RAM DAS Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Agarwal, J. Heard learned counsel for the applicant and learned A. G. A.

(2.) ALTHOUGH after the examination of the two judgments, I do not find any merit in this applicant but learned counsel for the applicant has contended that the of fence in this case was committed as far back as on 29-12-1982. An affidavit was also filed by learned counsel for the ap plicant at the time of admission of this revision and in paragraph 2 of that af fidavit it has been slated that the applicant was born in 1967. In paragraph 3 it has been stated that he is a minor although no date of birth has been disclosed in the affidavit. Still there is a clear averment in paragraph 3 that the applicant was a minor. No counter-affidavit has been filed by the State to this affidavit filed by the elder brother of the applicant. He was aged about 21 years when he has filed this affidavit. When he filed this affidavit in the year 1987, even from this if the age given is taken as correct this deponent of the af fidavit himself must have bee of about 16 years when this incident had tal en place. It is borne out conclusively that the applicant at that time was a minor. It is also apparent from the facts and circumstances of the case that the prosecution has not brought about any evidence of the fact of owner ship of the shop. Taking all these facts into consideration I am of the opinion that the applicant is entitled to the benefit of provision of Section 433 (1) (D ).

(3.) WITH these directions this revision is finally disposed of. Revision disposed of. .