly verified by him. It was further stated that at the time of admission no date of birth certificate was submitted by the parents and only on the basis of transfer certificate the date of birth was recorded. The appellant also produced Radhey Shyam, a retired Principal of Saraswati Vidya Mandir, Dilavalpur, Adhova Deeh, Raebareli, as a witness, who stated that opposite party No.2 had got admission in class 6th in the academic session 2014 - 15 during which period he was the Principal of the said institution. He had further stated that original documents are not in his custody as the said school has closed down and, therefore, could not prove the educational certificate issued by the institution. It is in aforesaid facts that the court of Sessions Judge has held the date of birth of opposite party no.2 as 11.7.2006 on which date he was a juvenile.

6. Learned counsel for opposite party No.2 has again reiterated his contention which he had placed before the trial court and has thus opposed the appeal. It has been submitted that the order has been passed after giving due opportunity of hearing to the complainant and on the basis of the matterial and evidence so proved before the court concerned. It was stated that cogent and reliable evidence was produced on behalf of opposite party No.2 indicating his date of birth as 11.7.2006 and the educational certificates produced by them were duly proved by the Principal of the institution, who has appeared and gave his statement in the trial court.

7. On due consideration of the facts and material on record, it is noticed that as per the provision of Section 9 any person, who is accused of an offence, can raise a plea before the court concerned with regard to the fact that he was a juvenile on the date of the said incident. In case such an application is made the court is duly empowered to consider the material and evidence and determine as to whether the said person would be a juvenile on the date of occurrence of the said incident. In the present case, opposite party No.2 had filed his educational certificates indicating his date of birth to be 11.7.2006.

8. Per contra, the appellant, who is complainant of the said case, had also produced educational certificates indicating the date of birth of opposite party No.2 to be 1.2.2005. The certificates produced by opposite party No.2 was duly verified and proved before the trial court while on the other hand, the certificates produced on behalf of the petitioner could not be proved and it was stated by the Principal of the said institution that the institution had been closed and he was not in possession of the original documents. The trial court found that the certificates produced by the opposite party No.2 stood proved and determined his date of birth to be 11.7.2006.

9. In these facts and circumstances, this Court has been called out to consider the available order has been passed in consonance with the provisions of Section 94 of the J.J. Act which reads as under:-

"Presumption and determination of age.

(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining?

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

10. From the aforesaid provisions and from evidence it is clear that it is only on the basis of educational certificates that date of birth of opposite party No.2 has been sought to be proved. There is no dispute that date of birth certificate was not before the Court nor was the same produced either by the complainant or on behalf of opposite party No.2 and even the evidence produced by them was in form of educational certificates and the educational certificates and the evidence produced by opposite party No.2 were duly proved by the Principal of the institution who even produced the original register indicating the date of entry in the said institution and the date of birth was recorded on the basis of transfer certificate of class 8th produced on behalf of opposite party No.2. On the basis of educational certificates produced by the complainant date of birth could not be proved in evidence as the Principal has clearly stated that he was retired from the school and the said institution has been closed and the original documents are not in existence.

11. Considering the fact that determination of age at the stage of Section 90 is merely summary proceedings and on the basis of the evidence produced by the trial court, I do not find any infirmity in the finding which has been recorded with regard to the date of birth of opposite party No.2 to be 11.6.2006. In view of the aforesaid discussions this Court does not find any merit in the case. The appeal is accordingly dismissed.

(Alok Mathur, J.)

Order Date :- 11.4.2025

RKM.