CRL.REV.P./663/2014 of STATE (GOVT OF NCT OF DELHI) Vs JASVINDER SINGH

*INTHEHIGHCOURTOFDELHIATNEWDELHI+CRL.REV.P. 663/2014

STATE (GOVT OF NCT OF DELHI)..... PetitionerThrough:Ms. Neelam Sharma, APP with SIAshish Tyagi, P.S. Nihal ViharThrough:Ms. Neelam Sharma, APP with SIAshish Tyagi, P.S. Nihal Vihar

versus

JASVINDER SINGH

..... Respondent

Through:Mr. Ashok Chhaparia, Adv. withrespondent in person.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

O R R02.08.2016

1.Respondent was arrested in the FIR No. 32/2013 under Sections302/201/34 IPC registered at Police Station Nihal Vihar, Delhi.Afterinvestigation, charge-sheet was filed in the court of Metropolitan Magistrate,Delhi.Date of offence is 3[rd]February, 2013 while respondent was arrestedon 4[th]February, 2013.Respondent gave his age to the Investigating Officer(I.O.) as 19 years.However, before the trial court respondent claimedhimself to be less than 18 years of age, as on the date of offence, that is, 3[rd]February, 2013. He claimed himself to be juvenile.2.Trial court inquired from the parents of respondent as to whether anydocument, as provided under in Rule 12 of the Juvenile Justice(Care and

Protection of Children) Rules, 2007 (“the Rules”, for short), was availablewith them to which they answered in negative. Accordingly, trial courtordered for determination of the age of respondent through medicalexamination.Medical Board was constituted by DDU Hospital, whichexamined the respondent, inasmuch as gave its report (Ex. P-1), according towhich respondent was between 22 to 25 years.At that stage, respondentfiled an application annexing therewith birth certificate issued by theMunicipal Corporation of Delhi to support his claim of juvenility.As perthe birth certificate, date of birth of respondent was 13[th]December, 1995and he was about 17 years old, as on the date of commission of offence.Record Clerk Shri Rajesh Kumar was called from the office of MunicipalCorporation of Delhi, who produced birth Register pertaining to the year1995.Photocopy of relevant entry in the register was taken on record bythe trial court as Ex. CW1/8.Statement of Ms. Renu Mann, Sub-Registrar(Birth & Death) was also recorded.

3.Other witnesses, including the parents, grandmother, aunt andmediator to the marriage of parents of respondent, were also examined.Trial court scrutinized the material collected during the enquiry andconcluded that Ex. CW1/A was suspicious document.Though entry was

recorded in the register pertaining to the year 1995 but name of therespondent was substituted subsequently, on an application dated 22[nd]April,2013 filed by the mother of respondent. Trial court has noticed that Ms.Renu Mann, the Sub-Register though deposed that she had recorded thename of respondent vide entry no. 11069 on 22[nd]April, 2013 on the basis ofapplication filed by Ms. Raj (mother of respondent), but had not appendedher signature below the entry nor affixed the stamp.Trial court concludedthat in absence of any document, as provided in rule 12 of the Rules, reportof the medical board was the conclusive proof of age of respondent and aftergiving benefit of one year on lower side, the age of respondent is to be taken21 as on the date of commission of offence.4.Respondent preferred Criminal Revision No. 12/2014 before theDistrict & Sessions Judge (West), Delhi, who meticulously scrutinized theevidence adduced during the inquiry and held that respondent was ajuvenile, as on the date of commission of offence. For the reasons recordedin the judgment dated 29[th]May, 2014 revisional court has held that the dateof birth, as recorded in the municipal certificate, was the conclusive proof ofage of respondent. Revisional court has accepted the municipal record tobe genuine. It has been observed as under:-“On consideration of the entire availablerecord and rival submissions addressed onbehalf of either side, and also taking intoaccount the verdict of the Hon’ble SupremeCourt in the case Ashwani Kumar Saxena vs.State of Madhya Pradesh, VII (2012) SLT 230,which categorically lays down that the Court,the Juvenile Justice Board or Committeefunctioning under the Juvenile Justice Act is notexpected to conduct such roving enquiry andto go behind those certificates or the date ofbirth certificate from the school first attended orthe birth certificate given by Corporation or aMunicipal Authority to examine the correctnessof those documents, kept during the normalcourse of business, but that only in cases wherethose documents or certificates are found to befabricated or manipulated, the Court, the JusticeJuvenile Board or the Committee need to go formedical report for age determination, taking thetotality of the circumstances of the case intoaccount, which brings forth undisputedly in asmuch as, it has not been refuted on behalf of theState that the applicant/petitioner, the accusedJasvinder Singh is younger to his sister GurmeetKaur, whose date of birth as per her schoolcertificateis13.09.1994,andeveniftheapplicant/accused, who is younger to GurmeetKaur was born precisely nine months after thebirth of Gurmeet Kaur, even then, his date ofbirth would ordinarily to be before 12.06.1995in the normal course of human nature and evenfrom the said date i.e. 12.06.1995 till the date ofthe alleged commission of the offence i.e.03.02.2013, the applicant/accused would beaged 17 years 7 months and 1 days on the dateof the alleged commission of the offence andwould be less than 18 years of age.

Taking the said course of normal humannature into account thus and the factum that theregistration of the birth of the child by theparents of the petitioners has been made on15.12.1995withtheMunicipalAuthorities,coupled with the factum that the State has notrefuted that the applicant/accused is the secondchild of the parents of the petitioner, though thelearned trial court has observed that as perEx.CW1/A, there is mention of three children ofthe parents of the accused, the testimonies of theparents of the accused is categorical to the effectthat they had only two children and it is unlikelythat the parents would conceal the factum ofbirthoftheirownoffspring.Inthecircumstances thus taking ito account that thedate of birth of the accused has been gotregistered on 15.12.1995, it is held that there isno reason to disbelieve the Municipal certificateshowing the date of birth of the accused as being13.12.1995 and thus, in terms of Rule 12sub-clause 3 sub-clause (a) sub-clause (iii) of theJuvenileJustice(CareandProtectionofChildren) Rules 2007 read with sub-clause (b)thereof, it is held that the date of birth of theaccused Jasvinder Singh @ Sunny, s/o ShriSarabjeet Singh is 13.12.1995 and that he was ajuvenile on the date of the alleged commissionof the offence.The impugned order dated10.10.2013 of the learned trial court in FIRNo.32/13 PS Nihal Vihar is thus set aside.The revision petition CR No.12/14 isdisposed of accordingly.The file be consignedto the Record Room.”

5.That is how petitioner is before this Court by way of present petition

under Section 397 Cr.P.C. read with Section 482 Cr.P.C. It is contended

that revisional court has erred in accepting the birth certificate ofrespondent, despite various lacunaes and opinion of the medical board, hasbeen wrongly discarded.I have perused the trial court record and do notfind any illegality or irregularity in the impugned order, which is strictly inaccordance with the evidence adduced and the law governing the field.Marriage of the parents of respondent was solemnized on 6[th]February, 1993.This stands proved from the statements of parents of respondent and otherwitnesses examined, including an independent witness, that is Ms. SurenderKaur, who have deposed that parents of respondent were married on 6[th]February, 1993 in the Gurudwara. It has also not been disputed by thepetitioner that sister of the respondent is elder to him. She was born on 13[th]September, 1994, as per the school certificate. Respondent is the secondchild; therefore, he could have born only after June, 1995, that is, after ninemonths. For this reason also, entry in the register cannot be doubted more sowhen it was made in the year 1995.Register pertains to the year 1995 andnames of the parents of respondent finds mentioned therein. It has also comeon record that DDU Hospital record was destroyed. After child’s birth, ifinformation is sent from the hospital and child’s birth is recorded, the nameof the child may not be there as ‘namkaran’ ceremony takes much after

the child’s birth.As per Rule 12, the medical report can only be consideredin absence of the documents as envisaged in Rule 12(a)(i) to (iii) of theRules. In this case, respondent has produced proved document as referredin Rule 12(a)(iii) of the Rules, thus medical opinion has rightly been notconsidered.

6.For the foregoing reasons, revision petition is dismissed.

AUGUST 02, 2016rb

A.K. PATHAK, J.