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Calcutta High Court · body

2000 DIGILAW 541 (CAL)

Md. Jamal v. State

2000-11-08

RANJAN KUMAR MAZUMDAR

body2000
JUDGMENT The instant Criminal revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure is directed against the order dated 1.2.91 passed by learned Additional Sessions Judge, 4th Court, 24-Parganas (South) at Alipore in Sessions Trial No. 1(1)/86 under Sections 302/34 of the I.P.C. 2. The case of the accused-petitioner Md. Jamal was in brief that he was facing trial before the learned Additional Sessions Judge, 4th Court, 24-Parganas (South), Alipore in respect of the alleged offences punishable under Sections 302/34 of the Indian Penal Code. In the said trial, the petitioner put in an application stating that he was below the age of 18 years on the alleged date of occurrence, i.e., on 18.11.84 and accordingly lie wits liable to be tried by the learned juvenile Court being a Juvenile. In connection with the hearing of the said petition, the petitioner was medically examined on 30.12.86 and the doctor opined that the petitioner was about 20 years did on 30.12.86, whel1 he was medically examined by the doctor. As against the said opinion of the doctor, the petitioner got his fattier examined on the question the age of the petitioner and it was stated by the father of the petitioner before the learned trial Court that the petitioner was born in September 1969, i.e. his son was far below 18 years. But, unfortunately, the learned Court below disbelieved the evidence of the father of the petitioner and accepted the evidence of the doctor that the petitioner was about 20 years old on the date of his medical examination. According to the petitioner, he was a minor on the alleged date of occurrence and hence the impugned order passed by the learned Court below was liable to be set aside. . . 3. I have had the opportunity of hearing 1earned Counsel for the petitioner as well as the learned Counsel [or the State in the matter at length. 4. The only question requiring consideration was whether the petitioner was a minor on the alleged date of occurrence, i. e., 18.11.84. 5. At the time of hearing learned Counsel for the petitioner vehemently submitted that his client was a minor on the alleged date of occurrence and accordingly he was liable to be tried, if at all, as a minor before the learned Juvenile Court. 5. At the time of hearing learned Counsel for the petitioner vehemently submitted that his client was a minor on the alleged date of occurrence and accordingly he was liable to be tried, if at all, as a minor before the learned Juvenile Court. In that connection, it was submitted by the learned Counsel that the fattier of the petitioner, while giving evidence before the learned Court below; specifically stated that his son ,vas born in September 1969 but such evidence was not accepted by the learned Court below. Instead the learned Court below reposed faith on the evidence and opinion of the doctor, who examined the petitioner and held ossification test. Accordingly, learned Counsel for the petitioner submitted that it was a fit case where the impugned order passed by the learned Court below regarding the age of the petitioner was liable to be quashed. 6. Learned Counsel for the State submitted, on the other hand, that the evidence of the petitioner's father regarding the age of the petitioner as on the alleged date of occurrence was totally unacceptable as no documentary evidence was filed by the petitioner to show his exact date of birth and that the petitioner's father even stated in his cross-examination that he mentioned the age of the petitioner only by guess. It was further submitted that teamed Court below very fairly accepted the evidence of the doctor, who medically examined the petitioner on 30.12.86 and opined on the basis of the ossification test Held in the hospital that the petitioner was 20 years old on the date of his medical examination on 30.1l.86. 7. It appears from record that the petitioner and some others were facing trial before the learned Court below for committing an offence of murder punishable under Section 302 read with Section 34 of the I.P. C. Date of occurrence has been mentioned by prosecution as 18.11.84. It also appears from record that on the crucial question of age of the petitioner on the date of occurrence, learned Court below recorded evidence as adduced on behalf of the petitioner in this case, viz., by the father of the petitioner and brother of the petitioner. It also appears that the learned Court below also took steps for getting the petitioner examined medically at the M.R. Bangur Hospital, Calcutta. It also appears that the learned Court below also took steps for getting the petitioner examined medically at the M.R. Bangur Hospital, Calcutta. Necessary ossification test of the petitioner was accordingly held in the said hospital and the concerned Medical Officer was also examined by the learned Court below in the matter. Again, it appears from record for while giving evidence before the learned Court below, the father of the petitioner, viz., Md. Ramjan stated in his evidence-in-chief that the petitioner was born in September 1969. But, in cross-examination he stated that he mentioned the age of the petitioner only by guess. Accordingly, learned Court below was justified in rejecting such evidence of the petitioner's father regarding the age of the petitioner. The records indicated that on the question of age of the petitioner, it was the definite and specific evidence of the doctor Salil Kumar Mukherjee, a Radiologist, that in his opinion the age of the petitioner was about 20 years on the date of his medical examination as per ossification test conducted by him in the hospital. This evidence was accepted by the learned Court below. The petitioner was examined on 30.12.86 and as per opinion of the doctor, the petitioner was about 20 years old on that date. As already stated, the date of occurrence was 18.11.84 as per prosecution. Hence, if the doctor's evidence is accepted as true the accused was certainly below 18 years on the date of occurrence. To be specific, the age of the accused was 17 years 10 months and 18 days on the date of occurrence as per mathematical calculation based on the doctor's evidence. 8. In this context, another important factor cannot be lost sight of and this is in regard to variation of the age by 2 years on either side. According to this yardstick, the age of the accused was below i6 years ort the date of occurrence and according to law this benefit of inner limit goes in favour of the accused- petitioner. I am, therefore, of the clear view that the accused was a juvenile de being below 16 years on the date of occurrence and he should be tried by tilt' Juvenile Court according to the provisions contained in the Juvenile Justice Act. 9. In the aforesaid circumstances, the learned Court below is directed to split up the case and send the accused-petitioner Md. 9. In the aforesaid circumstances, the learned Court below is directed to split up the case and send the accused-petitioner Md. Jamal to the Juvenile Court concerned to stand trial there in respect of the alleged offences. Learned Court below will, however, continue to hold trial in respect of the remainit1g accused persons according to law as expeditiously as possible. 10. Ad interim order of stay of all further proceedings in Sessions Trial No.1 (1)/86 as granted by this Court is hereby vacated. Let the Lower Courts records be sent down to the learned Court below as expeditiously as possible. Let a copy of this order be also sent to the learned Court below immediately. The Criminal revisional application is thus disposed of. S.K.G.