GANESAN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THIS petition coming on for hearing on this day upon perusing the petition, and the 26 -3 -90 Judgment of the lower Court and the records in the case, and. upon, hearing the arguments of Mr. R. Shankara Subbu Advocate for the petitioner, and of Mr. G. Krishnamurthy Additional Public Prosecutor on behalf of the Respondent and having stood over for consideration till this date the court made the following order. This is the second time that the petitioner herein, claiming himself to be a juvenile, has knocked at the door of this court, challenging the finding of the Court below, that he was not a juvenile, when the occurrence is stated to have taken place.

(2.) A few facts leading to the filing of this revision will have to be necessarily stated. The petitioner is the sole accused in SC. No. 24 of 1989 on the file of the Second Additional Sessions Judge, Madras. The offence alleged against him are punishable under Sections 302,448 and 392 of the Indian Penal Code. The occurrence had taken place on 22 -8 -1988. The petitioner claims the, the was less than 16 years of age on 22 -8 -1988, while the prosecution would have it that he was above 16 years.

(3.) CHALLENGING the fixation of age of the petitioner as aforementioned, based only on the report of the Radiologist, even without his examination in Court, with an, opportunity furnished to the petitioner to, cross -examine him, and further complaining of lack of reasonable opportunity to him to lead evidence to prove his age, Cr. M. P. No. 9316 of 1989 was filed in this court. By an order dated 28 -11 -1989, this court, though was of the opinion, that the petitioner had not been diligent in placing before the Trial Court evidence stated to be available to prove that the petitioner was below 16 years of age, was inclined to give him a chance to prove his evidence before the Trial Court to put an end to this controversy regarding age even at the initial stage. The Trial Judge was also directed to summon the Radiologist, examine him and furnish an opportunity to the petitioner to cross -examine the Radiologist, since the certificate of the Radiologist would not be admissible under Section 293 of the. Criminal Procedure Code, without the examination of the Radiologist. It was also observed that the Trial Judge, should give an opportunity to both parties to produce all evidence which they in tended to place before the court to facilitate a proper enquiry relating to the presumption and determination of age of the petitioner, in accordance with law. The prosecution referred to the availability of a transfer certificate, which was also permitted to be placed before the Trial Judge during the course of the enquiry, after supply of copy of the said document to the petitioner.