Crl.R.No.1699 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.1699 of 2009 (O&M) Date of Decision:October 27, 2010 Rajbir .....Petitioner v. State of Haryana and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.G.C.Shahpuri, Advocate for the petitioner. Mr.P.M.Anand, Addl.Advocate General, Haryana. Mr.Vikas Kumar, Advocate for respondent no.2. ...... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Section 397 read with Section 401 Cr.P.C. against the order dated 1.5.2009 passed by learned Additional Sessions Judge, Faridabad, vide which respondent no.2- accused was held to be juvenile on the date of occurrence under Juvenile Justice (Care and Protection of Children) Act 2000 (hereinafter to be called as the Act). I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Additional Sessions Judge, Faridabad. Briefly stated the marriage of sister of complainant, i.e., present petitioner -Smt. Sonia (since deceased) was solemnized with respondent no.2-accused-Raj Kumar on 23.2.2006. She used to be harassed and maltreated by respondent no.2-accused and his parents on account of dowry. She died unnatural death in the house of her in-laws on 17.6.2008 and hence FIR No.90, dated 17.6.2008, under Sections 304-B, 498-A, 34 IPC, at Police Station Bhupani was registered against respondent no.2-Raj Kumar and his parents, namely, Dayawati and Ram Singh. Crl.R.No.1699 of 2009 (O&M) -2- After completion of investigation report under Section 173 Cr.P.C. was filed against respondent no-2-accused and his parents. During the course of the trial, respondent no.2-accused Raj Kumar moved an application before learned trial Court under Section 7 of the Act claiming himself to be juvenile. Accordingly an enquiry was conducted by learned Additional Sessions Judge, who passed the impugned order declaring respondent no.2-accused to be juvenile. It has been contended by learned counsel for the revision- petitioner that findings of learned trial court are based mainly on school certificate, Ex.A1, which has not been proved as per law and as per the provisions of Section 35 of the Indian Evidence Act and hence, the same cannot be taken into consideration. It is further contended that no reliance can be placed on the testimony of father and grand-father of respondent no.2-accused. It is further contended that however, learned trial Court has ignored the medical evidence, i.e., ossification Test report of accused Raj Kumar, Ex.R1, according to which his age was assessed between 20 to 22 years with a margin of six months on either side. He has also placed reliance upon Jabar Singh v. Dinesh and another 2010(2) RCR (Criminal) 309 and Pawan v. State of Haryana 2009(1) RCR (Criminal) 419. On the other hand, it has been argued by learned counsel for respondent no.2-accused that date of birth certificate, Ex.A1, has been duly proved by AW1, Nand Kishore, a Lecturer of Government Senior Secondary School, Bhopani, who had brought the original record, i.e., admission and withdrawal register of the school bearing date of birth of respondent no.2-accused so entered in the year 2001, when there was no dispute regarding his age. It is further contended that moreover deposition of Nand Kishore, AW1, has been duly corroborated by depositions of father and grand father of respondent no.2-accused. It is further contended that though ossification test report Ex.R1 has not been duly proved as per law as the medical officer, who issued the said report has not been examined and however, as per the said report as well, age of respondent no.2-accused was assessed between 20 to 22 years on the date of examination with a margin of six months on either side. Further contends that the report is dated 29.4.2009, whereas the date of occurrence is 17.6.2008 and hence, as per Crl.R.No.1699 of 2009 (O&M) -3- the said report, age comes to between 19 to 21 years. Further contends that law is well settled that two years margin on either side is to be given while assessing the age on the basis of ossification test as the said test determines the age only on approximation and hence, even as per the said report, the age of respondent no.2-accused is less than 18 years. The question regarding juvenility of respondent no.2-accused was raised before learned trial Court after introduction of Section 7-A in the Act and after framing of Juvenile Justice (Care and Protection of Children) Rules, 2007, (hereinafter to be referred as the `Rules') framed under the Act. Hence, learned trial Court was to determine the age of respondent no.2- accused in accordance with the said amended Act and the Rules framed thereunder. Hon'ble Apex Court in Hari Ram v. State of Rajasthan and another 2009 (2) RCR (Criminal) 878 has dealt in detail the provisions of the amended Act and the Rules and the procedure to be followed for determining the age of accused claiming to be juvenile from the date of occurrence and observed as under: “34. Sub-Section(1) of Section 49 vests the Competent authority with power to make due inquiry as to the age of a person brought before it and for the said purpose to take such evidence as may be necessary (but not an affidavit) and shall record a finding as to whether the person is a juvenile or a child or not, stating his age as nearly as may be. Sub-Section (2) is of equal importance as it provides that no order of a Competent Authority would be deemed to have become invalid merely on account of any subsequent proof that the person, in respect of whom an order is made, is not a juvenile or a child, and the age recorded by the Competent Authority to be the age of the person brought before it, would, for the purpose of the Act, be deemed to be the true age of a child or a juvenile in conflict with law. Sub-Rule (3) of Rule 12 indicates that the age determination inquiry by the Court or Board, by seeking evidence, is to be derived from: (i)the matriculation or equivalent certificates, if available, and Crl.R.No.1699 of 2009 (O&M) -4- in the absence of the same; (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.” Hon'ble Apex Court in another judgment rendered in Ram Suresh Singh v. Prabhat Singh alias Chhotu Singh and another 2010(1) RCR (Criminal) 244 observed that opinion of the medical board is to be preferred only when a date of birth certificate from the school first attended is not available. It is further observed that if age of person is determined by medical board, margin of error in age ascertained by radiological examination is two years on either side. So far as Jabar Singh's case (supra) is concerned, on which reliance has been placed on behalf of the revision petitioner, the order was passed by learned trial Court rejecting the claim of the accused to be juvenile vide order dated 14.2.2006 as Section 7-A of the Act had not come into force by then. Hence, it was observed by Hon'ble Apex Court that when the trial Court passed the order rejecting the claim of respondent -accused of juvenile on the date of occurrence, the Rules including Rule 12 laying down the procedure to be followed and determining the age of juvenile in conflict with the law, had also not come into force and hence trial Court was not required to follow the procedure laid down in Section 7A of the Act or Rule 12 of the Rules and hence it was held that in the absence of any statutory provisions laying down the procedure to be followed in determining the claim of juvenility raised before it, the Court had to decide the claim of juvenility of respondent no.1-accused on the material evidence brought on record by the parties and Section 35 of the Indian Evidence Act. Hence, the said judgment is not of any help to the case of present revision-petitioner. Moreover law is well settled that revisional Court is not required to re-appreciate and reappraise the evidence as a Court of appeal and come to a different finding as recorded by learned trial Court on the basis of the same evidence. This Court in revision can interfere only if any illegality or Crl.R.No.1699 of 2009 (O&M) -5- material irregularity has been committed by learned trial Court in passing in the impugned order. Hence, in view of this legal preposition, this Court is to see as to whether any illegality or material irregularity has been committed by learned trial Court in passing the impugned order declaring revision- petitioner as a juvenile. The impugned order passed by learned trial Court is based on deposition of Nand Kishore, Lecturer, Government Senior Secondary School, Bhopani, as AW1. He had brought the original admission and withdrawal register of the school, which used to be maintained in due course. He deposed that as per the record date of birth of Raj Kumar was recorded as 4.5.1991. He had also deposed that in the record the name of mother is also recorded as Smt.Dayawati. He also deposed that he was admitted in school in 6th class on 28.7.2001 at Sr.No.3445 and his date of birth was recorded on the basis of 5th class school leaving certificate. He had proved original certificate Annexure Ex.A1. So far as non-production of 5th class school leaving certificate by respondent no.2-accused is concerned, no request was made on behalf of the prosecution to defer cross-examination of the witness and to call for the said school leaving certificate. He deposed that he had not brought the said certificate as the same was not called. No evidence was also adduced on behalf of respondent no.1-State to contradict deposition of Nand Kishore- AW1 that the entry was not correctly made as per school leaving certificate of 5th Class. Hence, learned trial Court has rightly placed reliance upon deposition of Nand Kishore, AW1 and the school record, which has been duly proved as per law. It may be mentioned here that in the year 2001, there was no dispute regarding the date of birth of respondent no.2-accused. Moreover Ex.A1 finds corroboration from depositions of father and grand father of respondent no.2-accused. They had also deposed that they got recorded the date of birth of respondent no.2-accused correctly as 4.5.1991. So far as ossification test report Ex.R1 is concerned, though the same has not been proved as per law as the Medical Officer, who issued the Crl.R.No.1699 of 2009 (O&M) -6- same has not been examined and however, even as per the said report, the age of respondent no.1-accused was determined as between 20 to 22 years as on 29.4.2009. Hence, on the date of occurrence the age of respondent no.2-accused comes between 19 to 21 years and in view of legal preposition held by Hon'ble Apex Court in Ram Suresh Singh's case (supra) margin of error in age ascertained by Radiological examination is two years on either side. Hence, by giving the benefit of the same to the accused, the age of respondent no.2-accused comes to 18 years on the date of occurrence even as per medical evidence. Hence, entry in the school certificate, Ex.A1 is also corroborated by the medical evidence. More-over, it was observed by Hon'ble Apex Court in Rajinder Chandra v. State of Chhattisgarh 2002(1) RCR (Criminal) 586, that while dealing with question of determination of the age of the accused for the purpose of finding out whether he is a juvenile 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 a 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 borderline cases, as per Rule 12 of the Rules framed under the Act. It is pertinent to reproduce Rule 12 of the Rules framed under the Act. The same read as under:- “12. Procedure to be followed in determination of Age.-(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (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 Crl.R.No.1699 of 2009 (O&M) -7- 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- (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; (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 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 Crl.R.No.1699 of 2009 (O&M) -8- 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. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub- rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” Hence, a careful perusal of the said Rule shows that in enquiry for age determination of a juvenile in conflict with law the matriculation or equivalent certificate if available is to be given preference and if the same is not available the date of birth certificate from the school other than the play school is to be given preference and it is only in the absence whereof, the medical opinion would be sought from the duly constituted medical board. In the present case, as discussed above, date of birth certificate from school other than a play school is available as Ex.A1, which has been duly proved on the basis of original school record, according to which the age of respondent no.2-accused comes to below 18 years on the date of occurrence. Hence, in view of these facts, it cannot be said that any illegality or material irregularity has been committed by learned Additional Sessions Judge, Faridabad, in passing the impugned order, warranting interference by this Court. There is no merit in the present revision petition. The same is, hereby, dismissed. 27.10.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No. Crl.R.No.1699 of 2009 (O&M) -9-