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2014 Supreme(All) 48
ALLAHABAD HIGH COURT
BEFORE : ADITYA NATH MITTAL, J.
VINOD ....Revisionist
Versus
STATE OF U.P. AND ANOTHER .....Opposite Parties
(Criminal Revision No. 1931 of 2012, decided on 8th January, 2014)
Counsel :
Sushil Shukla for the Revisionist; A.G.A., Aalok Kumar Srivastava, D.S. Pandey, Munna Pandey, V.N. Mishra, P.K. Srivastava and N.K. Srivastava for the Opposite Parties.
Headnote:U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004—Rule 22(5)—Juvenile Justice (Care and Protection of Children) Rules, 2007—Rule 12(3)—Juvenile Justice (Care and Protection of Children) Act, 2000—Section 68(1)—Evidence Act, 1872—Section 35—Juvenile—Determination of age—There are three entries of date of birth—First entry contained in Parivar Register not proved during enquiry—Entry rightly discarded—Conflict between two dates entered at time of first school attended—Another is entered into all other subsequent schools attended—If date of birth mentioned in subsequent schools attended—Then, a child of two years and four month has no competence to receive education at a public school—Not believable that he passed mursery class just within three year of birth—Subsequent entries appear to be false—Merely because of date of birth constantly mentioned in subsequent school attended can falsely date of birth contained in first school attended—It is quality of evidence, not quantity—Impugned order set aside. [Paras 7, 19, 20, 22, 26 and 28]
Result; Revision Allowed.
Hon’ble Aditya Nath Mittal, J.—Heard learned counsel for the revisionist, learned A.G.A., learned counsel appearing for opposite party No. 2 and perused the record.
2. This criminal revision has been filed against order dated 26.5.2012 passed by learned Additional District & Sessions Judge, Court No. 5, Meerut, by which he has allowed the Criminal Appeal No. 2 of 2011 and thereby has declared the opposite party No. 2 as juvenile.
3. Learned counsel for the revisionist has submitted that the Juvenile Justice Board has also considered the said evidence and the Juvenile Justice Board, Meerut by his order dated 21.12.2010 has not found that the opposite party No. 2 was a juvenile on the date of incident but learned Appellate Court has wrongly interpreted the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 and has wrongly relied upon the High-school certificate. It has also been submitted that as per entry of first school attended, the date of birth of the opposite party No. 2 is 5.6.1991 and in the family register he has mentioned the year of birth is 1990. The witnesses have also stated in their statements that the said school had started in the year 1995, therefore, there was no occasion for the opposite party No. 2 to have taken admission at such an early age of about two years. It has also been submitted that the record of first school attended has been duly proved. It has also been submitted that in heinous crimes, the person should not be declared as juvenile merely on the contradictory evidence.
4. Learned A.G.A. and learned counsel appearing for the opposite party No. 2 have defended the impugned order and have submitted that the High-school certificate cannot be disbelieved and there is no illegality in the said appellate order. It has also been submitted that there were contradictions in the statements of Manager of the school and the witnesses, therefore, learned Appellate Court has not committed any error in relying upon the High-school certificate.
5. The father/natural guardian of opposite party No. 2 had moved an application before the Juvenile Justice Board, Meerut alleging that the opposite party No. 2 has passed his High-school examination in the year 2007 in which his date of birth has been mentioned as 9.3.1993, therefore, he should be declared juvenile. During the course of enquiry, statements of the witnesses were recorded and after considering the evidence on record, the Juvenile Justice Board came to the conclusion that as per record of first school attended, the opposite party No. 2 was not a juvenile. The Board has also considered the Juvenile Justice (Care and Protection of Children) Rules, 2007 made by the Central Government as well as the Rules of 2004 made by the State of U.P.
6. The aforesaid order dated 21.12.2010 was challenged in Criminal Appeal No. 2 of 2011 before the Sessions Judge, Meerut and the Sessions Judge, Meerut after re-scrutinising the matter, came to the conclusion that date of birth of the opposite party No. 2 is 9.3.1993 and, therefore, he was juvenile on the date of incident i.e. on 5.3.2010.
7. In the said process of determination of age of the opposite party No. 2, there are three entries of date of birth. First entry is contained in the Parivar Register in which year of birth has been mentioned as 1990 but that Parivar Register was not proved during the course of enquiry, therefore, the entries of Parivar Register have been rightly discarded.
8. Now there remains the other dates of birth which is 5.6.1991 as per the first school attended and the another date is 9.3.1993 as per entries of Class-2, Class-6 as well as High-school certificate. The main consideration before the Courts below was to accept the date of birth as 5.6.1991 or 9.3.1993.
9. Rule 22(5) of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 provides as under :
“22. ...........
(5) In every case concerning a juvenile or child, the Board shall either obtain:
(i
