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VIKASH MISHRA versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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VIKASH MISHRA v. STATE OF HARYANA - CRR-723-2006 [2006] RD-P&H 4674 (24 July 2006)

Criminal Rev. No. 723 OF 2006 /1/

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Criminal Rev. No. 723 OF 2006

DATE OF DECISION : JULY 28, 2006

VIKASH MISHRA ....... PETITIONER

VERSUS

STATE OF HARYANA ...... RESPONDENT

CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. KK Aggarwal, Sr. Advocate, with Mr. Kapil Aggarwal, Advocate, for the petitioner.

Mr. SK Hooda, Sr.DAG, Haryana.

JUDGMENT :

In this criminal revision petition, the petitioner is an accused in a case u/ss 323/307/34, IPC. The issue with regard to the age of the petitioner was raised so as to determine as to whether the petitioner falls within the definition of "juvenile" under the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act') or not. The matter was earlier considered by this Court while dealing with Crl. Rev. No.2098 of 2003. It was decided on 16.11.2005. The relevant operative part of the order reads as under:-

"In view of the above, rejection of the claim of the Criminal Rev. No. 723 OF 2006 /2/

petitioner that he was juvenile was not justified. However, in the circumstances of the case, a fresh opportunity ought to be given to the parties for just decision on the issue. As suggested by learned counsel for the State, the petitioner could be medically examined by a Board to be constituted by Civil Surgeon/Chief Medical Officer, Narnaul, forthwith to avoid further delay.

Accordingly, this petition is disposed of with a direction that the petitioner will appear before Civil Surgeon/Chief Medical Officer, Narnaul on 30.11.2005 at 11.00A.M. who will give his report after constituting such board, as he may consider appropriate, to the trial court on or before 19.12.2005.

The trial court will, thereafter, pass a fresh order in the matter of the petitioner being juvenile or otherwise and proceed in accordance with law. "

It was required to be determined as to whether on the date of the offence i.e. 17.7.2002, the petitioner was a juvenile or not. The claim of the petitioner is that his Date of Birth is 21.5.1985, while relying on the Certificate of Board of School Education, wherein the said date is reflected.

The case of the prosecution, however, is that the Date of Birth of the petitioner is 21.5.1984. If the later date is considered, the petitioner would not be entitled to the provisions of the beneficent legislation.

In deference to the orders passed by this Court dated 16.11.2005, the petitioner was subjected to Ossification Test. The report after examination was placed before the Additional Sessions Judge, Narnaul, to consider the issue of age of the petitioner while considering the totality of material available on the record. Vide impugned order dated 16.3.2006, it has been held by the Additional Sessions Judge, Narnaul that the Date of Birth of the petitioner is 21.5.1984 and not 21.5.1985, as Criminal Rev. No. 723 OF 2006 /3/

claimed. The petitioner, therefore, has been held not to be a juvenile and not entitled to the provisions of the beneficent legislation.

I have gone through the record with the assistance of the learned counsel and have heard the learned counsel.

The argument of the learned counsel for the petitioner is that the School register indicates the Date of Birth of the petitioner as 21.5.1985 and, therefore, it should be considered as conclusive evidence. It has further been argued that the said record is duly supported by witness AW-2 Mahender Kumar, who was Manager of the School, which had issued the Certificate. Mahender Kumar, AW-2, has stated in his statement that as per the School Register, the Date of Birth of Vikash Mishra has been shown as 21.5.1985. In cross-examination, however, the witness has stated that no document regarding the Date of Birth of Vikash Mishra is attached with the Admission Form in any shape.

Learned counsel for the petitioner has further referred to the statement of AW-1 Vishvanath Mishra i.e. father of the petitioner, who has stated that he had four children. As per AW-1 Vishvanath Mishra, Parthiba, the eldest child, was born on 2.10.1982; in May, 1984, a son was born and the entry regarding his birth is in Municipal records, however, after three days of his birth, he had died. The witness has admitted that there is no entry in record about the death; on 21.5.1985, another son was born; namely, Vikash Mishra and, thereafter, on 30.3.1986, another daughter Dipali Mishra was born. It has been clarified by this witness that Vikash, the petitioner, was born at the residence and no birth entry was got entered in the Birth Register or in the register of the Chowkidar. Vikash was Criminal Rev. No. 723 OF 2006 /4/

admitted in the School. Certificates of School have been exhibited. In cross-examination, the witness has made the statement in the following terms:-

"I was married on 23.6.1989. First child was born and she was girl. Her name is Parthiba Mishra. She was born in Civil Hospital, Mahendergarh, and her birth entry was recorded in Civil Hospital as well as M.C. Mahendergarh. 2nd child was

born on 21.5.84. He was also born in Civil Hospital, and the entry regarding his birth is in Municipal Committee as well as Civil Hospital. He was died at my home after three days of birth. He was checked up by me in Kalawati Hospital, Rewari.

No entry was made by the doctor regarding his admission in hospital as he was declared dead by the doctor. I did not get the death entry registered in the Municipal Committee, Mahendergarh or Civil Hospital Mahendergarh. I did not make the entry in any office regarding his death as he was born in my house. I did not get registered any of the child on any of birth.

The children who were born in hospital, hospital authorities got the entry itself."

It is the admitted fact that the third child was born on 30.3.1986. Learned counsel for the petitioner has further indicated from the Ossification Test that the age of the petitioner was determined as being over 21 years of age. Thus, even if three years are subtracted therefrom, the petitioner would still be a juvenile.

Learned counsel for the respondent has argued that there is sufficient evidence to indicate that the petitioner was born on 21.5.1984. A reference has been made to the statement of Mahavir Singh, Clerk, Municipal Committee, Mahendergarh, who appeared as RW-1. According to this witness, there are entries at Serial Nos.583 and 600 of the register Criminal Rev. No. 723 OF 2006 /5/

with regard to the birth of children. At Sr.No.583 in the Register, the parents of the petitioner got recorded the Date of Birth of a son on 21.5.1984 and the boy has been shown as the second issue. There is another entry at Sr. No.600 with regard to the birth of a daughter to the parents of the petitioner and the Date of Birth indicated is 30.3.1986. The entry shows that this was the third issue of Vishvanath and Sarita, the parents of the petitioner. The relevant record has been exhibited as Exh.RW-1/A to Exh.RW-1/D.

In this regard, it has been argued that it is highly improbable that the parents of the petitioner would get the birth of other children entered in the Register, however, with regard to the child born on 21.5.1985, no entry could be got recorded. It has also been pointed out that the third issue having been born on 30.3.1986, the second issue could not have been born on 21.5.1985, as alleged by the petitioner, as the gap between the two dates is just about 10 months. It is medically difficult to comprehend that the third child would be born just after about 10 months.

This has been highlighted particularly in view of the fact that the first child, admittedly, was born in the year 1982.

Having considered the arguments, I am of the considered opinion that the petitioner is not entitled to the provisions of the beneficent legislation. It is not a case wherein there is no record with regard to the birth of the other children of the parents of the petitioner. There are entries of birth of other children. The excuse advanced by the petitioner cannot be accepted that one of the children born in 1984 had died, however, no entry in that regard was made, particularly when it is admitted by AW-1 Criminal Rev. No. 723 OF 2006 /6/

Vishvanath Mishra to the effect that the child was treated in hospital. No reliance can be placed on the register of School, as there is no supporting document to establish the entry. The witness i.e. RW-1 Mahavir Singh, Clerk, Municipal Committee, Mahendergarh, has exhibited the entries of birth. The entry of birth made in the year 1984 relates to a son having been born on 21.5.1984. The case set up by the petitioner through the statement of Vishvanath Mishra, his father, is that the petitioner was born at home.

This witness has admitted that three children were born in hospital. It is improbable that while other children were born in hospital, only one was born at home.

The case set up by the petitioner is that between the birth of the petitioner on 21.5.1985 and the birth of the next child on 30.5.1986, there was a gap of just about 10 months, which is improbable. When the statement of AW-1 Vishvanath Mishra is read with the statement of RW-1 Mahavir Singh, who has exhibited the documents relating to the entries of birth, no measure of doubt is left that the petitioner was, in fact, born on 21.5.1984, particularly when it has come in the statement of RW-1 Mahavir Singh that the entry at Serial No.600 with respect to birth of a daughter on 30.3.1986 shows it was the third issue.

I do not find any illegality in the findings recorded by the Additional Sessions Judge in paras 8 to 10 of the order. The evidence has neither been perversely read nor any piece of evidence has been over- looked. In the case in hand, when the report of the Ossification Test is read in conjunction with the documentary and ocular evidence, it is concluded that the petitioner was not a juvenile on the date of commission of the Criminal Rev. No. 723 OF 2006 /7/

offence.

Accordingly, finding no illegality in the order, this petition is dismissed.

July 28, 2006 ( AJAI LAMBA )

Kang JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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