Dismissed

Xxx (Minor) v. State of U.P. and Another

Allahabad HC2 Nov 2022CRLR/1069/2022

Case brief

AI extract

What is this about?

CrR No. 1069/2022 dismissing appeal where High Court held that primary school records containing earlier birth date were more credible than high school certificate, validating age determination by appellate court that declared accused a major.

What did the court decide?

The criminal revision was dismissed; the impugned order declaring the accused a major was upheld.

Xxx (Minor) Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2022)

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Reserved on 18.10.2022 Delivered on 02.11.2022

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Court No. - 91

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Case :- CRIMINAL REVISION No. - 1069 of 2022 Revisionist :- Xxx (Minor) Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Upendra Upadhyay Counsel for Opposite Party :- G.A.,Shashi Kumar Mishra

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Upendra Upadhyay, learned counsel for the revisionist and Sri O.P. Mishra, learned AGA for the State of U.P. None responds for the respondent no. 2.

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This criminal revision has been filed under Section 102 of the Juvenile Justice Act, 2015 challenging the order dated 10.02.2022 passed by the Sessions Judge, Etah in Criminal Appeal No. 44/2021 setting aside the order dated 29.09.2021 passed by the Juvenile Justice Board, Etah in Case No. 48 of 2020 by which the revisionist was declared juvenile. The appellate Court allowed the appeal and declared the accused a major.

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Relevant facts leading to this criminal revision, are as below.

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A FIR Case Crime No. 172 of 2020 under Sections 376D, 302, 506, 452 IPC was registered under Police Station Jalesar, District-Etah with the allegations that the complainant's daughter was raped by one Anil and the juvenile; his son aged about 11 years, who was witness to the occurrence was murdered by them by strangulation and the victim was also threatened not to tell anything about the incident. Finding accused a juvenile, the matter came before the Juvenile Justice Board, where age determination inquiry was conducted and he was declared aged 17 years 1 month and 22 days on the date of the incident by an order dated 29.09.2021. Challenging the above order of the Juvenile Justice Board, an Appeal No. 44 of 2021 was preferred by the informant. The learned appellate Court declared the juvenile a major and set aside the order of the Juvenile Justice Board. At the same time, it was ordered that the case of the juvenile shall be sent to the Special Judge, POCSO Act for disposal in accordance with law. The order of the appellate

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Court has been challenged on behalf of the revisionist through his natural guardian before this Court.

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It is contended on behalf of the revisionist that the date of birth as mentioned in the high school certificate should have been given preference over other evidence instead the appellate Court relied on primary school record. And that the impugned order has been passed against the settled principles of law and against the provisions of Section 94 of the Juvenile Justice Act and therefore, the impugned order is not sustainable in law.

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Before the Juvenile Justice Board, the father of the juvenile as CW1and an official from SMS Jain Inter College, Hathras as CW2 and Headmaster of primary school, Bhyau as CW3 were examined. It may be noticed that the Juvenile Justice Board before proceeding to decide his age, passed an order dated 06.07.2021 for constitution of a Medical Board for medical examination of the juvenile in the background of divergence in his age in educational documents. The Juvenile Justice Board noticed that in the high school certificate, his date of birth was shown as 15.03.2003 making him aged about 17 years 1 month and 22 days on the date of occurrence and the medical examination, which was conducted after a gap of one year, did show him between 18-19 years. Reconciling both the things, the Juvenile Justice Board concluded that his age was about 17 years 1 month and 22 days on the date of occurrence.

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I went through the impugned order passed in Criminal Appeal whereby the order of the Juvenile Justice Board was set aside and the accused was held to be a major. The learned appellate Court referred to the statement of juvenile's father wherein he stated as CW1, that his son, first studied from Class 1st to 5th in a primary school at Bhyau and from Class 6th to 10th in Shri Mahveer Swami, Jain Inter College, Jalesar. The appellate Court referred to the oral evidence of CW2, an official from the S.M.S. Jain Inter College who mentioned that the juvenile studied in his institution from Class 7th to Class 12th. Contrary to what, CW1 said , he never said that the juvenile took admission in Class 6th. He further stated that a transfer and conduct certificate of G.S. Primary School, Jalesar was

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produced and that no document pertaining to his primary school, Bhyau was ever given. Next the appellate Court referred to the statement of CW3, the Headmaster of primary school, Bhyau, Etah, who stated that the juvenile studied in his institution from Class 1st to Class 5th and that his date of birth was 12.02.2002, as per the school records. He deposed that he left his studies in Class 5th and didn't take any transfer and conduct certificate from this school and that hiis name was struck off owing to his continued absence.

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After perusal of the above oral and documentary evidence, the appellate Court was of the opinion that the date of birth as recorded in his primary school was correct and not the date mentioned in his subsequent school's records. The learned appellate Court was also of the opinion that provisions of Section 94 do not provide that high school certificate is to be given primacy over other school certificates. The appellate Court further observed that where the school certificates were available, no occasion for medical examination arose, therefore, the order of the Juvenile Justice Board was bad in law as it was based on the medical examination of the accused and that the Juvenile Justice Board failed to consider the evidence of the official of the primary school, where the juvenile first attended his studies. On the basis of above analysis, the appeal was allowed and his date of birth was declared as 12.02.2002 on the basis of school record of primary school. Consequently, he was adjudged a major on the date of the occurrence.

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8. The provisions of Section 94 are as below:

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"(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

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(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical

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age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

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(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

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Section 94(2)(iii) shows that only in the absence of documents, as described in clause (i) and (ii), his age shall be determined by the ossification test or any other medical techniques. What is important to note is that the above provision nowhere says that where multiple documentary evidence which essentially fell in the category as described in Section 94(2)(i) of the Juvenile Justice Act are available, one of it may be given preference over the other. Now the pertinent question arisesWhat a Court is supposed to do where several records from educational institutions as envisaged in Section 94(2)(i) are available and they show different dates of birth? Of course the Court shall have to depend on the document which passed the test of credibility and admissibility both. In such cases the comparison between the two (or more) documents on the anvil of reliability is inevitable.

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Coming back to the facts of this case, this is not disputed that two different dates of birth have been found in school records of two institutions. Date of birth is 12.02.2002 in school record where he studied from Class 1st to Class 5th and it is 15.03.2003 in high school certificate. The evidence oral as well as documentary , has been reproduced verbatim in Juvenile Justice Board’s order. Perusal thereof clearly shows glaring gaps and the learned appellate Court has noticed those gaps and rightly depended upon the date of birth as shown in primary school record. In my view, it stands to logic that the school record of the school/educational institution first attended, may be showing correct date of birth unless there is some fact and circumstances attracting attention of the Court regarding recording of date of birth in such papers prompting the Court to disbelieve the same. As per established practice in educational institutions, the date of birth as recorded in a previous institution forms a basis of admission in subsequent institutions. It is a common knowledge that whenever a student, for some reason, leaves his previous school and applies to take admission in some other institution, he has to produce his school leaving

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certificate or transfer and conduct certificate. In normal course of business of school admissions, production of a transfer and conduct certificate is must. In this case, no transfer and conduct certificate was ever issued to him when he left his primary school and a transfer and conduct certificate of some other school (name of which is conspicuously missing in the oral testimony of his father), was produced before the school in which he took admission in Class 7th. The details of school where he studied in Class 6th are missing. It was for the revisionist to explain the missing link. Non-explanation thereof naturally impelled the Court to give a finding that the high school record is not worth reliance and that some relevant material has been deliberately withheld.

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In my view, the learned appellate Court made no mistake in depending upon the date of birth mentioned in record of the primary school first attended by the student; and I also agree with the observation of the appellate Court that where a reliable school certificate was available, there was no need to call for medical examination of the student and much less placing reliance on it.

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The revision is, accordingly, dismissed .

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Copy of the order be certified to the Court concerned.

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Order Date :- 2.11.2022 Vik/-

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Digitally signed by VIKRAM GUPTA Date: 2022.11.02 15:16:13 IST Reason: Location: High Court of Judicature at Allahabad

Xxx (Minor) v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Xxx (Minor) v. State of U.P. and Another

Case brief

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What did the court decide?

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