Aamir v. State Of Haryana And ANR.
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7 * After hearing the submission made by counsel for applicant and Ld. APP assisted by counsel for the complainant, this Court is of the view that Section 12 of the Juvenile Justice Act procedure is mentioned for determination of age. It is mentioned that committee will consider the evidence in shape of matriculation or equivalent certificate for this purpose. In absence of that, date of birth certificate from school first attended shall be considered. Further in absence of these two certificates, the birth certificate given by corporation shall be taken into account. In our case, matriculation certificate is available on file as per which the date of birth of Aamir is 02.12.1997. This certificate has been duly certified by investigating officer.
Moreover, the Head Master of the school has also proved the fact that the date of birth in the record maintained by their school is 2.12.1997. Further the plea of Ld. APP that accused has refused for ossification test is not maintainable as the ossification test can be taken on priority, if the matriculation certificate or any school leaving certificate are not available. The next plea of the counsel for complainant regarding six months gap in between age of Wasim Akram and Aamir is also not very much convincing as no evidence has been tendered, that Wasim is the real brother of Aamir.
6 year, does not prove has actual date of birth. Hence, in these circumstances, the application is allowed and Aamir is declared as juvenile. Ahlmad is directed to separate the challan of Aamir and to send the same to Juvenile Justice Board for further proceedings.
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Rule 12 of the Juvenile Justice (Care & Protection of Children) Act, 2007, which rules were framed under Section 68(1) of the Juvenile Justice (Care & Protection of Children), Act, 2000, reads as under:
12. Procedure to be followed in determination of Age.― (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining;
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub; rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub; rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub;rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. 9.
As per the said rule, for determination of the age, certificate of matric is to be given preference. It is only when
matriculation or school certificate is not available, then other record can be considered. In the present case, the applicant had relied upon his matriculation certificate Ex.A6 in which his date of birth is recorded as 2.12.1997. thus, the said certificate was to be taken into consideration for determination of the age of the applicant. Although, the trial Court had rightly considered this certificate Ex.A6 for determining the age of applicant, but it had lost sight of the fact as to whether this certificate is based on some material or not. The applicant himself has proved the application Ex.A8 moved by the father of applicant namely Malu for getting the applicant admitted in Vikas High School, Hasanpur, in 8th standard.
On the basis of his application, the applicant was admitted in school and entry to that effect was incorporated in register Ex.A7. However, the Incharge of the said school, when appeared as AW1, had admitted that he had admitted the applicant in the said school merely on the application of father of the applicant he had not taken any age proof from him. Although, the certificate of matriculation examination carries presumption of correctness, but the said presumption is rebuttable. If the other evidence available on record is perused, it comes out that the respondent;State has rebutted the said presumption. The respondent - State had proved copy of register Ex.
1 Wasim Akram was born to Malu and Jamila (who are parents of applicant Amir also) on 9.6.1998. If date of birth of the applicant as 2.12.1997 is taken to be correct, another son Wasim Akram could not have been born to Malu and Jamila on 9.6.1998 i.e. within a period of six months. Further more, the ration card of Malu Ex.RW1/A and copy of register Ex.RW1/B have also been proved which show that the said ration card was got prepared by the father of applicant namely Malu on 25.2.2005 and in the said ration card, he had mentioned the age of applicant Amir as nine years. If counted from 25.2.2005 and taking age of applicant Amir as nine years on that day, he was more than 19 years of age on the date of commission of alleged offence.
Although, the copy of ration card and register of CMO office in respect of birth of other child are not relevant for determining the age of applicant Amir, but these documents are sufficient to dispute the date of birth of applicant mentioned in his matriculation certificate. Thus, the presumption of correctness which was attached to matriculation certificate stands rebutted. He did not lead any other evidence showing correct date of birth. He has even refused to get his ossification test conducted. Thus, he has failed to prove that he was less than 18 years of age on the date of commission of offence. Hence, he was not proved to be juvenile at the time of commission of offence. Accordingly, the order of trial Court is liable to be set aside.
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