Full Judgment
1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) SINGLE BENCH Criminal Revision No.713/2012 Juned Hasan Vs. State of Madhya Pradesh Shri A.Usmani, learned counsel for the applicant. Shri Pushpraj Singh, learned PL for the State. Date of hearing:
16. 01/2013 Date of Judgment:
06. 03/2013 ORDER
This revision petition has been filed by applicant being aggrieved by order dated 28.3.2012 passed by First Additional Sessions Judge, Raisen in ST No.112/2011 whereby an application filed by the applicant under Section 7(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as 'Juvenile Justice Act') has been dismissed and applicant has not been declared as juvenile.
2. It is undisputed on record that applicant filed a Criminal Revision No.1898/2011 on the basis of observation made by the trial Court in dismissal of application under Section 438 of Cr.P.C. to the effect that applicant's age is more 2 than 18 years. Aforesaid revision petition has been withdrawn with liberty to file an application under Section 7(1) of Juvenile Justice Act for determination of the age before the Sessions Court.
3. Facts, in short, giving rise to this petition are that applicant claiming himself to be juvenile on the date of incident i.e. 6.6.2010, the date of commission of alleged offence under Sections 147, 148, 149, 323, 506, 307 and 302 of IPC read with Section 25/27 of the Arms Act.
4. Learned First Additional Sessions Judge, Raisen vide order dated 28.3.2012 rejected the application of applicant in ST No.112/2011, hence this revision.
5. It is also on record that during the course of the consideration of bail application, learned Additional Sessions Judge directed Chief Judicial Magistrate, Raisen to inquire into the age of the applicant on the date of incident. The evidence of mother of applicant, Gajala (PW3), Amar Singh Baghel (PW2), Principal of New Germination Public School, Nariyal Kheda, Bhopal, Dr. S.S. Kushwaha (PW1), Assistant Surgeon, District Hospital, Raisen has been recorded by the learned Chief Judicial Magistrate. Non-applicant/State has not led any evidence and relied only on the ossification test report prepared by Dr. S.S. Kushwaha”
6. First Additional Sessions Judge, after considering the evidence on record, was of the view that documents produced by School Authority are not public documents, therefore presumption cannot be raised on the basis of aforesaid documents and further he was of the view that after deducting the two years from the higher side of the age. Applicant is 18 years of age on the date of incident and therefore, he dismissed the application filed on behalf of the applicant.
7. Learned counsel appearing on behalf of the applicant submitted that the Additional Sessions Judge committed illegality in appreciating the evidence on record. He further stated that trial Court wrongly held that birth certificate was prepared after the incident. He further submitted that as per ossification test report, the applicant was more than 18 years of age but there is always margin of about 2 years on either side. In these circumstances, the applicant is not more than 18 years of age, thus prays for setting aside the impugned order and further prays for declaration that applicant is a juvenile on the date of incident. He placed reliance on 2003(4) M.P.H.T. 223, Jugraj Vs. State of Madhya Pradesh as well as AIR 200.SC 748.Rajinder Chandra Vs. State of Chhattisgarh and AIR 200.SC 2264.Arnit Das Vs. State of Bihar”
8. Learned counsel appearing on behalf of the State supported the impugned order and prays for dismissal of the petition.
9. I have perused the impugned order along with the statements of mother of applicant, Gajala, Amar Singh Baghel, Principal of New Germination Public School Nariyal Kheda, Bhopal, Dr. S.S. Kushwaha, birth certificate issued by Jawaharlal Nehru Hospital and other material on record.
10. It is well established principle of law that for determination of age, main witness is parent of the child and all other witnesses are the corroborative evidence in regard to the fact of age. Gajala, mother of applicant, stated that she gave birth to the applicant on 24.4.1996 at Jawaharlal Nehru Hospital, Bhopal, thereafter she admitted him for primarily education in New Germination Public School where he studied till Class Fifth. In support of her contention, she filed birth certificate issued from Jawaharlal Nehru Hospital, Bhopal and school record of her son. Amar Singh Baghel, supported her statement and stated that applicant was admitted in his school on 5.8.2004 vide admission form Ex.D10C and Ex.D11C. He also filed admission register details wherein the date of birth of applicant Juned was entered by him as 24.4.1996. He further stated and filed the mark sheet of Class-I (Ex.D-3) to 5 Class-V (Ex.D-4) and transfer certificate (Ex.D-5). All these documents are relating to the date of birth of applicant 24.4.1996. It is true that this witness admitted that date of birth in the aforesaid document has been written on the information of parents of applicant Juned Hasan. Gajala, mother of the applicant, has remained undeviated in her cross-examination. In these circumstances, the best possible evidence has been led on behalf of applicant. Dr. S.S. Kushwaha (PW1) himself stated that as per X-ray report, age of the applicant is more than 18 years and less than 20 years. He admitted in his cross-examination that there may be a margin of about 3 years on either side. He further admitted that he is not the expert in regard to the determination of the age.
11. Considering the aforesaid evidence on record, I am of the view that trial Court has committed illegality in not appreciating the evidence on record in its proper perspective because Gajala, mother of the applicant, had specifically stated that he delivered a child on 24.4.1996 in Jawaharlal Nehru Hospital, Bhopal and she filed the birth certificate issued by the aforesaid hospital. She further stated the age of her other children and stated that she admitted her son in the New Germination Public School, Bhopal, same was further corroborated by the Principal of the aforesaid school with the documentary evidence. All these 6 evidence cannot be brushed aside by stating that all aforesaid evidence has been concocted after the incident. The School record, the register of admission or withdrawal of the student in any school is a relevant evidence in ascertaining the age of the child and same is admissible. It is also important that all these documents was allowed to be received in evidence during inquiry without any objection whatsoever from the respondent. As far as ossification test is concerned, since Dr. S.S. Kushwaha admitted that there is margin of about 3 years on either side and he further, not claiming himself as expert for determination of age. In these circumstances, from the oral evidence and documentary evidence on record, it is duly proved that applicant on the date of incident i.e. on 6.6.2010 was less than 18 years of age. In the ossification test report, doctor opined his age more than 18 years but there is always a margin of about 2 years on either side, therefore, on the basis of such test, no definite opinion could be formed. The Apex Court in Rajinder Chandra Vs. State of Chhattisgarh, 2002(1) M.P.H.T. 536 = AIR 220.SC 748.while affirming the order of High Court setting aside the orders of Judicial Magistrate First Class and the Sessions Court reiterated its earlier view taken in Arnit Das Vs. State of Bihar, AIR 200.SC 2264.in which it has been laid down: “While dealing with the question of determination of the age of the accused for the purpose of finding out whether he is juvenile 7 or not a hyper technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in border lines cases.”
12. The law laid down by the Apex Court in the above referred cases was followed by this Court in Jugraj (Supra) and same squarely apply to the facts of the present case. In these circumstances, the impugned order of the Additional Sessions Judge, Raisen, is not sustainable and is hereby set aside. The applicant is held to be juvenile on the date of incident.
13. The revision is allowed. (G.S. SOLANKI) JUDGE ravi