Chattisgarh High Court

A vs State Of Chhattisgarh on 13 December, 2022

                                       1

                                                                           AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                             CRR No. 697 of 2022

   • A (Juvenile in conflict with law) S/o B [as per section 74 of Juvenile
     Justice (care and protection of children) Act, 2015.

                                                                 ---- Petitioner

                                    Versus

   • State Of Chhattisgarh Through Station House Officer, Police Station
     Pipariya, District : Kabirdham, Chhattisgarh

                                                               ---- Respondent



For Petitioner     : Shri Dharmesh Shrivastava, Advocate.
For Respondent     : Shri Sushil Sahu, Panel Lawyer.


                      Hon'ble Shri Deepak Kumar Tiwari, J

                                Order On Board
13/12/2022 :

  1.   The petitioner is challenging the impugned order dated 21.6.2022

       passed by the learned Additional Sessions Judge, FTSC (POCSO),

       Kawardha, District Kabirdham in Special Sessions Case No.68/2022

       whereby the learned trial Court has rejected the application of the

       petitioner for sending the case to the Juvenile Justice Board,

       Kawardha, District Kabirdham.

  2.   Facts

of the case, in brief, are that the victim (a minor girl aged below

16 years) has lodged a report stating that in the intervening night of

31st January, 2022 & 1st February, 2022, when she was sleeping in her

house, the applicant entered her room and committed forcible sexual

intercourse with her. Based on which Crime No.51/2022 has been

registered at Police Outpost Dashranpur, District Kawardha for

offence under Sections 376 (3) & 376 (2)(n) of the IPC and Sections 4

& 6 of the Protection of Children from Sexual Offences Act, 2012 (for

short 'the Act, 2012').

3. During investigation, mark-sheet of class-10th of the petitioner was

seized in which his date of birth was recorded as 15.4.2003. In the

mark-sheet of Middle School also, his date of birth is mentioned as

15.4.2003, which was later on corrected as 15.4.2004. Learned

Special Court under the POCSO Act, without making any enquiry or

obtaining other evidence regarding the date of birth of the accused,

has rejected the application of the petitioner, as during investigation,

mark-sheet of class-10th has been filed wherein the date of birth of

the petitioner was mentioned as 15.4.2003.

4. Learned counsel for the petitioner would submit that the trial Court has

ignored the School Certificate which was the very first document. In

the School Admission Register, correct date of birth is mentioned as

15.4.2004, according to which, the petitioner was juvenile on the date

of the incident. The petitioner has also filed School Entry Register of

Primary School Bhudkuda, Block Kawardha, however, the trial Court

without making any enquiry as to the juvenility of the petitioner, which

was raised by him, and without following the procedure envisaged

under Sections 9 and 94 of the Juvenile Justice (Care and Protection

of Children) Act, 2015 (for short 'the Act, 2015') and Section 34 of the

Act, 2012, passed the impugned order, which is not sustainable.

Reliance is placed in the matter of Shriram Rawat Vs. State of

Madhya Pradesh, Thr. P.S. Sitamau {2022 SCC OnLine MP 1995}

wherein when any issue is raised about the juvenility, proper

procedure has been laid down by the Hon'ble Supreme Court in the

matters of Rishipal Singh Solanki Vs. State of Uttar Pradesh {2021

SCC OnLine SC 1079} and XYZ Vs. Abhisheik and Another {2022

SCC OnLine SC 1200}.

5. On the other hand, learned State Counsel would submit that after

lodging of the report, father of the petitioner has filed an application for

correction of date of birth of the petitioner in the Class-10th mark-

sheet before the Chhattisgarh Education Board. Therefore, taking

plea of juvenility is an afterthought to come out from the cluches of

trial as major. He would further submit that the birth certificate was

also obtained by the petitioner and got registered after lodging of the

report on 24th June, 2022. The trial Court has rightly rejected the

application of the petitioner. So, learned State Counsel prays to

dismiss the Revision.

6. Heard learned counsel for the parties and perused the documents

annexed with the petition.

7. Section 34 of the Act, 2012 prescribes the procedure in case of

commission of offence by child and determination of age by Special

Court, which reads as under:-

34.Procedure in case of commission of offence by child and determination of age by Special Court. - (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015.

(2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such

question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.

(3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub-section (2) was not the correct age of that person."

8. In the matter of Siddu Vs. State, {2016 SCC OnLine Kar 8347}, the

following was observed:

"Section 34 of the POCSO Act is the substantive provision which empowers the Special Judge to determine the age of the person whether he is a Juvenile or an adult person and that particular person has to be tried before the Juvenile Justice Board or before the Special Court. Sub-clause (2) of Section 34 clearly indicates that if any question arises in a proceeding before the Special Court, whether the person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person. In this provision stress has to be given to the words - "for satisfying itself" and how this satisfaction can be arrived at by the court has to be tested by other surrounding circumstances like oral and documentary evidence placed before the court and also the relevant rules under the law for the time being in force."

9. The Hon'ble Supreme Court in its recent judgment in the matter of

Rishipal Singh Solanki (Supra) has considered the relevant judgments

on the question of determination of age and broadly laid down the

principles in para-29 of the judgment. The relevant clauses are as

under:--

"(iii) That when a claim for juvenility is raised, the burden is on the person raising the claim to satisfy the Court to discharge the initial burden. However, the documents mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules 2007 made under the JJ Act, 2000 or sub-section (2) of section 94 of JJ Act, 2015, shall be sufficient for prima facie satisfaction of the Court. On the basis of the aforesaid documents a presumption of

juvenility may be raised.

(iv) The said presumption is however not conclusive proof of the age of juvenility and the same may be rebutted by contra evidence let in by the opposite side.

(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."

(Emphasis Supplied)

10. As per the ratio decidendi of Rishipal Singh Solanki (supra), it is clear

that it is neither proper nor justifiable to apply any strict or abstract

formula for determination of age of a person. The Court must examine

the material available before it and on appreciation of evidence

adduced by the parties in each case, should determine the age of

victim/accused. It was further made clear that determination of age

when based on evidence, such as school record, the necessary

requirement of Section 35 of Indian Evidence Act must be complied

with.

11. Considering the aforesaid principles, presumption envisages under

sub-section (2) of Section 94 of the Act, 2015 shall be sufficient for

prima facie satisfaction of the Court and on such basis, presumption of

juvenility may be raised, but the said presumption is not conclusive

proof of age of the juvenile and the same may be rebutted by leading

evidence by the opposite side.

12. In the present case, no enquiry has been made with regard to the age

determination and no evidence has been obtained as per the

provisions stipulated in the Act, 2015 and Section 34 of the Act, 2012.

13. For the foregoing, the impugned order dated 21.6.2022 passed by the

Additional Sessions Judge, FTSC (POCSO), Kawardha deserves to

be and is hereby set aside. However, the said Court is directed to