Crl.
Misc.
No.M-10041 of 2011 (O&M) [ 1 ].IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl.
Misc.
No.M-10041 of 2011 (O&M) Date of Decision: Oct.
4,2013 Vijay @ Vijender ..................................Petitioner Versus State of Haryana ...........................Respondent Coram: Hon'ble Ms.Justice Ritu Bahri 1.To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
Present: Mr.A.S.Sullar, Advocate for the petitioner.
Mr.Shivendra Swaroop, AAG, Haryana..RITU BAHRI, J.
This petition is for quashing of the summoning order dated 24.4.2011 (Annexure P-1) passed by the Sessions Judge, Sonepat whereby the appeal filed by the petitioner against the judgment of conviction dated 15.7.2009 and order of sentence dated 16.7.2009 passed by the Sub Divisional Judicial Magistrate, Ganaur, in FIR No.194 dated 30.6.2000 under Sections 148, 323, 324, 326, 452 read with Section 149 IPC registered at Police Station Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 2 ].Ganaur, has been dismissed.
During the pendency of the appeal, an application dated 21.12.2009 (Annexure P2) was filed for declaring the petitioner-Vijay @ Vijender a juvenile as his date of birth was 18.4.1985 and on the date of occurrence i.e.30.6.2000 he was below 18 years of age.
The application disclosed that Vijay Singh was also known by the name of Vijender Singh, therefore, a prayer for sending his case to Juvenile Board was made.
Petitioner examined his father Siri Chand as AW2, Smt.
Jiwani Devi, Headmistress, Govt.
Primary School Chirasmi District Sonipat as AW-1 who produced the record of the Govt.
Primary School Chirasmi, Smt.
Veena Arora, Headmistress Shri Durga Vidhya Mandir, Ganaur, as AW3 who proved the certificate of date of birth of the petitioner (Ex.A2).Matriculation Certificate (Ex.A4) and Senior Secondary Examination Certificate (Ex.A5).Middle Examination Certificate (Ex-A6) and Domicile Certificate (Ex.A7).ASI Bali Ram appeared as RW-1 and stated non- availability of Certificate (Ex.R-1) and copy of Ration Card (Ex.R2).The Sessions Judge after going through the evidence led by the parties came to a conclusion that documents Ex.A1 to A7 did not connect with the petitioner Vijay Singh and during the trial no plea was taken by Vijender Singh that he was also known by the name of Vijay Singh.
The application was dismissed.
Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 3 ].Mr.Sullar, counsel for the petitioner, has stated that vide order dated 19.5.2011 a direction was given by this Court to DSP, Ganaur, to inquire and submit his report whether the appellant/convict Vijender and Vijay is one and the same person and the documents Ex.A1 to A7 are of the same person.
In compliance of the order dated 19.5.2011 a report was submitted by DSP, Ganaur, stating that inquiry with regard to documents Ex.A1 to A7 was conducted.
During the couRs.of inquiry, statement of Veo Singh S/o Shri Surat Singh, Numberdar, Satbir Singh S/o Sh.
Jagdish, Chowkidar, Bhim Singh S/o Sh.
Rati Ram, Kartar Singh S/o Sh.
Kewal Singh, Chawer S/o Sh.
Kheema, Prem Singh S/o Mauji Ram, Ram Singh S/o Dewan Singh has been recorded.
All these persons told they are neighbor of Shri Chand S/o Sh.
Tiki Ram R/o Chirasmi.
Shri Chand has five boys namely Mohinder Singh, Jagmender, Surender, Ajit and Vijay Singh, Vijay Singh also called by Vija in the village.
In the year 2000 a quarrel occurred in between Shri Chand and Jasbir Singh S/o Dariyav Singh.
In that occurrence the complainant has named all the five boys of Shri Chand.
The complainant mentioned the name of Vijay Singh @ Vija as Vijender in the FIR.
In this case Vija was arrested by the Police.
The real name of Vijender is Vijay Singh @ Vija.
Besides the above, the statement of Shri Chand S/o Sh.
Tiki Ram, Vijay S/o Shri Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 4 ].Chand was also recorded and the final conclusion was that Vijay Singh @ Vija is known as Vijender.
The real name of Vijender is Vijay Singh @ Vija S/o Shri Chand.
He is not known as Vijender in the village.
In this inquiry the name of Vijender was found as Vijay Singh @ Vija.
The name of Vijay Singh @ Vija S/o Shri Chand was not found entered in the Birth & Death Register.
The documents A-1 to A-7 of convict Vijender and Vijay Singh are of the same person.
Vijender S/o Sh.
Shri Chand was named by the complainant in the FIR and in fact his real name is Vijay Singh @ Vija.
Hence, as per the report of the DSP, it is no longer in dispute that the documents A1 to A7 relate to the present petitioner and thus Vijay Singh and Vijender are one and the same person.
As per the information supplied by the Tehsildar, A8 there is no evidence with regard to the birth of Vijay Singh S/o Shri Chand in the office of Additional Registrar (Birth & Death).After going through the documents A1 to A7 it cannot be disputed that the date of birth of the petitioner is 18.4.1985.
Hence, on the date of occurrence on 20.6.2000 a safe conclusion can be drawn that he was below 18 years of age.
Counsel for the State has informed the Court that as per the information received from the village Chirasmi Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 5 ].there is no evidence or entry made by the Chowkidar of the village with regard to the date of birth of the petitioner.
Hence, as per Section 12(3) of the Juvenile Justice Act,2000, the Matriculation Certificate is sufficient evidence to assess the age of a juvenile.
Section 12(3) reads as under:- “12.
Procedure to be followed in determinatiion of Age: (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) fiRs.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, given 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 Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 6 ].with law.
In the present case, Annexure P7 (A4) is a Matriculation Certificate which depicts that the date of birth of the petitioner is 18.4.1985.
The veracity of the Certificate has not been disputed by the respondent as per report dated 19.5.2011 by DSP Ganaur.
The Supreme Court in Hari Ram v.
State of Rajasthan & Another 2009 (2) R.C.R.(Criminal) 878 has held that as per Section 7-A of the Juvenile Justice Act the claim of juvenility can be raised before any Court even after the final disposal of the case.
In paragraph 32 it is observed as under:- “32.
Apart from the aforesaid provision sof the 2000 Act, as amended, and the Juvenile Justice Rules, 2007, Rule 98 thereof has to be read in tandem with Section 20 of the Juvenile Justice Act, 2000, as amended by the Amendment Act, 2006, which provides that even in disposed of cases of juveniles in conflict with law, the State Government or the Board could, either suo motu or on an application made for the purpose, review the case of a juvenile, determine the juvenility and pass an appropriate order under Section 64 of the Act for the immediate release of the juvenile whose period of detention had exceeded the Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh Crl.
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No.M-10041 of 2011 (O&M) [ 7 ].maximum period provided in Section 15 of the Act, i.e.3 years.”
.
In the facts of the present case, as per Section 12 (3) (a) the Matriculation Certificate (Ex.A4) was placed on record by the petitioner and inquiry report dated 19.5.2011 by DSP, Ganaur which was sufficient evidence to show that on the date of occurrence the petitioner was below 16 years of age and therefore his application could not be dismissed.
In view of the judgment of the Supreme Court in Hari Ram v.
State of Rajasthan & Another 2009 (2) R.C.R.(Criminal) 878 the order dated 8.3.2011 passed by the Sessions Judge, Sonepat, is set aside.
The petition is allowed.
4.10.2013 ( RITU BAHRI ) Rupi JUDGE Kaur Rupinder 2013.10.11 16:32 I attest to the accuracy and integrity of this document Chandigarh