Hon'ble S.C. Agarwal, J This revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ''Act') wrongly described in the memo of revision as under Section 397, 401 Cr.P.C., has been filed against judgment and order dated 28.4.2010 passed by the Sessions Judge Lalitpur dismissing Criminal Appeal No. 32 of 2010, Smt. Rajia Begum Vs. State of U.P. & another as well against order dated 25.3.2010 passed by the Juvenile Justice Board, Lalitpur (hereinafter referred to as the ''Board') in Criminal Misc. Case No. 17 of 2010 arising out of case crime no. 30 of 2010 under Section 302 IPC, P.S. Kotwali, Jhansi.
By impugned order dated 25.3.2010, opposite party no. 2 was declared juvenile in conflict with law. An appeal filed by the complainant-revisionist was dismissed by learned Sessions Judge. Both these orders are under challenge in this revision.
Heard Sri H. C. Mishra, learned counsel for the revisionist, learned AGA for the State, Sri P.K. Rao, learned counsel for opposite party no. 2 and perused the material on record.
Counter affidavit has been filed by opposite party no. 2 whereas learned AGA has not filed any counter affidavit on behalf of the State. Learned counsel for the revisionist does not wish to file any rejoinder affidavit.
Opposite party no. 2 Tahir @ Twinkle is an accused in case crime no. 30 of 2010 under Section 302 IPC, P.S. Kotwali, Jhansi. He is the nephew of the complainant-revisionist. It was alleged in the FIR that on 22.1.2010 at 3.30 a.m. opposite party no. 2 entered the residential house of the complainant through a window armed with a knife, and asked the deceased Hakim Shakeel Ahmad to return the house purchased by the deceased in lieu of money lent. The deceased told him that he would return the house after repayment of money. The accused assaulted the husband of the complainant with knife resulting in his death. FIR was lodged at 5.30 a.m. on he same day.
An application was moved on 28.1.2010 on behalf of opposite party no. 2 before the C.J.M., Jhansi for producing him before Juvenile Justice Board on the ground that his date of birth was 16.8.1993 and on the date of incident, his age was 16 years and 5 months. A copy of High School Mark-sheet was annexed with the application. The matter was referred to Juvenile Justice Board at Lalitpur. Copies of High School Mark-sheet, annual result of class-V in the year 2004 and Birth Certificate issued by Municipal corporation Jhansi were also produced. Board also obtained the medical opinion. A certificate issued by C.M.O. Lalitpur was also considered. Principal Magistrate of the Board, after hearing counsel for the accused, counsel for the State and counsel for the complainant relied on the High School Mark-sheet in preference to medical opinion and came to the conclusion that date of birth of opposite party no. 2 was 6.8.1993 and on the date of incident, he was below 18 years of age and was therefore a juvenile.
Feeling aggrieved, the appeal was filed by the complainant, which was dismissed by learned Session Judge, Lalitpur.
Learned counsel for the revisionist submitted that both the courts below passed impugned orders against the material on record. Opposite party no. 2 was accused of a very serious offence of murder of the husband of the revisionist. The opposite party no. 2 was medically examined and as per the report of C.M.O., Lalitpur, opposite party no. 2 was found to be about 19 years of age and therefore, opposite party no. 2 could not have been declared juvenile.
Learned counsel for opposite party no. 2 submitted that the Board has followed the procedure prescribed under the Act and Rules made thereunder. High School certificate, matriculation or equivalent certificate, date of birth recorded in the school first attended, and the birth certificate issued by a corporation or municipal authority or panchayat are preferable if available and only in the absence of these certificate, the medical opinion can be looked into. It was contended that the Board and learned Sessions Judge did not commit any illegality in relying on the matriculation certificate filed on behalf of the accused.
Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 provides :-
"12. Procedure to be followed in determination of Age :
(1).....
(2).....
(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 clause (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."
In the instant case High School Mark-sheet was filed by opposite party no. 2, which has been relied by the Board as well as by the Sessions Judge. It shows that the date of birth of opposite party no. 2 is 16.8.1993. It is not the case of the revisionist that the date of birth of opposite party no. 2 was wrongly shown in the school records or the records of the Madhyamik Shiksha Parishad U.P. Another document relied upon by opposite party no. 2 was the certificate issued by Registrar (birth and death), Nagar Nigam, Jhansi showing the same date of birth of opposite party no. 2. This certificate issued by municipal corporation can hardly be relied upon as the entry regarding date of birth was made on 26.2.22010 i.e. after the alleged incident. Therefore, it is clear that prior to 26.2.2010 there was no entry regarding date of birth of opposite party no. 2 in the records of municipal corporation. Therefore this entry is not worth reliance. However, as per the Rule 12 (3) of 2000 Rules matriculation certificate is of prime evidence and has to be believed in preference to the medical opinion. According to certificate issued by the C.M.O., Lalitpur, the age of the opposite party no. 2 was found to be about 19 years. In accordance with Rule 12 (3) (b), a benefit of one year on lower side can be given to the accused and the age of accused can be about 18 years, which may very well be below 18 years. However, in view of rule 12 (3) (a), the matriculation or equivalent certificate would prevail over the medical evidence and medical evidence can only be looked into if the educational certificates are not available. In this view I find support from a decision of the Apex Court in Ram Suresh Singh Vs. Prabhat Singh @ alias Chhotu Singh & another, (2010) 2 Supreme Court Cases (Cri.) 1194 wherein it was held that entry in the Scholar Register must be proved in accordance with law and opinion of the medical board will be preferred only when date of birth certificate from school is not available.
In Jabar Singh Vs. Dinesh & another, (2010) 2 Supreme Court Cases 484, the Apex Court held that while exercising revisional powers, High Court cannot convert itself to an appellate court and reverse findings of fact arrived at by trial court except where High Court is not satisfied as to legality or propriety of order passed by trial court.
In the instant case, the Board as well as learned Sessions Judge relied upon the date of birth entered in the High School Mark-sheet and rightly did not place any reliance on the medical opinion. Even on the basis of medial opinion, after giving a margin of one year, the age of the opposite party no. 2 comes to about 18 years which can very well be below 18 years. Therefore, I am of the opinion that in view of High School Mark-sheet, the order passed by the Principal Magistrate of the Board as well as the judgment and order passed by learned Sessions Judge do not suffer from any illegality or perversity. I do not find any good ground to interfere in the matter.
The revision is devoid of merit and is accordingly dismissed.
Interim order dated 7th July, 2010 is hereby vacated.
22nd October, 2010 KU/-