MOHD WASIM Vs. STATE

JUDGEMENT

(1.) By an order dated 09.12.2011 on the Appellant's application under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 claiming juvenility on the day of occurrence (28.03.2006), this Court directed the Trial Court to hold an enquiry for determination of his age. The Trial Court examined CW-1 (Appellant's father), CW-2 (Appellant himself), CW-3 (Ram Niwas), Inspector, Food and Supply Office, CW-4 (R.K.Anand), CW-5 (Dr.Shivani Mehra) and CW-6 (Dr.Sanjeev Lalwani). After appreciating the evidence and considering the rival contentions of the parties, the Trial Court concluded that the approximate age of the Appellant on the date of incident i.e. 28.03.2006 was between 19 to 24 years.

(2.) Learned counsel for the Appellant challenged the findings of the Trial Court and vehemently argued that he was less than 18 years of age, on the date of incident. He further contended that the Trial Court fell into grave error in ignoring the ossification report (Ex.CW-5/A of Dr.Shivani Mehra) by which the Applicant's age was determined between 21 to 22 years as on 09.01.2012. The counsel urged to ignore the report (Ex.CW-6/A) prepared at AIIMS as it did not consider that medial end of clavicle bone fuses at the age of 22. The report of the Radiologist of AIIMS to set the age as 25 years is an undue exaggeration without any basis. He relied upon page No.199 of Dr.R.M.Jhalla and V.B.Raju's Medical Jurisprudence where it is stated that at the age of 21, medial end of clavicle appears and it fuses at the age of 22 in case of human males. He further argued that if two views are possible, then, the view favouring the accused has to be adopted. Since the age has been opined in between 25 to 27, (in Ex.CW-6/A), benefit of 2 years is to be given for calculating the age of the Appellant. He further contended that the Applicant had disclosed his age 25 years at the time of recording his statement under Section 313 Cr.P.C. at the first opportunity. He is entitled to the protection and in any event could not have been sentenced to imprisonment for life.

(3.) Learned APP supported the findings of the Trial Court and urged that the Appellant was than 19 years on the date of incident and was not juvenile. He and his family members suppressed material documents i.e. Ration Card, Voter I-Card, Electoral Rolls etc. deliberately to conceal the exact age. During enquiry, the police was able to lay hands on these documents and examine official witnesses to prove those documents. He further contended that the medical report proved by Dr.Sanjeev Lalwani from AIIMS is authentic as it considered physical, dental and ossification test, to estimate the age of the Applicant. He relied upon 'Lal Bahadur vs. The State' (Crl.R.145/2003 decided on 25.07.2003) where in such cases, this Court reduced margin of error in ascertaining the age to six months on either side.