Shri Kant Tripathi - (1.) HEARD the learned counsel for the revisionist Bahadur and the learned A.G.A. and perused the impugned order.
(2.) THE revisionist has preferred this revision against the order passed by Shri Ajay Kumar Srivastava, Additional Sessions Judge/Fast Track Court No. 3, Gorakhpur in Sessions Trial No. 100/2008, State v. Bahadur, whereby the learned Additional Sessions Judge has rejected the revisionist's application for declaring him as a juvenile under the Juvenile Justice (Care and Protection of Children) Act, 2000. It appears that the revisionist is being tried under Sections 302, 364 and 201, I.P.C. He moved an application before the Court concerned for declaring him juvenile. The revisionist pleaded that he was less than 18 years on the date of occurrence and as such he was required to be dealt with in accordance with the aforesaid Act. The learned Additional Sessions Judge rejected the application on 15.7.2008 which was impugned in Criminal Revision No. 2931/2008. Hon'ble A. K. Roopanwal, J., allowed the revision and set aside the order dated 15.7.2008 and remanded the matter to the trial court for a fresh decision on the factum of juvenility of the revisionist strictly as per the provisions of Section 7A of the Act. Accordingly, the learned trial court held an inquiry and passed the impugned order dated 17.8.2009 rejecting the revisionist's application to declare him juvenile. The learned Additional Sessions Judge has held that the revisionist was more than 18 years on the date of occurrence. He has relied on the entries made in the Family Register and held that the medical report was not conclusive on the point of age of the revisionist. The learned counsel for the revisionist submitted that the learned trial court should have kept in mind the provisions of Rule 22 (5) of the U. P. Juvenile Justice (Care and Protection of Children) Rules, 2004 while passing the impugned order. It was further submitted that the entries made in the Family Register were not at all relevant to determine the age of the revisionist. The learned counsel placed reliance on Onkar Tiwari alias Karla v. State of U. P., 2001 (1) JIC 10 (All) : 2000 (3) ACR 2029, in support of his submission. In that case it was held that the entries made in the Kutumb Register are never made in regular course. The Kutumb Register is an evidence to show that the person is living in the family, but not an evidence regarding the age. It was further held that the document regarding age is the Birth and Death Register. The learned counsel for the revisionist further submitted that the principles of law laid down in Onkar Tiwari's case (supra) were placed before the learned Additional Sessions Judge, but he failed to appreciate the same and passed the impugned order on altogether irrelevant materials, ignoring the principles of laid down by this Court.
(3.) IN the case of Onkar Tiwari (supra), this Court has already dealt with the relevancy of the entries made in the Kutumb register and held that Kutumb register is an evidence to show that the person is living in the family but not an evidence regarding the age. It was further held that the document regarding the age is the birth and death register. It appears that the learned Additional Sessions Judge could not properly understand the principles of law propounded by this Court in Onkar Tiwari's case (supra). The learned Additional Sessions Judge tried to distinguish the case of Onkar Tiwari on altogether irrelevant grounds. According to the learned Additional Sessions Judge, in the case of Onkar Tiwari, school certificate was found forged and there was only the evidence of family register and the medical opinion regarding the age was not accepted. IN my opinion, the grounds stated by the learned Additional Sessions Judge to distinguish the case of Onkar Tiwari were not at all relevant. IN Onkar Tiwari's case the Court had to answer the question as to whether the entries made in family register are relevant for deciding the fact that the accused was juvenile or not and answered the question in negative. The question of relevancy of the entries made in the family register being relied on by the revisionist was also in issue before the learned Additional Sessions Judge and that issue could be answered according to the principles laid down in Onkar Tiwari's case. But the learned Additional Sessions Judge has committed material illegality in ignoring the verdict of this Court propounded in Onkar Tiwari's case, which resulted in causing failure of justice in the case. It may not be out of context to mention that the learned Additional Sessions Judge recorded the statement of Gram Panchayat Adhikari as P.W. 2, who proved the copy of the family register and stated that the copy was prepared from the family register prepared in the year 2000. The Gram Panchayat Adhikari further stated that the family register, which was prepared in the year 2000, was prepared on the basis of the previous register of the year 1970, but no attempt was made to secure the production of original register of 1970 and to ascertain as to what was the basis of the entries made in the family register regarding the date of birth of the revisionist. For argument sake if it is assumed that the family register was in any way relevant for determining the age of the revisionist, it was the duty of the learned Additional Sessions Judge to ascertain as to what was the basis of recording the date of birth of the revisionist as 4.4.1988 in the family register. If the basis was genuine and based on some reliable source and material, the entries in the family register regarding the date of birth of the revisionist, in that event, could be said to be credible otherwise it was a waste paper. But the learned Additional Sessions Judge has not held any inquiry to find out the basis of the entries made in the family register and as such he was not justified in placing reliance on such entries. After establishment of genuineness of the entries made in the family register, the Court has to see whether or not the same are relevant for determining the age of the revisionist under the relevant rules.;