Brijesh alias Vijay Kumar v. State of U.P. and another) whereby the appellate court while allowing the appeal

1. The present criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been preferred by the accused-revisionist against the judgment and order dated 22.09.2023 passed by learned Children Court /Additional Sessions Judge (POCSO Act), Sonbhadra in Criminal Appeal No. 41 of 2023 (Brijesh alias Vijay Kumar versus State of U.P. and another) whereby the appellate court while allowing the appeal of the complainant and declaring accused- revisionist as major on the date of incident dated 24.06.2022 has set-aside the order dated 25.05.2023 passed by Juvenile Justice Board, Sonbhadra declaring the accused (revisionist in the present case) as juvenile in Misc. Case No. 71/2022 (State vs. Bhanu Yadav) arising out of Case Crime No. 116 of 2022, under Sections 302, 201, 363, 366 I.P.C. and Section 3(2)(v) of SC/ST Act, police station Duddhi, district Sonbhadra.

2. Heard learned counsel for the revisionist, learned Additional Government Advocate representing the State of U.P. / opposite party No. 1 and learned counsel for the complainant / opposite party No.2.

3. Brief facts of the case, which are required to be stated for deciding the issue involved in the present case are as under:-

3.1. Opposite party No. 2, who is complainant of this case had lodged a first information report on 27.06.2022 for the offence under Section 363 I.P.C. at Case Crime No. 116 of 2022 at police station Duddhi, district Sonbhadra against the revisionist stating inter-alia that on 24.06.2022, his minor daughter aged about 16 years was enticed away by the revisionist. During the investigation, decomposed dead body of the victim was found and as per inquest report, deceased was murdered by assaulting her with scissors around her neck. The accused-revisionist confessed his guilt and his statement under Section 164 of Cr.P.C. was also recorded. In post mortem report of the deceased, apart from multiple injuries, a stab wound (deep) up to liver was also found on her body. Accordingly, charge-sheet dated after the 29.07.2022 was submitted against accused- revisionist treating him as juvenile for the offence under Sections 363, 366, 302, 201 I.P.C. and Section 3(2)(v) SC/ST Act. investigation,

3.2. Revisionist moved an application through his father claiming to be a juvenile on the date of the incident dated 24.06.2022 alleging inter alia that his date of birth is 01.01.2005, which is also recorded in his High School Certificate of the year 2022, therefore, on the day of incident, he was aged about 17 years, 05 months and 23 days.

3.3. Juvenile Justice Board, Sonbhadra vide order dated 25.05.2023 allowed the aforesaid application of the revisionist declaring him as juvenile on the basis of date of birth mentioned in his High School Certificate. The complainant being dissatisfied with the order dated 25.05.2023 preferred an appeal before the children court, which has been allowed and said order has been set-aside by the appellate court vide impugned order dated 22.09.2023.

4. Learned counsel for the revisionist submits that as per High School Certificate of the revisionist, his date of birth is 01.01.2005, hence on the date of incident i.e. 01.01.2005, revisionist was juvenile aged 17 years, 05 months and 23 days. Though in the ossification test report dated 16.05.2023, age of the revisionist was found about 18-20 years but High School Certificate of the revisionist shall prevail over the medical/ ossification test report. The learned counsel for the revisionist in support of his submissions, relied upon the following documents:- a). Statement of father of the revisionist recorded as CW-1. b). Statement of Lal Bihari Yadav, Senior Assistant Teacher (In-charge Principal), Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra recorded as CW-2, who has proved the attested copy of Admission Register of Class IXth (Exhibit-Ka-01). c). Admission form of the revisionist for taking admission in Class IXth in Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra (Exhibit-Ka-02). d). Transfer Certificate dated 09.09.2020 of the revisionist, issued by Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra (Exhibit-Ka-03) after the revisionist passed Class VIIIth. e). Statement of Sohar Lal, Principal, Maa Sharada Shishu Vidya Mandir, Lilasi, Myurpur, Sonbhadra recorded as CW-3, who has proved the attested photocopy of admission register of his school (Exhibit-Ka-04).

5. Learned Additional Government Advocate for the State and learned counsel for the complainant vehemently opposed by contending that complainant has appeared before the Juvenile Justice Board and made objection against the claim of juvenility of the revisionist on the ground that correct date of birth of the revisionist is 11.09.2002, which is mentioned in the record of Primary School, Gharantola (Murta) Duddhi, Sonbhadra. Mr. Indresh Kumar Srivastava (In-charge Principal), Primary School, Gharantola (Murta) Duddhi, Sonbhadra in his statement recorded as CW-4, has clearly stated that as per Admission Register of his school, date of birth of the revisionist is mentioned as 11.09.2002, he has also proved the attested photocopy of Admission Register of (Exhibit- Ka-05). In the Aadhar Card of the revisionist, his date of birth is mentioned as 11.09.2002. Much emphasis has been given by contending that same date of birth is fixed in higher classes on the basis of the record of Class Vth, but in the present case date of birth of the revisionist-Bhanu Yadav was 11.09.2002, which was later deliberately shown as 01.01.2005 after manipulation. It is also pointed out that before the appellate court, the complainant had also filed the certificate of Principal of Primary School, Gharantola (Murta) Duddhi, Sonbhadra (Paper No.12 Kha), according to which Accused-Bhanu Yadav (revisionist) received scholarship in Academic Session 2009-10 in Class Ist, in Academic Session 2010-11 in Class IInd, in academic session 2011-12 in Class IIIrd, in Academic Session 2012-13 in Class IVth. The date of birth of the revisionist as mentioned in his High School Certificate is wholly false on the face of record itself. The Juvenile Justice Board ignoring the said basic documents passed illegal order dated 25.05.2023 giving perverse finding while declaring the revisionist as juvenile, which has been rightly and legally set-aside by the appellate Court.

6. It is not in dispute that in the instant case, incident took place on 24.06.2022, therefore, claim of juvenility shall be determined as per the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "Act, 2015") which came into force on 31.12.2015. Section 94 of Act, 2015 reads thus:- Section 94. Presumption and determination of age:- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

7. Looking to the controversy involved in this case, here it would be relevant to mentioned about the settled principles of law laid down by the Hon'ble Apex Court.

1. The present criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been preferred by the accused-revisionist against the judgment and order dated 22.09.2023 passed by learned Children Court /Additional Sessions Judge (POCSO Act), Sonbhadra in Criminal Appeal No. 41 of 2023 (Brijesh alias Vijay Kumar versus State of U.P. and another) whereby the appellate court while allowing the appeal of the complainant and declaring accused- revisionist as major on the date of incident dated 24.06.2022 has set-aside the order dated 25.05.2023 passed by Juvenile Justice Board, Sonbhadra declaring the accused (revisionist in the present case) as juvenile in Misc. Case No. 71/2022 (State vs. Bhanu Yadav) arising out of Case Crime No. 116 of 2022, under Sections 302, 201, 363, 366 I.P.C. and Section 3(2)(v) of SC/ST Act, police station Duddhi, district Sonbhadra.

2. Heard learned counsel for the revisionist, learned Additional Government Advocate representing the State of U.P. / opposite party No. 1 and learned counsel for the complainant / opposite party No.2.

3. Brief facts of the case, which are required to be stated for deciding the issue involved in the present case are as under:-

3.1. Opposite party No. 2, who is complainant of this case had lodged a first information report on 27.06.2022 for the offence under Section 363 I.P.C. at Case Crime No. 116 of 2022 at police station Duddhi, district Sonbhadra against the revisionist stating inter-alia that on 24.06.2022, his minor daughter aged about 16 years was enticed away by the revisionist. During the investigation, decomposed dead body of the victim was found and as per inquest report, deceased was murdered by assaulting her with scissors around her neck. The accused-revisionist confessed his guilt and his statement under Section 164 of Cr.P.C. was also recorded. In post mortem report of the deceased, apart from multiple injuries, a stab wound (deep) up to liver was also found on her body. Accordingly, charge-sheet dated after the 29.07.2022 was submitted against accused- revisionist treating him as juvenile for the offence under Sections 363, 366, 302, 201 I.P.C. and Section 3(2)(v) SC/ST Act. investigation,

3.2. Revisionist moved an application through his father claiming to be a juvenile on the date of the incident dated 24.06.2022 alleging inter alia that his date of birth is 01.01.2005, which is also recorded in his High School Certificate of the year 2022, therefore, on the day of incident, he was aged about 17 years, 05 months and 23 days.

3.3. Juvenile Justice Board, Sonbhadra vide order dated 25.05.2023 allowed the aforesaid application of the revisionist declaring him as juvenile on the basis of date of birth mentioned in his High School Certificate. The complainant being dissatisfied with the order dated 25.05.2023 preferred an appeal before the children court, which has been allowed and said order has been set-aside by the appellate court vide impugned order dated 22.09.2023.

4. Learned counsel for the revisionist submits that as per High School Certificate of the revisionist, his date of birth is 01.01.2005, hence on the date of incident i.e. 01.01.2005, revisionist was juvenile aged 17 years, 05 months and 23 days. Though in the ossification test report dated 16.05.2023, age of the revisionist was found about 18-20 years but High School Certificate of the revisionist shall prevail over the medical/ ossification test report. The learned counsel for the revisionist in support of his submissions, relied upon the following documents:- a). Statement of father of the revisionist recorded as CW-1. b). Statement of Lal Bihari Yadav, Senior Assistant Teacher (In-charge Principal), Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra recorded as CW-2, who has proved the attested copy of Admission Register of Class IXth (Exhibit-Ka-01). c). Admission form of the revisionist for taking admission in Class IXth in Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra (Exhibit-Ka-02). d). Transfer Certificate dated 09.09.2020 of the revisionist, issued by Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra (Exhibit-Ka-03) after the revisionist passed Class VIIIth. e). Statement of Sohar Lal, Principal, Maa Sharada Shishu Vidya Mandir, Lilasi, Myurpur, Sonbhadra recorded as CW-3, who has proved the attested photocopy of admission register of his school (Exhibit-Ka-04).

5. Learned Additional Government Advocate for the State and learned counsel for the complainant vehemently opposed by contending that complainant has appeared before the Juvenile Justice Board and made objection against the claim of juvenility of the revisionist on the ground that correct date of birth of the revisionist is 11.09.2002, which is mentioned in the record of Primary School, Gharantola (Murta) Duddhi, Sonbhadra. Mr. Indresh Kumar Srivastava (In-charge Principal), Primary School, Gharantola (Murta) Duddhi, Sonbhadra in his statement recorded as CW-4, has clearly stated that as per Admission Register of his school, date of birth of the revisionist is mentioned as 11.09.2002, he has also proved the attested photocopy of Admission Register of (Exhibit- Ka-05). In the Aadhar Card of the revisionist, his date of birth is mentioned as 11.09.2002. Much emphasis has been given by contending that same date of birth is fixed in higher classes on the basis of the record of Class Vth, but in the present case date of birth of the revisionist-Bhanu Yadav was 11.09.2002, which was later deliberately shown as 01.01.2005 after manipulation. It is also pointed out that before the appellate court, the complainant had also filed the certificate of Principal of Primary School, Gharantola (Murta) Duddhi, Sonbhadra (Paper No.12 Kha), according to which Accused-Bhanu Yadav (revisionist) received scholarship in Academic Session 2009-10 in Class Ist, in Academic Session 2010-11 in Class IInd, in academic session 2011-12 in Class IIIrd, in Academic Session 2012-13 in Class IVth. The date of birth of the revisionist as mentioned in his High School Certificate is wholly false on the face of record itself. The Juvenile Justice Board ignoring the said basic documents passed illegal order dated 25.05.2023 giving perverse finding while declaring the revisionist as juvenile, which has been rightly and legally set-aside by the appellate Court.

6. It is not in dispute that in the instant case, incident took place on 24.06.2022, therefore, claim of juvenility shall be determined as per the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "Act, 2015") which came into force on 31.12.2015. Section 94 of Act, 2015 reads thus:- Section 94. Presumption and determination of age:- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

7. Looking to the controversy involved in this case, here it would be relevant to mentioned about the settled principles of law laid down by the Hon'ble Apex Court.