GANESAN v. INSPECTOR OF POLICE — 1990 DIGILAW 235 (MAD)

Judgment : ARUNACHALAM, J. ( 1 ) THIS petition coming on for hearing on this day upon perusing the petition, and the 26-3-90 Judgment of the lower Court and the records in the case, and. upon, hearing the arguments of Mr. R. Shankara Subbu Advocate for the petitioner, and of Mr. G. Krishnamurthy Additional Public Prosecutor on behalf of the Respondent and having stood over for consideration till this date the court made the following order. This is the second time that the petitioner herein, claiming himself to be a juvenile, has knocked at the door of this court, challenging the finding of the Court below, that he was not a juvenile, when the occurrence is stated to have taken place. ( 2 ) A few facts leading to the filing of this revision will have to be necessarily stated. The petitioner is the sole accused in SC. No. 24 of 1989 on the file of the Second Additional Sessions Judge, Madras. The offence alleged against him are punishable under Sections 302,448 and 392 of the Indian Penal Code. The occurrence had taken place on 22-8-1988. The petitioner claims the, the was less than 16 years of age on 22-8-1988, while the prosecution would have it that he was above 16 years. ( 3 ) THE petitioner preferred a petition before the Trial Judge to fix his age. The learned Judge directed the Radiologist attached to the Government Royapettah Hospital, to examine the petitioner. Accepting the report of the Radiologist, who had examined the petitioner and expressed his opinion that he was aged above 17 years, the age of the petitioner was fixed as 16 years and 4 months. ( 4 ) CHALLENGING the fixation of age of the petitioner as aforementioned, based only on the report of the Radiologist, even without his examination in Court, with an, opportunity furnished to the petitioner to, cross-examine him, and further complaining of lack of reasonable opportunity to him to lead evidence to prove his age, Cr. M. P. No. 9316 of 1989 was filed in this court. M. P. No. 9316 of 1989 was filed in this court. By an order dated 28-11-1989, this court, though was of the opinion, that the petitioner had not been diligent in placing before the Trial Court evidence stated to be available to prove that the petitioner was below 16 years of age, was inclined to give him a chance to prove his evidence before the Trial Court to put an end to this controversy regarding age even at the initial stage. The Trial Judge was also directed to summon the Radiologist, examine him and furnish an opportunity to the petitioner to cross-examine the Radiologist, since the certificate of the Radiologist would not be admissible under Section 293 of the. Criminal Procedure Code, without the examination of the Radiologist. It was also observed that the Trial Judge, should give an opportunity to both parties to produce all evidence which they in tended to place before the court to facilitate a proper enquiry relating to the presumption and determination of age of the petitioner, in accordance with law. The prosecution referred to the availability of a transfer certificate, which was also permitted to be placed before the Trial Judge during the course of the enquiry, after supply of copy of the said document to the petitioner. ( 5 ) ON remand, the Trial judge conducted an enquiry, during the course of which six witnesses were examined as C. Ws. 1 to 6 and three documents were exhibited as Exs. C-1 to C. 3. The Trial Judge, on the evidence placed before him found that the petitioner had crossed the age of 16 years on the date of occurrence and hence could not be held to be a juvenile to permit the benevolent provisions of the Juvenile Justice Act, 1986, to be applied in his favour. This revision challenges the above said finding of the Trial Judge dt. 5-2-1990. ( 6 ) THE learned counsel for the petitioner contended that the X-ray of the petitioner taken by the Radiologist examined as C. W. 4 had not been produced in Court and, therefore, the report of the Radiologist marked as Ex. C. 2 had no probative value. This revision challenges the above said finding of the Trial Judge dt. 5-2-1990. ( 6 ) THE learned counsel for the petitioner contended that the X-ray of the petitioner taken by the Radiologist examined as C. W. 4 had not been produced in Court and, therefore, the report of the Radiologist marked as Ex. C. 2 had no probative value. Further, if the X-ray had been produced, the petitioner would have been in a position to cross-examine the expert and satisfy the court that the petitioner must be deemed to have been a juvenile at or about the time when the occurrence had taken place. He also contended that the evidence of the expert indicated a possible marginal error of six months on either side and, therefore, the margin must have been taken in favour of the petitioner to hold him as a Juvenile. He further argued that the prosecution had produced two witnesses, whose testimonies could not co-exist, for the school certificate, Ex C-3 fixed the age of the petitioner as 21 years, while the opinion of the Radiologist was that the petitioner had crossed 16 years of age. It was also urged that the Trial Judge had erred in admitting Ex. C. 3, which was not supported by any birth extract or declaration of parents, especially when the witness examined as CW. 5 was totally in the dark about the content of Ex. C. 3 produced by him, and more so, when Ex. C. 3 had not been recovered during the course of investigation and. no permission had been sought for from the Committal Magistrate for further investigation. Therefore, it was contended that Ex. C. 3 cannot be looked into. Finally, the learned counsel appearing for the petitioner, argued that the Trial Court had erred in rejecting the direct evidence of the mother of the petitioner and two other witnesses (C. Ws. 1 to 3) who were actually aware of the- birth of the child, since that would by the best evidence, which had been misappreciated by the court below. ( 7 ) I have heard Mr. , G. Krishnamurthi the learned Additional Public Prosecutor appearing on behalf of the respondent. I have carefully considered the submissions made by the learned counsel for the petitioner Section 32 of the Juvenile Justice Act. ( 7 ) I have heard Mr. , G. Krishnamurthi the learned Additional Public Prosecutor appearing on behalf of the respondent. I have carefully considered the submissions made by the learned counsel for the petitioner Section 32 of the Juvenile Justice Act. 1986 reads as hereunder:32 presumption and determination of age.-1) where it appears to a competent authority that a person brought before it under any of the provisions of this Act. (otherwise than for the propose of giving evidence) is a Juvenile, the competent authority shall make due inquiry as to the age of that person and far that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. 2) Na order of a competent authority shall be deemed to have became invalid merely by any subsequent proof that the person in respect. of wham the order has been made is not a jevenile and the age recorded by the competent authority to be the age of the person so brought before it shall far the purposes of this Act, be deemed to be the true age of that person. It is apparent that this section contemplates the competent authority making a due enquiry about the age of the person brought before it otherwise than far the purpose. of giving evidence. To facilitate such a course the competent authority shall take such evidence as may be necessary and shall record a finding whether the person is a Juvenile or not stating his age as nearly as may be. Sub-Section (2) further makes it abundantly clear m that once the competent authority had determined the age it shall not be deemed to have became invalid merely by any subsequent proof that the person m respect. of wham the order had been made was not a juvenile and the age recorded by the competent authority to be the age of the person so brought before it shall far the purpose of the Act, be deemed to be the true age of the person. Therefore an onerous responsibility is cast an the competent authority to make such evidence as may be necessary to conclusively fix the age. of the accused as nearly as may be. Therefore an onerous responsibility is cast an the competent authority to make such evidence as may be necessary to conclusively fix the age. of the accused as nearly as may be. The due enquiry contemplated in the section must take in its fold the evidence produced by the prosecution and the defence as well as such other evidence as the court may deem it necessary to facilitate determination of age. ( 8 ) THE Supreme Court in Gopinath Gosh v. State of West Bengal while commenting about a developing situation where the contention about the age of a convict claiming the benefit of the benevolent provision of the Act dealing with Juvenile delinquents prevalent in various places, raised for the first time before it requiring an enquiry afresh, observed that though ordinarily the Supreme Court would be reluctant to entertain a contention placed on factual averments raised for the first time before it, it was equally reluctant to ignore, overlook or nullify the beneficial provision of a very socially progressive statute, by taking shield behind the technicality of the contention being raised for the first time before it. Holding that a way had, therefore, to be found from such a situation not conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation, observed that whenever a case was brought before the Magistrate and the accused appeared to be aged 21 years or below, before proceedings with the trial or undertaking an enquiry, an enquiry must be made about the age of the accused on the date of the occurrence. If necessary the Magistrate may refer the accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about the age. The Magistrate may as well call upon the accused also to lead evidence about his age. Thereafter the learned Magistrate may proceed in accordance with law. It was further observed that this procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass root court. ( 9 ) IN that case the Supreme Court was concerned with the minor accused, tried along with the other adult accused, for committing murder and was sentenced to imprisonment for life. It was further observed that this procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass root court. ( 9 ) IN that case the Supreme Court was concerned with the minor accused, tried along with the other adult accused, for committing murder and was sentenced to imprisonment for life. The Supreme Court remitted the issue, which reads as I hereunder:what was the age of the accused Gopinath Gosh (appellant) on the date of the offence for which he was tried and convicted? to the learned Sessions Judge, Nadia, to certify the finding after giving an opportunity to both sides to lead oral and documentary evidence. Liberty was reserved with the learned Sessions Judge to send the accused to the Chief Medical Officer, Nadia, to ascertain his age. The Additional Sessions Judge, after recording evidence and hearing both sides, certified his finding that the appellant, Gopinath Gosh, was aged between 16 and 17 years on the date of the offence, that is on August 19, 1974. That finding was not questioned before the Supreme Court. The Supreme Court, on the report of the Additional Sessions Judge, held, that it was self-evidence and unquestionably established on unassailable evidence that the appellant there in was a juvenile delinquent on the date of the offence. Since he was aged between 16 years and 17 years. Therefore, the conviction and sentence imposed on the appellant were set aside and the case was remitted to the Juvenile Court for disposal, according to law. ( 10 ) THE importance of the proper determination of the age even at the threshold cannot, therefore, be grainsaid. It is under these circumstances, that a careful scrutiny of the order of the Trial Judge will have to be made, in the light of the arguments advanced by the learned counsel for the petitioner. At the instance of the petitioner, his mother Lakshmi Ammal (C. W. 1) a Resident of his village, C. W. 2 and the resident of the neighbouring village, were C. W. 3 were examined. C. W. 1 Lakshmi Amma, the mother of the petitioner deposed that the petitioner was born on 7-7-1973 and though she was residing at Madras for over 12 years the petitioner was not sent to school at Madras. C. W. 1 Lakshmi Amma, the mother of the petitioner deposed that the petitioner was born on 7-7-1973 and though she was residing at Madras for over 12 years the petitioner was not sent to school at Madras. She has stated that before the petitioner migrated to Madras, he was studying in the second standard in his native village, Venkatampatti. She was unable to satisfy the court as to the basis of which she fixed the birth of the petitioner as 7-7-1973 except on the basis of her memory. She had admitted that the petitioners father had completed schooling and was a clerk in T. V. S. Company before he retired and settled in the village. The Trial Judge observed that the petitioners father would have certainly known that the birth of the petitioner should be recorded before the village Administrative Officer. C. W. 1 stated in her chief examination that such registration of birth was not made but in cross-examination diluted it by stating that she was not aware whether her husband had registered the birth of the petitioner. Though she had stated that the petitioner studied in the village, she did not choose to obtain any certificate from the village school to fix the age of the petitioner. C. W. 1 was examined and cross-examined on 2-1-1990. However, on 10-1-1990 she produced EX. C. 1 Certificate issued by the, the village Administrative Officer regarding the age of the petitioner. The author of the certificate was stated to be not available and his whereabouts were not known. Subject to objection, Ex. C. 1 was marked. EX. C. 1 had been issued on 29-8-1989 at Kacharapalayam by the village Administrative Officer which states that the petitioner, Ganesan, is the son of Chellamuthu and C. W. 1 and was born on 7-7-1973 and that the certificate was issued after scrutinizing the horoscope of the petitioner produced by the petitioners parents and the enquiry in the village. It is too difficult to accept the evidence of C. W. 1 that the village Administrative Officer, who had issued the certificate, could not be traced. Even the horoscope of the petitioner which had been produced before the said village Administrative Officer had not been placed, for the scrutiny of the Court. It is too difficult to accept the evidence of C. W. 1 that the village Administrative Officer, who had issued the certificate, could not be traced. Even the horoscope of the petitioner which had been produced before the said village Administrative Officer had not been placed, for the scrutiny of the Court. In these circumstances, the Trial Judge was not satisfied that the age of the petitioner would be fixed as 7-7-1973, on the basis of the unacceptable evidence of C. W. 1. ( 11 ) C. W. 2 Periaswami, a Temple Trustee at Venkatammapettai village would have it that he know the birth of the petitioner and his age would be approximately 15 or 16 years. This evidence was rightly held by the learned Trial Judge to be so bald to arrive at a safe conclusion, in the determination of the age of the petitioner. ( 12 ) C. W. 3 Asaithambi, a postal employee in the neighbouring village and the son of a village Munsif, deposed that the petitioner and his father used to visit his house and, therefore, he know the petitioner from his younger days. According to him, the petitioner would be aged about 16 years. He would further stated that on taking note of the growth of the petitioner and his appearance, his age would be 16 years. The court below was not prepared to place reliance on the opinion evidence of this witness. ( 13 ) C. WS. 4 to 7 were examined at the instance of the State. C. W. 4 Dr. Ms. Mekharj, Tutor in radiology, Government Royapettah Hospital, Madras deposed that on, the requisition of the or Inspector of police, Mylapore, he examined the, 9 petitioner radio logically for ascertaining his age. His opinion was that the petitioner was above 17th years on 20-4-1989 (the date of his examination), but below 18 years. Through him Ex. C. 2 the report, the basis for forming his opinion, was marked. When cross examined, C. W. 4 has admitted that except Ex. C. 2 he had not sent any other thing to court. He did not conduct teeth examination since he was a Radiologist, though such examination is also one among the important test to in ascertain the age. He also conceded that general development is one of the ingredients for. Ascertaining the age the particulars regarding which he had not stated in Ex. He did not conduct teeth examination since he was a Radiologist, though such examination is also one among the important test to in ascertain the age. He also conceded that general development is one of the ingredients for. Ascertaining the age the particulars regarding which he had not stated in Ex. C. 2. He had not conducted the physical examination of the petitioner. He has further stated that his Department had a chart prepared, by reference to text books, after noting the views of Dr. Modi. The chart in their Department, s was based on the Indian Climatic Condition. There may be some variation in individuals due to the direct condition. C. W. 4 would have it, that the accused person had been examined prior to 20-4-1989. The details might have been different, as fusion was a continuous process. As per the radio logical examination, it cannot be said that the accused person was below 16 years on the date of his examination. He conned that X-ray film was not attached to the report. He also agreed that 100% accuracy cannot be ascertained by the radiological test alone and there may be variations of six months either this side or that side. He had deposed that he had seven years experience as Radiologist, and the test made by him was sufficient to arrive at the opinion of the age of the petitioner. ( 14 ) C. W. 5 P. Narayanan, is the correspondent of J. R. K. Matriculation School, Madras. He had produced Ex. C. 3 the duplicate of the transfer certificate issued to one Ganesan of his school. The fathers name of the said Ganesan of his school. The fathers name of the said Ganesan had been entered as Challamuthu. The date of birth is shown as 7-7-1968. The entries in Exc. 3 have been made on the basis of the admission register which itself would be based on the age given by the student in his application for admission. The original of Exc. 3 was furnished to one student on 9-11-1981 in pursuance of his application dt. 8-11-1981. When cross examined he stated that Ex c. 3 the signature of the parents of the petitioner was not found. Further the admission register was also not available. No receipt would be issued for the payment of Rs. 10/- for furnishing a transfer certificate. 3 was furnished to one student on 9-11-1981 in pursuance of his application dt. 8-11-1981. When cross examined he stated that Ex c. 3 the signature of the parents of the petitioner was not found. Further the admission register was also not available. No receipt would be issued for the payment of Rs. 10/- for furnishing a transfer certificate. The old receipt books relating to payment of fees by students were not available now. He denied that the original application for admission with proof of age was being suppressed at the instance of the investigating police and Ex. c. 3 had been falsely prepared. ( 15 ) C. W. 6 Kesari, is a clerk of the Lady Wellingdon High School, Triplicane. On 8-8-1989 one Vijaya, daughter of Chellamuthu was admitted in the IX standard. Her date of birth has been recorded in the school admission register as 16-9-1974. Vijaya continues to study in his school. ( 16 ) THE examination of C. W. 6 was for the purpose of demonstrating to the court that the evidence of C. W. 1 cannot be true. C. W. 1 has stated that from 12 years prior to 1986, she is residing at Madras. This will takes us approximately to 1974. She is unable to state the exact year in which she settled at Madras. After her arrival at Madras, she gave birth to two daughters and the senior among them is Vijaya who, according to C. W. 6 was born on 16-9-1974. C. W. 6 has not been cross-examined by the accused. C. W. 1 has further stated that before she came down to Madras with her husband, the petitioner had studied up to Standard at Venkatampatti. It appears apparent that even before 1974 the petitioner had studied upto II Standard, and if that be so, obviously his date of birth cannot be 7-7-1973. ( 17 ) THE learned counsel appearing for the petitioner would strenuously contend that once the medical evidence cannot be accepted m view of the non-marking of the X-ray as well as the possible marginal error, the direct evidence of C. Ws. 1 to 3 had to be accepted and the court can have no alternative and, therefore, the petitioner must be held to be a juvenile, and remanding the matter for the production of X-ray would only amount to the filing up lacuna, which should not be permitted. 1 to 3 had to be accepted and the court can have no alternative and, therefore, the petitioner must be held to be a juvenile, and remanding the matter for the production of X-ray would only amount to the filing up lacuna, which should not be permitted. He bas cited several decisions which I will refer to a little later. I am unable to accept the arguments advanced by the learned counsel, since irrespective of the petitioner being a juvenile or not if his arguments were to be accepted, the petitioner must, in any event, be deemed to be a juvenile even if the evidence of C. Ws. 1 to. 3 did not merit credence. The object of the Juvenile Justice Act relating to fixing the age of the person brought before it otherwise than for the purpose of giving evidence, has a salutary purpose, socially progressive in nature, to benefit the juvenile from being incarcerated and to find a way out for his rehabilitation. The statute is not intended to lei free offenders, but to provide an opportunity to juvenile to have the benefit of the social legislation for his ultimate good. If, in fact, the person brought before the Court cannot be held to be juvenile, the normal law will have to take its course and taking shield behind untenable technicality cannot enure in favour of such person. ( 18 ) EVEN earlier when this matter remanded, it was noticed that the petitioner had not been diligent in letting in evidence about his age, in spite of several opportunities having been furnished to him to produce oral and documentary evidence. The petitioner had after remand utilised the opportunity given to him and produced the evidence, which he intended placing before the court. Though the learned counsel for the petitioner would contend that the evidence of C. Ws. 1 to 3 had not been rejected, it is apparent from the order of the trial Judge, that it was not possible to place any reliance on their evidence. Though the word rejected had not been used, it cannot be said that the Trial Court was wrong in its conclusion that it would be impossible to decide the question of age of the petitioner on the evidence of C. Ws. 1 to 3. Though the word rejected had not been used, it cannot be said that the Trial Court was wrong in its conclusion that it would be impossible to decide the question of age of the petitioner on the evidence of C. Ws. 1 to 3. ( 19 ) I am certainly of the opinion that the X-ray report will have to be marked before the court below and the petitioner permitted the cross-examine C. W. 4 on the basis of the X-ray. The lower coon will also be justified in having the petitioner examined by an expert, a competent authority for ascertaining his age on physical appearance as well as any other basis on which the age could be ascertained scientifically. The competent authority, who certifies the age of the petitioner on the afore stated foundation, will have to be examined in court with an opportunity to the petitioner to cross-examine him. Since unassailable evidence must be available, to record a finding either way, of the petitioner being a juvenile or not, it will be necessary that no stone should be left unturned in this direction. The examination of a competent authority to provide details on a scientific basis on the age of the petitioner inclusive of further examination of C. W. 4 after the making of X-ray may benefit the prosecution or the defense, but the Court is concerned with the ultimate furtherance of the cause of justice. I am satisfied that a remand over again to the Trial. Court is necessary to the limited extent of further examination and cross-examination of C. W. 4, after bringing on record the X-ray and further evidence on scientific basis regarding the age of the petitioner by a competent expert the trial is pending in the court below for quite some time and, therefore, the Trial Judge is directed to expeditiously take action in deciding the age of the petitioner in the light of the observations above mentioned. Needless to add that the court will always have the power to get on record evidence which appears to it; to be essential to justly decide the age of the petitioner. ( 20 ) BEFORE, I conclude, ids better to refer to the decisions cited by the, learned counsel for the petitioner. Needless to add that the court will always have the power to get on record evidence which appears to it; to be essential to justly decide the age of the petitioner. ( 20 ) BEFORE, I conclude, ids better to refer to the decisions cited by the, learned counsel for the petitioner. The following cases (a) State of Kerala v. T J. Jose, (b) Jaya Mala v. Home Secretary (c) Parameswaran Rajappan v. State of Kerala, (d) Marudovi Avva v. Kerala State and (e) Satish Kumar v. State were cited for the proposition that medical evidence to ascertain the age only by radiological examination was only an opinion evidence. Variations in the physical developments of individuals concerning bones, on which alone mainly the ascertainment of age was made, would depend upon the climatic condition of the place where one was born and brought up. That aspect is well recognised by authorities on Medical J jurisprudence and Toxicology and it has been accepted by Courts also. Opinion given on the basis of such an examination can have margin of errors on either side up to a period of two years and, therefore, it may be unsafe to fix criminality by merely deciding the age on the basis of such opinion. All these cases related to either the fixation of the age of the prosecutrix, who has been allegedly kidnapped or raped or the detention of a minor under the preventive Detention Law. On facts, the criminality of the accused is not sought to be decided and only the best evidence is directed to be produced to decide if the petitioner would be entitled to have the beneficial provisions of the social legislation invoked in his favour. There can be no doubt that c ossification test may not be conclusive; but it cannot be overlooked that such evidence taken along with other evidence placed before the court, may furnish material to decide the age of the petitioner. There can be no doubt that c ossification test may not be conclusive; but it cannot be overlooked that such evidence taken along with other evidence placed before the court, may furnish material to decide the age of the petitioner. In other words, the medical evidence as to the age of a person can be utilised with other cogent evidence on the point which may facilitate a proper determination of the age of the person produced before the court ( 21 ) THE decision of the Apex Court in Bhoop Ram v. State of U. P. was relied upon for the proposition, that the proof of age in a school certificate showing the accused as aged less than 16 years, cannot be rejected on the basis of surmise that generally parents understate the age of their children at the time of admission to schools, in the absence of anything showing that the en tires in the to certificate did not relate to the accused or were incorrect. It was also pointed out in the same to decision that the possibility of error existed in the medical opinion regarding the age, which was based on estimation of the doctor and in the absence of any other independent material, such medical opinion should not prevail over the entries in the school certificate. This decision does not appear to help the petitioner. The petitioner has not the produced any school certificate showing his age. Ex. c. 1 has not been proved and the horoscope stated to be its foundation had not been produced. The view of the Supreme Court provides for the acceptance of medical opinion, coupled with other independent material. ( 22 ) THE decision of a Division Bench of this court in Shanmukham v. State, also permits, taking note of other materials which support the opinion given by the radiologist about the age of the appellant, though the determination of age on the basis of radiological examination, can only be an approximate factor, which cannot be taken as decisive and incontrovertible feature. ( 23 ) THE next decision cited is that of P. K. Sethuraman, J. of this court, rendered in State of Tamil Nadu v. Rajan. ( 23 ) THE next decision cited is that of P. K. Sethuraman, J. of this court, rendered in State of Tamil Nadu v. Rajan. That case dealt with the converse proposition where the Magistrate did not pass any order determining the age of the accused, but committed the accused to the Court of Sessions, where after the Sessions Judge fixed the age of the accused and sent book the accused for trial to a Juvenile Court. Holding the accused therein as a person below 18 years of age on the date of occurrence. The learned Judge did not agree to the plea made in that case, to direct the Magistrate to hold an enquiry over again to fix the age of the accused. This decision also reflects my view that the Additional Sessions Judge would be competent to fix the age of the petitioner, which had not been done by the Committal Court. ( 24 ) THE case reported in State of Orissa v. P. Paravatisam, was relied upon for the purpose that a non-vigilant prosecution will not be entitled to have a direction from court for taking further evidence, which would result in further harassment to the accused by a protracted trial, since the prosecution had to own its irresponsibility. That was a case where the accused had been acquitted of the charge under Section 376 1. P. C. and the prosecution had not chosen to bring on record the original report of the Chemical Examiner. The observations made in that context, cannot apply to the facts of this case where the stage is initial, primarily intended to fix the age of the petitioner to decide the forum where he has to fact the trial and the possibility of the application of the beneficial provisions of the social legislation in favour of tile petitioner. ( 25 ) FOR the same, purpose, the decision rerdered by Ratnavel Pandian J. , In Subramaniam Gaunder. In re11, was relied upon. That was a case where the accused had been found guilty of an offence punishable under Section 61 (a) of the Tamil Nadu Excise Act In appeal, the District Magistrate directed the liquor seized therein to be sent for chemical analysis; whilst the defence had already challenged that said bottles did not contain liquor. In re11, was relied upon. That was a case where the accused had been found guilty of an offence punishable under Section 61 (a) of the Tamil Nadu Excise Act In appeal, the District Magistrate directed the liquor seized therein to be sent for chemical analysis; whilst the defence had already challenged that said bottles did not contain liquor. In that context the learned Judge, observed that the prosecution having failed once, it cannot be enabled to have another opportunity to adduce evidence in proving that the bottles contained liquor. Nothing further need be stated, since I have already held that this line of cases will not help the petitioner in the proposition, that has arises in this revision. ( 26 ) THE decision in Madansingh v. State, was utilised to impress upon the court that the non-marking of skiagram taken by radiologist would make the evidence of the radiologist inadmissible. Holding the same view, I have directed the trial Judge to bring on record the X-ray of the petitioner and permit cross-examination of C. W. 4. ( 27 ) THE next decision cited is reported in Samarendra Kwnar v. Experor. It was held in that case, that although ossification was an important test for determining the age, it cannot be said that it was an indispensable test for determining the age of the girl. That case also related to fixing the age of prosecutrix, who was alleged to have been kidnapped. These propositions as already held by me, are settled. The application of the law will depend on the peculiar facts unfurled in each case and the stage to which in relates. ( 28 ) THE decision of the Supreme Court in Mohd. Ikram Hussain v. The State of Uttar Pradesh, was relied upon for the purpose, that direct evidence will have to be preferred. In that case the Court, was considering the issue of a Habeas at the instance. of the husband for the production of the wife, whose age was also in question. Kaniz Fatima, the detenu, was stated to be under the age of 18. Two certified copies from school register showed that on June 20, 1960 when the detenu left her home, she was under 17 years of age. There were also affidavits of the detenu as well as her father with regard to her age. Kaniz Fatima, the detenu, was stated to be under the age of 18. Two certified copies from school register showed that on June 20, 1960 when the detenu left her home, she was under 17 years of age. There were also affidavits of the detenu as well as her father with regard to her age. As against such evidence, the High Court took the view that Kaniz Fatima was over 18 years of age, relying upon the report of the doctor, who had examined her, though the report ways not before court. Reference to the report was made in the affidavits of Mahesh, the husband of Kaniz fatima and the Sub Inspector, which were held to be inadmissible under the Evidence Act in proof of the contents of the documents, In that context the Supreme Court observed that the primary evidence ought to have been summoned and that the High Court had reached the conclusion about the majority without any evidence before it, and on the face of direct evidence against it on facts, it is apparent that these rulings cannot rescue the petitioners case. ( 29 ) ON the need for remand by an appellate court for recording of additional evidence, the decision of the Supreme Court in Rajeswar Prasad Misra v. State of West Bengal, was cited. It was held therein, that since a wide discretion had been conferred on the appellate court, the limits of the courts jurisdiction must obviously be dictated by the exigency of the situation, and fair play and good sense appeared to be the only safe guides. Additional evidence would be necessary not because it would be impossible to pronounce judgment, but because there would be failure of justice without it. The above observations do not in any way prohibit the remand in the exigencies unveiled in this case, for the proper administration of justice. ( 30 ) FOR the same proposition, the decision of this court in S. Pichai Pillai In re16 was referred. That was a case where the Sessions Judge considered the evidence on record insufficient for convicting the accused, but still ordered as re-trial, since the offence was serious affecting public interest and there was a lucuna in the prosecution case. ( 30 ) FOR the same proposition, the decision of this court in S. Pichai Pillai In re16 was referred. That was a case where the Sessions Judge considered the evidence on record insufficient for convicting the accused, but still ordered as re-trial, since the offence was serious affecting public interest and there was a lucuna in the prosecution case. In the contingency this court took the view, that if there was a lacuna in the prosecution evidence, the accused were entitled to have the benefit of the same. These well-known propositions, have no bearing on the issue involved in this revision. We have not yet reached the threshold of the Trial Court and the decision to be taken rests at the stage of the entry of the petitioner to the Juvenile Court or the regular Court. I am satisfied that for the furtherance of cause of justice and on the basis of equity and fair play, which may benefit the prosecution or the accused, the Trial Court must directed to have the X-ray of the petitioner already taken, marked and a further opportunity furnished to the petitioner to cross examine C. W. 4. Further the trial Judge will have to forward the petitioner to a competent expert to have a report on scientific basis on the age of the petitioner and after such expression of opinion, the said expert will have to be put in the witness box to depose about his opinion, so that an opportunity could be furnished to the petitioner to cross examine the expert. Needless to add that the Trial Court the powers to bring on record such evidence which appears to it to be essential to the just decision of the case. The trial Judge will also have to consider the effect of the medical evidence on the basis of the other evidence on record. The revision is ordered accordingly. Revision ordered accordingly.