Criminal Misc. No.M-32110 of 2010 v. State of Haryana

Mr. Adarsh Jain, Advocate for the petitioner. ..... S.S. Saron, J. This petition has been filed against the order dated 11.10.2010 (Annexure-P.2) passed by the learned Sessions Judge, Faridabad whereby the application filed by the petitioner-Jakir for treating him as a juvenile has been dismissed. The petitioner along with Jitender alias Bhabbu and Satish Kumar are facing trial for having committed offences punishable under Sections 376(2)(g) and 506 IPC. The FIR has been registered on the basis of a complaint filed by the prosecutrix alleging that she was engaged in shooting of songs for preparation of an album. Lucky Sardar, who was cameraman, called her for film shooting. On 4.5.2010 at 7.00 a.m., the husband of the prosecutrix left her on a scooter with Lucky Sardar at Palwal. On the same day, after finishing the work, Lucky Sardar left her in his car at Palwal Bus Stand. While she was waiting for the bus to arrive, an auto-rickshaw in which two boys were sitting came. They stated that they were going to Ballabgarh and would leave her at Ballabgarh and she may sit Cr. Misc. No.M-32110 of 2010 [2] in the auto-rickshaw. Near Elson Chowk, Ballabgarh, one boy requested that he may be allowed to make a telephone call from the mobile phone of the prosecutrix. After completing the call he returned the mobile phone to the prosecutrix. Thereafter, after crossing Elson Bridge towards Ballabgarh one more boy was picked-up and they turned the auto-rickshaw and started towards Palwal. On her asking where they were going, they told her that they were taking a shorter route to Badarpur. They turned the auto-rickshaw from Elson Chowk and took the road towards Sector 59, Faridabad. They stopped the auto rickshaw at a secluded place and all three boys sitting in the auto-rickshaw forcibly committed rape on the prosecutrix. Thereafter, they took a sum of Rs.10,000/- from her handbag, gold chain with `Mangal Suttar' from her neck and ear rings. Thereafter, they put her in the auto- rickshaw and brought her to G.T. Road and pushed her out of the auto- rickshaw near Elson Bridge. Before doing so, they threatened her that in case she informed about the incident to any one, she would be put to death. The prosecutrix made a call to her husband and narrated the entire episode. He came to the prosecutrix and thereafter inquired about these boys and also called on the number to which one of the boys had called from her mobile phone. The husband of the prosecutrix called on that phone number which was answered by a person named Fariyad, who on inquiry disclosed his address as Subhash Colony, Ballabgarh. The husband of the prosecutrix reached there and learnt that son of Fariyad, namely, Jakir (petitioner) and his friends Satish and Bhabbu had committed rape. They were inquiring about these boys and had come to the Police Station. It was requested that strict action be taken against these boys. Cr. Misc. No.M-32110 of 2010 [3] When the trial in the case was about to conclude, the petitioner filed an application stating that his date of birth is 7.8.1993 and at the time of the incident on 4.5.2010 he was a juvenile. In support of his contention, he relied upon the opinion taken from Dental Surgeon Dr. Reena of B.K. Hospital, Faridabad where the age of the petitioner was assessed between 17 to 21 years. It was claimed that the petitioner was below 18 years of age and thus was liable to be tried by the Juvenile Justice Board. It was stated that as per report of Dental Surgeon the age of Jakir was between 17 to 21 years. The parties led evidence. The father of the petitioner, namely, Fariyad was examined as AW-1 and Dental Surgeon's report (Ex.RW.1/A) was tendered in evidence. The learned Sessions Judge, Faridabad observed that Fariyad had claimed the date of birth of his son was 7.8.1993. It was observed that Fariyad (AW-1) was unable to stand the cross-examination and he stated that he has no proof regarding date of birth of his son. When he was questioned as to how he has given the date of birth as 7.8.1993, he could not disclose the basis of his source. The Dental Surgeon's report (Ex.RW.1/A) was also considered and no merit was found in the application of the petitioner. It was observed that the petitioner had not produced his Matriculation or equivalent certificate of education or the date of birth certificate from the school first attended, as also the birth certificate given by a Corporation or a Municipal Authority or a panchayat. It was observed that the application was nothing but a notion made by the accused to thwart the legal process and administration of justice for his personal ends. Learned counsel for the petitioner has submitted that the opinion of Dr. Reena of B.K. Hospital, Faridabad has wrongly been ignored Cr. Misc. No.M-32110 of 2010 [4] which shows that the age of the petitioner is between 17 to 21 years and, therefore, he is to be treated as less than 16 years, inasmuch as, it can vary one year in both sides. Therefore, a view which favours the accused is to be adopted. After giving my thoughtful consideration to the matter, I find no merit in the same. The opinion (Ex.RW.1/A) of the Dental Surgeon is that the age of the petitioner was between 17 to 21 years. Therefore, that by itself in the facts and circumstances cannot be taken to be less than 16 years so as to hold that the petitioner was a juvenile. Besides, the learned Sessions Judge referred to Rule 11(3) of the Haryana Juvenile Justice (Care and Protection of Children) Rules, 2009 (`2009 Rules' – for short) which envisages that 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 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 age on lower side within the margin of one year, and, while passing orders Cr. Misc. No.M-32110 of 2010 [5] 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 or 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. The opinion (Ex.RW.1/A) given by Dr. Reena of B.K. Hospital, Faridabad is not shown to be the opinion given by a duly constituted Medical Board which could be said an opinion in terms of Rule 11 (3) of the 2009 Rules. Besides, no reason has been submitted as to why the Matriculation or equivalent certificate, the date of birth certificate from the school first attended or the birth certificate given by a Corporation or a Municipal Authority or a panchayat, has not been produced or cannot be produced. In the absence of any such reason, an adverse inference is liable to be drawn against the petitioner. In the circumstances, there is no error in the order dated

11.10.2010 passed by the learned Sessions Judge, Faridabad. Consequently, there is no merit in this petition and the same is accordingly dismissed. November 1, 2010. *hsp* (S.S. Saron) Judge