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2005 DIGILAW 972 (RAJ)

Jabra Ram v. State of Rajasthan

2005-04-04

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant revision petition under Section 397/401, CrPC, the petitioner has challenged the order dated 12.08.2004 passed by the Additional Chief Judicial Magistrate, Bhinmal (for short, "the trial Court" hereinafter) in Criminal Case No. 120/2002, by which the trial Court dismissed the application filed on behalf of the petitioner for determination of his age and declaring him as juvenile delinquent. 2. The facts of the case, in a nut shell, are that the police filed challan against the petitioner for the offences under Sections 363 and 376, IPC. An application was filed on behalf of the petitioner by his Counsel alleging therein that despite the fact that the petitioner is aged about 15 years, the challan has not been filed before the Juvenile Justice Board. That application stood dismissed by the trial Court vide order dated 02.04.2002 holding that the petitioner is more than 18 years in age. The said order was challenged by way of filing S.B. Criminal Revision Petition No. 247/2002, which was allowed and the case was remanded with a direction to the trial Court to decide the matter afresh after giving opportunity of hearing to both the parties. Thereupon, the trial Court recorded the statement, of the doctor, Head Master and the relatives of the petitioner and vide impugned order dated 12.08.2004, rejected the application of the petitioner by holding that the petitioner is not a juvenile delinquent as his age may be 19 years. Hence, this revision petition. 3. I have heard learned Counsel for the petitioner and the Public Prosecutor for the State. Perused the impugned order and the record. 4. It has been contended by the learned Counsel for the petitioner that there was sufficient evidence led before the trial Court showing that at the time of alleged commission of the crimes, the petitioner was minor. The medical evidence, school record, ration card and the oral evidence of father of the petitioner clearly establish that at the time of alleged commission of crime, the petitioner was below 18 years of age. The medical evidence, school record, ration card and the oral evidence of father of the petitioner clearly establish that at the time of alleged commission of crime, the petitioner was below 18 years of age. The medical evidence and the radiological report clearly suggests that the age of the petitioner is about 17 years but the trial Court erred in law in taking the margin of plus/minus two years against the petitioner and held that the petitioner is about 19 years in age, whereas this benefit of plus/minus two years should have been extended to the petitioner. 5. In Rajinder Chandra vs. State of Chhattishgarh & Anr., 2002 (2) SCC 287 , the ossification test report showed the age of the accused to be about 16 years and the Sessions Court, taking variation of 2 to 3 years, did not find it proper to hold the accused to be a juvenile. The Apex Court, reiterating the view taken in Arnit Das vs. State of Bihar, 2000 (5) SCC 488 , held that instead of adopting a hypertechnical approach in such cases, the Court should lean in favour of holding the accused to be a juvenile and further held that while considering the question whether the accused was a juvenile, in borderline cases, if two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile accused should be adopted. The Apex Court further held as under:- "It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das vs. State of Bihar, 2000 (5) SCC 488, this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case." 6. In the instant case, as per the radiological report dated 06.02.2002, the radiological age of the petitioner is about 17 years. In his examination-in-chief , Dr. G.M. Solanki, Junior Specialist, Radiology, General Hospital, Jalore, has specifically stated that the radiological age of the petitioner is about 17 years. In cross-examination, he has admitted that as per Modis Jurisprudence, there may be margin of plus/minus two years and as such the age of the petitioner may be 19 years. As per school record, the date of birth of the petitioner is 01.02.1987. The occurrence took place in the year 2002 and as such, at the time of commission of the crime, the petitioner was aged about 15 years. 7. While dismissing the application, the trial Court has given emphasis on the cross-examination of CW 2 Dr. G.M. Solanki, Radiologist, wherein he stated that there may be variation of two years and as such the age of the petitioner may be 19 years. The trial Court also held that there are contradictions in the statement of father of the petitioner, as such the age of the petitioner may be 20 years. The trial Court also held that the date of birth recorded in school record creates suspicion. 8. Be that as it may, the ration card and school record may not be substantive piece of evidence but the oral evidence as well as ossification test and medical evidence in this regard are the best evidence for determination of age. As per the ossification test and medical evidence, the age of the petitioner was about 17 years. It is, no doubt true that there may be variation of plus/minus two years on either side but as per the law laid down by the Honble Apex Court, the benefit of such variation should go to the accused. Thus, the trial Court has erred in law in declining to grant this benefit to the petitioner and refusing to declare him as a juvenile delinquent. 9. Consequently, the revision petition is allowed. The impugned order dated 12.08.2004 passed by the trial Court is set-aside and it is directed that the petitioner may be tried by the Juvenile Justice Board. The stay petition stands disposed of .