Judgment:
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Revision No.1474/2007 Nazeem VERSUS The State of Madhya Pradesh --------------------------------------------------------------------------- Shri K.N.Fakhruddin, counsel for the applicant. Shri Prakash Gupta, Panel Lawyer for the State/respondent. --------------------------------------------------------------------------- ORDER
(Passed on the 12th day of March, 2013) The applicant has challenged the order dated 30.6.2007 passed by the learned Additional Sessions Judge, Bhopal in criminal appeal No.67/2007, whereby it was found that the applicant was above 18 years of age and therefore, he could not be said to be a juvenile at the time of the incident and hence, the order dated 23.2.2007 passed by the Principal Judge, Juvenile Justice Board, Bhopal in an unregistered MJ.“Nazeem Vs. State of Madhya Pradesh”. was confirmed.
2. The prosecution's case, in short, is that, a case was registered as crime No.122/2006 against the applicant for the offence punishable under section 302 of IPC by the Police Station Khajuri Sadak, Bhopal and a charge-sheet was - 2 - Criminal Revision No.1474 of 2007 filed before the JMFC, Bhopal and case was committed. In the bail application moved by the applicant, he raised a ground that he was a juvenile and therefore, the learned Third Additional Sessions Judge, Bhopal vide order dated 17.10.2006 released the applicant on bail with the direction that an enquiry may be done for assessment of age of the applicant and therefore, the applicant had moved an application under section 7 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter it will be referred to as 'the Act'). After due enquiry, the Presiding Magistrate of Juvenile Justice Board vide order dated 23.2.2007 found that the applicant was above 18 years of age.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the applicant has submitted before this Court on the basis of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter it will be referred to as 'the Rules'). The First objection raised by the learned counsel for the applicant is that it is necessary that enquiry should be held for consideration of age of the juvenile. In this connection, the judgment passed by Hon'ble the Apex Court in case of “Ashwani Kumar Saxena Vs. State of M.P.”
., [AIR 201.SC 553]. was referred. In the present case, if record of the - 3 - Criminal Revision No.1474 of 2007 Juvenile Justice Board is perused then, it would be apparent that appropriate enquiry was done by the Board and law laid by Hon'ble the Apex Court in case of Ashwani Kumar (supra) was complied. The provision of Rule 12 clearly indicates that which documents shall be considered for assessment of the age of the accused and such assessment should be done according to the various certificates given in rule 12 (3) (a) in the serial order. If any certificate mentioned in the sub rule (i) is available then, that certificate should be relied for consideration of age of the accused, according to the rule 12 (3) (a) (i) a matriculation or equivalent certificate is required. In the present case, no such certificate of matriculation or equivalent examination was produced by the applicant. According to the rule 12 (3) (a) (ii), the date of birth certificate given by school which was first attended by the applicant. In the present case, so many persons of the school were examined to prove the mark-sheet of class 5th produced by the applicant. However, no evidence is shown from the side of the applicant that he was admitted for the first time in the school and birth certificate was given by that school and therefore, no such certificate is submitted which falls in the clause (ii) of that rule. The learned counsel for the applicant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of “Jodhbir Singh - 4 - Criminal Revision No.1474 of 2007 State of Punjab”. [AIR 201.SC 1]., in which a certificate was considered, which was issued by the school first attended. In the present case, no such certificate is available from the school which the applicant has first attended and therefore, due to factual difference, the judgment passed by Hon'ble the Apex Court in case of Jodhbir Singh (supra) cannot be applied in the present case. According to the rule 12 (3) (a) (iii) a birth certificate given by a Corporation or Municipal authority may be considered. In this context, a birth certificate is shown by the applicant before this Court in which his date of birth was recorded in the year 2005 and date of birth of the applicant was mentioned as 31.1.1990, whereas in the mark-sheet of Class 5th his date of birth was mentioned to be 20.12.1990. No any witness was examined to show that on which basis a belated entry of birth was intimated to the Municipal Corporation, Bhopal. If date of birth shown in the mark-sheet of primary examination was correct then, after the examination, on which basis the date of birth 31.1.1990 was informed to the Municipal Corporation, Bhopal by the parents of the applicant. It appears that it was given to the Municipal Corporation with some ulterior motive and such certificate was not produced before the Juvenile Justice Board and therefore, it appears that such certificate was prepared thereafter, though it is - 5 - Criminal Revision No.1474 of 2007 mentioned that date of birth of the applicant was registered on 27.1.2005. Under such circumstances, the certificate produced before this Court cannot be accepted as a document shown in rule 12 (3) (a) (iii), therefore, in absence of any of such document, the clause (b) of rule 12 (3) shall be applicable and therefore, a medical opinion was to be sought by the Juvenile Justice Board.
5. The ossification test of the applicant was done and the medical Board has given a detailed report that the various joints of longer bones the applicant were found fused and therefore, the applicant was certainly above 18 years of age but, he could be below 25 years of age. The learned counsel for the applicant has submitted that the applicant was found above 18 years of age and therefore, according to the rule 49, one year should be reduced from such assessment.
6. It is a settled principal of law that if any doubt is created in any assessment then, the benefit of doubt is to be given to the concerned accused. In the present case, various joints of the applicant relating to the lengthy bones were found fused but, the joint of iliac crest was not found fused and therefore, the applicant was below 25 years of age. If average of that range is taken into consideration then, the applicant was of 21½ years of age at the time of his - 6 - Criminal Revision No.1474 of 2007 ossification test and if 2 years are deducted from the average of age then, answer would be 19.5 years i.e. still above 18 years of age.
7. The learned counsel for the applicant has placed his reliance upon the judgment passed by single Bench of this Court in case of “Thakat Singh and another Vs. State of M.P. & another”., [(2012) Cr.L.J.2573].. That particular order passed by the single Bench of this Court, cannot be applied in the present case because in that case, the maximum age was assessed to be 21 years and therefore, due to factual variation, the order passed in case of Takhat Singh (supra) cannot be applied in the present case. Under such circumstances, if age of the applicant is assessed on the basis of ossification certificate issued by the medical Board then, certainly, he appears to be above 19 years of age, after reduction of two years in the average age and therefore, he was not at all a juvenile. The learned Juvenile Justice Board has rightly assessed the age of the applicant and the appellate Court has rightly dismissed the appeal filed by the applicant. There is no basis by which any interference can be done in the aforesaid orders passed by both the Courts below. Consequently, the revision filed by the applicant cannot be accepted. Hence, it is hereby dismissed. - 7 - Criminal Revision No.1474 o”
8. A copy of the order be sent to the trial Court for information with the direction that trial Court shall proceed with the trial. Interim stay granted in the case is hereby vacated. (N.K.GUPTA) JUDGE 12 3/2013 Pushpendra