GORAKH YADAV Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned counsel for the revisionist, learned A.G.A. and learned counsel appearing for opposite party no.2. This criminal revision has been filed against judgment and order dated 3.7.2010 passed by Additional Sessions Judge, Fast Track Court No.3, Azamgarh in Session Trial No.242 of 2007, under Section 307 I.P.C., by which the application of the revisionist regarding declaration as juvenile has been rejected. Learned counsel for the revisionist has submitted that learned court below has not relied upon the extract of Parivar Register regarding which the witness was also examined. It has also been submitted that if there is no record then in the last, the medical report may be considered in view of Juvenile Justice Rules, 2007. It has also been submitted that the determination of age could have been done only by the Juvenile Justice Board and not by the trial court, therefore, the trial court was not having any jurisdiction to determine the age of the revisionist.

(2.) LEARNED counsel appearing for opposite party no.2 has submitted that the extract of Parivar Register was not found trustworthy because the date of birth was mentioned on the basis of the application of Nagina dated 28.3.2008 while the occurrence had taken place in December, 2006, therefore, the date of birth mentioned in the Parivar Register was manipulated. Under Section 7(a) of the Juvenile Justice (Care and Protection of Children) Act, 2000 whenever a claim of juvenality is raised before any court or the court is of the opinion that the accused person was a juvenile on the date of commission of the offence, the court shall make enquiry, take such evidence as may be necessary so as to determine the age of such person and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(3.) LEARNED counsel for the revisionist has relied upon the statement of Ramlaut Chaurasia C.W. -1 who is Gram Panchayat Adhikari and has submitted the extract of family register maintained by him. As per Ramlaut Chaurasia the date of birth of Gorakh Yadav was 19.8.1989. This witness has been cross examined and in the cross examination, this has admitted that the date of birth was mentioned on the basis of application. In the medical examination, the age of the revisionist has been found to be 22 years and accordingly on the date of occurrence his age was 20? years. The Juvenile Justice Rules, 2007 provides that the court while deciding the age of the accused shall take into consideration the matriculation or equivalent certificate and in absence of that the certificate of first school and in its absence, the certificate issued by Nagar Nigam, Nagar Palika or Panchayat. It has also been provided in the Rules that in the absence of aforesaid three documents, the age as determined by the Medical Board may be taken into consideration. Admittedly in the present case the matriculation or equivalent certificate or the certificate of first school was not produced and reliance was placed on the extract of Family Register maintained by Gram Panchayat Adhikari. In the cross examination it has come that the aforesaid date of birth was mentioned on the basis of application given by accused Nagina who is the father of Nagendra @ Lakhandar. Admittedly the said application was given on 28.3.2008 while the occurrence has taken place on 16.12.2006. No reason was shown as to why the father of revisionist has not moved any such application and why such application was moved by a third person who was also an accused of the same crime. Learned court below has rightly observed that the said extract of Family Register cannot be believed because the date of birth has been mentioned on the basis of application dated 28.3.2008 which is after the date of occurrence, therefore, that was not reliable. Under the Rules, in absence of the certificates, the age as determined by the Medical Board is to be considered and the Chief Medical Officer, Azamgarh has assessed the age of the revisionist as 22 years and accordingly on the date of occurrence the revisionist was about 20? years.