Munesh vs State Of Uttar Pradesh

Saurabh Shyam Shamshery, J

Present criminal revision has been filed by the mother of the accused Monu alias Manu Kumar challenging the order dated 29.3.2011 passed by Sessions Judge Meerut in Criminal Appeal No.91 of 2011 (Smt. Munesh Vs. State of U.P.), whereby the said appeal was dismissed and order dated 22.2.2011 passed by the Juvenile Justice Board, Meerut was confirmed, whereby the application to declare the accused as juvenile was dismissed.

The present criminal revision is barred by 288 days as reported by Stamp Reporter. I am satisfied with the reasons mentioned in the affidavit accompanied with the application for condonation of delay.

Accordingly, the delay is condoned. Delay condonation application is allowed. The Registry shall allot regular number to the criminal revision.

None appeared on behalf of the revisionist even in the revised call to press this revision.

The present criminal revision is of the year 2012 and in view of the judgment passed by the Hon'ble Supreme Court rendered in Madan Lal Kapoor Vs. Rajiv Thapar and others 2007 (7) SCC 623, wherein it has been held that criminal revision cannot be dismissed for want of prosecution and it must be decided on merits, therefore, I proceeded with the matter to hear it on merits.

Heard learned Additional Government Advocate on behalf of the State and perused the record.

Monu @ Manu Kumar is an accused under Sections 452, 376 and 506 I.P.C. and Sessions Trial No.1118 of 2011, (State Vs. Monu alias Manu Kumar) is pending in the court of Additional Sessions Judge (Court No.17), Meerut against him. The date of occurrence is 6.9.2010.

An application was filed by the father of the accused before the Juvenile Justice Board, Meerut bearing Case No.478 of 2010 to the effect that the accused be declared as Juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000 hereinafter called the "Act, of 2000."

Before the Juvenile Justice Board, in support of his case, father of accused filed a copy of School Register (S.R. Register) of Navin Bal Vidyalay, Shivpuri, Modi Nagar, where the accused studied from Class Ist to Vth and where his date of birth was mentioned as 02.3.1993.

Through an application, complainant brought a copy of a mark sheet of Class 12th of year (2010) of the accused and copy of the voter's list on record.

The accused was inquired about the fact of passing Class 12th and also about the tenth class certificate, however the accused failed to produce the same. The accused also failed to explain why the fact that he has passed 12th Class and Class 10th was not disclosed.

Accused was also medically examined and as per the report, his age was opined about 18 years as on 08.2.2011.

The Juvenile Justice Board, considered the material brought on record and vide order dated 22.2.2011, dismissed the application. The Board has held that:

"किसोर अपचारी के द्वारा तथ्य को छिपा लिया गया है कि उसके द्वारा कक्षा-10 की के स्कूल का नाम भी नहीं बताया गया है जिससे वहां से अभिलेख तलब किये जा सके। मेडिकल आख्या के अनुसार उम्र 18 वर्ष के लगभग आई है। मेडिकल आख्या में आई उम्र में 2 वर्ष का अंतर सम्भव है। चूंकि किसोर अपचारी के द्वारा हाई स्कूल की अंकतालिका प्रस्तुत नहीं की जा रही है जिससे मामले में संदिग्धता उत्पन्न होती है। अतः मेडिकेल आयु में किसोर अपचारी के पक्ष में लाभ नहीं दिया जा सकता है। प्राथमिक विद्यालय का जो दस्तावेज उपलब्ध है उसमें स्वय  शिक्षक के द्वारा कहा गया है कि कक्षा-5 में प्रवेश शपथ पत्र के आधार पर दिया था। जबकि यह भी कहा है कि सपथ पत्र वह आज न्यायालय में लेकर नहीं आये है। तत्पश्चात शपथ पत्र की छाया प्रति प्रस्तुत की गयी है लेकिन मूल प्रति न्यायालय के समक्ष प्रस्तुत नहीं की गयी। पत्रावली पर उपलब्ध अभिलेखीय साक्ष्य संदिग्ध है।"

The revisionist filed Criminal Appeal No.91 of 2011 before the Court of Sessions Judge, Meerut where the order dated 22.2.2011 was challenged. The Court considered the submissions and vide reasoned order dated 29.3.2011 dismissed the appeal. The court held that:

"In the facts of the present appeal, it is not disputed that the accused had not appeared in the Intermediate examination 2010. The marks sheet filed on behalf of the respondent before the learned Juvenile Justice Board has been verified by the competent authority. Appearing in the examination of class 12th by itself establishes that the accused had passed class 10th examination and therefore, the certificate of High School examination in which the date of birth is always mentioned was the conclusive proof on the point of age of the accused. But in this case, for the reasons best known to the appellant the same has not been filed. Neither his father in his affidavit nor his mother in her statement any where stated that the accused had passed High School examination. The perusal of the record shows that even after filing of the marks sheet of Intermediate examination of the accused by the respondent, the particulars of High School examination of accused were not furnished before the learned Juvenile Justice Board rather the application for declaring him to be juvenile was not pressed. In this case, it is established that the accused Monu alias Manu had moved an application for bail before the court of Sessions which was supported by an affidavit of his real uncle and in the said application he himself has mentioned his age to be 19 years. During the course of appeal, learned counsel for the appellant was given an opportunity to file the particulars regarding name of the school from where the accused appeared in his High school examination and the year in which he appeared in the said examination, but learned counsel for the appellant instead of filing the said particulars, continued to argue the appeal on merits and thereby, he avoided to furnish the said particulars.

In this background learned Juvenile Justice Board was legally correct to draw adverse inference against the accused. The father of the accused Monu alias Manu is alleged to be an educated person and he is in service. He had not come to depose in evidence and it is unbelievable that the father does not know in which year and from which school his son had appeared in his High School examination."

The order dated 29.3.2011 is impugned in the present criminal revision. The main grounds raised in the revision are:

(i) The courts below have wrongly and illegally ignored the school record (First Attended) during enquiry for determination of age.

(ii) Accused Monu alias Manu Kumar was medically examined by the Medical Board for his age verification and vide its report dated 8.02.2011, his age was declared to be about 18 years. In view of the said report the accused Monu alias Manu Kumar was below 18 years on the relevant date i.e. 6.9.2010 (date of occurrence). Therefore, under rule 12 (3) (b) of Juvenile Justice (Care and Protection of Children) Rules 2007 he was entitled to benefit of margin of one year on lower side also while considering his age.

(iii) The courts below have laid unnecessary stress on the non production of High School certificate and have illegally drawn adverse inference there from despite quite satisfactory explanation for the same having been rendered. The non production was due to reason of its non availability and there was no deliberate concealment at all.

(iv) No evidence showing any specific date different from one claimed by the revisionist has been led by the prosecution and as such in that case the courts below ought to have accepted 02.3.1993 as the date of birth of the accused in conflict with law specially when quite cogent and reliable documentary evidence was produced by the Revisionist followed by age report submitted by Medical Board, constituted by the Juvenile Board itself. The whole approach adopted by the lower appellate court is extremely erroneous, misconceived and contrary to law.

The Counsel for the State has supported the impugned order.

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rule 2007 prescribes the 'procedure to be followed in determination of Age'. Rule 12 is mentioned hereinafter.

"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."

None of the documents mentioned above were produced before the Juvenile Board as evidence, rather the accused had withheld the information that he had passed 12th Class and thereby intentionally misled the Court by not filing the High School certificate.

In a recent case, Hon'ble Supreme Court in the matter of Nagendra alias Wireless Vs. State of Uttar Pradesh reported in 2017 (11) SCC 598 has held that 'school leaving certificate is not a relevant consideration to determine the juvenility of an accused under Rule 12 (3) thereof'.

Now the issue which remains for consideration is the medical opinion of Medical Board.

In the present case, opinion dated 08.2.2011 of Medical Board is mentioned hereinbelow:

"Opinion:On the basis of the above, general appearance & physical built, I am of the opinion that age of Shri/Smt/Km Monu @ Manu is about 18 (Eighteen) years."

In the present matter, date of occurrence is 6.9.2010 and the allegation against the accused are henious crime such as offences under Sections 376, 452 and 506 I.P.C.

Presently, the Juvenile Justice (Care and Protection of Children) Act, 2015 is in force and Act of 2000 has been repealed. Section 15 of the Act of 2015 is for 'preliminary assessment for heinous offences by Board'. Section 15 and Section 18 (3) are reproduced hereinafter.

"15. (1) In case of a heinous offence alleged to have been committed by a child, who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumustances in which he allegedly committed the offence, and may pass an order in accordance with the provisions of subsection (3) of section 18:

Provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts.

Explanation.--For the purposes of this section, it is clarified that preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence.

(2) Where the Board is satisfied on preliminary assessment that the matter should be disposed of by the Board, then the Board shall follow the procedure, as far as may be, for trial in summons case under the Code of Criminal Procedure, 1973:

Provided that the order of the Board to dispose of the matter shall be applealable under sub-section (2) of section 101:

Provided further that the assessment under this section shall be completed within the period specified in section 14."

"Section 18 (1) x x x

(2) x x x

(3) Where the Board after preliminary assessment under section 15 pass an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences."

Hon'ble Supreme Court in the judgment passed in the case of Om Prakash Vs. State of Rajasthan & Anr reported in 2012 (5) SCC 201 has held that:

"22. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.

23.Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are alleged to have been withheld deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.

27.The benefit of the principle of benevolent legislation attached to Juvenile Justice Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue. Hence if the plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the event it is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused.

31.However, we reiterate that we may not be misunderstood so as to infer that even if an accused is clearly below the age of 18 years on the date of commission of offence, should not be granted protection or treatment available to a juvenile under the Juvenile Justice Act if a dispute regarding his age had been raised but was finally resolved on scrutiny of evidence. What is meant to be emphasized is that where the courts cannot clearly infer in spite of available evidence on record that the accused is a juvenile or the said plea appears to have been raised merely to create a mist or a smokescreen so as to hide his real age in order to shield the accused on the plea of his minority, the attempt cannot be allowed to succeed so as to subvert or dupe the cause of justice.

32.Drawing parallel between the plea of minority and the plea of alibi, it may be worthwhile to state that it is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi.

33.Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.

The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused.

While considering the relevance and value of the medical evidence, the doctor's estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical test like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused.

In the case of Ramdeo Chauhan Vs. State of Assam, (2001) 5 SCC 714, the learned judges have added an insight for determination of this issue when it recorded as follows:-

"Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the Court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable material, if such opinion points to a reasonable possibility regarding the range of his age, it has certainly to be considered." (emphasis supplied).

The situation, however, would be different if the academic records are alleged to have been withheld deliberately to hide the age of the alleged juvenile and the authenticity of the medical evidence is under challenge at the instance of the prosecution. In that event, whether the medical evidence should be relied upon or not will obviously depend on the value of the evidence led by the contesting parties."

In the present matter, the accused has failed to brought on record any of documents mentioned in Rule 12 (3) (a) (i) (ii) and (iii) of the Rules, 2007 as well as in view of the judgment passed in the matter of Om Prakash (supra), accused cannot be entitled to get benefit of Medical Board's opinion especially when the accused despite being passed 10th Class has intentionally and deliberately withheld the copy of the same which is the best evidence for ascertaining date of birth and thus misled the Court.

In view of the abovementioned discussion, the present criminal revision lacks merit and it is accordingly dismissed.

Interim order, if any, stands vacated.