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Madhya Pradesh High Court · body

2013 DIGILAW 46 (MP)

Kehar Singh v. State of M. P.

2013-01-07

N.K.GUPTA

body2013
ORDER 1. At the request of the learned counsel for the parties, the matter is finally heard. 2. The applicant has moved the present revision against the order dated 6.6.2012 passed by the First Additional Sessions Judge to the Court of the First Additional Sessions Judge, Panna in Criminal Appeal No. 58/2012, whereby the appeal filed by the applicant was dismissed, which was filed against the order dated 5.5.2012 passed by the JMFC Panna (Shri Pankaj Jaiswal) in Criminal Case No. 363/2012 in which the age of the applicant was found to be above 18 years. The applicant has also challenged the order passed by the JMFC in the present revision. 3. The brief facts of the case are that Crime No. 8/2012 was registered at Police Station Gunore District Panna for the offence under sections 302, 201, 34 of IPC against the applicant and his age was under question. 4. The learned JMFC Panna found his age to be above 18 years of age, and therefore he was not declared juvenile. In criminal appeal , the learned Additional Sessions Judge has considered the educational record as well as the assessment done by the Medical Board on the basis of the ossification test and found that he was 18 ½ years of age at the time of incident, and therefore he was not declared juvenile. 5. After considering the submissions made by the learned counsel for the parties, it is apparent that the incident took place on 17.1.2012, whereas according to the educational record, the date of birth of the applicant appears to be 1.7.1997, and therefore he was 15½ years old at the time of incident. According to the report dated 16.4.2012 given by the Medical Board, the applicant was found to be 17-18 years of age and in such computation two years may be added on both the sides. If a doubt is created on any factual position, then the benefit of doubt is to be given to the accused, and hence in the age computed on the basis of the ossification test, two years could not be added on the positive side. If a doubt is created on any factual position, then the benefit of doubt is to be given to the accused, and hence in the age computed on the basis of the ossification test, two years could not be added on the positive side. Looking to the educational record and date of birth of the applicant, two years would have been deducted from the computation done by the ossification test and looking to the report of the ossification test, if no addition or subtraction has been done, then still the applicant was found to be below 18 years of age. Looking to his educational record relating to his date of birth, he could not be said to be above 18 years of age at the time of examintion, and therefore he could not be said to be 18 years of age at the time of incident. In this connection, the order passed by the Single Bench of this Court in the case of “Ummed Singh Vs. State of M.P.” [ 2007 (III) MPWN 37 ] may be referred, in which it was mentioned that if after examination, two views are possible, then the view which is in favour of the accused should be accepted and hence at present a view is to be considered which is in favour of the accused. Apparently, according to the favourable view, the age of the applicant appears to be below 18 years of age, and therefore he is a juvenile according to the definition of the Juvenile Justice (Care and Protection of Children) Act, 2000. His case be tried before the Juvenile Justice Board. 6. Consequently, the present revision filed by the applicant can be accepted and it is hereby accepted. The order dated 6.6.2012 passed by the learned Additional Sessions Judge, Panna in Criminal Appeal No. 58/2012 and the order dated 5.5.2012 passed by the JMFC, Panna in Crimianl Case No. 363/2012 are hereby set aside. The applicant held to be juvenile at the time of incident, and therefore it is directed that his charge sheet may be separated and separate charge sheet may be produced before the concerned Juvenile Justice Board for the trial. 7. A copy of this order be sent to the trial Court for information and compliance. 8. The applicant held to be juvenile at the time of incident, and therefore it is directed that his charge sheet may be separated and separate charge sheet may be produced before the concerned Juvenile Justice Board for the trial. 7. A copy of this order be sent to the trial Court for information and compliance. 8. The learned counsel for the State is directed to obtain a copy of this order and to instruct the SHO of Police Station Gunore District Panna to file a separate charge sheet against the applicant before the Juvenile Justice Board.