1. Heard Sri Ashutosh Kumar Pandey, learned counsel for the revisionist, Sri Bipin Kumar,, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State are present.
2. Learned counsel for the revisionist has challenged the order passed by the Additional Sessions Judge, Fast Track Court, Chandauli on 17.2.2016 in S.T. No. 144 of 2012, under Section 302 IPC, P.S. Chakiya, District Chandauli in crime no. 54 of 2012, whereby application 6ka/1 moved by the revisionist to get herself declared juvenile delinquent in conflict with law stating that the date of birth of the victim was 15.1.1997, was rejected.
3. During argument, it transpired that the revisionist is an accused in S.T. No. 144 of 2012 (State Vs. Ekta) in which judgment has been delivered on 20.1.2020 convicting her of the offence under Section 302 IPC and after the said conviction it appears that victim/revisionist wants to get herself declared juvenile. These fact are being added on the basis of the facts brought to the knowledge of this Court by the learned counsel for the revisionist during arguments, as no copy of judgment has been annexed to verify.
4. In the impugned order, it is recorded that for getting the age determined witness no. 1 Ram Pyare, Paricharak Kisan Inter-college, Saidupur Chakiya, Chandauli appeared before the court below and stated that at registration no. 11613, name of the revisionist Ekta, daughter of Sanjay, village Bisunpurwa and mother's name Shakuntla is registered and on the application for admission, signature of Ekta and Sanjay Singh are made and in that document date of birth is recorded as 15.1.1997 and he also stated that after passing out class 7th from the said college, Transfer Certificate was issued from Junior High School, Agandhpurwa, Banauli which was Ext. C-2 in which revisionist's date of birth is recorded as 15.1.1997. In the same document 25.5.2007 is recorded as the date of passing class 5th and 20.5.2008 is recorded date of passing class 6th and 20.05.2009 is recorded date of passing class 7th. Ext. C-1, which is progress report of the revisionist of the year 2009-10 of class-8, is a photocopy in which her date of birth is recorded as 15.1.1997. Transfer Certificate has been issued from Kisan Inter College after passing of class 10th, in that, the date of passing class 8th is recorded as 20.5.2010, date of passing class 9th is recorded as 20.5.2011 and date of passing class 10th is recorded as 8.6.2012 and in that document also her date of birth is recorded as 15.1.1997. Ext. C-2 is a photocopy of mark-sheet of the High-school of the year 2012 issued by Madhyamik Shiksha Parishad, U.P. in which roll number of the revisionist is recorded as 3721723 in which date of birth in Kisan Inter College is recorded of the revisionist as 15.1.1991.
5. It is further recorded in the impugned order that statement of the witness PW-2 Sarvesh Kumar Singh, Principal of the Kisan Inter College, was recorded who has stated that date of birth of the revisionist was 15.1.1997 but the same was by mistake registered as 15.1.1991, regarding which correspondence was being made with Madhyamik Shiksha Parishad, U.P.. Regarding this matter from the side of the revisionist one application was addressed to the Principal praying therein to get her date of birth corrected which was moved on 16.9.2014. ("this date is found by this Court to be the date of subsequent to lodging of F.I.R. in this case.)'.
6. It is further mentioned in the said order that witness no. 3 Sanjay Singh, who is father of the revisionist has stated that revisionist was born in her Nanihal. She had studied from class 1st to 10th under his supervision, but she does not have knowledge about her date of birth. Her admission was got done in the first school by this witness's father. It is further stated by this witness that his daughter had never studied in Ekta Bal Shiksha Niketan Junior High School, Andhpurva, Baijantimala. First of all, she had gone to school in Prathmik Vidyalay, Bisunpura. His own age is 43-44 years and have five children but he cannot tell as to in which year these children were born nor does he remember when he had got married. It is further mentioned in the impugned order that witness no. 4 Shakuntala, who is mother of the revisionist, has stated that she is an illiterate lady and does not know age of her children nor the year in which they were born.
7. Next it is mentioned in the said order that Witness No. 5 Sachidanand Pandey, Headmaster of Prathmik Vidyalay, Bisunpurva has stated that at Sr. No. 1659 of the admission register, name of Kr. Goldi is recorded having date of birth 10.2.1996. Her father's name is recorded as Sanjeev and mother's name is recorded as Shakuntala, resident of Bisunpurva, who had been issued T.C. No. 60/62, dated 10.7.2007 regarding having passed Class 5th. The Goldi's father was also called in the village as Sanjay and he often used to come to the school. He was headmaster for last ten years.
8. After having considered the above pieces of evidence, court below has recorded that in the documentary evidence given from the side of revisionist, her date of birth was found to be different i.e. 15.1.1997 and 2.1.1996, while in her examination passed from Madhyamik Shiksha Parishad, it is stated that in place of 1997, it has been wrongly registered as 1991 and therefore in these circumstances, direction was given for her medical examination to be conducted in Pandit Kamlapati Tripathi Hospital regarding determining her age. Radiologist of the said hospital had taken X-ray and had determined her age on 9.1.2015 and had found her to be above 18 years and below 20 years and finally her age was determined after X-ray to be 19 years and with regard to that, age certificate no. 3315 dated 13.1.2015 was issued mentioning her age as 19 years and therefore on the date of occurrence revisionist was found to be of 16 years 3 months and 15 days. Dr. Kanhaiya had also appeared before court and had given statement and had proved his report. He was cross-examined and has stated therein that regarding determination of age, the opinion expressed, was his personal as no opinion was taken from any Board. The opinion was rendered on the basis of fusion and non-fusion of bones. He has also stated that growth of bones depends upon what kind of food is consumed and the atmosphere the person lives in. He has also stated that only on the basis of report given by the radiologist, CMO issued the certificate and said certificate cannot be taken to have been issued by Medical Board. Next the court below has observed in the impugned order that revisionist has allegation against her that in the intervening night of 27/28.4.2012, when she had come after Gauna on 26.4.2012 to her Sasural, in the night she had cut throat of her husband and was detained in prison. One daughter was also born to her inside jail. It is also recorded in the impugned order that during appearance of the revisionist before court, she was inquired to disclose her date of birth to which she responded initially to be 1997 then 1998, 1999 and lastly 1997 and the date of birth of her daughter Anjali was disclosed to be 8.1.2012 but when she was inquired month and date of the birth of the said child, after having consumed ten to fifteen minutes she could not tell about the same facts but later on she stated that she was born in the month of April but later on further stated that she was saying so because of the said having been told to her by her parents. Next, the court below has recorded that in the present case, occurrence is of 27/28.4.2012 and the parents of the revisionist were unable to tell the date of birth of their children as the same was being stated on the basis of conjecture. In the application moved from the side of revisionist also, there was cutting on the date of application dated 31.10.2012. On 10.4.2015 again she was inquired as to what was her date of birth but she could not give any reply. It is further recorded that in respect of the age of the revisionist, Ext. C-7 issued by the Madhyamik Shiksha Parishad, High School in the year 2012, her roll no. is recorded as 3721723, her mother's name is recorded as Shakuntala and father's name is recorded as Sanjay and date of birth is recorded as 15.1.1991.
9. Thereafter the trial court has taken into consideration large number of rulings which have been extended from both the sides and thereafter has recorded his opinion in the matter that on the basis of various age related certificates which contain transfer certificates of the schools, different date of birth was shown and in such circumstances, it was appropriate that certificate issued by the Madhyamik Shiksha Parishad, U.P. regarding passing class 10th should prevail in which date of birth is recorded as 15.1.1991 and by that the victim would be 21 years three months and 13 days old. It is further expressed in the said order by the court below that regarding wrong mentioning of year of birth as 1991 in respect of 1997, it was stated that an application was moved before Madhyamik Shiksha Parishad but no such application or evidence thereof was provided to the court to ascertain whether the same was correct fact. In this regard, one letter sent to Soochna Adhikari (Information Officer)/Sachiv Madhyamik Shiksha Parishad, Varanasi by registered post, acknowledgment receipt no. 3864 dated 8.12.2015 has been presented but in the said application there is no date mentioned nor any question was asked therein regarding correction in the date of birth nor did it disclose that any document was asked for from the said Institution. After having brought on record these facts, it is recorded in the impugned order that matter of determining the age of the revisionist cannot be postponed indefinitely as the same was not in the interest of revisionist nor in the interest of State and therefore in accordance with the Rule 12 of the Juvenile Justice Rules, 2007, relying upon the High School Certificate issued by Madhyamik Shiksha Parishad, U.P., in which date of birth was recorded as 15.1.1997, the same was accepted to be correct of birth by the court below and on the basis of that revisionist was adjudged to be 21 years 3 months and 13 days old on the date of occurrence.
10. Submission made by the learned counsel for the revisionist is that there was error in the High School certificate issued by the Madhyamik Shiksha Parishad, U.P. showing age of the revisionist to be 15.1.1991 though the year should have been 1997, as he is relying on the date of birth recorded in other documents cited above i.e. Ext. C-1, Ext. C-2. It is further argued by him that case should not be taken up till the decision is taken by the Sachiv, Madhyamik Shiksha Parishad, Varanasi regarding correction in the age of the revisionist. It is argued that in 1997 and 1991, there was a very fair chance of misreading "7" as "1" and because of this, the error has occurred in the High-school certificate which contains age of the revisionist to be 15.1.1991, actually it should have been 1997. He has relied upon the judgment dated 26.04.2018 of the Apex Court passed in Civil Appeal No. 4532 of 2018 (arising out of SLP (C) No. 80001 of 2018), Suhani and Anr. Vs. State of U.P. & Anr., judgment dated 7.10.2020 passed in Crl. Appeal No. 860 of 2019, Satyadeo @ Bhoorey Vs. State of Uttar Pradesh and judgment dated 13.9.2012 passed in Crl. Appeal No. 1403 of 2012 (arising out of SLP (Crl.) No. 7271 of 2011), Ashwani Kumar Saxena Vs. State of M.P..
11. As regards Suhani's case (supra), in the Secondary School Examination (CBSE) date of birth shown of the petitioner was shown as 25.9.2003 and on that basis the High Court computed the age and came to the conclusion that she was 13 years and 8 months old, and on that basis treated her as a minor and directed that she should be allowed to reside in Nari Niketan, Allahabad but Hon'ble Apex Court had obtained a report with respect to age of the petitioner no. 1 by referring the matter to All India Institute of Medical Sciences, New Delhi, which examined the petitioner no. 1 and rendered the opinion determining the age of the petitioner no. 1 between 19 to 24 years and accordingly treated her to be adult and having entered wedlock voluntarily criminal proceedings imitated against the petitioner no. 2 under Sections 362 and 366 IPC, were quashed. Moreover the Division Bench of this Court in its judgment dated 6.2.2019 passed in Crl. Misc. Writ Petition No. 20816 of 2018, Nisha Naaz Alias Anuradha And Another Vs. State Of U.P. And 2 Others, has held that as follows:-
"The judgment of the apex court in Suhani's case (supra) does not lay down law or guidelines to be used for determination of the age of child victim. Further, it neither overrules nor considers its earlier decisions which mandated that the age of child victim is to be determined by the same principles as are applicable for determination of the age of juvenile in conflict with law. From the judgment of the apex court in Suhani's case (supra), it appears that the concerned victim (petitioner no.1 of that case) was produced before the court and the court considered it apposite that she should be medically examined by the concerned department of All India Institute of Medical Sciences (for short AIIMS). Upon which, AIIMS, by taking radiological tests, submitted report giving both lower as well as higher estimates of age. On the lower side the age was estimated as 19 years and on the higher side it was 24 years. Therefore, even if the margin of error was of 5 years, the victim was an adult. Hence, on the facts of that case, in Suhani's case, the first information report was quashed by the Apex Court. The decision of the Apex Court was therefore in exercise of its power conferred upon it by Article 142 of the Constitution of India which enables it to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The said decision cannot be taken as a decision that overrules the earlier binding precedents which lay down the manner in which the age of a child victim is to be determined."
12. Citing this law, it is argued by the learned counsel for the revisionist that when a vast difference was found between the age recorded in victim's CBSE certificate and her radiological age, the Hon'ble Apex Court was of the opinion that in such a matter, medical examination report would prevail and therefore in the present case also as per medical examination report on the date of occurrence, revisionist should be treated to be minor and should be given benefit of being juvenile delinquent in conflict with law. The judgment which has been given in Suhani's case is one off case and it does not appear to have laid down any such law that in all cases, medical examination report would prevail over the High-school certificate.
13. In Satyadeo @ Bhoorey's case (supra)'s, by order dated 17.8.2018, the Special Leave Petition Challenging the judgment dated 20.4.2018 of the Lucknow Bench of Allahabad High Court, filed by Keshav Ram and Ram Kuber was dismissed, albeit in the case of co-accused Satyadeo @ Bhoorey notice was issued on the plea on juvenility. The impugned judgment had confirmed the conviction of Keshav Ram, Ram Kuber and Satya Deo by the trial court in F.I.R. No. 156 of 1981 dated 11.12.1981, P.S. Gilaula, District Bahraich, for offence under Section 302 IPC read with Section 34 IPC and the order of sentence directing them to undergo imprisonment for life. By order dated 2.5.2019, leave was granted in the case of Satya Deo. By order dated 22.11.2019 the trial court was directed to conduct an inquiry to ascertain if Satya Deo was a juvenile on the date of occurrence i.e. on 11.12.1981, on the basis of material which would be placed on record. Pursuant to the directions, the First Additional District and Sessions Judge, Bahraich had conducted an inquiry and submitted its report dated 6.3.2020. As per report, the date of birth of Satya Deo is 15.4.1965. Accordingly, he was 16 years 7 months and 26 days of age on the date of commission of offence i.e. 11.12.1981. The report relies on the Transfer Certificate (in original) issued by Ram Narayan Singh Inter College, Ram Nagar Khajuri, Bahraich and the Admission Register of Primary School, Pairi, which documents were proved by Sh. Krishna Deo, Clerk at Ram Narayan Singh Inter College, Ramnagar Khajuri, Bahraich and Smt. Anupam Singh, in-charge head-mistress of Primary School, Pairi, respectively. Further, Satya Deo had appeared in class 10th examination vide Roll No. 9020777 and his date of birth as recorded in the gazette relating to this examination is 15.4.1965. The date of birth of Satya Deo was undisputed and not challenged before the Apex Court. Notwithstanding this finding, the First Additional District and Sessions Judge, Bahraich observed that Satya Deo was not a juvenile as per Juvenile Act, 1986, as he was more than 16 years of age on the date of commission of offence i.e. 11.12.1981.
14. Matter was considered by the Hon'ble Apex Court and it was held that "while we uphold the conviction of the Satya Deo we would set aside the sentence of life imprisonment. We would remit the matter to the jurisdiction of the Board for passing appropriate order/directions under Section 15 of the 2000 Act including the question of determination and payment of appropriate quantum of fine and compensation to be awarded to the family of the deceased. We make no affirmative or negative comments either way on the order/direction under Section 15 of 2000 Act.
15. Relying on above ruling, it is being submitted by the learned counsel for the revisionist that the interpretation of law made by Hon'ble Apex Court in above ruling would be applicable in this case but he has failed to enlighten this Court as to how the said ruling is applicable as facts of the said case are totally different from the facts of the present case.
16. Paragraph nos. 32, 34 and 36 of the Ashwani Kumar Saxena's case (supra) are as follows:-
"32. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in section 7A read with Rule 12.
34. Age determination inquiry contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.
36. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination."
17. It is clear in view of the above cited paragraphs that enquiry to be conducted under Juvenile Justice Act with respect to age of the Juvenile has limited scope and that it has to be conducted strictly in accordance with the Rules of 2007 and not beyond that and in my opinion trial court appears to have rightly relied upon the date of birth mentioned in the Class 10th certificate issued by Madhyamik Shiksha Parishad, U.P.
18. The court below has relied upon the provisions of law laid down in Rule 12(3) of Juvenile Justice Act, 2007. The following is the procedure laid down for determining the age of the juvenile, both under the Rules of 2007 and under the new Act of 2015.
9(D-4).Rule 12(3)(a) of JJ Rules, 2007 and Section 94(2) of JJ Act, 2015 compared :
Rule 12(3)(a) of JJ Rules, 2007 Section 94(2) of J.J. Act, 2015 (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--
(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, Rule 12(3)(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, 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 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.
(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.
19. It is apparent from above position of law that under 2007 Rules, it is laid down that the date of birth mentioned in matriculation or equivalent certificate, if available would be the basis to decide juvenility of an accused in the first instance and in absence thereof, upon date of birth from the school (other than a play school) first attended, and in absence thereof, the birth certificate given by a Corporation or Municipal Authority or a Panchayat and in absence of all the three above clauses, the medical opinion will be sought from a duly constituted medical board which will declare the age of the juvenile.
20. In the latest Act, 2015, the said rule had been modified to the effect that date of birth certificate from the school or the matriculation or equivalent certificate from the concerned examination board would be the first source of determining the age of juvenile and if that is not available then court would go for the birth certificate given by Corporation or Panchayat and in case second condition is also not fulfilled, then only ossification test would be got conducted and the age would be determined on the basis of that.
21. In the present case, class 10th certificate issued by Madhymaik Shiksha Parishad, U.P. had been made to be the basis of recording the refusal of juvenilty to the accused-revisionist because by that she is found to be 21 years 3 months and 13 days old on the date of occurrence. Court below does not appear to have committed any error because it has taken into consideration the age which was found mentioned in different transfer certificates issued from the earlier attended schools such as T.C. Of Class-7th and 8th etc. as from that also it transpired that revisionist was having two dates of birth mentioned in those certificates which was found to be primary ground for discarding these dates. I find that the court below appears to have rightly relied upon the date of birth mentioned in the Class 10th certificate issued by Madhyamik Shiksha Parishad, U.P. which is in consonance with law reproduced above.
22. As regards the forgery/fault in the date of birth mentioned in the said certificate of class 10th it was vehemently argued that same was in the process of being got corrected but no evidence was brought on record to that effect neither before the court below nor before this court at the time of argument. This fact has also been taken into consideration by the court below while determining the juvenility. A most significant aspect also needs to be taken into consideration that after registration of the F.IR. against the revisionist, the effort is being made by the revisionist to get her date of birth rectified which is recorded in certificate of class 10th, it gives rise to doubt as to why the need arose for getting the said rectification done pursuant to lodging the F.I.R. and why the same had not been tried to be got-rectified earlier to lodging of F.I.R.
23. This court would also like to rely upon the law laid down in Jarnail Singh Vs. State of Haryana, 2013 (7) SCC 263. Paragraph nos. 22 and 23 of the said judgment is as follows:-
"22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under :
"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 or 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 juvenility 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 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 7A, 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 off 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."
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion."
24. In view of above law, there appears to be no error committed by the court below and the said order which has been impugned before this Court, appears to have been passed in consonance with above law, hence the present revision deserves to be dismissed and is accordingly, dismissed.
Order Date :- 3.2.2021 A.P. Pandey