NIHAL Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned counsel for the applicant and the learned A.G.A. for the State and perused the record. This Criminal revision has been directed against the impugned judgment and order dated 18.10.11 passed by learned Sessions Judge, Pilibhit in Criminal Appeal No. 108 of 2011 Nihal Versus State of U.P. Under section 52 of the Juvenile Justice ( Care and Protection of Children) Act, 2000 dismissing the appeal and upholding the order dated 15.9.11 passed by Juvenile Justice Board, Pilibhit in Case No. 21 of 2011 State Vs. Nihal, case Crime no. 909 of 2011 under section 302/34 I.P.C., P.S. Kotwali, District Pilibhit.

(2.) LEARNED counsel for the revisionist has submitted that both the courts below have refused the date of birth of the revisionist as 4.7.1995 on two grounds firstly; that in his evidence father of the juvenile in conflict with law had stated that it was he who had stated to the Principal of the school the date of birth of his son the revisionist as 4.7.95 while the mother of the juvenile in conflict with law had stated before the juvenile Board that the grand father of the juvenile had told the aforesaid date of birth to the Principal. The Principal has been examined in this case and he had deposed that it was father of the juvenile who had disclosed the date of birth of the juvenile as 4.7.95. Secondly; that the transfer certificate issued by the Prathamik Vidyalaya Kala Mandir Nagar Kshetra Pilibhit speaks that juvenile revisionist was born on 4.7.95. This certificate was issued on 5.7.11. According to which juvenile had passed Class 4 examination on 12.5.2003 and his name was struck out on 10.5.2005 due to his absence in class V. Principal Layeeq has proved the aforesaid date of birth of the juvenile. Another document has been issued by Prathamik Vidyalaya Shifakhana, Nagar Kshetra, Pilibhit. It is the copy of the mark sheet of Class V which shows that he had passed Class V on 19.5.2008. Meaning thereby he was there in class V for about 5 years since 12.5.2003 to 19.5.2008 which is not convincing. Ignoring this primary school certificates of date of birth learned Juvenile Board directed the juvenile to be produced before the Medical Board to determine his radiological age. As such the radiological age was determined by the Medical Board and according to its opinion the radiological age of the juvenile revisionist is about 18 years.

(3.) LEARNED A.G.A. has very honestly conceded the fact that even as per the school leaving certificate as well as the radiological age, the revisionist does not appear to have completed 18 years of age on the date of incident i.e. 15.6.11. He has further stated that in the facts and circumstances of this case the margin of one year in reckoning the age of the revisionist keeping in view the stage of fusions should have been towards the lower side.