Ajitbhai @ Bhoplo Trikambhai ... vs The State Of Gujarat
2021 Latest Caselaw 13402 Guj

     R/CR.A/888/2021                         IA ORDER DATED: 03/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2021
             In R/CRIMINAL APPEAL NO. 888 of 2021
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AJITBHAI @ BHOPLO TRIKAMBHAI SATHALIYA Versus THE STATE OF GUJARAT ========================================================== Appearance:

MR. RADHESH Y VYAS for the PETITIONER(s) No. MS JIRGA JHAVERI APP for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

Date : 03/09/2021 IA ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

This is an application preferred by the original accused - appellant as an applicant seeking suspension of sentence while questioning the legality of the judgment and order of the learned 4th Additional Sessions Judge, Bhavnagar in Sessions Case No.28 of 2019 dated 23.1.2020 whereby he has been held guilty under Section 302 of the Indian Penal Code and he is directed to undergo life imprisonment for alleged murder of spouses.

2. During the course of hearing, learned advocate Mr. Radhesh Vyas appearing for the applicant - appellant in legal aid has raised the issue of his birth date. According to him, the issue was not properly addressed since the applicant is an orphan and there is none to look after his interest.

3. This Court on 25.8.2021 acceding to his request, had directed the Investigating Officer to get certain details

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verified by passing the following order:-

"1. Noticing the Birth Certificate dated 29/01/2020 issued by the Principal, Shree Monpur Primary School, Monpur, Taluka Valbhipur, District Bhavnagar, from the General Register No.5398, Part-VII, the Birth-date of the applicant - Chudasama Ajit Trikambhai is 07/07/2003.

2. The date of offence being 21/11/2018, the applicant was aged 15 years and 4 months. However, as per Ossification Test his age is between 18 to 21, treating him as major, the court concerned tried.

3. Mr.Radhesh Vyas, learned advocate for the applicant has earnestly urged that this being his Birth Certificaate and he being orphan, there was none to support his case and he was tried as major by the court concerned, since his counter-part was unable to procure the Birth Certificate and produce it before the Court concerned.

4. He has further urged before this Court that in the Further Statement recorded under section 313 of the Code of Criminal Procedure, the applicant has stated that he is minor.

5. He has also urged this Court to invoke powers and make an inquiry with regard to the Birth-Date of the applicant. 6. The Investigating Officer is directed to verify the Birth Date of the applicant from the General Register and other documents, such as Birth Certificate issued by the Panchayat or any other authority, adduced by the parents or guardian, if any, on the basis of which Birth Certificate dated 29/1/2020 has been issued showing Birth Date of the applicant as 07/07/2003 and submit the report along with the proof of that documents and statement of the Principal of the School, on the next date.

Matter to be posted on 03/09/2021."

4. Today, the report which has been given by Valbhipur Police Station through Police Sub-Inspector Mr. Chudasama confirms that the birth date of the applicant is 7.7.2003 as has

R/CR.A/888/2021 IA ORDER DATED: 03/09/2021

been noted in the general register of the school at entry No.5398. When inquiry was conducted as to the basis on which the birth date has been reflected in the general register, the school administration confirms that there is no other document on the school record to substantiate his birth date. He was staying at Barvada and the Chief Officer, Barvada Municipality also has stated before the police in her statement that from 1998 to 2003, when the birth and death register has been examined, his birth has not been registered.

5. We have also considered the statement of Mr. Dharmendrasinh Jasvantsinh Solanki, Principal, Morpur Primary School and the statement of Mr. Hemubhai Ramabhai Gohil, Teacher of Morpur Primary School serving since last 21 years. The statements confirm the absence of any birth certificate issued by any of the authorities prescribed under the law. Copy of the general register is produced before this Court. The applicant has studied upto 8 th standard and his school leaving certificate is appears to have been given by one Mr. Sureshbhai Parvatbhai Chudasama, who could be his material uncle. However, those details are not coming on the record.

6. We noticed the decision of the Apex Court rendered in case of Mahadeo s/o Kerba Maske v. State of Maharashtra & Anr. [(2013) 14 SCC 637], which has been again referred to in the case of State of Madhya Pradesh v. Anoop Singh [(2015) 7 SCC 773]. The ratio laid down is as follows:-

"14. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3)

R/CR.A/888/2021 IA ORDER DATED: 03/09/2021

reads as under:

"Rule 12(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 -

(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."

15. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under:

"12 . . .Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to

(iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed:

"13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same."

R/CR.A/888/2021 IA ORDER DATED: 03/09/2021

6.1 The Court has been categorical that in absence of matriculation or equivalent certificates, the date of birth certificate from the school other than a play school first attended or the birth certificate given by a corporation or a municipal authority or a panchayat, the medical opinion will be sought from a duly constituted Medical Board which would declare the age of the juvenile or child and once the exact assessment of the age cannot be done, the Court or the Board as the case may be, the committee for the reasons to be recorded, 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.

7. The Apex Court in the recent decision delivered in case of Yogendra Yadav v. State of Uttar Pradesh [on 22.1.2021 in Criminal Appeal No.73 of 2021] was considering the judgment passed by the Division Bench of the High Court in criminal appeal where the conviction of the appellant was confirmed under Sections 302 and 323/34 of the Indian Penal Code. The issue raised by the appellant was that he was a juvenile on the date of the incident. He had filed two certificates, School Leaving Certificate and Transfer Certificate. The plea of juvenility was neither taken before the trial court nor before the High Court. In such circumstances, the Apex Court had directed the District Judge, Azamgarh or Additional District Judge nominated by the District Judge regarding the claim of the juvenility of the appellant. The report was submitted before the Apex Court verifying the date of birth where he was found to be 17 years and 1 month on the date of the incident. He being a juvenile, the Court held that the conviction order passed by the trial court deserved to be set

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aside and accordingly, the appeal was allowed. Since he was already in custody for more than 2 years, the Court deemed it appropriate to direct the Juvenile Justice Board not to initiate the trial.

8. In the instant case, the plea of juvenility was not raised except at the time of the further statement. The Court also in his judgment has noted that the parents of the accused are not existing; he has no sibling; he being an orphan and also an illiterate, his birth is not been registered. Considering his physiognomy, he looks quite young and he could be a minor and it was argued before the Court that there was need for his ossification test, but the same has not been done. We could notice in the judgment itself that the Court has relied upon the report at Exh.53 of the Radiologist to confirm that his age was not below 18 years and was not more than 25 years. This range is unknown to the medical jurisprudence. The trial Court could have gone into this detail. We have also tried to confirm it from the learned APP as to whether the amenities and requisite instruments necessary for the Medical Board to opine on the aspect of juvenility would be available at Valbhipur Community Health Center. As the input given to her are not confirming to this, we deem it appropriate to direct the inquiry into this at the stage of deciding the request for suspension of sentence, let this be carried out in the 4 weeks' period from the date of receipt of copy of this order.

9. Before we decide the request for suspension of sentence, need for deciding his age would be necessary. We deemed it proper to also refer to the decision in Criminal Appeal No.175 of 2021 in case of Ram Vijay Singh v. State of Uttar Pardesh

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decided on 5.2.2021, where the reference has been made to the decision in case of Mukarrab & Ors. v. State of Uttar Pradesh [(2017) 2 SCC 210], where the issue was as to how the evidence afforded by the Radiological examination as a proof of age of a person needs to be construed. The Apex Court in case of Mukarrab & Ors. (supra) summarized the legal position as to the claim of juvenility by observing that such plea can be raised at any stage and after referring to various decisions, the reference is made of the decision of Abuzar Hossain v. State of West Bengal [(2012) 10 SCC 489] to hold that the age determination using ossification test does not yield accurate and precise conclusion after the examinee crosses the age of 30 years, however, it confirms that the medical evidence as to the age of a person is a very useful guiding factor. The same not being conclusive, it has to be considered along with other cogent evidence.

This issue shall be regarded at the time of considering the opinion of the Medical Board estimating the age of the applicant after due medical examination as certificate which is sought to be relied upon by the Court at Exh.53 and the opinion will on the same is done at the level of Community Health Center where requisite infrastructure no one is sure of. We deem it appropriate to refer it to the duly constituted Board comprising of Professor of the Anatomy, Radiology, Foreignsic Medicines and Dentistry and of those doctors who may have been prescribed for constituting such Board. Let such determination be concluded in 4 weeks period from the date of receipt of copy of this order. Any guidance/assistance which is required by the Board shall be sought from the learned Principal District Judge, Rajkot.

A report shall be tendered to this Court in a sealed

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envelope. The Jail Authority shall cooperate with the request that may be sent by the District Administration and the Medical Board.

We appreciate the assistance tendered by learned Senior Advocate Mr. I.H.Sayed at the instance of the Court and the efforts put in by learned advocate Mr. Vyas in legal aid matter to go to the root.

Let the matter be posted on 14.10.2021.

(SONIA GOKANI, J)

(RAJENDRA M. SAREEN,J) KAUSHIK D. CHAUHAN