Shah Nawaz vs State Of U.P.& Anr

3) Brief facts:

(b) On 04.06.2007, a First Information Report (in short "the FIR") was lodged by Khatizan, wife of Nawab-the deceased, against the appellant herein and three others for the alleged occurrence which culminated into Crime Case No. 215 of 2007 at Police Station Charthawal, District Muzaffarnagar, U.P. under Sections 302 and 307 of the Indian Penal Code, 1860 (in short "the IPC").

(c) On 12.06.2007, the mother of the appellant submitted an application before the Juvenile Justice Board (in short "the Board"), Muzaffarnagar, U.P. stating that the appellant was a 2 minor at the time of the alleged occurrence. After examining the witnesses, the Board, vide judgment and order dated 24.01.2008, declared the appellant juvenile under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as "the Act").

Despite notice, no one has entered appearance on behalf of respondent No.2.

From Class VI till Class X the appellant remained and studied continuously in the aforesaid school. The date of birth in the 12 mark sheet is mentioned as 18.06.1989. The alleged occurrence took place on 04.06.2007. The FIR was lodged on 04.06.2007 which culminated into Crime Case No. 215 of 2007 at Police Station Charthawal, District Muzaffarnagar, U.P. under Sections 302 and 307 of the IPC. On 12.06.2007, the mother of the appellant submitted an application before the Board at Muzaffarnagar stating that the appellant was a minor at the time of alleged occurrence. The appellant was provided a School Leaving Certificate dated 11.07.2007 from Nehru Preparatory School, Khurd, Muzaffarnagar. The mother of the appellant made a statement dated 26.07.2007 regarding the age of her son. She was cross-examined at length. On 16.10.2007, the statement of clerk of Nehru Preparatory School was recorded by the Board. The said clerk brought the entire records maintained by the School. The said clerk was also cross-examined at length.

Discussion on merits:

15) The Board, vide judgment and order dated 24.01.2008, declared the appellant juvenile under the Act. Against the judgment of the Board, the complainant Smt. Khatizan, wife of deceased Nawab filed Criminal Appeal No. 11 of 2008 under 13 Section 52 of the Act before the learned Additional Sessions Judge, Muzaffarnagar. It is relevant to point out that the State, who is the prosecuting agency did not file any appeal.

The Additional Sessions Judge, Muzaffarnagar recorded the statement of Guljar Hussain, Principal of Nehru Preparatory School, Dadheru, Khurd-O-Kalan, Muzaffarnagar on 07.08.2008. By order dated 13.01.2009, the Additional Sessions Judge allowed the said appeal filed by the complainant and set aside the order dated 24.01.2008 passed by the Board.

16) Aggrieved by the order of the Additional Sessions Judge, the appellant filed Criminal Revision No. 716 of 2009 before the High Court. The High Court dismissed the said Revision mainly on the ground that in the absence of any matriculation or equivalent certificate and considering the language used in Rule 12 with reference to only "Certificate" and not "mark sheet", dismissed the Revision petition.

Rule 12 of the Rules categorically envisages that the medical opinion from the medical board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a corporation or by any Panchayat or municipality is not available. We are of the view that though the Board has correctly accepted the entry relating to the date of birth in the mark sheet and school certificate, the Additional Sessions Judge and the High Court committed a grave error in determining the age of the appellant ignoring the date of birth mentioned in those documents which is illegal, erroneous and contrary to the Rules.

20) We are satisfied that the entry relating to date of birth entered in the mark sheet is one of the valid proof of evidence for determination of age of an accused person. The School Leaving Certificate is also a valid proof in determining the age of the accused person. Further, the date of birth mentioned in the High School mark sheet produced by the appellant has duly been corroborated by the School Leaving Certificate of the 16 appellant of Class X and has also been proved by the statement of the clerk of Nehru High School, Dadheru, Khurd-

22) In the light of the above discussion, we hold that from the acceptable records, the date of birth of the appellant is 18.06.1989, the Additional Sessions Judge and the High Court committed an error in taking contrary view. While upholding the decision of the Board, we set aside the orders of the Additional Sessions Judge dated 13.01.2009 and the High Court dated 10.12.2010. Accordingly, the appellant is declared to be a juvenile on the date of commission of offence and may be proceeded in accordance with law. The appeal is allowed.

AUGUST 05, 2011.