Naheed Ara Moonis, J. - (1.) The instant revision has been preferred by the complainant (revisionist) against the judgment and order dated 24.1.2008 passed by Additional Sessions Judge /Special Judge (D.A.A.) Farrukhabad in S.S.T. No. 40 of 2007 arising out of Case Crime No. 467 of 2007 under Ss. // IPC Police Station Kotwali Fatehgarh whereby the accused opposite party No. 2 has been declared juvenile and the application under Sec. 62B has been allowed. It was further directed that the opposite party No. 2 be sent to government observation home after changing his custody from Superintendent District Jail Fatehgarh and the trial of the opposite party No. 2 who has been declared juvenile be separated from other accused persons and for framing the charges record be placed on 8.2.2008.
(2.) Initially this matter came up before another Bench of this Court and the Hon'ble Single Judge was pleased to pass the order on 7.3.2008 directing the learned Counsel for the parties to file counter and rejoinder affidavits by 17.3.2008. Till then the proceedings in Sessions Trial No. 40 of 2007 and the operation of the order impugned were stayed.
(3.) Briefly the facts of the case are that the opposite party No. 2 who is stated to be involved in the aforesaid case moved an application No. 62 B dated 16.10.2007 that at time of incident i.e. 11.4.2007 , the opposite party No. 2 (Happy @ Shivam @ Harsh) was less than 18 years of age and according to Juvenile Justice (Care & Protection of Children )Act 2000 , the opposite party No. 2 whose date of birth is 10.7.1989 is only 17 years ,9 months and one day old is a minor. In support of juvenility ,the opposite party No. 2 filed High School Certificate and prayed that his case cannot be heard together with other accused persons therefore, his trial may be separated and may be transferred to the Juvenile Justice Board Farrukhabad. In addition to High School Certificate, the opposite party No. 2 had adduced school leaving certificate ,Identity card of High School Examination,Mark Sheet of High School examination, certificate of Intermediate Examination and the mark sheet of Intermediate Examination ,photo copy of the passport certificate, birth registration certificate from Nagar Palika Parishad Farrukhabad , character certificate issued by Principal ,Ram Lal Singh Higher Secondary School Paharpur Shahjahanpur , service book of his father, identity card issued by Venkateshwar Degree College New Delhi ,death certificate of Harsh , alleged elder brother of opposite party No. 2 and lastly the medical certificate of District Jail Fatehgarh wherein his date of birth is mentioned as 17 years. Besides documentary evidence, Mahendra Pal Singh C.W.2 and Kasim Husain C.W.3 were examined who gave oral evidence in support of his case. They had proved the school register, transfer certificate of High School & Intermediate , date of birth certificate of opposite party No. 2 and the death certificate of Harsh , the brother of opposite party No. 2. C.W.4 Om Prakash Katheriya who is the father of the opposite party No. 2 was also examined. On behalf of the complainant ( revisionist ) Shivi George Officer Incharge Saint Anthony School Fatehgarh was produced . He proved that Harsh, the brother of the opposite party No. 2 received education from his College where the date of birth of Harsh is 2.12.1986 . Harsh was admitted in K.G. in his school in the year 1990. The opposite party No. 2 was produced for the first time on 1.5.2007 before the court below and at that time he was the student of Vaikanteshwar Degree College New Delhi where his date of birth is mentioned as 10.7.1989. On the strength of aforesaid evidence , the contention on behalf of the revisionist before the court below was that Happy alias Shivam alias Harsh is the name of one person . He was major at the time of incident therefore, his application for declaring him juvenile is unfounded, vague and cryptic . There is no justification to get the trial of the opposite party No. 2 separated from other accused persons. The court below keeping in view the provisions of Rule 22 (5) of U.P. Juvenile Justice (Care & Protection of Children ) Rule 2004 and also taking into account the oral and documentary evidence as well as the case law cited on behalf of both the parties arrived at the conclusion the opposite party No. 2 was juvenile at the time of incident arrived . The date of birth of the opposite party No. 2 was 10.7.1989 at the time of incident i.e. 11.4.2007. Since the opposite party No. 2 was found to be less than 18 years in accordance with Juvenile Justice Act 2000 he was declared juvenile ,therefore, the matter was sent to the Juvenile Justice Board for trial by the impugned order dated 24.1.2008.;