# Sher Khan v. State of U.P. and Anr. 904 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 1 ILRA 903
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-12
- **Case number:** Nagar in Sessions Trial No. 424 of 2005
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sher-khan-v-state-of-u-p-and-anr-904-indian-law-reports-allahabad-series-44499
- **Pages:** 6

## Headnote

Children) Act, 2015- sections 2(13), 9(2),
94 - Application - age of juvenility can be
determined on the basis of High school
Certificate/Marksheet- if there is no doubt
with
regard
to
genuineness
and
authenticity thereof - when there arises
reasonable doubt in respect thereof same
cannot be relied blindly and court is
empowered under law to ignore the sametherefore, court below rightly precluded it
to be a suspicious document-Moreover,
Adhar Card, information of voting, extract
of voting list and Pan Card also shows that
the Appellant was more than eighteen
years of age- rejection order upheld-
(Paras 7,11,15 & 16)

Appeal dismissed

Case law discussed: -
2011(5) ALJ 580, (2010) 3 SCC 235., (2009)
13 SCC 211, (2006) 5 SCC 584
(2012) 9 SCC 750, (2013) 1 SC Cri. R36
2012 (77) ACC 654(SC) (E-6)

## Text

1 All. Sher Khan Vs. State of U.P. and Anr.
903
mandatory on the part of the police party to
have carried out inter se, search first
among its own members, but the police
party failed to observe it. Now, the
consequence of this omission would be
that the recovery cannot be accepted to be
genuine one but it can be said to have been
planted by the police. The particular
circumstances of this case and the
statement of the accused as submitted
under Section - 313 Cr.P.C. discloses fact
that two persons namely Bachchu Tiwari
and Kallu Tiwari are inimical to the
accused and who are acquainted with a few
members of the police party, who are
police
constables
and
the
aforesaid
Bachchu Tiwari and Kallu Tiwari have
murdered son of 'buwa' (aunt) of the
accused and complaint have been moved
against them to the higher authorities, due
to which they are highly inimical towards
the accused and because of their good
acquaintance and terms with constables
Charan Singh and Jai Jai Ram, a plot has
been clandestinely hatched to falsely
implicate the accused with the recovery of
'charas' and other things. This statement
cannot be sidelined because the police
constable- Jai Jai Ram is also a witness to
the fact of recovery alleged.

15. Thus, the outcome of the entire
recovery proceeding goes under cloud and
becomes highly suspicious and the recovery of
120 'grams' of 'charas' by itself cannot be
accepted to be true as alleged by the
prosecution
for
the
reasons
aforesaid.
Consequently, the argument floated at the bar
by the learned Amicus Curiae, Sri Akash
Tomar is upheld and it is observed that the
entire recovery process becomes highly
dubious and vitiated and it is cardinal principle
of criminal jurisprudence that in case of
recovery under the mandatory provisions of the
Act, 1985, if the factum of recovery becomes
dubious, then the entire case goes. On the
above point of recovery, the trial court has not
contemplated even in the least and the trial
court overlooked this vital aspect and ignoring
that vital aspect erroneously recorded finding of
conviction, which finding of conviction cannot
be sustained and justified in its form under facts
and circumstances of this case.

16. Consequently, the conviction
recorded and the sentence awarded
against the accused-appellant also stands
vitiated and is liable to be set aside.

17. Resultantly, this appeal succeeds
and the same is allowed. The judgment
and order of conviction dated 21.2.2007
passed by the Court of Additional
Sessions Judge, Court No.5, Kanpur
Nagar in Sessions Trial No. 424 of 2005
(State vs. Ashok Kumar Tiwari), arising
out of Case Crime No.80 of 2005, under
Section - 20 (b) (ii) (B) of the N.D.P.S.
Act, 1985, Police Station - Govind Nagar,
District - Kanpur Nagar is hereby set
aside
and
the
accused-appellant
is
exonerated of the charge in question.

18.

Let
a
copy
of
this
order/judgment be certified to the court
below for necessary information and
follow up action.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

CRIMINAL APPEAL No. 7354 OF 2018

Sher Khan ...Appellant
Versus
State of U.P. and Anr. ....Opposite Parties
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Rajesh Kumar Singh

Counsel for the Opposite Parties:
A.G.A., Sri Avneesh Tripathi, Sri Ratnesh
Kumar Shukla.

A. Juvenile Justice (Care and Protection of
Children) Act, 2015- sections 2(13), 9(2),
94 - Application - age of juvenility can be
determined on the basis of High school
Certificate/Marksheet- if there is no doubt
with
regard
to
genuineness
and
authenticity thereof - when there arises
reasonable doubt in respect thereof same
cannot be relied blindly and court is
empowered under law to ignore the sametherefore, court below rightly precluded it
to be a suspicious document-Moreover,
Adhar Card, information of voting, extract
of voting list and Pan Card also shows that
the Appellant was more than eighteen
years of age- rejection order upheld-
(Paras 7,11,15 & 16)

Appeal dismissed

Case law discussed: -
2011(5) ALJ 580, (2010) 3 SCC 235., (2009)
13 SCC 211, (2006) 5 SCC 584
(2012) 9 SCC 750, (2013) 1 SC Cri. R36
2012 (77) ACC 654(SC) (E-6)

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. and perused
the record attached by the appellant with
this appeal.

2. This criminal appeal has been
preferred against the impugned judgment
and order dated 17.10.2018, passed by
Sessions Judge, Hapur, in ST No. 160 of
2018, arising out of Case Crime No. 326
of 2017, under Sections 302, 307, 147,
148, 149, 323, 324 I.P.C., Police Station:
Simbhawali, District Hapur, whereby the
application filed by the mother to declare
Sher Khan to be juvenile has been
rejected.

3. As per first information report, on
31.08.2017
at
about
04:00
PM
Tajmohammad cut away CHARA (grains)
from the field of Intezar and on making
complainant
by
Jishan
&
Shahvej,
younger brother of Intezar, whereupon
both were beaten by Tajmohammad, Raju
and Adil. Intezar, Shahvej and Ejaz went
to police station to lodge report against
them.
On
06:30
P.M.,
Ejaz,
Tajmohammad, Yameen, Adil, Farman,
Waseem, Raju, Bazmohammad, Sher
Khan (appellant) and Niyaz Mohammad
came to the house of Rohil with danda
and knife and assaulted on Rohil, Shadab,
Nafees and Zahid with intention to cause
death and stabbed Zahid and Nafees and
went away. Consequently, Zahid died.

4.

In
Criminal
Misc.
Bail
Application No 4579 of 2018, the
appellant Sher Khan was directed to be
released on bail by order of this court
dated 21.03.2018. On 25.08.2018, mother
Ruqayya on behalf of the accusedappellant gave an application in the court
of Session Judge, Hapur for declaring him
juvenile
alleging
that
the
accusedappellant is born on 15.8,2002 and the
date of incident is 31.08.2017 and such
her son was 15 years and 16 days and
therefore he was juvenile at that time. His
marks-sheet of high school of year 201718 along with affidavit of applicant has
been attached in support.

5. An objection was filed with affidavit
by complainant Nadeem for prosecution
stating that the application has been given on
false ground and the high school marks-sheet
1 All. Sher Khan Vs. State of U.P. and Anr.
905
filed by applicant is forged. The roll no.
06516175 of Samaj Kalyan Inter College,
Bangouli, Hapur shown on the marks-sheet
has been issued by UP Board in the name of
Samiya Almash for class X Examination
2017 and the same has been shown to have
been of 2018 whereas no such marks-sheet is
found to have been loaded on the web-site of
year 2018 of UP Board whereas all markssheets from year 2013 to 2018 have been
loaded on the web-site. The marks-sheet filed
by applicant does not bear any signature of
Secretary and seal of UP Board. The forged
marks-sheet has been attested by the
principal. As per voter list, accused Sher
Khan is above 23 years in age and in his
Aadhar Card, his date of birth has been
mentioned to be 01.01.1995 which makes his
age above 23 years. In support, extract of
voter list, pan card, aadhar card, marks-sheets
of Saniya Aalmas, Shahrukh Khan, Sanu
Chauhan, information of voter regarding
Sher Khan, Pan application status and aadhar
card of Nadeem.

6. After hearing both the parties and
perusing the record, the learned court
below
passed
the
impugned
order
rejecting
the
application
for
the
declaration of juvenility of Sher Khan.

7. Aggrieved by the impugned order,
the appellant has filed this appeal on the
ground that the order has been filed without
application of mind and is based on surmises
and conjecture and against evidence on
record. It was the jurisdiction of the Children
Court
to
entertain
and
decide
such
application and as such the order of the court
below is without jurisdiction. A decision on
juvenility has to be based on high school
marks-sheet and other document filed by
opposite party are irrelevant. The matter
should have been sent to J.J. Board for
inquiry under law in juvenility of the
appellant. Therefore, the order is not
sustainable and is liable to be set aside.

Determination of the question of
Juvenility

8. Section 2(l3) of the Juvenile
Justice (Care and Protection of Children)
Act, 2015 defines a child in conflict with
law "as a child who is alleged or found to
have committed an offence and who has
not completed eighteen years of age on
the date of commission of such offence".
Section 2(35) defines juvenile as "a child
below the age of eighteen years."

9. Section 9(2) makes provision for a
claim of juvenility to be raised before any
court at any stage, even after final disposal of
a case and sets out the procedure which the
court is required to adopt, when such claim
of juvenility is raised. It provides for an
inquiry, taking of evidence as may be
necessary (but not affidavit) so as to
determine the age of a person and to record a
finding whether the person in question is a
juvenile or not. Therefore, the argument of
the learned counsel that the court was not
authorized to decide the plea of juveni1ity
has got no force.

10. The proviso adds that a claim of
juvenility may be raised before any court
at any stage, even after final disposal of
the case. The claim of such a juvenile
shall be considered, even if the juvenile
has ceased to be so on or before the date
of commencement of this Act.

11. Section 94 of the Act provides
the procedure to be followed by the courts
or the Boards for the purpose of
determination of age in every case
concerning a child in conflict with law. It
provides that the Court or Board shall
906 INDIAN LAW REPORTS ALLAHABAD SERIES
determine the age by undertaking the
process of age determination by seeking
evidence by obtaining as follows:-

(i) he date of birth certificate
from
the
school,
matriculation
or
equivalent certificate from the concerned
examination Board if available; and in
the absence thereof;

(ii) the birth certificate given by
a corporation or a municipal authority or
a panchayat;

(iii) and only in the absence of
(i) and(ii) above, age shall be determined
by an ossification test or any other latest
medical age determination test conducted
on the orders of the committee or the
Board;

12. It has been further provided that
such
age
determination
shall
be
completed within 15 days from the date of
order of the Board and the age so
determined shall be deemed to be true age
of the person for the purpose of this Act.

13. In Shah Nawaz vs. State of U.P.
(SC), 2011(5) ALJ 580, referring to Raju
and Anr. vs. State of Haryana (2010) 3
SCC 235 where the Court had admitted
"mark sheet" as one of the proof in
determining the age of the accused
person, Hari Ram vs. State of Rajasthan
&Anr., (2009) 13 SCC 211, Ravinder
Singh Gorkhi vs. State of U.P. (2006) 5
SCC 584 where the issue of School
Leaving Certificate was involved and the
Court took the view that such certificate
in order to become evidence of age, it
should be shown that it was issued in the
ordinary course of business of the school
and the said date of birth was recorded in
a register maintained by the school in
terms of the requirements of law as
contained in Section 35 of the Evidence
Act. It was held that the entry relating to
date of birth entered in the mark sheet is
one of the valid proof of evidence for
determination of age of an accused
person.
Therefore,
the
matriculation
marks-sheet and certificate is a conclusive
evidence of age and there remains no
further need to seek any other proof of
age. Again, in Ashwani Kumar Saxena vs
State of MP (2012) 9 SCC 750 and
Jodhbir Singh vs State of UP2013(1) SC
Cri. R36, it has been held that if
matriculation certificate/marks-sheet is
available, there is no opportunity for the
Board to go for other evidence for the
determination of the age of juvenile. Even
though, new Act has been enforced, the
above view still holds the field as there is
hardly any difference in respect of
determination of age of juvenile.

14. But having said so, the court has
to be sure about the genuineness and
authenticity of such certificate/markssheet, particularly when there is sufficient
material on record to create doubt on such
certificate/marks-sheet. In Om Prakesh
vs. State of Rajasthan, 2012(77) ACC
654 (SC), the trial court itself could not
arrive at a conclusive finding regarding
the age of the accused on the basis of
school record and therefore, it was held
that the opinion of the medical experts
based on X-ray and ossification test will
have to be given precedence over the
shaky evidence based on school records.
The Supreme Court remarked that if there
is a clear and unambiguous case in favour
of the juvenile accused that he was a
minor below the age of 18 years on the
date of the incident and the documentary
evidence at least prima facie proves the
same, he would be entitled for this special
protection under the Juvenile Justice Act.
But when an accused commits a grave
1 All. Sher Khan Vs. State of U.P. and Anr.
907
and heinous offence
and thereafter
attempts to take statutory shelter under the
guise of being a minor, a casual or
cavalier approach while recording as to
whether an accused is a juvenile or not
cannot be permitted as the courts are
enjoined upon to perform their duties with
the object of protecting the confidence of
common man in the institution entrusted
with the administration of justice. Hence,
while the courts must be sensitive in
dealing with the juvenile who is involved
in cases of serious nature like sexual
molestation, rape, gang rape, murder and
like offences, the accused cannot be
allowed to abuse the statutory protection
by attempting to prove himself as a minor
when the documentary evidence to prove
his minority gives rise to a reasonable
doubt about his assertion of minority. The
benefit of the principle of benevolent
legislation attached to Juvenile Justice
Act would thus apply to only such cases
wherein the accused is held to be a
juvenile on the basis of at least prima
facie evidence regarding his minority as
the benefit of the possibilities of two
views in regard to the age of the alleged
accused who is involved in grave and
serious offence which he committed and
gave effect to it in a well planned manner
reflecting his maturity of mind rather than
innocence indicating that his plea of
juvenility is more in the nature of a shield
to dodge or dupe the arms of law, cannot
be allowed to come to his rescue.

15. The purpose of the above
discussion is that the age of juveni1ity can be
determined on the basis of high school
certificate/marks-sheet if there is no doubt
with regards to genuineness and authenticity
thereof. When there arises reasonable doubt in
respect thereof, the same cannot be relied
blindly and the court is empowered under law
to ignore the same. In the case in hand, the
appellant claimed him to be juvenile only on
the basis of high school/ matriculation markssheet. From the perusal of the record attached
with this appeal and the impugned order
passed by the learned court below, it is clear
that the marks-sheet of appellant has been
issued bearing signature and seal of the
principal, Samaj Kalyan Inter College,
Bangouli and the same has been further
attested by him. It has been argued by the
OP that, now, the UP Board issues markssheet cum certificate and that has not been
filed by the appellant. This argument
finds further support from the three
marks-sheets cum certificates of Saniya
Aalmas, Shahrukh Khan & Sanu Chauhan
for the year 2017 and 2018. No such
marks-sheet cum certificate has been
produced by the appellant till date. If his
marks-sheet was genuine, he could have
filed the certificate also. Till date, no such
certificate has been produced by the
appellant. Therefore, the learned court
below rightly concluded it to be a
suspicious
document.
Moreover,
the
Aadhar Card, information of voting,
extract of voting list and Pan card also
shows that the appellant was more than 18
years in age.

16. There is one more reason which
makes the contention of the appellant
suspicious. The date of incident as per FIR is
31.8.17. The plea of juveni1ity has been
raised for the first time by giving application
dated 25.8.2018. Prior to that, the appellant
was granted bail by order of this court dated
21.3.2018 passed in Criminal Misc. Bail
Application No 4579/2018. The mark-sheet
filed by the appellant is in respect of
examination of high school for the year 2018
the examination of the same took place in
February, 2018, almost after six months from
the date of occurrence and therefore, there is
908 INDIAN LAW REPORTS ALLAHABAD SERIES
weight in the argument of the learned
A.G.A. that the possibility is there that the
appellant appeared in such examination to
manipulate and obtain a proof of age to
make him eligible for the benefit of the
provisions of the Juvenile Justice Act. No
doubt that there is no stage provided
under law for the claim of juvenility and
such plea can be raised at any time during
trial or even at appellate stage. But, a
belated
claim
surrounded
by
such
suspicious circumstances, aggravates the
doubt, as is the situation in the present
case.

17. On the basis of above
discussion, I find no illegality and
perversity in the impugned order and the
appeal has got no force and is liable to be
dismissed.

18. The appeal is dismissed.

19. Office is directed to transmit the
certified copy of this order to the court
concerned for information.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2015

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE VIPIN SINHA, J.

Criminal Appeal No. 155 OF 2003

Karesh Pal @ Billoo and Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Apul Mishra, Sri Dharmendra Singh, Sri
Ajay Srivastava.

Counsel for the Opposite Party:
A.G.A.

A. Juvenile Justice (Care and Protection
of Children) Act, 2000- sections 7A, 15-
and
Juvenile
Justice
(Care
and
Protection of Children) Rules, 2007 -
Rule 98 -Application- Claiming benefit of
juvenile justice Act- The application
under section 7A of the Act, 2000,
presented after appeal stood finally
decided. Wholly misconceived.
(Paras 4, 8, 10, 11)

Application dismissed. (E-6)

(Delivered by Hon'ble Arun Tandon, J.
 & Hon'ble Vipin Sinha, J.)

1. The applicant/appellant was
convicted and sentenced by the trial court
vide judgment dated 19.12.2002 for an
offence under Sections 376 (2) (g),
323/149 of I.P.C. The Criminal Appeal
filed before this Court in which this
application has been filed was dismissed
on 05.10.2007. A Special Leave Petition
was filed against the judgment dated
5.10.2007. The Apex Court dismissed the
same on 28.3.2008. Thus the conviction
and sentenced imposed stands confirmed
upto Apex Court.

2. The applicant, taking aid of the
order
passed
in
a
Public
Interest
Litigation, being Criminal P.I.L. No.855
of 2012 wherein directions have been
issued on 24.5.2012 to the District Judges
throughout the State of U.P. and to the
Legal Services Authorities to initiate
proceedings before the Juvenile Justice
Board to determine the age of such
prisoners who are serving out sentence
and were juvenile on the date of the
commission of offence has filed this
application seeking the benefits under
Section 7A of The Juvenile Justice (Care
and Protection of Children) Act, 2000 and