DHARMA CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) This revision has been filed against order dated 22-3-1999 whereby the appeal filed by the revisionist was rejected by the learned Vth Additional Sessions Judge against order dated 30-8-1997 passed by the learned Magistrate whereby he rejected the ap plication of the revisionist who was claim ing himself to be juvenile. The matter as pending before the Juvenile Magistrate, Jhansi. At the time of first remand, the revisionist was held below 16 years of age and, therefore, he was ordered to be produced before the Juvenile Judge. The learned Juvenile Judge after hearing the parties hew that the revisionist is not juvenile and passed order for sending him to jail. The appeal filed by the revisionist against the said order was also dismissed. The learned Counsel for the revisionist contendent that the CMO has held the revisionist as below 16 years of age at the time of offence. It is further contended that the age of the revisionist at the time of occurrence has been taken into considera tion. From the side of the prosecution, the witnesses were examined to prove the School Register and the date of birth was recorded as 10-7-1978. From the side of the accused, Doctor was examined who stated that on the basis of X-ray report, he found the age of accused below 16 years. The revisionist was arrested on 19-4-1997. The occurrence took place on 15-3-1997 and, therefore, it is clear that he was found at the time of occurrence below 16 years of age. Learnet Magistrate relied upon the entries of the School Register. The learned Magistrate had also concluded that the revisionist had obtained certificate to prove that he was juvenile. This finding does not appear proper. The learned lower Court has also held that there shall be margin of two years on both sides. Learned lower Court, however, did not consider that benefit shall go to the accused and not to the prosecution. If the Doctor has given opinion that the revisionist was 16 years of age, the accused could claim that he could also be 14 years of age on the date of occur rence. It cannot be held that giving margin of two years, the revisionist could be I5 years of age to support the entries of School Register. In 1984 (21) ACC page 121, the Hon'ble Supreme Court remanded the case for trial by the Juvenile Judge in serious offence under Section 302, IPC only because it was shown that the accused was between 16 and 17 years. Obviously, the Hon'ble Supreme Court gave benefit of margin to the accused. Even this much was noted by the Hon'ble Supreme Court that when ever an accused appears to be aged 21 years or below, before proceeding with the trial, an enquiry must be made about the age of the accused on the date of the occurrence. It is also clear from the said case law that the opinion of Doctor was credit-worthy. The age given by the parents of the revisionist in the School Register cannot be held to be reliable because the basis of the said entry has not been given. In the absence of any reliable documentary evidence only this much can be deemed that the parents at the time of admission gave tentative date of birth of the child. In view of the judg ment of the Hon'ble Supreme Court, it is made out that in these cases, benefit should be given to the accused-persons who are of tender age. The Doctor had given reason for giving his opinion and it must have been relied upon. The learned Court below, therefore, committed illegality in discarding the medical report against the entries of School Register. Considering the facts, the revision is allowed. The orders dated 22-3-1999 and3-8-1997 are set aside. It is directed that the Juvenile Judge shall proceed with this case. .