Bageshwari v. Mandir, P.S.Delha, District
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.285 of 2013 ====================================================== Bikesh Kumar @ Bikki, son of Uday Kumar Singh @ Udai Kumar, resident of village-Bajitpur, P.S.Ghosi, District-Jehanabad. .... .... Petitioner/s 1. State Of Bihar & 2. Shailendra Kumar Sinha, son of Kamla Prasad of village-Bageshwari Versus Mandir, P.S.Delha, District-Gaya. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ramakant Sharma Sr. Advocate, Mr. Ravish Chandra, Advocate. For the O.P. No.2 : M/S. Durgesh Nandan, Ram Nath Saran, Advs. Miss. Manisha Prakash, Advocate. For the Respondent/s : Mr. Kumar Veerendra Narayan, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 10 5-08-2013 Heard learned counsel for the petitioner as well as learned Additional P.P. 2. Petitioner Bikesh Kumar @ Bikki has challenged the order dated 07.02.2013 passed by Additional Sessions Judge- II, Gaya in Cr.Appeal(Juvenile)No.79 of 2011/36 of 2012 by which the learned Appellate Court has set aside the order dated 23.09.2011 passed by Juvenile Justice Board, Gaya in G.R.Case No.157 of 2009 whereby petitioner has been declared juvenile by majority view. 3. On the fardbeyan of Opposite Party No.2 Shailendra Kumar Sinha putting an allegation that while he along with deceased Mukesh Kumar was returning after collecting money unknown criminals intercepted them and during course thereof 2 they shot at resulting death of Mukesh Kumar. They decamped
Legal Reasoning
with money. An FIR was registered against unknown and during course thereof, petitioner’s involvement surfaced and accordingly, was made an accused. 4. It is evident that both the parties have entered into second round of litigation on this score. Earlier vide order dated 02.07.2010, the Juvenile Justice Board had declared the petitioner to be juvenile against which Cr.Appeal(Juvenile)No.04 of 2010/68 of 2010 was filed which was decided vide judgment dated 06.09.2010 by the Ist Additional Sessions Judge directing Juvenile Justice Board to constitute a medical board for examination of delinquent to ascertain the age against which Cr.Revision No.1454 of 2010 was filed by the petitioner before this Court which was
Decision
disposed of vide order dated 03.01.2011 observing :- “This Court finds from the appellate order that the matter has been remitted back to the Juvenile Justice Board for further enquiry in the matter. Since the matter is again before the learned Juvenile Justice Board the petitioner as well as the informant would be at liberty to place all the relevant documents before the said authority in support of their respective claims. While making enquiry, learned Juvenile Justice Board shall consider all these documents, and if necessary, get those documents verified from the concerned offices and in accordance with law. The Juvenile Board shall constitute a Medical Board only after having found that the documents placed by the petitioner do not inspire confidence in the attending facts.” thereafter shall pass appropriate order 5. After receiving the successive orders, the J.J.Board, Gaya recommence the enquiry and concluded holding the 3 petitioner to be Juvenile by majority view which happens to be the origin of second slot of litigation. 6. Simultaneously, a prayer was also made for grant of bail which was refused by the learned J.J.Board originating Cr.Appeal No.21 of 2012/5 of 2012 which was disposed of by Additional Sessions Judge-III, Gaya on 06.10.2012 against which Cr.Revision No.61 of 2013 was filed before this Court and the same was also rejected vide order dated 05.02.2013 on the ground of possessing criminal antecedent suggesting continued companionship of petitioner with known criminals in case is bailed out. 7. It has been submitted on behalf of the petitioner that from the matriculation certificate as well as from the statement of the witnesses, it is apparent that the date of birth of the petitioner happens to be dated 14.11.1991 and so, on the alleged date of occurrence dated 14.01.1999, petitioner happens to be juvenile. Apart from the matriculation certificate, the other documentary evidence including oral evidence has also been adduced on behalf of the petitioner in support of his plea. 8. Then, it has been submitted that on account of entry of Dhermendra, brother of deceased in the school administration he got the entry interpolated and that happens to be the genesis of 4 controversy. So, in the aforesaid backdrop, it could conclusively be held that prosecution is itself author of controversy. 9. It has also been submitted that when there happens to be unimpeachable document by way of matriculation certificate then in that circumstance, there was no occasion for constitution of medical board, obtaining its report and putting reliance thereupon. It has also been submitted that aforesaid procedure happens to be in contravention of the rules so prescribed therefor. Also relied upon 2012 (2) PLJR (Niranjan Kumar @ Pankaj Kumar v. State of Bihar & Anr), 2012(1) BBCJ 353 (Ranjeet Kr. Jha v. The State of Bihar), (2009) 13 SCC 211 (Hari Ram v. State of Rajasthan and Anr), 2008(2) PLJR (Sachin Kumar Gupta @ Sachin Kumar v. The State of Bihar & Anr) and 2013(1) PLJR SC 156 (Ashwani Kumar Saxena v. State of M.P.) 10. On the other hand, the learned counsel for the Opposite Party No.2 submitted that petitioner happens to be habitual offender being implicated in a case much prior to the issuance of matriculation certificate bearing Jehanabad P.S.Case No.391 of 2002 while the matriculation certificate is of the year 2006. As stated above, because of the fact that petitioner carries chequred history and on account thereof, there happens to be manipulation at his end which has also been admitted by his own witness Lalita Sharma, the Incharge Headmistress accepting the 5 over writing. The date of birth shown in the matriculation certificate is after thought as the petitioner stood an accused till then and on account thereof, no reliance could be placed over it. Hence, the Principal Judge, J.J.Board, Gaya has rightly over ruled authenticity of the documents and put reliance upon the medical report. However, his view was superseded by the majority view of the two members and so, the order of learned Appellate Court on that score is found to be just, legal and proper. 11. The learned Additional P.P. endorsed the view raised on behalf of Opposite Party No.2 and submitted that petitioner should not be declared as a juvenile. 12. Disclosure of criminal antecedent under para-16 of the counter affidavit which includes Jehanabad P.S.Case No.391 of 2002 has not been controverted by the petitioner and on account thereof, the authenticity of the matriculation certificate of the year 2006 must be deemed to be influenced thereof. 13. Petitioner has failed to place the name of the school where he first attended. The disputed date of birth happens to be with regard to government middle school, Korha where petitioner had taken admission at Class-VI, and consequent thereupon,the entry of date of birth in the first admitted school has been kept concealed and that happens to be reason behind that Opposite Party No.2, who is contesting tooth to nail has also stick 6 over theme of admission of the petitioner at Govt. Middle School, Korha in Class-VI. Although it also happens to be so much regarding nature of admission, as first attended school or being on transfer certificate. From the evidence of Lalita Kumari, Annexure-5, the Incharge Headmistress of Korha Middle School her evidence is not at all inspiring confidence relating to over writing over date of birth when the documents are supposed to be remain under custody of Headmaster as well as maintaining the register in haphazard manner and on account thereof, one could safely infer that there happens to be absence of conclusive proof of documentary evidence in terms of the requirements so identified under law. She also failed to disclose whether the petitioner was admitted as first attended school or on transfer certificate. 14. In Om Prakash v. State of Rajasthan and Anr. Reported in 2012 Cr.L.J. 2266, the Hon’ble Apex Court had observed in paras-17 and 18 as follows:- 17. We are unable to appreciate and accept the aforesaid contention of the learned counsel for the respondent since the age of the accused could not be proved merely on the basis of the school record as the courts below in spite of its scrutiny could not record a finding of fact that the accused, in fact, was a minor on the date of the incident. Hence, in a situation when the school record itself is not free from ambiguity and conclusively proves the minority of the accused, to be medical opinion cannot be allowed overlooked or treated to be of no consequence. In this context the statement of NAW 3, Dr jurist who Jagdish conducted the ossification test of the accused and the medical Jugtawat, 7 opined before the court that the accused was 19 years of age is of significance since it specifically states that the accused was not a juvenile on the date of commission of the offence. The statement of NAW 1, Dr C.R. Agarwal, Asstt. Professor in Radiology also cannot be overlooked since he opined that on the basis of x-ray films, the age of the accused is above 18 years and below 20 years. Thus, in a circumstance where the trial court itself could not arrive at a conclusive finding regarding the age of the accused, the opinion of the medical experts based on x-ray and ossification test will have to be given precedence over the shaky evidence based on school records and a plea of circumstantial inference based on a story set up by the father of the accused which prima facie is a cock and bull story. 18. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor,a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are 8 alleged to have been withheld deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution. 15. In Ashwani Kumar Saxena v. State of M.P. reported in 2013(1)PLJR 156, it has been observed under paras 36 and 45:- in “36. Age determination inquiry contemplated under the J.J.Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination. 45. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility.” 16. That means to say there happens to be consistent judicial pronouncement to the effect that whenever there happens to be dispute over the date of birth and further, the document so relied upon have lost their authenticity, then in such circumstance, the medical evidence is to be given priority. The other decisions so 9 referred on behalf of the petitioner is not attracted in the facts and circumstances of the case. The medical evidence is available on the record as Annexure-6.Petitioner was examined by the medical board on 07.01.2011 and opined his age in between 21 to 23 years. The date of occurrence happens to be dated 14.01.2009 that means approximately there should be deduction of two years and if it is done so, the age of the petitioner will fall in between 19 to 21 years. In terms of Bihar Juvenile Justice(Care and Protection of Children) Rules, 2003, as the same was applicable on the alleged date and time of occurrence in terms of Division Bench Decision in Sri Chandrika Sao v. State of Bihar and Anr. Dated 03.07.2012 passed in Cr.Revision No.1295 of 2010, as per Rule 22(5)(iv) thereof, the consideration of age by the medical board was to be taken into account subject to a margin of one year which has to be lean in favour of juvenile in conflict with law and even on account thereof, the age so found will be in between 18 years and 7 days to 20 years and on that very score the petitioner is not at all found to be a Juvenile in conflict with law. As a result thereof, instant petition is found devoid of merit and is accordingly rejected. Patna High Court, Dated 5th August, 2013, Brajesh Kumar, AFR. (Aditya Kumar Trivedi, J)