TRIKAMBHAI KAVABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the applicant-original complainant to quash and set aside the impugned order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar dated 08/12/2003 below Exh. 5 in Sessions Case No. 72/2003 by which an application submitted by the reIs spondent original accused, who was pressing the charge for the offence under Section 302 of the Indian Penal Code to declare him as juvenile under Section 49 of the Juvenile Justice Act (hereinafter referred to as "the Act"), is allowed declaring the respondent-original accused to be juvenile at the time when the alleged offence under Section 302 of the Indian Penal Code was committed.

(2.) For the offence under Section 302 of the Indian Penal Code alleged to have happened on 05/01/2003, the respondent-original accused was charge-sheeted. It appears that the case was committed to the Court of Sessions, which was numbered as Sessions Case No. 72/2003. In the said Sessions Case, respondent-original accused submitted an application, Exh. 5 to declare him as juvenile under Section 49 of the Act. The learned Sessions Court held the inquiry as provided under Section 7 of the Act. Both the sides led the evidence, documentary as well as oral. One Prabhubhai Makwana, Headmaster of Kaniyad Primary School where the respondent-original accused had studied came to be examined at Exh. 7. He produced the documentary evidence, i.e. general register of the school as regards when he was admitted in the school and as per the general register maintained by the school the date of birth of the respondent-original accused was mentioned as 03/04/1984. The said witness was cross-examined on behalf of the respondent-original accused.

(3.) On behalf of the respondent-original accused his father, Nakabhai Bhanjibhai was examined at Exh. 11. As it was not possible to come to a conclusion definitely and arrive at the age of the respondent-original accused, scientific medical test of ossification was conducted by the Medical Officer, Sir T Hospital, Bhavnagar and on the basis of the ossification test and the reports given by radiological department it was opined that the age of the respondent-original accused can be said to be between 18 to 20 years. However relying upon the Mody's medical jurisprudence and considering the fact that there.can be variation of 2 to 3 years (+ and -) the learned Additional Sessions Judge presumed the age of the accused between 16 to 18,years and thereafter considering the decision of Rajinder Chandra v. State of Chhattisgarh and Anr., 2002 AIR(SC) 748 has held the respondent-original accused as juvenile at the time when the alleged offence was committed by the respondent-original accused. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Bhavnagar dated 08/12/ 2003 below Exh. 5 in Sessions Case No 72/ 2003 in declaring the respondent-accused as juvenile at the time when the alleged offence had taken place, the applicant-original complainant has preferred the present Criminal Revision Application under Section 397;read with Section 401 of the Code of Criminal Procedure.