Uttarakhand High Court

Abid Alias Guddu vs State Of Uttarakhand on 6 March, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

 HIGH COURT OF UTTARAKHAND AT NAINITAL

            Criminal Revision No. 137 of 2014

Abid Alias Guddu                                      ...Revisionist

                                Versus

State of Uttarakhand                                 ...Respondent


Present:-
              Mr. Mohd. Safdar, Advocate for the revisionist.
              Mr. Vipul Painuly, Brief Holder for the State.

                              JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

following:-

(i) Order dated 19.06.2010, passed in Case

No.763 of 2010, State Vs. Abid @ Guddu

(Case Crime No.55 of 2010, under Section

376(2)(f) IPC, Police Station Bhagwanpur,

Distrit Haridwar), by the Juvenile Justice

Board ("the JJ Board"), Haridwar. By it, the

bail application of the revisionist has been

rejected. And ;

(ii) Order dated 10.04.2014, passed in Criminal

Appeal No.113 of 2012, Abid @ Guddu Vs.

State and Another, by the I Additional

Sessions Judge, Haridwar ("the appeal"). By

it, the order dated 19.06.2010 passed by the

JJ Board was affirmed.

2. Heard learned counsel for the parties and

perused the record.

3. According to the FIR, on 06.03.2010, at 4:00 PM,

the revisionist along with co-accused raped the victim, a

young girl of 6 years. The revisionist was arrested by the

police on 10.03.2010. In his first remand sheet, which is

available on record and is before this Court, his age is

recorded as 14 years. He was then sent to Children

Observation Home. During the hearing, the revisionist moved

an application before the JJ Board, Haridwar, for declaring

him juvenile. The following records were available before the

JJ Board:-

(i) The family register of Village Mohana, Tehsil

Roorkee, District Haridwar, in which the

revisionist has been shown to have born in

the year 1993.

(ii) The scholar register of Madarsa Islamia

Arabia Madina-Tul-Ulum, Kishanpur,

Puhana, Haridwar ("the school"), in which

the date of brith of the revisionist is recorded

as 04.04.1996.

(iii) The transfer certificate from the school

recording the age of the revisionist as

04.04.1996. And;

(iv) The medical examination test done on

05.04.2010. It records the age of the

revisionist about 18 years.

4. After hearing the parties and considering the

evidence, the JJ Board held that the principal of the school

has stated that the age at the time of admission is entered

on the basis of estimation. Accordingly, the age recorded in

the school record was not accepted. In the family register,

the age of the revisionist was recorded as 17 years. The JJ

Board also did not believe it on the ground that this date of

birth is different than the date of birth of the revisionist, as

recorded in the school record. Thereafter, the JJ Board

adverted to the Ossification test and noted that it is a

settled position of law that an error of two years in

determining the age on the basis of medical report is

possible. But the JJ Board held that if a document is

proved to be genuine and satisfy the requirement of law, it

should be, subject to just exceptions, to be relied upon.

Accordingly, the JJ Board observed that, "as the date of

birth of the revisionist in the school record of Madarsa

Islamia Arabia Madina-Tul-Ulum, Kishanpur, Puhana,

Haridwar, has been recorded on the basis of estimation, as

per the principal of the school, and other evidences

disclosing his age to be higher than the age that is claimed

by the applicant................................the age of the

applicant Abid cannot be held to be ascertainable below

eighteen years on the date of incident".

5. The revisionist challenged the finding recorded

by the JJ Board in Case No.763 of 2010, State Vs. Abid

Alias Guddu, in the appeal, which upheld the order dated

19.06.2010, passed by the JJ Board.

6. The court in appeal relied upon the principles of

law, as laid down in the case of Om Prakash Vs. State of

Rajasthan and Another, AIR 2012 SC 1608, and referred

that according to this judgment, the Hon'ble Supreme

Court held that in serious cases like rape, if an accused

intends to take benefit of legal position and produces

documents, which creates doubts, in such circumstances,

medical report should be given importance. Challenge in

this revision is made to these orders by which the

revisionist was denied benefit of juvenile.

7. Learned counsel for the revisionist would

submit that the age of the juvenile could have been

ascertained in view of Rule 12 of the Juvenile Justice (Care

and Protection of Children) Rules, 2007 ("the 2007

Rules"), as framed under the Juvenile Justice (Care and

Protection of Children) Act, 2000 ("the Act").

8. It is argued that the revisionist did file the

school records as well as the family register. They could

have been relied upon and the revisionist could have

been declared juvenile, but it was not done. It is argued

that even the Ossification test has not conclusively

determined that the revisionist is above 18 years of age.

It only claims that the age of the revisionist is about 18

years. It is argued that in the Ossification Test, there is a

margin of 2 years on both the sides. Therefore, in view of

the other documents filed by the revisionist, his age

cannot be assessed above 18 years. In all cases, it could

be less than 18 years, which makes the revisionist

entitled to be declared juvenile on the date of incident.

9. Learned counsel for the revisionist would also

argue that Rule 12(b) of the 2007 Rules provides that a

juvenile should be given benefit of 1 year margin on the

lower side. In support of his argument, he places reliance

on the principles of law, as laid down by the Hon'ble

Supreme Court in the case of Ashwani Kumar Saxena Vs.

State of Madhya Pradesh, (2012) 9 SCC 750. In the case of

Ashwani Kumar (supra), the Hon'ble Supreme Court, in

Para 40, inter alia, observed as follows:-

40. The legislature and the rule-making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry.

Further, Rule 12 has also fixed a time-limit of thirty days to determine the age of the juvenile from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his/her age on lower side within the margin of one year.

10. On the other hand, learned State Counsel would

submit that the school record, filed by the revisionist, was

not found reliable, as the principal of the school has stated

that the age was recorded on the basis of estimation and is

not based on any document. Therefore, it is argued that

the age, as fixed by the Ossification test, is to be

considered for determining the age of the revisionist and

that has been done in the instant case.

11. The JJ Board has to determine the age of a

person, who claims juvenility at the time when the offence

was allegedly committed. The guidelines has already been

given under Rule 12 of the 2007 Rules. It reads as

hereunder:-

"12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.

(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-

(a) (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.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility

has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

12. In the instant case, admittedly, the school

record was filed by the revisionist to reveal his date of birth

as 04.04.1996, but the principal of the school has stated

that there was no concrete basis for recording such age; it

is based on estimation. It is so recorded in the impugned

order of the JJ Board.

13. The revisionist has also filed the extract of the

family register, in which his date of birth is as such not

recorded, but the birth year is recorded as 1993. The

birth register may not simply be ignored on the ground

that it has recorded the date of birth, which is distinct

from the date of birth, as recorded in the school record.

After all, the court has to examine the document and to

ascertain the age of a person, who claims juvenility on

the date when the offence was committed.

14. In the case of Manoj Vs. State of Haryana and

Another, (2022) 6 SCC 187, a person claimed juvenility

and based on Ossification test, the court of sessions

declared him juvenile, but the High Court, relying on the

family register prepared under the U.P. Panchayat Raj

(Maintenance of Family Registers) Rules, 1970, denied

the benefit of juvenility to such person. In that case, on

the question of admissibility and reliability of the family

follows:-

"35. In Krishna Pal v. State of U.P., 2010 SCC OnLine All 695, the learned Single Judge of the Allahabad High Court held that a family register is a public record in terms of the Evidence Act inasmuch as the same is prepared under the statutory provisions of Section 15(xxiii)(e) of the U.P. Panchayat Raj Act read with Rule 2, Rule 67, Rules 142 to 144 of the U.P. Panchayat Raj Rules, 1947. The family register is prepared under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be noted that Form (A) also records the date of death of a family member. There is yet another form, namely, Form (D) which is for registering the date of birth and death. Both these forms, therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the Rules are framed by the State Government and the registers prescribed for particular purposes are notified under the Rules. Reference may be made to Section 110(vii) of the 1947 Act for the said purpose.

36. The Court held as under: Krishna Pal v. State of U.P., 2010 SCC OnLine All 695

"In my opinion, a presumption has to be drawn in respect of the said public document and it cannot be merely disbelieved if the Gram Panchayat Adhikari had not been produced to prove it. The copy of the family register is a public document and a presumption as to its genuineness is accepted under Section 79 of the Indian Evidence Act."

37. In Shiv Patta v. State of U.P., 2013 SCC OnLine All 14202, it was held that the family register is maintained in discharge of statutory duties under the U.P. Panchayat Raj (Maintenance of Family Registers) Rules, 1970. Similarly, date of death is maintained in discharge of statutory duty under the Registration of the Birth and Deaths Act, 1969 and it

is a public document within the meaning of Section 74 of the Evidence Act, 1872. The certified copy of these documents is admissible in evidence under Section 77 of the Evidence Act and carry presumption of correctness under Section 79 of the Act. The High Court held that in the absence of any evidence to prove that it was incorrect, its correctness is liable to be presumed under Section 79 of the Evidence Act, 1872.

38. Therefore, such Rules are not irrelevant as argued by Mr Bhargava. This family register does not only contain date of birth but also keeps the records of any additions in the family, though the evidentiary value needs to be examined in each case.

39. We are unable to approve the broad view taken by the High Court in some of the cases that family register is not relevant to determine age of the family members. It is a question of fact as to how much evidentiary value is to be attached to the family register, but to say that it is entirely not relevant would not be the correct enunciation of law. The register is being maintained in accordance with the rules framed under a statute. The entries made in the regular course of the affairs of the Panchayat would thus be relevant but the extent of such reliance would be in view of the peculiar facts and circumstances of each case."

15. In the case of Manoj (supra), the Hon'ble

Supreme Court also observed that, "Needless to say,

the plea of juvenility has to be raised in a bonafide

and truthful manner. If the reliance is on a document

to seek juvenility which is not reliable or dubious in

nature, the appellant cannot be treated to be juvenile

keeping in view that the Act is a beneficial

legislation. As also held in Babloo Pasi v. State of

Jharkhand, (2008) 13 SCC 133, the provisions of the

statute are to be interpreted liberally but the benefit

cannot be granted to the appellant who has

approached the Court with untruthful statement."

16. It is also settled law that the age determined

on the basis of Ossification test, has error of 2 years on

either side.

17. Under the Act, juvenile or child means a

person, who has not completed 18 years of age.

18. In the instant case, it is not conclusively

determined that the school record, that was placed by

the revisionist was false or dubious. It was not believed

on the ground that there was no document in support of

the entry pertaining to the date of birth in the school

record and the principal has stated that the date of birth

was recorded on the basis of estimation. At the most, it

can be said that the date of birth, so recorded in the

school register, may not be accepted as the actual date of

birth of the revisionist. But the documents, per se, may

not be termed as dubious or suspicious or one created

for the purpose of claiming the benefit of juvenility.

19. The entry in the family register does not

record the date of birth, as such. It records the birth

year, which is 1993. As stated, such entry in the family

the date of birth recorded in it is different than that,

which is recorded in the school record. It requires

deliberation, which was not done in the instant case.

20. Even if Ossification test in the instant case is

taken as a factor to determine the age of the revisionist,

according to it, the age of the revisionist was about 18

years on 05.04.2010. 2 years' error may be accepted in

this age determination, which means that the revisionist

may be of 16 years as well as of 20 years. But how to

determine it? In fact, this is a situation, which warrants

that all the attending factors should be taken into

consideration so as to come at a conclusion as to

whether the revisionist is entitled to claim juvenility.

21. The relevant factors to assess the Ossification

test would be as follows:-

(i) On 10.03.2010, when the revisionist was

arrested, in the remand sheet, his age

was recorded as 14 years, and he was

sent to children home. At that time, the

revisionist did not claim juvenility. The

Investigating Officer recorded his age.

Has he done so on mere appearance or

has he asked the age or is it combination

of both? Whatever the case may be, it

shows that on that date, he was looking

like a child.

(ii) In the school record, the date of birth is

recorded as 04.04.1996. It is not

supported with any document, as stated

by the principal of the school.

(iii) In the family register, the birth year is

1993.

22. The above record along with the Ossification