A Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Applicant claiming to be a juvenile has preferred this revision under Sec. 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as 'Act of 2015') challenging the legality and validity of the order dtd. 7/9/2023 passed by learned Special Judge (Atrocities) Additional Charge of Additional Sessions Judge (FTC) and Children Court, Bilaspur in Criminal Appeal No.121/23 whereby learned Special Court dismissed the appeal filed by the applicant under Sec. 101 of the Act of 2015 affirming the report/order of the Juvenile Justice Board (hereinafter referred to 'the Board') determining the age of applicant.

(2.) Facts relevant for disposal of this revision are that the applicant was apprehended in connection with the Crime No.33/2022 for alleged commission of offence under Ss. 363, 366-A, 386 302, 201, 120-B and 34 of IPC. After framing of charge against the applicant under Ss. 363, 364-A, 387, 302/34 and 201/34 of IPC, applicant submitted an application under Sec. 7 read with Sec. 2 (k) of the Act [application is filed under the provision of Juvenile Justice (Care and Protection of Children) Act, 2000 ] before the trial Court for determining his age along with relevant documents. Application submitted by the applicant for determining his age was allowed vide order dtd. 27/9/2022 and learned trial Court forwarded the application along with supporting documents and a memo to Juvenile Justice Board, Bilaspur along with copy of order. The Board after conducting inquiry, recording evidence of the witnesses in support of the claim with regard to age of the applicant had submitted its report dtd. 5/7/2022 determining age of applicant to be above 18 years on the date of incident i.e. 6/2/2022. Report of determining age of applicant was put to challenge in an appeal under Sec. 101 of the Act of 2015 and learned appellate Court dismissed the appeal for reasons recorded therein.

(3.) Learned counsel for the applicant submits that the Board as well as learned appellate Court have not appreciated the fact and evidence available in record in appropriate manner in the light of provision under the Act of 2015. It is contention of learned counsel for the applicant that the applicant in support of his plea of age to be less than 18 years on the date of incident has submitted school register, mark-sheet of Class-1 as also examined the President of the School Committee and father of applicant to prove that date of birth of applicant. If for any reason in the documents placed before the Board, in the inquiry determining the age of the applicant, two different dates of birth is mentioned then the Board ought to have taken recourse to determining the age of the applicant by conducting ossification test (bone test). Applicant, on the ground of two different dates of birth appearing in the documents, has submitted an application for conducting bone test/ossification test which was declined by erroneous order. Rejection of the application/claim for conducting ossification test/bone test is in contravention of the provision under Sec. 94 of the Act of 2015. Learned appellate Court has not considered and dealt with the document exhibited i.e. Ex.C-1 and not given its finding as to how the said document is not believable or acceptable. Without dealing with the issue and ground raised by the appellant therein, appellate Court has dismissed the appeal only considering some of the documents and therefore finding recorded by learned appellate Court affirming report determining age by the Board is not acceptable and, therefore, the order passed by the learned Sessions Court in appeal as also report/order of determining the age of the applicant by the Board be set aside. The matter may be referred to Medical Board for conducting ossification test of the applicant.