SHAH SUEB AHMED ALIAS RAJU Vs. STATE

JUDGEMENT

(1.) The appellant, Shah Sueb Ahmed, has challenged the legality of the judgment dated 19th May, 1984, of an Additional Sessions Judge, Delhi, whereby he was convicted under Section 394 Indian Penal Code and under Section 398 read with Section 394 of the Indian Penal Code. He has also challenged the order of the same date imposing a sentence of seven years' rigorous imprisonment along with a fine of Rs.2000.00 for having committed the said offence. In default of payment of fine he was directed to undergo further rigorous imprisonment for two years.

(2.) In criminal Appeal No. 124 of 1984 he has challenged his conviction and sentence under Section 27 of the Arms Act. By this judgment both the appeals are being disposed of.

(3.) Mr. I.U. Khan, learned counsel for the appellant, has at the outset raised a plea that the court of Additional Sessions Judge was not compectent to try the appellant as he was less than 16 years of age on the date of commission of the offence. To appreciate this contention a few relevant facts may be noticed. The date of on which the appellant is alleged to have committed the offence is 10th November, 1982. An application was filed by him on 16th November, 1983, before the trial Court alleging that as his date of birth was 26th August 1969, he be tried by the Children Court for the offence tor which he had been charged. This application was filed at a stage when the prosecution witnesses were being examined. Along with the application a photostat copy of the application which was filed by the appellant's father in the School at Varanasi on 8th July, 1976, showing the date of birth to be 26th August 1969, was annexed. On that very date, i.e., the date on which the application was filed the learned Additional Sessions Judge recorded the statement of appellant's father. The appellant was sent to police hospital for necessary x-ray examination. The appellant's father was permitted to summon the Principal of Adarsh Nursery and Primary School Varanasi, for producing the original application for admission in that School, copy of which had been annexed with the application. The application was disposee of by order dated 7th December, 1983. The trial Court was of the view that as the school in which the appellant was studying accepts the age given by the parent of the student without any verification, the application form showing that the date of birth of the appellant was 26th August 1969, was of no value. It was held "The school record seems to be totally unreliable in so far as the determination of age of the accused/applicant is concerned". According to the assessment of the learned Additional Sessions Judge the accused appeared to be more than 17 years of age as he had "grown black coloured thick moustaches and sparse beard on his chin and cheeks. According to Modi's Medical Jurisprudence and Texicology hair begin to appear on the chin and upper lip between 16 and 18 years. It is a common knowledge that the hair begin to appear in brownish colour and it is much later that the colour of hair gets changed into black. Even otherwise, the accd. apparently appears to be more than 17 years of age."