Revisionist v. State of Uttarakhand & Anr.

2. At the first instance, the accused raised the plea of juvenility on the basis of school records, wherefor he produced the Scholar(cid:146)s Register and Transfer Certificate Form issued by the Principal, Intermediate College, Ferrupur (Ramkhera), District Haridwar, divulging his date of birth (cid:145)6.4.1987(cid:146). The date of commission of crime was 12.3.2005, this way, on the date of occurrence, he was about 17 years, 11 months and 6 days of age, i.e. below 18 years. He was taken before the Juvenile Board for the purpose of determination of age. The Board, by relying upon the said Certificate, which was also not agitated by the prosecution, vide order dated 08.04.2005, declared the accused Sonu to be a Juvenile. 2

3. Against the said order, the complainant/revisionist preferred an appeal which was adjudicated by the Sessions Judge, Haridwar, who dismissed the same vide judgment and order dated 4.7.2005, thereby affirmed the findings recorded by the Juvenile Board on 8.4.2005.

4. Learned counsel has relied upon the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, which deals with the procedure to be followed in determination of Age. It is worthwhile to reproduce sub-rules (2) (3) and (4), which read as under: - (cid:147)(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 appearance 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 (cid:150) (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; 3 (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.(cid:148)

5. Thus, the contention put forth by learned counsel is that both the courts below have erred in law in determining the age of accused, by declaring him (cid:145)juvenile(cid:146), in utter violation of the provisions of Rule 12(3)(a)(i)(ii)(iii). The Certificate, 4 whereupon the reliance has been placed by the courts below, was not of matriculation but it was simply a transfer certificate; neither it was a certificate from the school first attended nor the same was given by a corporation or a municipal authority or a Panchayat. Thus, in that eventuality, only the medical opinion, as in the instant case was given by the Chief Medical Officer, Haridwar on 29.3.2005, declaring the age of the accused as 21 years, ought to have been believed.

6. It was further argued that even if the margin of two years is extended on the lesser side in measurement of his age, then also, it would be reckoned as 19 years. As such, the accused had attained the age of majority at the date of occurrence and no doubt could be prowled therein.

7. It was next argued that it has been propounded in a number of decisions by various courts including the Apex Court that the parents, at the time of admission of their child in the school, usually get mentioned the age on the lesser side foreseeing the future benefits, and on this score too, the age mentioned in the transfer certificate should not have been believed.

8. The Court has considered all the arguments put forth by learned counsel and do not agree with either of them for the reasons to be stated hereinbelow: - A. Undoubtedly, transfer certificate is not a matriculation certificate but it shows that the child Sonu was admitted in the said College in Class VI on

20.7.1998 and he pursued his studies in the said college for four consecutive sessions up till 2002. In the Vth Session, when he was pursuing his matriculation studies, he was withdrawn from his 5 father on 15.5.2002. If he would have continued his studies for that relevant year, then certainly the Board must have recorded the same date of birth i.e.

6.4.1987 while issuing the matriculation certificate to him. So this transfer certificate, issued under the authority of a Principal of an Intermediate College, though not a matriculation certificate, tantamount to have same intensity and equivalence as that of a matriculation certificate at least for the purpose of manifestation of the date of birth of the accused, as envisaged under the said Rules. B. As regards the medical certificate issued by the Chief Medical Officer, Haridwar, the Court is not convinced with the said argument since the CMO(cid:146)s assessment regarding the age of child, even on the basis of physical and radiological examination, is not a conclusive proof since the said certificate is on a printed proforma wherein only the name, father(cid:146)s name and the village of accused Sonu has been filled up in the blank columns, whereas his age has been written as (cid:145)21(cid:146) (in figures) and that too is not in words. Thus, it appears to have been issued in a superfluous manner. C. So far as the assessment of age, even if reducing two years on lesser side is concerned, no such yardstick exists in the medical jurisprudence much less the absolute one. D. The contention of learned counsel that usually parents mention the age of their child at the time of admission in the school on lesser side, is not absolute in each and every case. This tendency depends on myriad 6 factors viz. background, literacy rate, surroundings, awareness, future prospects of the career of a child in the minds of the parents. In the instant case, having viewed the social circumstances, as can be gathered from the first information report, the Court can discern that Sukhbir, father of accused, was not of such social platform as to have this much awareness so as to make assessment of the future prospects of his son at the time of his admission in the school.

9. Therefore, in view of what has been stated above, the Court do agree with the findings arrived at by the Juvenile Board in declaring the respondent no.2 Sonu to be a (cid:145)Juvenile(cid:146), which were subsequently affirmed by the appellate court, and there is no reason to interfere with the same. The revision is bereft of any merit and liable to be dismissed. Revision is dismissed accordingly. Interim order dated

13.7.2005 is hereby vacated.

10. It is however observed that since the trial has already been delayed, the Juvenile Board shall make every endeavour to expedite the trial and conclude the same expeditiously.

20.11.2012 Rdang (Servesh Kumar Gupta, J.)