HARISH YADAV Vs. STATE

JUDGEMENT

(1.) By present petition, the petitioner has assailed order dated 16 th September, 2010 passed by the learned Additional Sessions Judge dismissing the appeal filed by the petitioner against order dated 31 st July, 2010 of learned ACMM.

(2.) The petitioner is involved in a case under Section 302 IPC. The investigation of the case is going on. During pendency of the investigation, he made an application that he was a juvenile and instead of being sent to jail he should have been sent to remand home. On this application being made, an inquiry was conducted by the learned ACMM in the juvenility of the petitioner in terms of Section 7-A of The Juvenile Justice (Care and Protection of Children) Act, 2000. The petitioner had contended that his date of birth was 29 th October, 1993 as recorded in his school certificate of Class VIII and IX. During inquiry it was found that the petitioner was born at Village Khuram Khara, District Gurgaon and his grandfather shifted to Delhi at Village Bagdola. This fact was not disputed by the petitioner. The primary education of petitioner had also taken place at District Gurgaon. The IO visited the Chief Medical Officer, Gurgaon where births are registered and found the birth of the petitioner was registered with CMO Gurgaon on 6 th December, 1991 showing that he was born on 5 th December, 1991. CMO issued a certificate to this effect. It was also found that a different date of birth of the petitioner was recorded in school mark-sheet issued by the District Primary Education Gurgaon and this date of birth was 5 th July, 1993. The learned ACMM after conducting inquiry came to the conclusion that the petitioner was born on 5 th December, 1991 which was his correct date of birth as recorded in the record of CMO, Gurgaon and the other two dates of birth recorded in School Certificate and mark-sheet had no authenticity since they were recorded on the basis of oral information given by father or grandfather and the authentic date of birth of the petitioner was 5 th December, 1991. The counsel for the petitioner, faced with this situation, had contended before the learned ACMM that twins were born to his parents on 5 th December, 1991 and died and petitioner was not born on 5 th December, 1991. The learned ACMM however, came to the conclusion that the petitioner was not juvenile on the date of commission of offence and his date of birth was 5 th December, 1991. Against this order, petitioner preferred an appeal. The learned Additional Sessions Judge again scrutinized the evidence collected during inquiry on the juvenility of the petitioner and came to the conclusion that the correct date of birth of the petitioner was 5 th December, 1991 and the trial Court rightly came to this conclusion. The petitioner has now approached this Court.

(3.) The plea of the petitioner is that under Rule 12 of Juvenile Justice (Care & Protection of Children) Rules, 2007, the court should not have believed the date of birth certificate issued by the CMO and submitted that in terms of Rule 3, the Court should have restricted this inquiry only to matriculate or equivalent certificate or date of birth certificate from school or birth certificate given by Corporation or a Municipal Authority or a Panchayat. He stated that if the matriculation certificate or equivalent certificate was available then the Court should not have proceeded further and stopped the inquiry at that level. If date of birth was available on school certificate then the Court should not look into the date of birth certificate given by Corporation or Municipal Authority. He also submitted that the Court should also have looked at the appearance of the petitioner and determined juvenility and if there were conflicting date of births on school certificates, then the Court should have gone for determination of age by ossification test. It was submitted that Court of ACMM did not go for ossification test of the petitioner and did not go by appearance of the petitioner but determined age on the basis of birth certificate issued by CMO therefore, the order of ACMM and order of learned Sessions Judge was bad in law.