Madhya Pradesh High Court
Ratneshwar Mishra Ankit Mishra vs The State Of Madhya Pradesh on 13 December, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 13 th OF DECEMBER, 2023
CRIMINAL REVISION No. 671 of 2023
BETWEEN:-
RATNESHWAR MISHRA ANKIT MISHRA S/O SHRI
RAMJI MISHRA, AGED ABOUT 18 YEARS, OCCUPATION:
STUDENT R/O VILLAGE PAIPKAR POLICE STATION
MAUGANJ DISTRICT REWA (MADHYA PRADESH)
.....APPLICANT
(BY SHRI S. D. MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION MAUGANJ DISTRICT REWA
(MADHYA PRADESH)
2. VICTIM "A"
.....RESPONDENTS
(RESPONDENT NO.1-STATE BY SHRI C. K. MISHRA - GOVERNMENT
ADVOCATE)
Heard on : 21.11.2023
Pronounced on: 13.12.2023
This revision having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
T h is criminal revision has been preferred against the order dated
12.01.2023 passed in S.T. No.81/2022 by Second Additional Sessions Judge,
Mauganj, District Rewa. By this order the Court observed that the age of
applicant was not below 18 years at the time of incident, which occurred in the
mid night of 1st and 2nd July, 2022, as his date of birth was not found to be
proved as 20.08.2004.
2. Brief facts of the prosecution's case are that FIR for commission of
crime of Sections 363, 366, 376-D, 376(2)(j & l) of IPC was registered against
applicant and co-accused on 02.07.2022 and after investigation charge-sheet
was filed against the applicant before the Magistrate Court. Co-accused was
found to be a juvenile in conflict with law, therefore, charge-sheet against him
was filed before the Juvenile Justice Board. Applicant filed an application
marked as I.A. No.1/2023 before the Court of Session claiming that his date of
birth was 20.08.2004, therefore, his case should also be tried before the Juvenile
Justice Board and not before a regular criminal Court. This application was
opposed by the State. The Court below held an enquiry in which two witnesses
were examined on behalf of applicant. He also filed documentary evidence
marked as Ex.P/1 to Ex.P/3. The prosecution examined the Investigating
Officer Shewta Mourya and relied upon Aadhaar Card of applicant, marked as
Article A-1, disclosing his date of birth to be 25.4.2004. Appreciating the
evidence of both the sides, the Court below dismissed the interim application
No.01/2023 and held that the age of applicant was not found to be proved
below 18 years at the time of incident.
3. Challenging the impugned order, the applicant has taken the grounds
that he was a minor at the time of incident and police has arbitrarily relied upon
the date of birth mentioned in Aadhaar card by refusing to acknowledge the
authentic date of birth as mentioned in mark-sheet and scholar register while the
legal requirement is that the age of a person should be determined on the basis
of school record. There is no allegation of rape made by the prosecutrix and for
some casual dispute applicant has been falsely implicated in the case. He is a
minor and learned Court below has wrongly assessed his age to be major in
clear violation of the judgment of Apex Court. It is, therefore, prayed that the
impugned order passed on 12.01.2023 be quashed and the applicant be treated
as juvenile.
4. State has opposed this criminal revision on the ground that there is no
perversity or illegality in the impugned order.
5. Both the parties have been heard and record has been perused.
6 . Applicant has relied upon the testimony of his grand-father namely
Vidyadhar Mishra (PW-1). Copy of his statement is filed along with the revision
petition. On going through this statement, it appears that the witness did not
have any authentic record of the actual date of birth of applicant and only on the
basis of memory he was claiming that the date of birth of the applicant was
20.08.2004. He has disclosed in his cross-examination that it was he who got
the applicant admission in the school and for this school authorities did not ask
him to submit any record. He has categorically admitted that there was no
record available with him regarding the date of birth of applicant nor he
submitted any such record before the school authorities. His explanation is that
the school was private, therefore, no record was asked about the proof of date
of birth.
7 . Shivshankar Pandey (PW-2) was the second witness who was
examined on behalf of applicant in the enquiry held to determine his age.
Shivshankar Pandey has claimed that he was the Principal of Shri Ganesh Poorv
Madhyamik Vidyalaya and he produced the scholar register of that school
which is marked as Ex.C/2 and the certificate issued by this witness is marked
as Ex.C/3. The statements of this witness reveal that the date of birth of a
student was recorded in his school on the basis of information given by his
guardian and his statements reveal that the school did not ask for any authentic
proof or certificate to verify whether the guardian was giving a correct
information about the date of birth or not. According to him, whatever
information was given by the guardian regarding date of birth was written in the
school register. His statements disclose that the date of birth written in the
scholar registered and mentioned in the certificate marked as Ex.C/2 and Ex.C/3
is not the authentic date of birth of applicant.
8. The statements of Shivshankar Pandey (PW-2) also reveal the fact that
his school is not in existence since last 12-13 years, therefore, it was his duty to
disclose the source from where the scholar register of the year of 2010 was
retrieved. It was also required on his part to explain that the scholar register was
kept in safe custody since 2010 despite the closure of school. Ex.C/1 is the
mark-sheet produced in evidence by the grand-father of applicant in which the
number of admission is mentioned as 852 and it is claimed by the witness that
admission and scholar number are one and the same thing. Despite this claim
about identity in number, it was shown by the prosecution that admission
number marked as 852 in progress report of Ex.C/1 did not match with the
scholar number mentioned thereon which was 885. This anomaly was put
before Shri Shivshankar Pandey (PW-2) and according to him, the teacher
might have committed error in writing a wrong number, but if there was any
such error that needed to be explained then merely on the basis of conjecture or
assumptions this error could not have been acknowledged and condoned.
9. The evidence produced by applicant during the enquiry regarding his
age reveals that he filed a mark-sheet marked as Ex.C/1 which was suspicious
for the reason that it was bearing two different numbers regarding the identity of
the student. Scholar register Ex.C/2 was though produced in evidence but the
person producing it in evidence has admitted that the school is not in existence
for last 12-13 years and he has failed to disclose from whose custody this
record was retrieved. He has also failed to prove that the register was in the safe
custody of some authorized person. He has also failed to prove any document
to show that his school was ever in existence. The certificate of Ex.C/3 issued
by him has no evidentiary value. It does not bear any date or number and if it
was issued on the basis of entry in scholar register then that document itself is
not proved to be reliable in nature.
10. Prosecution has in rebuttal of these claims relied upon the Aadhar
c ard of applicant in which his date of birth is mentioned as 25.04.2004.
Undoubtedly, this date of birth was mentioned on the basis of information given
by the applicant/his guardian. if there was any error about the date of birth while
issuing the Aadhaar Card, no attempt was made by the applicant to get it
rectified. It was for the applicant to reveal how his date of birth mentioned in his
Aadhaar Card was incorrect. Not a single word has been stated on oath by his
grand-father or any other witness examined on his behalf to offer any
explanation for that incorrect information.
11. Having considered the facts involved in the case in the backdrop of
evidence available on record, I do not find that any error was committed by
Court below regarding appreciation of evidence and giving the finding that the
date of birth of applicant 20.08.2004 as claimed by him was not proved.
12. The applicant has relied upon the decision of Co-ordinate Bench of
this Court in Criminal Revison No.1641/2023 wherein it has been observed that
the Aadhar card cannot be taken into consideration as a proof of age for
presumption and determination of age under Section 94 of the Act of 2015. In
the present case also, the Court below has not taken entry in Aadhaar Card as a
proof of age of applicant. It has only examined whether the date of birth as
mentioned in alleged school entries and as has been claimed by the applicant to
be correct was established or not and in the absence of credible evidence the
Court has observed that the applicant has failed to prove his date of birth to be
20.08.2004.
13. In the legal perspective also, the impugned order is a well reasoned
one, in which the Court below has appreciated legal matters relating to
evidentiary value of school entry in deciding the date of birth of a person.
Section 35 of Indian Evidence Act has very relevantly been quoted and
appreciated in the backdrop of citations of Apex Court. That section only
makes the relevant entry admissible and it does not invoke any legal
presumption on the basis of that entry. Further, the admissibility of school
entries are itself questionable in the present case because the applicant has failed
to prove that the alleged school was ever in existence and that the records
produced in evidence were retrieved from a safe custody.
14. On the basis of foregoing discussion, I find no perversity of illegality
in the impugned order either on factual basis or in legal perspective. Hence, this
criminal revision is dismissed.
15. Let a copy of the order be sent to the Court below for information
and necessary action.
(ANURADHA SHUKLA)
JUDGE
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