(1) This criminal revision has been preferred against the judgement and order dated 12.04.2019 passed by the Juvenile Justice Board, Etawah in Misc. Case No. 117 of 2018, under Section 302, 506 I.P.C., P.S. Basrehar, District Etawah as well as impugned order dated 01.06.2019 passed by the Sessions Judge, Etawah in Criminal Appeal No. 19 of 2019 (Bobby @ Avneet Vs. State of U.P. ) arising out of Case Crime No. 191 of 2018, under Section 302, 506 I.P.C., PS Basrehar, District Etawah.
(2) Brief facts of this case is that on 01.11.2018, the revisionist through his guardian Smt. Akhilesh Kumari (Mother of the revisionist) moved an application before Juvenile Justice Board, Etawah for declaring him juvenile and the said application was supported by an affidavit of the mother of the revisionist as well.
(3) Revisionist claimed his juvenility on the basis of educational certificates before the Court below and in support of his claim of the juvenility, revisionist filed admission form of Class K.G.-II dated 31.07.2008, Transfer Certificate of class 5th , Transfer Certificate of class 8th, Transfer Certificate of Class 9th , Mark-sheet of class 9th, birth horoscope, Registration Certificate of class 9th issued by Madhyamik Siksha Parishad, Allahabad. Revisionist has also filed the educational certificates of her elder sister namely Shivangi Yadav and his elder brother namely Navneet Kumar.
(4) Claim of juvenility raised by the revisionist was objected by the opposite party no.2/first informant and in support of his claim the first informant/opposite party no.2 adduced an admission form of class 1st of the revisionist as per which the date of birth of the revisionist was allegedly mentioned 07.09.1998.
(5) As per the list of documents adduced by the revisionist the date of birth of the revisionist happens to be 25.06.2003 while on the contrary as per the solitary documents adduced by the opposite party no.2/first informant, the date of birth of the revisionist is allegedly 07.09.1998.
(6) Upon the application of the revisionist Juvenile Justice Board conducted the eqnuiry and during enquiry total four witnesses were examined namely CW1 Nirvesh Kumar (Assistant Clerk Gyan Mandir Inter College), CW2 Smt. Asra Ahmad (Principal Gyan Mandir Inter College), CW3 the mother of the revisionist namely Akhilesh Kumari and CW4 Neeraj Rajpoot (Incharge Principal Primary School Chakwa Khurd, Block Basrehar, District Etawah) (7) Heard Sri Manish Tiwari (Senior Advocate) Assisted by Sri Atharva Dixit and Sri Ashwini Kumar Awasthi, learned counsel for the revisionist and Sukesh Kumar, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
(8) Learned counsel for the revisionist submitted that lower appellate Court has wrongly placed reliance on the educational certificate adduced by the first informant and thus committed grave error. It is further submitted that Juvenile Justice Board and lower appellate Court failed to take into consideration the registration certificate of class-9th adduced by the revisionist which was the best piece of evidence to decide the claim of juvenility of the revisionist. The approach adopted by the Juvenile Justice Board as well as lower appellate Court is wholly illegal and contrary to the law. It is further submitted that in view of the procedure laid-down in Section 94 Juvenile Justice (Care & Protection of Children) Act, 2015, the age of juvenile ascertained as per the medical determination test only in the event when the list of the documents as provided in clause 1 and clause 2 of Sub-Section 2 of Section 94 of Juvenile Justice (Care & Protection of Children) Act, 2015 are not available on record. In this case, since the registration certificate of class-9th and mark-sheet of class 10th was available on record and it has not been observed by both the Courts below that documents produced are fake and fictitious, so the claim of the juvenility of the revisionist could not be discarded and revision is liable to be allowed.
(9) Learned A.G.A. as well as counsel for the opposite party no.2 clearly stated that Juvenile Justice Board and appellate Court below rightly determined the juvenility of the revisionist on the basis of admission form of class first and as per radiological age the revisionist is major and his date of birth is 07.9.1998, so on the alleged date of incident, revisionist was major. The first attended document i.e. admission form of primary school cannot be discarded. The approach of the Juvenile Justice Board and lower appellate Court is perfectly legal, there is no irregularity or perversity in the orders of the Juvenile Justice Board and lower appellate Court and revision is liable to be rejected.
(10) For determining the claim of juvenility, it is relevant to mention the Section 94 of Juvenile Justice Board (Care and Protection of Children) Act, 2015, which reads as under:-
Section-94 Presumption and determination of age:-
"(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.
(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 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.
(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."
(11) As per procedure laid-down in Section 94 of the Juvenile Justice (Care & Protection) Act, 2015 the first set of document which has to be relied upon for the determination of the claim of the juvenility is date of birth certificate from the school or matriculation certificate or equivalent certificate from the concerned examination board and in the present case revisionist had adduced the registration certificate of class-9th as well as Mark-sheet of class 10th but by means of order dated 12.04.2019, the Juvenile Justice Board rejected the plea of the revisionist and refused to consider the registration certificate of Madhyamik Siksha Parishad of U.P. of Class-9th and on the basis of the certificate filed by opposite party no.2 passed the impugned order and rejected the claim of the juvenility of the revisionist.
(12) Being aggrieved aforesaid order, appeal was preferred before the Sessions Judge, Etawah and by means of judgement and order dated 01.06.2019, the Sessions Judge discarded the registration certificate of class-9th of the revisionist with the observation that no documentary evidence related to primary education of the revisionist adduced on behalf of revisionist.
(13) Being aggrieved with these orders, this revision has been preferred.
(14) In the present case reasonable doubt has raised as the genuineness or correctness of the date of birth of the revisionist i.e. 25.06.2003 recorded in the High School mark-sheet and registration certificate of class IX.
(15) It may also remain a matter to be considered in an appropriate case whether upon the enforceability of Section 94 of Juvenile Justice Care and Protection of Children Act, 2015, school first attendant certificate has been kept prior to the matriculation certificate meaning thereby now there is no preference of high school certificate and date of birth entered in it rather date of birth certificate from first attended school come first.
(16) Hence, in the present case, respondent relies on first attended school certificate of primary school Chakwa Khurd, Block Basreher, Etwah which shows that mother of the revisionist Akhilesh Kumari signed in admission form of primary school Chakwa Khurd in which the date of birth of revisionist is mentioned as 07.09.1998. Mother of the revisionist Akhilesh Kumari examined as CW3 but in her examination, she never denied about her signature in this document, so the execution of this document is undisputed.
(17) The school first attended certificate in which the date of birth mentioned as 07.09.1998 and that is to be taken as date of birth for consideration of juvenility of revisionist Avneet. On the basis of the first attended school admission record and S. R. Register both the courts below arrived at the conclusion that on the date of incident i.e. 25.10.2018 the revisionist was 20 years, 1 month and 18 days old and this conclusion is also fortified by medical examination of revisionist. As per radiological age of the accused at the time of incident was above 18 years.
(18) Juvenile Justice Board and appellate Session Court did not commit any irregularity or error in deciding the issue of juvenility.
(19) The present revision devoid of merits and accordingly, dismissed.
Order Date :- 25.02.2021 AKT