Chandra Vs. State of Chhattisgarh & Anr  Insc 35 (24 January 2002)
Lahoti & Brijesh Kumar R.C. Lahoti, J.
Tiwari, the accused respondent No.2, has been apprehended on 27.2.1997 for an
offence under Section 302/34 IPC committed on the same day. The accused claimed
himself to be a juvenile as having not attained the age of 16 years and,
therefore, entitled to the benefit of the Juvenile Justice Act, 1986. An
enquiry was held. The learned Judicial Magistrate First Class and the Sessions
Court held the accused not to be a juvenile. The accused preferred a revision
in the High Court which has been allowed. The orders impugned before the High
Court have been quashed and the accused has been held to be a juvenile. The complainant,
father of the victim in the incident, has preferred this appeal by special
enquiry, on behalf of the accused, mark sheets of Class VIII and High School,
birth certificate, horoscope and entry in Kotwar Book were tendered in documentary
evidence. In all of these documents, the date of birth of the accused is
entered as 30.9.1981. In oral evidence, Savita Tiwari, PW1, mother of the
accused, Gopal Tiwari, PW2, father of the accused, Vinod Kumar Mishra, PW3,
Head Master of Saraswati Shishu Mandir, where the accused took his primary
education, R.S. Nayak, PW4, Assistant Teacher of the High School where the
accused had taken subsequent education and whereat his date of birth was
entered into records on the basis of transfer certificate issued by Saraswati Shishu
Mandir, Uttam Kumar Soni, PW5, Assistant Teacher, Examination Centre,
Government Basic School, Kota, who proved the mark sheets and Hari Shankar Tandon,
Kotwar, who brought the birth and death register wherein the factum of birth of
the accused is recorded, were examined. The learned Magistrate and the learned
Sessions Judge scrutinized the evidence adduced on behalf of the accused by
applying the principle that it was the accused who was claiming the benefit of
the Juvenile Justice Act, and therefore the onus lay on him to prove that he
was a juvenile and in as much as the oral and documentary evidence adduced by
him left open room for doubt, the onus could not be said to have been
discharged. The accused was also subjected to radiological examination. In
ossification test report, he was opined to be of 15-16 years of age. The
learned Sessions Judge, by reference to Modi's Medical Jurisprudence, held that
a variation of 2 to 3 years on either side was permissible in the result of
ossification test, and therefore, on the basis of such test no definite opinion
could be formed.
High Court, in exercise of its revisional jurisdiction, found the findings
arrived at by the learned Sessions Judge and the Magistrate to be legally
infirm and hence not sustainable. The High Court noticed that although in the
marks sheet of Class VIII there appeared to be some over writing on the year
1981 but the same was attested by the officer who had issued it. Moreover the
date of birth was entered in figures and words both. While in the figures there
was an over writing but there was no over writing in the words wherein the date
was clearly mentioned as "thirtieth September nineteen eighty one"
and, therefore, there was no room for doubt. In the birth and death register
kept by Kotwar, there was some doubt whether the date of birth was recorded as
30.6.1981 or 30.9.1981 but the doubt was removed by reference to other entries
in vicinity. The factum of Gopal Prasad Tiwari, father of the accused, having
begotten a son, was entered at sl. No. 29. The preceding two entries refereable
to other children born to others, at Sl. Nos. 27 and 28 were dated 23.8.1981
and 15.9.1981 respectively and, therefore, the relevant entry at Sl. No. 29
could be of 30.9.1981 only and not of 30.6.1981.
in substance, the High Court has concluded that the doubts assumed to be in
existence by the learned Sessions Judge were not reasonable doubts and in the
light of the explanation furnished by the accused, there was hardly any room
for doubt and a high degree of probability was raised that the date of birth of
the accused was 30.9.1981. In our opinion, the High Court has not erred in
arriving at the conclusion which it has reached and it rightly interfered with
the orders of the two courts below because if allowed to stand they would have
occasioned failure of justice.
true that the age of the accused is just on the border of sixteen years and on
the date of the offence and his arrest he was less (2000) 5 SCC 488, this court
has, on a review of judicial opinion, held that while dealing with question of
determination of the age of the accused for the purpose of finding out whether
he is a juvenile or not, a hyper-technical approach should not be adopted while
appreciating the evidence adduced on behalf of the accused in support of the
plea that he was a juvenile and if two views may be possible on the said
evidence, the court should lean in favour of holding the accused to be a
juvenile in borderline cases. The law, so laid down by this court, squarely
applies to the facts of the present case.
the foregoing reasons, the appeal is held devoid of any merit. It is dismissed.
The order of the High Court is maintained.
LAHOTI ) J.