DILBAHAR @ BABU Vs. GNCT OF DELHI

JUDGEMENT

(1.) By this petition the Petitioner challenges the orders dated 30 th March, 2011 and 1 st August, 2011 whereby he has been held to be above 18 years of age on the date of the commission of the offence on the basis of ossification test report dated 16 th March, 2010 and seeks a declaration that the Petitioner is under 18 years of age on the date of commission of offence and in the alterative to get a second ossification test conducted.

(2.) Learned counsel for the Petitioner contends that the plea of juvenility of the Petitioner was rejected by the impugned order without taking into consideration the report of the dentist. According to the dental report the third molar had not erupted. Learned counsel for the Petitioner states that the third molar erupts after the age of 17 years and in view of this the age of the Petitioner was less than 18 years on the date of examination. Thus, the Petitioner was a juvenile on the date of the incident. He states that the average of the three reports that the Radiological, dental and physical examination should be taken as the final opinion. The statement of the mother CW7 has not been considered who has stated that at the time of demolition of Babri Masjid, his son was 1 month and thus in view of the evidence which is quite cogent, the Petitioner was a juvenile at the time of commission of offence. Against the order dated 30 th March, 2011 the Petitioner had filed a review petition also but the same was also dismissed vide order dated 1 st August, 2011.

(3.) It is further contended that the doctors have not stated that the Petitioner was examined in their presence nor the doctors who have appeared in the witness box have shown the constitution of the board nor even placed the same on the trial court record and thus the same cannot be relied upon.