Criminal Revision No. 1911 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1911 of 2009 Date of decision : September 22, 2009 Tinku ....Petitioner versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. R.B. Garg, Advocate, for the petitioner Mr. Sidharth Sarup, AAG Haryana L.N. Mittal, J. (Oral) Tinku has filed this revision petition assailing order dated 2.7.2009 passed by learned Additional Sessions Judge, Hisar thereby dismissing application for declaring petitioner-accused as juvenile under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (in short, the Act). The petitioner is accused in FIR No. 405 dated 7.10.2006, under sections 302, 201, 506 read with section 34 IPC, Police Station City Hansi. Application was moved on his behalf that his date of birth is 10.3.1990 and therefore, he was under the age of 18 years on 7.10.2006, the date of occurrence. Criminal Revision No. 1911 of 2009 -2- In evidence, petitioner examined Balraj AW1, Principal of Nav Jyoti High School Telu, District Bhiwani. He stated that certificate mark-A appeared to have been issued by him but he was not sure about it. He could not locate the record pertaining to the said certificate. In cross- examination, he admitted that name of the petitioner did not appear in the register of admission and withdrawal for the years 2000-2003. AW2 Telu Ram, Principal of City Senior Secondary School, Hansi stated from admission and withdrawal register that the petitioner was admitted on 3.11.2000 in 6th standard and as per record, his date of birth was 3.5.1989. The said date of birth was recorded on the basis of affidavit of petitioner's father Chhabil Dass who also affirmed in the affidavit that the petitioner had not been admitted in any other school earlier. Chhabil Dass himself appeared as AW3 and made statement similar to that of Telu Ram AW2. Learned Additional Sessions Judge vide impugned order dated 2.7.2009 found the evidence of the petitioner to be unreliable and therefore, dismissed the application for holding the petitioner as juvenile. Learned counsel for the petitioner vehemently contended that in the absence of matriculation or equivalent certificate, birth certificate from school or birth certificate given by local body, it was mandatory to obtain medical opinion regarding age of the petitioner in terms of rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (in short, the Rules). It was contended that no medical opinion regarding age of the petitioner was obtained and therefore, the impugned order suffers from patent illegality. Learned State counsel on the other hand contended that medical Criminal Revision No. 1911 of 2009 -3- opinion is required to be obtained under rule 12(3) of the Rules only if there is no matriculation or equivalent certificate or school certificate regarding date of birth or birth certificate from local body but in the instant case, the petitioner had produced two school certificates and therefore, it cannot be said that there was no school certificate regarding date of birth of the petitioner and therefore, it was not mandatory for the trial judge to have obtained medical opinion of age of the petitioner in terms of rule 12(3) of the Rules. Learned counsel for the petitioner contended that if the school certificate was not found reliable, it would mean that there is no school certificate and consequently it was mandatory to have obtained medical opinion regarding age of the petitioner. Reliance in support of this contention has been placed on a judgment of Rajasthan High Court in Kailash Singh vs Ramveer Singh and Anr. 2008 Criminal Law Journal, 290. I have carefully considered the rival contentions. The contention raised by learned counsel for the petitioner cannot be accepted because in the instant case, the petitioner did produce two school certificates. It is different matter that the said certificates were not found reliable. However, it cannot be said that the school certificate was non-existent in the instant case so as to make it mandatory for the trial judge to have obtained medical opinion. Even in Kailash Singh's case (supra), no such provision of law was laid down that in the absence of matriculation or equivalent certificate, birth certificate from school or birth certificate given by local body, it would be mandatory to obtain medical opinion regarding age of the accused. Criminal Revision No. 1911 of 2009 -4- Learned counsel for the petitioner next contended that the petitioner had produced reliable evidence to prove that he was juvenile at the time of commission of offence and therefore, the impugned order is unsustainable. It was also contended that if two views are possible, the view favourable to the accused should be taken. Support for this contention is drawn from the judgment of the Hon'ble Apex Court in Vithal Eknath Adlinge vs State of Maharashtra, 2009(3) RCR (Criminal), 161. However, this judgment pertains to final disposal of murder case and not to the question of an accused being juvenile. In any event, in the instant case the view taken by the trial judge is the only reasonable view of the evidence that can be taken. The evidence led by the petitioner to prove that he was juvenile at the time of occurrence is completely unreliable. Learned trial judge has recorded sound reasons for arriving at this conclusion. Paragraph 12 of the impugned order regarding the said reasons is reproduced herein:- “12. In the application, moved on behalf of applicant, his date of birth is mentioned as 10.3.1990. AW1 Balraj, Head Master of Nav Jyoti High School stated that no record is available regarding applicant Anil to substantiate certificate mark-A wherein age of one Anil son of Chhabil is mentioned as 10.3.1990. There is no record available with the Registrar of Birth and death. The record produced by AW2 Telu Ram, Principal, City Senior Secondary School, Hansi indicating date of birth of applicant as 3.5.1989 is solely based on affidavit Ex. AW2/A4 of Chhabil Dass. Applicant has not studied prior to taking admission in 6th standard and it is averred that he had studied at his house and this version is not plausible. The affidavit Ex. AW2/A-4 of Chhabil Dass, upon which date of birth of Anil was recorded in school record of City Senior Secondary School cannot be given any weight as Chhabil Dass himself moved an application before this court mentioning date Criminal Revision No. 1911 of 2009 -5- of birth of Anil as 10.3.1990. It would indicate that he is no certain about the age of his son and affidavit has been furnished by him in routine with a view to understate age of his son. The evidence of the applicant is further not reliable as it is stated that applicant was admitted in Nav Jyoti School, Talu, District Bhiwani but no record regarding his admission was found in that school. The applicant intends to take benefit of the provisions of Juvenile Justice Act but has miserably failed to bring on record any cogent and convincing evidence to establish his age. The contradiction regarding date of birth given in the application and the record is further aggravated as the other child of Chhabil Dass is stated to have taken birth after seven months of the birth of applicant Anil which would also be unnatural. School record produced by AW2 Telu Ram, regarding date of birth is not reliable, as discussed above, so it is held that this application is without any merit and is consequently dismissed. Papers be tagged with the main file.” In view of the aforesaid, I do not find any infirmity much less illegality in the impugned order regarding appreciation of the evidence led by the petitioner to prove that he was juvenile at the time of occurrence. The evidence led by the petitioner is completely unreliable. For the reasons recorded hereinabove, I find no merit in the instant revision petition and the same is dismissed. ( L.N. Mittal ) September 22, 2009 Judge 'dalbir'