GORDHANLAL @ GORDHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellants have been convicted for an offence punishable u/s 304 pan I IPC and have been sentenced to under go 7 years RI with Fine of Rs. 10000/ -, in default to undergo RI for 6 months by Addl. Sessions Judge, Agar Dist : Shajapur in the matter of S.T. 365/93 and that order is being assailed by the appellant by this appeal.

(2.) SHRI ZA Warsi, appearing for the appellants argued that the learned trial Judge has committed error of law in holding that at the time of commission of the offence appellant Gordhan was Juvenile in view of provisions of Juvenile Justice Act, 1989 (hereinafter referred to as Act for short). He pointed out that the learned Judge has committal an error by giving more importance to the medical opinion than the evidence of Shri Garg who has been examined in the sessions case by defence and who has proved school leaving certificate which is Ex. D. 4. I find substance in his argument because it is the evidence of Shri Garg DW -1 that that Ex. D. 4 is the school leaving certificate showing (sic) appellant Gordhanlal was born on 3.5.78. At the time of giving evidence he has bought the school register also with him which was showing that as per entry made in it, the birth date of the appellant Gordhanlal was 3.5.78. A question was asked to him in the cross -examination to which he answered by saying that according to him it was true that the villagers mention the age of pupil to be admitted in school by giving estimated age. This has been the base of reasoning which has been advanced by the learned trial Judge in his judgment in paragraph No. 14 and 15 for the purpose of coming to the conclusion that on the date of commission of the offence i.e. 17.7.93, Gordhanlal was not 'Juvenile'.

(3.) IN the present case the appellant Gordhan has proved by evidence of Shri Garg -Defence Witness that the said certificate D. 4 has the base from the entry from school register. Though said witness has answered that it is the habit of villagers to mention the age of pupils to be admitted in school by system of estimation, that can not be taken to be over riding phenomenon when the school certificate giving the correct idea about the specific birth date of appellant Gordhan is available on record. The opinion of Civil Suregon Shajapur based on the medical examination of Dr. Kapil and Dr. R.C. Sharma has base of approximation. It has been stated that the age may be between 18 -21 yrs. It means that a margin of three years has been indicated for the purpose of pointing out the estimated age of appellant Gordhan. Needless to say at this juncture that fusion of bones is dependent on many factors including hereditary body structure, environment, food and upbringing of the persons, Gordhan happens to be a villager. He might not have received the nourishing diet allowing his bones to fuse at proper time as expected by medical science. Therefore, the opinion about the age which has been expressed by the Civil Surgeon, Shajapur is not reliable when the certificate, Ex. D. 4 which is supported by the evidence on abut of D.W. Garg is available. In my view that has preference over the medical opinion. Further more, when two inferences are cropping up, it is settled rule of law that the inference which is in favour of the accused, has to he preferred. If that is done, the learned Judge was definitely wrong in not treating the appellant Gordhan as 'Juvenile' in view of the provisions of Act which defines - 'Juvenile' as to boy who has not attained the age of 16 years. In the present case the age of appellant Gordhan on the date of commission of offence, was 15 yrs, 7 months and 14 days. In view of this, the learned advocate, Shri Warsi has argued that learned A.S.J. should not have tried this case but should have directed his case to be tried by Juvenile Court.