RICHPAL ALIAS MALIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE accused petitioner Richpal filed this petition under Section 482 Cr.P.C. against the order dated 15.1.2003 whereby the learned Special Judge (SC/ST Cases), Sikar dismissed the application under Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short the Act, 2000) filed by the accused petitioner.

(2.) THE relevant facts in brief are that the Parchabayan of minor Kumari Sonu was recorded on 8.5.2002. She stated that Chunni Lal and one another boy (present accused petitioner) took her to a flour mill and committed rape with her and when she threatened to make a complaint, she was burnt by kerosene. Case under Sections 307, 376, IPC and 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act 1989 (in short the Act, 1989) was registered. During investigation Sonu expired on 16.5.2002. After investigation charge-sheet came to be filed under Section 376, 302 C.P.C. and under Section 3 of the Act, 1989 against Chunni Lal and present accused petitioner Richpal,

(3.) LEARNED counsel for the accused petitioner contended that the age of the accused petitioner below 18 years was proved by oral as well as documentary evidence and there was no reason to discard the same. He placed reliance upon some judgments. In Rajan and Ors. v. State of Rajasthan, 2003(2) RCR (Cr.) 328 (Rajasthan) : 2002(3) WLC (Raj.) 607 : 2002(1) Cr.L.R. (Raj.) page 778, it was held by this Court in a case of 376 I.P.C. that the best evidence for determination of age of the victim is the birth certificate or the school certificate and so far as the medical evidence is concerned, since it has margin of error, it would be taken into consideration only when primary evidence which is found in the birth certificate or school certificate is not available. In Bhola Bhagat v. State of Bihar, 1998(1) RCR (Cr.) 21 (SC) : (1997)8 Supreme Court Cases 720, it was held that when there is doubt regarding the age of the accused as to whether he was a child on the date of occurrence, the Court should conduct an inquiry by giving an opportunity to the parties to establish their claims and to record the positive finding regarding the age of the accused. In Santenu Mitra v. State of W.B., (1998)5 Supreme Court Cases 697, it was held that to determine the age of the offender, entry in register of births and deaths giving date of birth is relevant. In Rajinder Chandra v. State of Chhattisgarh and another, 2002(1) RCR (Cr.) 586 (SC) : (2002)2 Supreme Court Cases 287, it was held that when accused claims himself to be juvenile, onus lies upon him to prove this fact and it was also held that in border line cases when two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile accused should be adopted. In Ramdeo Chauhan alias Raj Nath v. State of Assam, 2001(2) RCR (Cr.) 702 (SC) : (2001)5 Supreme Court Cases 714, it was held that the statement of the doctor is no more than an opinion. The Court has to base its conclusions upon all the facts and circumstances disclosed on examining the physical features of a person whose age in question, in conjunction with such oral testimony as may be advisable. Learned counsel contended that there was no reason to discard the documentary evidence on this point and it was not proper to determine the age on appearance of physical features of the accused petitioner. Learned Public Prosecutor supported the impugned order and contended that no material was placed on record to show as on what basis the age of the accused petitioner was mentioned in admission form, hence Ex.1 to Ex.3 were not sufficient to determine the age of the accused petitioner below 18 years.