DAL CHAND Vs. STATE OF U P

JUDGEMENT

(1.) K. N. Sinha, J. Heard the learned Counsel for the revisionist and learned A. G. A. and also perused the impugned orders.

(2.) THE present revision has been filed against the order and judgment dated 31-10-2002 passed by the Sessions Judge, Pilibhit in Criminal Appeal No. 18 of 2002, Dal Chand v. State of U. P. , dismissing the appeal of the revisionist filed against the judgment and order dated 16-10-2002 passed by the Chief Judicial Magistrate, Pilibhit in Crime No. 280 of 2002 under Section 302 I. P. C. , P. S. Sungarhi, District Pilibhit.

(3.) I have examined the judgments of both the Courts. The learned C. J. M. and the learned Sessions Judge discussed the oral evidence of Smt. Omwati, who stated that the revisionist Dal Chand was born in the month of 'asarh' 17 years back. Her statement must have been recorded prior to the date of judgment and if it is considered to be correct the revisionist would be below the age of 18 years. This statement has been rejected by both Courts on the ground that Smt. Omwati has not specified the year of birth. It is not expected from an illiterate lady to tell the actual year of the birth. The learned Courts below have also ignored the date of birth recorded in the school register, which is 1-7-1985. Sri Rati Ram Gangwar, Principal of the said school, was also examined, who stated that the revisionist has taken admission in Class VI on 1-7-1994. This witness has also stated that there should be difference of 2-3 years in the date of birth given by the father of the revisionist. This witness Sri Rati Ram Gangwar is the Principal of Agrasen Junior High School and he cannot say that there was difference of 2-3 years in the age stated by the father of the revisionist. If it was so, he could have raised an objection at the very time of admission. Moreover, the Principal is an unconcerned person and his statement about the difference in age is only based on conjectures. He was not in any way connected with the family of the revisionist. Thus his statement has got no value. The C. J. M. has also observed that generally at the time of admission in Class VI the age of the boy becomes 11 years. This is only the guess work of the concerned Court. So far as the report of the C. M. O. is concerned, it is only an opinion and it cannot over-ride the school certificate and specifically the statement of the mother, Smt. Omwati.