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Sikander Mahto Vs. Tunna @ Tunnu Mian @ Tunna Mian @ Mobin Ansari & ANR.

[Criminal Appeal No.511 of 2014 arising out of Special Leave Petition (CRL) No. 9028 of 2011]

RANJAN GOGOI, J.

1. Leave granted.

2. The first respondent Tunna @ Tunnu Mian @ Tunna Mian @ Mobin Ansariwas committed to the Court of Sessions to face trial for offences under Sections 302/201 and 376 of the Indian Penal Code. The first respondent filed an application claiming to be a juvenile and in support thereof he had enclosed a certificate issued by the Government Primary Urdu School, Shekhawa, Basantpur, Block Maintained wherein his date of birth was mentioned as 15.01.1991. The date of occurrence of the offences alleged in the present case is 16.11.2006.

3. The learned Trial Court, for reasons not very clearly stated, recorded the finding that the certificate produced by the first respondent was a forged one. Accordingly, the first respondent was sent for medical examination by a Board. Though the report of the Board was to the effect that the first respondent was 17 years of age, the learned Trial Court took the view that the said opinion would admit the possibility of a variation of 2 years. Consequently, the learned Trial Court by order dated24.12.2007 refused to accept the claim of juvenility raised on behalf of the first respondent.

4. Aggrieved, the first respondent moved the Patna High Court. By order dated 14.11.2008 the High Court interfered with the order of the learned Trial Court and allowed the application of the first respondent herein declaring him to be a juvenile and to be of sixteen and a half years of age on the date of alleged occurrence. Challenging the aforesaid finding of the High Court, the complainant, who is the father of the victim of the crime, has approached this Court.

5. A reply has been filed on behalf of the first respondent in the present appeal wherein reliance has, once again, been placed on the school certificate issued by the Government Urdu School Shekhwa, Basantpur, Distt. East Champaran reference to which has been made earlier. The first respondent in his reply has also contended that the report of the medical examination clearly indicates that he was a minor on the relevant date and that there is no reason as to why the said medical report should not be accepted.

6. The appellant has been allowed by this Court leave to bring on record certain documents which, according to the appellant, have a significant bearing to the issues arising in the present case.

7. The first document that has been brought on the record of the present appeal is a letter/certificate dated 3.4.2013 issued by the Principal, Government Primary Urdu School, Shekhawa, Basantpur, Block-Mainatand wherein it is mentioned that no student having the name and particulars of the first respondent had ever studied in the school in question and that the certificate issued in the name of the school is a forged document. The second document is another certificate issued by the Principal, Government Primary School, Purbi Paukuahwa, Block-Mainatand, West Champaran, Bihar which states that the particulars of the first respondent are entered in the records of the said school and that his date of birth as mentioned in the school admission register is 28.11.1985. As the controversy arising in the present case is capable of being resolved on the basis of the aforesaid two documents, reference to any other document would be superfluous and hence is avoided.

8. The first respondent has not filed any affidavit or objections denying the veracity of the two certificates referred to above. However, as the Court had to be satisfied with the authenticity of the said two documents, on 27.01.2014 the following order was passed. "In order to find out the age of Respondent No.1-accused on the date of occurrence, we direct the Principal, Government Primary Urdu School, Shekhawa, Basantpur, Block-Mainatand, West Champaran, Bihar and Principal, Government Primary School, Purbi Paukuahwa, Block-Mainatand, West Champaran, Bihar to appear along with the connected original record before this Court on 24th February, 2014. List on 24th February, 2014"

9. Pursuant thereto the Principal of the two schools appeared in Court today alongwith the records in original. The said records would indicate that there is no record of the first respondent being enrolled or having studied in the Government Primary Urdu School, Shekhawa, Basantpur, Block-Mainatand. From the records of the Government Primary School, Purbi Paukuahwa, Block-Mainatand, West Champaran, Bihar it is evident that the first respondent had enrolled himself in the said school on 08.01.1996 and his date of birth is recorded in the admission register as 28.11.1985. The relevant records placed before this Court by the Principals of the two schools pursuant to the order dated 27.01.2014 therefore indicates that the claim of the first respondent to be a juvenile remains unsubstantiated and, in fact, the records of the school where he was enrolled would indicate that his date of birth is 28.11.1985. Properly calculated with reference to the date of the alleged crime, the first respondent was aged about 21years on the relevant date and therefore he was not a juvenile.

10. We, therefore, cannot sustain the order dated 14.11.2008 passed by the High Court. In the result, we allow this appeal and set aside the said order dated 14.11.2008 passed by the High Court and restore the order dated24.12.2007 passed by the learned Trial Court.

.........................CJI. [P. SATHASIVAM]

...........................J. [RANJAN GOGOI]

NEW DELHI,

FEBRUARY 27, 2014

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