Saturday, September 30, 2023

Allahabad High Court dismisses plea seeking medical examination of student, places reliance on school certificate in rape case

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The Allahabad High Court has dismissed a petition, stating that when a reliable school certificate was available before the court, there was no need to call for medical examination of the student.

The Single-Judge Bench of Justice Jyotsna Sharma passed this order, while hearing a Criminal Revision filed by a minor.

The criminal revision has been filed under Section 102 of the Juvenile Justice Act, 2015 challenging the order dated 10.02.2022 passed by the Sessions Judge, Etah in Criminal Appeal setting aside the order dated 29.09.2021 passed by the Juvenile Justice Board, Etah in case by which the revisionist was declared juvenile.

The Appellate Court allowed the appeal and declared the accused as major.

The relevant facts leading to the criminal revision are that a FIR Case under Sections 376D, 302, 506, 452 IPC was registered under Police Station Jalesar, Etah district, with the allegations that the complainant’s daughter was raped by one Anil and the juvenile; his son aged about 11 years, who was witness to the occurrence was murdered by them by strangulation and the victim was also threatened not to tell anything about the incident. Finding the accused a juvenile, the matter came before the Juvenile Justice Board, where an age determination inquiry was conducted and he was declared aged 17 years 1 month and 22 days on the date of the incident by an order dated 29.09.2021.

Challenging the above order of the Juvenile Justice Board, an Appeal was preferred by the informant.

The Appellate Court declared the juvenile a major and set aside the order of the Juvenile Justice Board. At the same time, it was ordered that the case of the juvenile shall be sent to the Special Judge, POCSO Act for disposal in accordance with law. The order of the appellate Court has been challenged on behalf of the revisionist through his natural guardian before the Court.

It is contended on behalf of the revisionist that the date of birth as mentioned in the high school certificate should have been given preference over other evidence instead the appellate Court relied on primary school records. And that the impugned order has been passed against the settled principles of law and against the provisions of Section 94 of the Juvenile Justice Act and therefore, the impugned order is not sustainable in law.

The Court noted that,

Before the Juvenile Justice Board, the father of the juvenile and an official from SMS Jain Inter College, Hathras and Headmaster of primary school, Bhyau were examined.

It may be noticed that the Juvenile Justice Board before proceeding to decide his age, passed an order dated 06.07.2021 for constitution of a Medical Board for medical examination of the juvenile in the background of divergence in his age in educational documents. The Juvenile Justice Board noticed that in the high school certificate, his date of birth was shown as 15.03.2003 making him aged about 17 years 1 month and 22 days on the date of occurrence and the medical examination, which was conducted after a gap of one year, did show him between 18-19 years. Reconciling both the things, the Juvenile Justice Board concluded that his age was about 17 years 1 month and 22 days on the date of occurrence.

The Court further noted that,

I went through the impugned order passed in Criminal Appeal whereby the order of the Juvenile Justice Board was set aside and the accused was held to be a major. The appellate Court referred to the statement of the juvenile’s father, that his son first studied from Class 1st to 5th in a primary school at Bhyau and from Class 6th to 10th in Shri Mahaveer Swami Jain Inter College, Jalesar.

The appellate Court referred to the oral evidence, an official from the SMS Jain Inter College who mentioned that the juvenile studied in his institution from Class 7th to Class 12th. Contrary to this, the juvenile’s father said he never stated that the juvenile took admission in Class 6th.

He further stated that a transfer and conduct certificate of G.S Primary School, Jalesar was produced and that no document pertaining to his primary school, Bhyau was ever given.

Next the appellate Court referred to the statement, the Headmaster of primary school, Bhyau, Etah, who stated that the juvenile studied in his institution from Class 1st to Class 5th and that his date of birth was 12.02.2002, as per the school records. He deposed that he left his studies in Class 5th and didn’t take any transfer and conduct certificate from this school and that his name was struck off, owing to his continued absence.

After perusal of the above oral and documentary evidence, the appellate Court was of the opinion that the date of birth as recorded in his primary school was correct and not the date mentioned in his subsequent school’s records. The appellate Court was also of the opinion that provisions of Section 94 do not provide that a high school certificate is to be given primacy over other school certificates. The appellate Court further observed that where the school certificates were available, no occasion for medical examination arose, therefore, the order of the Juvenile Justice Board was bad in law as it was based on medical examination of the accused and that the Juvenile Justice Board failed to consider the evidence given by the official of primary school, where the juvenile first attended his studies. On the basis of the above analysis, the appeal was allowed and his date of birth was declared as 12.02.2002 on the basis of the school record of primary school. Consequently, he was adjudged a major on the date of the occurrence.

Coming back to the facts of the case, it is not disputed that two different dates of birth have been found in school records of two institutions. Date of birth is 12.02.2002 in the school record where he studied from Class 1st to Class 5th and it is 15.03.2003 in high school certificate, the Court said.

The Court observed that the evidence, oral as well as documentary, has been reproduced verbatim in Juvenile Justice Board’s order. Perusal thereof clearly shows glaring gaps and the appellate Court has noticed those gaps and rightly depended upon the date of birth as shown in primary school record. In my view, it stands to logic that the school record of the school/educational institution first attended, may be showing correct date of birth unless there is some fact and circumstances attracting attention of the Court regarding recording of date of birth in such papers prompting the Court to disbelieve the same. As per established practice in educational institutions, the date of birth as recorded in a previous institution forms a basis of admission in subsequent institutions. It is common knowledge that whenever a student, for some reason, leaves his previous school and applies to take admission in some other institution, he has to produce his school leaving certificate or transfer and conduct certificate. In the normal course of business of school admissions, production of a transfer and conduct certificate is must.

“In this case, no transfer and conduct certificate was ever issued to him when he left his primary school and a transfer and conduct certificate of some other school (name of which is conspicuously missing in the oral testimony of his father), was produced before the school in which he took admission in Class 7th. The details of the school where he studied in Class 6th are missing. It was for the revisionist to explain the missing link. Non-explanation therefore naturally impelled the Court to give a finding that the high school record is not worth reliance and that some relevant material has been deliberately withheld.

In my view, the appellate Court made no mistake in depending upon the date of birth mentioned in record of the primary school first attended by the student; and I also agree with the observation of the appellate Court that where a reliable school certificate was available, there was no need to call for medical examination of the student and much less placing reliance on it”, the Court further observed while dismissing the petition.

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