# Sunil Kumar v. State of U.P

- **Citation:** (2000) 3 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-v-state-of-u-p-39562
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
90
appellant is that the court, if decided to
proceed under order XVII rule 3 of the
code of Civil Procedure, it was under
statutory obligation to proceed forthwith
and deliver judgement the same day and
since in the instant cased the lower
appellate court after concluding the
hearing, fixed another date for delivery of
judgement the case could not be dealt
with under order XVII rule 3 C.P.C. and
it ought to have been treated under order
XVII rule 2 C.P.C. The argument is
fallacious. Learned counsel for the
appellant
conceded
that
the
rightly
proceeded under order XVII rule 3 C.P.C.
The arguments to treat the suit under order
XVII rule 2 C.P.C., after the court had
proceeded and completed the hearing
under order ITR 3 C.P.C. at the time of
fixing the date for delivery of judgment
and should have reverted back to as to
reverse entire proceeding for deciding the
suit under order XVII rule 2 C.P.C., is
repostrous and without merit.

7. A perusal of the provision of order
XVII rule 3 C.P.C., as amended in the state
of U.P. clearly shows that the Court is
required to decide the suit for the with
and it should not adjourn the case and
proceed with the hearing of the suit is at it
does not require on this date alone court
must complete the evidence as well as
hearing in continuity. The mere fact that
the court after concluding the hearing on
that date itself fixed the date of delivery
of judgment does not mean that the court
did not decide the suit forthwith with in
the meaning of 0.17 R s C.P.C. The
delivery of judgement is merely recording
the decision which as process the court
had already completed on the date.

8. No. other point has been raised.

In view of the above no substantial
question of law arises in the present
appeal. It is accordingly dismissed.

Appeal dismissed.

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3All] Sunil Kumar V. State of U.P.
91
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By the Court

1. Revisionist, Sunil Kumar is an
accused in case crime no. 405 of 2000,
under Section 307, 302/34 I.P.C., police
station
Khurja
Nagar,
district
Bulandshahar. He moved an application
before the Juvenile Judge alleging himself
to be juvenile. The learned Juvenile Judge
rejected the application by order dated
30.11.1999, with the conclusion that the
revisionist is not a juvenile. Against that
order, the revisionist preferred Criminal
Appeal No. 58 of 1999 under Section 37 of
the Juvenile Justice Act. The appeal was
also
dismissed
by
Sessions
Judge,
Bulandshahar on 06.01.2000 and the
contention of the revisionist is that he is
juvenile was also not accepted by the
learned Sessions Judge. Aggrieve by the
order, the present revision has been
preferred.

2. I have heard Sri D.R. Chaudhary,
learned counsel for the revisionist and the
learned A.G.A.

3. It is contended that the incident
took place on 10.08.1999. The date of birth
of the revisionist is 22.06.1984 and he was
below sixteen years of age at the date of
the incident. In support of the argument
learned counsel for the revisionist has filed
the copy of the scholars register of Junior
High School, Khurja, wherein his date of
birth
is
mentioned
as
22.06.1984.
According to the said certificate he was
admitted in the school on 03.07.1996 in
class-VIth and passed class VIIIth on
20.05.1999. The mark sheet of class VIIIth
has also been filed. The clerk of the said
school, Sri Anil Kumar Kaushik was also
examined to prove the said certificate. He
has verified the entries of the copy of the
scholar register from the original register
and narrated the above facts.

4. The learned Juvenile Judge also
sent
the
revisionist
for
medical
examination for assessment of age. On the
basis of radiological tests the age of the
revisionist was found to be seventeen
years. This evidence was considered and
the learned Magistrate has also made an
observation that the revisionist appears to
be above sixteen years of age. Therefore,
he was not found to be a juvenile.

5. The contention of the learned
counsel for the revisionist is that the entry
of the scholars register should prevail over
the medical evidence which is only an
opinion evidence. The learned counsel in
support of the argument has referred to the
case of Bhoop Ram Versus State of U.P.,
1989 (3) SCC, 1. In this case, it was found
that the date of birth mentioned in the
school certificate shows the age of less
than sixteen years at the time of the
incident. It was observed by the Apex
Court that in the absence of anything
showing that the entries in the certificates
did not relate to the accused or were
incorrect, the same can not be rejected on
the basis of surmise that generally parents
understate the age of their children at the
time of admission in the school. It was
further observed that medical evidence is
an opinion and in the absence of any other
material
medical
opinion
should
not
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
92
prevail over the entries in the school
certificates.

6. The other case referred to is Bhola
Bhagat Versus State of Bihar, 1997 (8)
SCC 720. This case is not material for the
controversy before me. It was observed
that the benefit of the Children Act should
not be refused on technical grounds if the
accused take a plea that he was child on
the date of incident should not be given an
opportunity to establish the case and a
positive finding regarding the age of the
accused should be recorded.

7. The case of Bhoop Ram referred to
by the learned counsel for the revisionist
was decided by the Apex Court in the year
1989 by a Division Bench. Later on Brij
Mohan Singh Versus Priya Narain
Singh and others was decided by the
Bench of five Hon'ble Judges of the Apex
Court reported in AIR 1965, Page 282.
The following observation was made by
the Apex Court:

"In actual life it often happens that persons
give false age of the boy at the time of his
admission to a school so that later in life
he would have an advantage when seeking
public service for which a minimum age
for eligibility is often prescribed. The court
of fact cannot ignore this while assessing
the value of the entry and it would be
improper for the court to base any
conclusion on the basis of the entry, when
it is alleged that the entry was made upon
false information supplied with above
motive."

8. The other important decision on
the point which has been referred by the
learned Sessions Judge in his judgement is
Pankaj Kumar Tripathi Versus State of
U.P., 1998 (2) JIC 965 (Alld.) In this case
of this Court accepted the plea of the
accused that he is a juvenile. The
complainant Deoki Nandan filed criminal
appeal no. 1887 of 1997 in the Hon'ble
Supreme Court. The matter was remanded
back by the Hon'ble Supreme Court with
the direction that the question of juvenile
should be considered in the light of the
evidence adduced by the parties and not
merely on the basis of the entry recorded
in the scholar register of the school.

9. In view of the above decision, the
revisionist can not be held to be juvenile
on the basis of the entry in the scholar
register, which also does not appear to be
genuine.
The
revisionist
has
taken
admission in class VIth on 03.07.1996, i.e.
at the age of twelve years. No documents
were filed to show the date of birth as
mentioned
when
the
revisionist
took
admission in a school for the first time. By
the medical evidence and by appearance of
the revisionist the trial court concluded
that the revisionist is not a juvenile. There
is no sufficient reason to interfere in the
order. The revision is dismissed.
Revision dismissed.

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