BRIJESH KUMAR Vs. STATE

JUDGEMENT

(1.) . By this petition, under Section 439 and 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") read with Section 18 of Juvenile Justice Act, 1986 (hereinafter "the Act"), petitioner is seeking quashing of the order dated 9/08/2000 passed by the Juvenile Justice Court, Delhi or in the alternative bail in the case FIR No. 15/2000 under Sections 376/363/341/34 IPC P.S.Malviya Nagar.

(2.) . Brief facts are that on 12/01/2000 petitioner was arrested in the above noted case and was sent to judicial custody. He moved an application that he was less than 16 years of age and was juvenile. In support of his submission he produced a school leaving certificate showing his date of birth as 14/08/1986. Prosecution contested the same. The Juvenile Court acting under Section 32 of the Act decided to hold an enquiry to find out whether the petitioner was juvenile or not. Prosecution in support of its case examined CW-1 Dr. Rajneesh Juneja, Radiologist, HRH Hospital who deposed that he had examined the X-ray. plates of the petitioner which were taken for the purpose of determining his bone age and opined that his age is between 18 to 21 years. The petitioner examined CW-2 Kallan, Asstt. Teacher, from Prathmik Vidhlaya, Patehpur, U.P. who produced the school record and stated that on 31/07/1991 the petitioner was admitted in the school and his date of birth was recorded as 14/08/1986. His name was removed from the school on 9/05/1996 and he proved the school leaving certificate. Petitioner has also examined CW-3, his father, who stated that his age was around 50-60 years; that he has 7 children (5 daughters and 2 sons), and that petitioner is his youngest child. However, he was not able to tell the date of birth of any of his children. He only stated that petitioner was born before a day of Independence Day. He did not remember the date of birth or the age of the petitioner and stated that the school teacher had written the date of birth of the petitioner on admission form himself and he had only put his signatures on the admission form. On the basis of the above material, the learned court, rejected the contention of the petitioner that he was less than 16 years of age and held: "However, in the present case, there is enough material throwing doubt on the entries in the school record. The admission form is signed by the father of the delinquent but he has stated that he does not know the age or the date of birth of the delinquent. When asked, he stated that year was mentioned by the school teacher himself while filling up the admission form of the delinquent. He further stated that he only signed on the admission form and rest of the form was filled by the school teacher. He has clearly stated in the court that he did not tell the date of birth in the school and it was written by the school teacher himself- As the school teacher himself has written the date of birth as per the father of the delinquent, therefore, the same can not be believed as it is also not the defence of the delinquent that the school teacher was related to him. It seems that the father of the delinquent knew only to sign and is not aware of the date of birth or the age of any of his children. Therefore, he only signed the admission form and rest of the details were filled up by the teacher. In these circumstances, the date of birth as mentioned in the school register cannot be believed as the same was not filled up by the parents himself neither the same has been stated to the teacher by the father. The teacher has stated the year himself." Revision petition filed by the petitioner against the said order was dismissed by the Addl. Sessions Judge. This order has been challenged before this court.

(3.) . Learned counsel for the petitioner argued that while determining the age of a child the liberal approach should be adopted and that the evidence of CW-1 Dr. Rajneesh Juneja is only an opinion evidence and it could not be preferred over the date of birth recorded in the School showing his date of birth. He argued that petitioner's father Mr. Matroo is an illiterate person and merely because he was not able to give the date of birth of the petitioner or of his other children could be the ground for preferring the opinion/evidence of doctor over the school leaving certificate. In support of his submission reliance was placed on the Supreme Court's decision in Bhoop Singh v. State of U.P., 1989 SCC (Cr.) 486 and Full Bench decision of the Patna High Court in in Krishna Bhagwan State of Bihar, 1991 CRI.L.J. 1283. Learned APP for the State argued to the contrary.