Rakesh Minor Through Hist Mother ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 3113 MP

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE ANIL VERMA
                                              ON THE 21 st OF FEBRUARY, 2023
                                            CRIMINAL REVISION No. 2803 of 2021

                           BETWEEN:-
                           RAKESH SON OF GOPAL BHIL, AGED 16 YEARS
                           OCCUPATION NOTHING MINOR THROUGH HIS
                           MOTHER AND NATURAL GUARDIAN KAMLABAI WD/O
                           LATE GOPAL BHIL, AGED ABOUT 40 YEARS,
                           OCCUPATION:  LABOURER   VILLAGE   GWALTOLI
                           NEEMUCH DISTRICT NEEMUCH (MADHYA PRADESH)

                                                                                           .....PETITIONER
                           (BY SHRI YASH PAL RATHORE - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH P.S. NEEMUCH CITY (MADHYA
                           PRADESH)

                                                                                         .....RESPONDENT
                           ( BY SHRI RAJENDRA SURYAVANSHI - GOVERNMENT ADVOCATE)


                                 This revision coming on for admission this day, th e court passed the

                           following:
                                                               ORDER

Heard on IA No. 2349/2023 which is an application for urgent hearing. Matter has already been taken up, therefore, IA stands disposed off. This criminal revision under section 397,401 of Cr.P.C. has been preferred by petitioner against the impugned order dated 11.10.2021 passed by Special Judge (POCSO Act) Neemuch in Special Case No. 33/2021 whereby an application preferred by petitioner under section 9 of Juvenile Justice (Care and Protection of Children) Act 2015 (in short JJ Act) for transferring his case to Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

Juvenile Justice Board for trial was rejected.

The facts giving rise to this revision petition are that on 27.1.2021 mother of prosecutrix lodged a missing person report at police station Neemuch by stating that her minor daughter/prosecutrix and minor daughter of Bhanij/prosecutrix No. 2 are missing from home and they have a doubt that both the prosecutrix were kidnapped by accused Rakesh Bhil, during investigation, both prosecutrix were recovered and it has been found that present petitioner abducted prosecutrix no. 1 and took her with him to village Ranayara and Chacher and committed repeatedly rape upon her. Accordingly offence under sections 363, 366, 376(2)(n), 323 of IPC and Section 5/6 of

POCSO Act has been registered against the petitioner.

During trial, the petitioner has filed an application 9 of JJ Act before the trial court praying therein for transferring the case to Juvenile Justice Board for trial. The learned trial court conducted an inquiry and recorded statements of mother of petitioner Kamlabai, Anuradha Sharma (PW-2) and after getting verified the documents filed by petitioner in support of the aforesaid application, vide order dated 11.10.2021 has rejected the said application on the ground that the school scholar register entry with regard to the date of birth of the petitioner is doubtful and there is no document to prove the date of birth in the scholar register.

Learned counsel for the petitioner submits that trial court has committed an error of law in not taking into consideration the documents filed by petitioner in support of the application. It is also contended that the impugned order is contrary to law and facts. The trial court erred in law regarding statement of mother of petitioner who clearly deposed that date of birth of her son is

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

22.8.2006. As per Rule 12 of Juvenile Justice (Care and Protection of Children) Rules, 2007 it is proved that applicant is below than 18 years at the time of incident. The impugned order is illegal and thus liable to be set aside.

Per contra, learned counsel for state has opposed the prayer and submitted that as per arrest memo petitioner has informed his age 19 years, he was major at the time of incident, hence the learned trial court has rightly dismissed the application for referring the case to Juvenile Justice Board.

Heard learned counsel for the parties and perused the record. The Hon'ble Apex Court in the case of Rishi Pal Singh Solanki Vs. State of U.P. & Others [2021 SCC Online SC 1079], it is apparent that a claim of juvenility can be raised at any stage of a criminal proceeding, even after the final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for rejection of the such claim and if an application is filed before the Court claiming juvenility, the provision of sub-section 2 of Sec 94 of the JJ Act, 2015 would have to be applied or read alongwith sub-section 2 of Section 9, so as to seek evidence for the purpose of recording of finding stating the age of the person as nearly as may be. Relevant para of the aforesaid judgment passed in the case of Rishi Pal Singh Solanki Vs. State of U.P. & Others (Supra) is as under:

''32. What emerges on a cumulative consideration of the aforesaid

catena of judgments is as follows:

(i) A claim of juvenility may be raised at any stage of a criminal proceeding, even after the final disposal of the case. A delay in raising the claim of juvenility cannot be a ground for the rejection of such a claim. It can also be raised for the first time before this Court.

(ii) An application claiming juvenility could be made either before Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

the Court or the JJ Board.

(iia) When the issue of juvenility arises before a Court, it would be under sub-section (2) and (3) of section 9 of the JJ Act, 2015 but when a person is brought before a Committee or JJ Board, section 94 of the JJ Act, 2015 applies.

(iib) If an application is filed before the Court claiming juvenility, the provision of sub-section (2) of section 94 of the JJ Act, 2015 would have to be applied or read along with sub section (2) of section 9 so as to seek evidence for the purpose of recording a finding stating the age of the person as nearly as may be.

(iic) When an application claiming juvenility is made under section 94 of the JJ Act, 2015 before the JJ Board when the matter regarding the alleged commission of offence is pending before a Court, then the procedure contemplated under section 94 of the JJ Act, 2015 would apply. Under the said provision if the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Board shall undertake the process of age determination by seeking evidence and the age recorded by the JJ Board to be the age of the person so brought before it shall, for the purpose of the JJ Act, 2015, be deemed to be true age of that person. Hence the degree of proof required in such a proceeding before the JJ Board, when an application is filed seeking a claim of juvenility when the trial is before the concerned criminal court, is higher than when an inquiry is made by a court before which the case regarding the commission of the offence is pending (vide section 9 of the JJ Act, 2015).

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

(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.

(v) That the procedure of an inquiry by a Court is not the same thing as declaring the age of the person as a juvenile sought before the JJ Board when the case is pending for trial before the concerned criminal court. In case of an inquiry, the Court records a prima facie conclusion but when there is a determination of age as per sub-section (2) of section 94 of 2015 Act, a declaration is made on the basis of evidence. Also the age recorded by the JJ Board shall be deemed to be the true age of the person brought before it. Thus, the standard of proof in an inquiry is different from that required in a proceeding where the determination and declaration of the age of a person has to be made on the basis of evidence scrutinised and accepted only if worthy of such acceptance.

(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

Signature Not Verified by the parties in each case.

Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

(vii) This Court has observed that a hyper technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile.

(viii) If two views are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. This is in order to ensure that the benefit of the JJ Act, 2015 is made applicable to the juvenile in conflict with law. At the same time, the Court should ensure that the JJ Act, 2015 is not misused by persons to escape punishment after having committed serious offences.

(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.'' Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

The degree of proof required in a proceeding before the JJ Board is higher than when an inquiry was made by a Court before which the case regarding the commission of the offence is pending (vide Section 9 of the JJ Act, 2015). In case of an inquiry, the Court records a prima facie conclusion, but when there is a determination of age as per sub-section 2 of Section 94 of the JJ Act, 2015, a declaration is made on the basis of evidence.

In the instant case, the application dated 23.9.2021 was moved before the trial court therefore, the learned trial court was required to make only an inquiry about the juvenility of the petitioner. The petitioner in support of his juvenility produced scholar register of Government Higher Secondary School Badoliya District Chhitorgadh Rajasthan wherein at serial no. 1167 the date of birth of petitioner is 22.8.2006. He has also produced school admission application (Annexure A-5) T.C. form (Annexuer A-3). The headmaster/principal Anuradha Sharma also examined before the trial court. She categorically stated that as per scholar register and other school records, date of birth of petitioner Rakesh Bhil is 22.8.2006.

Learned Trial Court doubted the genuineness of the aforesaid entries relating to the date of birth of the petitioner on the ground that the registration form filled up at the time of the petitioner's admission into the school is not filled up properly and no relevant document regarding date of birth has been produced before the concerned school at the time of his admission. A perusal of the record reveals that entries relating to the petitioner's date of birth on the birth certificate and mark sheets were made on the scholar register and other documents appears to be genuine. The prosecution did not produce any

Signature Not Verified evidence to rebut the same, therefore, prima facie there is no reason to Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

disbelieve the entries made therein about the date of birth of applicant.

On the basis of documents, produced by the petitioner, presumption of juvenility may be applied in the matter as rightly held in the case of Indra Singh(Supra). Although the said presumption is not conclusive proof of the petitioner's juvenility and the same may be rebutted. But nothing has been produced on record which negates the case of the petitioner. As observed by the Hon'ble Apex Court in the case of Rishi Pal Singh Solanki(Supra), a hyper- technical approach should not be adopted when evidence is adduced on behalf of the accused in support of the plea that he was a juvenile and if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases.

In view of the aforesaid discussion and also in the absence of any rebuttal evidence, in the considered opinion of this Court, the petitioner has discharged his initial burden about his juvenility as there was no reasonable ground to doubt the said document produced by him. The learned trial Court has committed an error in rejecting the application filed by the petitioner in this regard.

Consequently, the petition is allowed. The impugned order dated 11.10.2021 passed by trial court is hereby set aside, and it is held that the applicant had not attained the age of 18 years on the date of the incident; as such, he is a child in conflict with the law. Therefore, the trial court is directed to proceed further in the matter, accordingly.

With the aforesaid, revision stands disposed of.

(ANIL VERMA) Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06

JUDGE BDJ

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 22-02-2023 12:33:06