Harendra Yadav Vs State of U.P. and Another

Reserved on 22.11.2022 Deliverd on 08.12.2022

Court No. - 91

Case :- CRIMINAL REVISION No. - 355 of 2021 Revisionist :- Harendra Yadav Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Pradeep Chauhan,Shiva Kant Srivastava Counsel for Opposite Party :- G.A.,Arvendra Singh,Manik Chandra Yadav

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Pradeep Chauhan, learned counsel for the revisionist, Sri Manik Chandra Yadav, learned counsel for the respondent no. 2 and Sri O.P. Mishra, learned AGA for the State.

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This criminal revision has been preferred on behalf of the revisionist challenging the judgment and order dated 12.01.2021 passed by Additional Sessions Judge/Special Judge (POCSO Act), Azamgarh whereby the order of the Juvenile Justice Board declaring him juvenile was set aside and the Juvenile Justice Board was directed to hear the matter afresh and pass an order according to law.

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3. The fact giving rise to this revision are as below:-

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The revisionist was found involved in a Case Crime No. 571 of 2009 under Sections 308, 323, 504, 506 IPC, Police Station Phoolpur, District Azamgarh; the revisionist was produced before the Juvenile Justice Board where an application was moved on his behalf for declaring him a juvenile; the Juvenile Justice Board discarded the objections of the complainant's side and on the basis of high school certificate, declared him aged 17 years 11 months 22 days on the date of occurrence; challenging the above order a criminal appeal was preferred; after hearing both the sides, the appellate court found the high school certificate not at all reliable in view of the other certificates pertaining to his schooling from Class-1st to Class 5th, thereafter from Class 6th to Class 8th; the appellate Court found a missing link as well as difference in dates of birth recorded in Class 1st to Class 5th from that recorded in high school certificate and passed the impugned order.

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Before I proceed to decide the legality and correctness of the order of the appellate Court, some of the precedents may be usefully mentioned.

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The Juvenile Justice Board referred to judgment of the appellate Court in Parag Bhati vs. State of U.P.; (2016) 12 SCC 744 , to support the contention given on behalf of the revisionist that in case the high school certificates with respect to the date of birth was available, other documentary evidence may not be taken into consideration. I went through the judgment of the appellate Court given in Parag Bhati (supra) , the Juvenile Justice Board found the high school certificate quite doubtful and ordered for medical examination of the minor and ultimately declared him adult on the basis of medical opinion; the criminal appeal preferred on behalf of the alleged minor was dismissed by the appellate Court; even criminal revision against the above orders was dismissed by the High Court; the matter went before

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the Supreme Court; following question for consideration was framed by the Apex Court which is as below:-

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"5. The only point for consideration before this Court is whether in the facts and circumstances of the present case when the date of birth mentioned in the matriculation certificate is doubtful, the ossification test can be the last resort to prove the juvenility of the accused?"

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The Apex Court considered the judgments given in Rajinder Chandra vs. State of Chattishgarh and Another; 2002 (2) SCC 287, Hari Ram vs. State of Rajasthan and Another; 2009 (13) SCC 211, Ashwani Kumar Saxena vs. State of M.P.; (2012) 9 SCC 750, Om Prakash vs. State of Rajasthan; 2012 (5) SCC 201, Abuzar Hossain vs. State of West Bengal; (2012) 10 SCC 489 , it may be noted that 3 different dates of birth were found on the documents which were the secondary school certificate for Class 10th, school certificates from primary school and a T.C. from junior high school. In this background, the Apex Court observed as below in Para-16:-

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"...........However, if the Board comes to the conclusion that the date of birth mentioned in the matriculation certificate raises some doubt on the basis of material or evidence on record, it can seek medical opinion from a duly constituted medical board to determine the age of the accused person claiming juvenility."

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From perusal of the above judgment in Parag Bhati case , it is clear that the Apex Court nowhere said that the high school or the matriculation certificate shall be given primacy over other certificate. The only point the Court stressed was that if such a certificate is available and reasonable suspicion is not raised against correctness, the same should be relied upon. It is never said that if facts and circumstances point in a different direction, even then that certificate shall be taken as a conclusive proof of the age.

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In a very recent judgment of the Apex Court in Writ Petition (Criminal) No. 121 of 2022 (Vinod Katara vs. State of U.P.) , the Court had an opportunity to consider several judgments as regards determination of age. The Apex Court reiterated the view given in Manoj vs. State of Haryana and Another; 2022 (6) SCC 187 observing that though family register may not be relevant for determination of age, however, it will not be correct to say that it will be entirely not relevant and useless. The Apex Court further reiterated the need for greater circumspection where plea of juvenility is raised at a belated stage and where the evidence as regards age was even not found satisfactory. While referring to another recent judgment of the Supreme Court in Rishipal Singh Solanki vs. State of U.P.; 2021 (11) ADJ 489 , this observation was quoted with approval that Section 94 of the 2015 Act does not give precedence to matriculation certificate over other certificates to determine the age of the person, since the said Section only deal with the matter of procedure.

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The dictum of Hon'ble Apex Court in Rishi Pal Singh Solanki (supra) has been cited before me wherein the Hon'ble Apex Court had considered the judgments given in Parag Bhati vs. State of U.P.; (2016) 12 SCC 744, Sanjeev Kumar Gupta vs. State of U.P. and Another; (2019) 12 SCC 370 and Abuzar Hossain vs. State of West Bengal; (2012) 10 SCC 489, Ashwani

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Kumar Saxena vs. State of M.P.; (2012) 9 SCC 750, Babloo Pasi vs. State of Jharkhand; (2008) 13 SCC 133, Arnit Das vs. State of Bihar; (2000) 5 SCC 488, Jitendra Ram vs. State of Jharkhand; (2006) 9 SCC 428 and several others.

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In Para-25 of the above judgment (Rashipal Singh Solanki) , the Apex Court has pointed out the difference in the procedure under the two enactments i.e., the Juvenile Justice Act, 2000 and the Juvenile Justice Act, 2015, as to inquiry into determination of age of the juvenile and also the power to seek evidence, how and when to exercise that power and when to go for ossification test. The Court, in nutshell, held that each case may be dealt with in the light of its own peculiar facts and circumstances while keeping certain principles as guiding factor in mind as described in concluding para of the judgment. The Apex Court observed as below:-

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"(vi) That it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. It has to be on the basis of the material on record and on appreciation of evidence adduced by the parties in each case." .

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In Sanjeev Kumar Gupta (supra) , the credibility and authenticity of the matriculation certificate for the purpose of determination of age under Section 7(A) of the Juvenile Justice Act, 2000 came up for consideration. In the said case, the Juvenile Justice Board had rejected the claim of the juvenility and that decision of the Juvenile Justice Board was restored by the Hon'ble Apex Court by rejecting the order of the Hon'ble High Court. It was observed therein that the records maintained by the C.B.S.C. were purely on the basis of final list of the students forwarded by the Senior Secondary School where the juvenile had studied from Class 5 and not on the basis of any other underlying documents. On the other hand, there was clear and unimpeachable evidence of date of birth which had been recorded in the records of another school, which the second respondent therein had attended till Class 4th and which was supported by voluntary disclosure made by the accused while obtaining both, Adhaar Card and driving license. It was observed that the date of birth reflected in the matriculation certificate could not be accepted as authentic or credible.

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In the instant case, from perusal of record, submissions of the rival sides and impugned order, it appears that in the high school certificate and some other papers like copy of pariwar register, adhaar card, intermediate marksheet and certificate, age of the revisionist was shown as 13.07.1991 which when calculated considering the date of occurrence i.e., 05.07.2009, the age came as 17 years 11 months 22 days i.e., only 8 days short of majority. The papers from Primary School, Changanpur, which were proved by the Principal, Ms. Shital Suvashini proved the fact that the minor studied from Class-1st to Class 5th in that institution and his date of birth was 05.12.1989 i.e. about 1 year 7 months less than the date of birth shown in high school certificate. This fact came to be noticed that his date of birth changed from 05.12.1989 to 13.07.01991 when he took admission in Class 7th in another institution namely, Shri Guru Vashishta Inter College, Laradpur, Tehsil Phoolpur, District Azamgarh and that there was no paper to show that what was his recorded date of birth when he took admission in yet

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another institution namely, Madhyamik Vidyalaya, Dildarganj, Azamgarh in Class 6th. On the basis of above facts, the revisional court rightly observed that there was no basis to show how the date of birth changed in Class 7th. As consistently observed by the Apex Court, the documentary evidence cannot be blindly relied upon when there are facts and circumstances catching attention of the Court and bringing the documents within the realm of suspicion. In my view, in this case, the provisions of Section 94(2) of Juvenile Justice Act, 2015 apply and it does not say that high school or matriculation certificate shall be given precedence over other documents. Moveover, the matters of age determination has been merely remanded and final order is still to come. There were definitely circumstances putting the appellate Court on alert prompting it to remand the matter for decision afresh in the light of observation made therein.

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In my view, the order passed by the revisional court is well reasoned, legal and proper, therefore, I do not find any good ground to interfere.

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The revision is, accordingly, dismissed .

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Order Date :- 8.12.2022

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Vik/-

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Digitally signed by VIKRAM GUPTA Date: 2022.12.08 17:44:28 IST Reason: Location: High Court of Judicature at Allahabad

Harendra Yadav v. State of U.P. and Another

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Harendra Yadav v. State of U.P. and Another

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