* THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY + Criminal Revision Case No.485 of 2009 % 13-11-2009 # Pilli Mangaiah …Petitioner VS. $ 1.The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad & Anr. ..Respondents ! COUNSEL FOR PETITIONER: MR.POSANI VENKATESWARLU ^COUNSEL FOR RESPONDENT No.1: PUBLIC PROSECUTOR COUNSEL FOR RESPONDENT NO.2: MR.PRABHUNATH VASIREDDY < Gist: > Head Note: ? CITATIONS: 2008(2) AICLR 359 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Crl.R.C.No.485 of 2009 Dated:13th November, 2009. Between: Pilli Mangaiah ….Petitioner and 1. The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad and another. …Respondents **** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Revision Case No.485 of 2009 ORDER: This Criminal Revision Case is directed against the order dated 09.03.2009 passed in Crl.M.P.No.526 of 2008 in Sessions Case No.363 of 2008 on the file of X Additional District and Sessions Judge (FTC), Guntur at Narasaraopet, whereby and where under the learned Additional Sessions Judge dismissed the application filed by the petitioner, who has been arrayed as A1 in S.C.No.363 of 2008. 2. The petitioner filed Crl.M.P.No.526 of 2008 under Section 7-A r/w. Sec. 18 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, ‘the Act’), to declare him as a juvenile and to proceed under the provisions of the Act. He took the plea that as on the date of commission of the offence he was a juvenile and therefore, case against him is required to be dealt with in accordance with the provisions of the Act. The prosecution disputed the contention of the petitioner. The petitioner examined 3 witnesses on his behalf and exhibited 2 documents. The prosecution marked photo of the petitioner in the voters identity list with E.No.403 as Ex.B.1. The learned Additional Sessions Judge, on considering the evidence brought on record and on hearing learned counsel appearing for the parties, came to the conclusion that the petitioner failed to prove that he was a juvenile as on the date of commission of the offence and thereby proceeded to dismiss the application by an order dated 09th March, 2009. The said order is assailed in this revision. 3. Notice before admission came to be ordered on 26.03.2009. 2nd respondent entered apprarance through a counsel. 4. When the revision came up for admission hearing, with the consent of learned counsel appearing for the parties, it is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the 1st respondent/State and learned counsel appearing for the 2nd respondent/de facto complainant. 6. Learned counsel appearing for the petitioner submits that as on the date of the alleged offence i.e., 13.07.2007 the petitioner was a juvenile and to prove his juvenility, he examined his father, his younger brother and the Tahsildar as PWs.1 to 3 respectively and marked two documents as Exs.A1 and A2 and thus, he proved of his being juvenile as on the date of the alleged offence. A further submission has been made that the trial Court, without appreciating the evidence adduced on behalf of the petitioner properly, recorded a finding that the petitioner failed to prove of his being juvenile as on the date of the alleged offence. He would also contend that even if the trial Court entertained any doubt on the certificate placed on record and evidence adduced by the petitioner, ought to have referred the petitioner to the Medical Board as provided under Rule 12 of the Juvenile Justie (Care and Protection of Children) rules, 2007 (for short, ‘the Rules’). The learned counsel referred the provisions of Rule 12 of the Rules extensively during the course of his arguments. He also placed reliance on the decision of the Supreme Court in Jyoti Prakash Rai @ Jyoti Prakash v. State of Bihar[1], wherein it has been held that whether an offender was a juvenile on the date of commission of offence or not is essentially a question of fact which is required to be determined on the basis of the material brought on record by the parties. It has been further held that when the school certificate and horoscope produced by the accused found to be false and fabricated, the Court has no other option but to determine the age on the basis of medical reports though medical reports are not conclusive evidence and the age determined by the doctors should be given flexibility of two years on either side. 7. Learned counsel appearing for the 2nd respondent/de facto complainant contended that the petitioner having come up with a specific plea that his date of birth is 18.08.1991, he failed to substantiate the same and therefore, the trial Court is justified in dismissing the application filed by the petitioner under Sections 7A r/w.18 of the Act and the order impugned in the revision does not suffer any illegality or irregularity warranting interference of this Court in exercise of powers under Sections 397 or 401 Cr.P.C. 8. The petitioner filed an application under Sections 7A r/w.18 of the Act taking a specific stand that his date of birth is 18.08.1991 and therefore, he was a juvenile on the date of the alleged offence i.e. 13.07.2007. He produced two documents to substantiate his plea apart from examining his father as PW.1, his younger brother as PW.2, and the Tahsildar as PW.3. In Ex.A1 the name of the child is not mentioned. Even the witness- PW.3, who has been examined to prove the contents of Ex.A1, admits that Ex.A1 does not contain the name of the child. The father of the petitioner, who has been examined as PW.1, asserts that Ex.A1 birth certificate relates to the petitioner/accused. PW.1 has six issues. The 1st issue is in the year 1983 and it is stated to be a female child. The 2nd issue is Brahmaiah. The 3rd issue is stated to be Manga Rao, born in 1987 and died at the age of 9 years. There was a miscarriage to his wife in 1989. The 5th issue is stated to be the petitioner, who has been named as Mangaiah. The 6th issue is stated to be born on 15.06.1993 and he is named as Pilli Manga Rao, who has been examined as PW.2. Ex.A1 certificate, which has been relied on by the petitioner, does not indicate the name of the child. It has not been stated the number of the issue of the parents of the petitioner to which it relates. Therefore, Ex.A1 cannot be related to the petitioner. As per photo identity card of the petitioner, which has been admitted by PW.3 in cross-examination, the petitioner was aged 22 years as on 01.01.2009. The trial Court on thorough appreciation of the material brought on record came to the conclusion that the petitioner was not a juvenile by the date of the offence i.e., 13.07.2007. For better appreciation, I may refer para.13 of the order impugned in the revision, which reads as hereunder: “PW.1’s third issue and son by name Manga Rao was born in the year 1987 and died at the age of 9 years, his death could have certainly entered in the death register and the petition could have certainly filed the entry in the death register of said Pilli Manga Rao who died at the age of 9 years, having the name as Pilli Manga Rao. Failure on the part of the petitioner/A1 and PW.1 to file the same is giving scope to suspect their version and also to come to a conclusion that the eptitioenr/A1 was born in the year 1987 and A1 and his father are claiming the year of birth of the petitioner’s as 1987 as that of the deceased son, with a view to falsely claim that A1/petitioner is a juvenile. The physical appearance of the petitioner/A1 is also showing that he is more than 18 years as on 13.7.2007 on which the offence took place. Petitioner has not taken steps to get himself examined by doctor to know his present age. These aspects came to show that petitioner/A1 is not a juvenile by the date of offence on 13.7.2007 and hence, this petition is liable to be dismissed. Hence, this point is answered accordingly in favour of the prosecution and against the petitioner/A1.” The order impugned in the revision indicates that the learned Additional Sessions Judge has considered the material brought on record very minutely and came to the conclusion that the petitioner was not a juvenile as on the date of the offence. When the finding is recorded by the learned Additional Sessions Judge basing on the appreciation of material brought on record, it is impermissible for the revisional Court to disturb the said finding. 9. It is strenuously contended by the learned counsel appearing for the petitioner that even if the learned Additional Sessions Judge did not satisfy with the material brought on record, there is an obligation on his part to refer the petitioner to the Medical Board for examination as provided under Rule 12 of the Rules. For better appreciation, I may refer Rule 12 of the Rules, which reads as hereunder: “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 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 juvenile 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 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, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing of 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 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 7-A, 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.” A plan reading of the above referred rule indicates that the court is empowered to determine the age of the juvenile or a child. The petitioner himself filed an application to adjudicate upon the issue with regard to his juvenility on the date of commission of the offence. He having filed an application seeking adjudication of the issue with regard to his juvenility, cannot be permitted to turn down and question the competency of the learned Additional Sessions Judge to adjudicate the issue in stead of referring the petitioner to Medical Board. Therefore, I do no see any substance in the contention of the learned counsel appearing for the petitioner. Sub-Rule 3(b) of Rule 12 of the Rules can be pressed into service in case of there being no date of birth certificate from the School or any other document. In the case on hand, the petitioner placed on record Ex.A1 birth certificate and asserted that it relates to the petitioner. The learned Additional Sessions Judge on thorough examination of the material brought on record did not accept Ex.A1 certificate. There is no other material placed by the petitioner to show that he was juvenile as on the date of the commission of offence. 10. Accordingly, the Criminal Revision Case fails and it is hereby dismissed. ______________________ B.SESHASAYANA REDDY, J. Date:13th November, 2009. L.R. copy to be marked. B/O cs [1] 2008(2) AICLR 369