NAZIR HOSSAIN HALDER Vs. STATE

JUDGEMENT

(1.) The short point involved in the instant revisional application is whether or not the petitioner was a juvenile within the meaning of the Juvenile Justice Act on the date of the commission of the offence.

(2.) The petitioner was implicated as one of the accused in Usthi P.S. Case No. 24 dated 29-3-92. Police investigated the case and submitted charge-sheet against all the persons including the present petitioner under Ss. 147/148/304 of the Indian Penal Code. The case was committed to Sessions and it is pending before the learned Additional Sessions Judge, Sixth Court, Alipore as Sessions Trial Case No. 24(5) of 1993. On 26 August, 1993, the date fixed for consideration of charge, the petitioner filed an application before the learned Judge claiming the benefit of a separate trial according to the provisions of Juvenile Justice Act alleging that he was a juvenile on the date of occurrence. The application was opposed by the prosecution. It was alleged on behalf of the prosecution that the petitioner-accused had completed the age of 18 years on the date of occurrence and as such, he was liable to be tried jointly along with the other accused persons. The learned Judge made an inquiry in order to ascertain the age of the accused-petitioner on the date of commission of the offence. During the inquiry, the accused-petitioner examined one witness who happens to be the headmaster of the school where the petitioner claims to have been admitted as a student. The witness deposed with reference to the relevant admission register and formally proved the writings in that register. As per that admission register, the date of birth of the accused-petitioner was recorded as 13 December, 1978. According to the headmaster's evidence, the said date was recorded on the basis of declaration of the guardian of the petitioner at the time of his admission in the admission form. The headmaster did not, however, have any independent knowledge regarding the age of the petitioner. On behalf of the prosecution the voters' list of the relevant Assembly Constituency was placed before the Judge. According to the entries in Serial No. 623 of Part 137 of the said voters' list, the petitioner was aged 19 years as on 1-1-93. If one goes by the admission register, the petitioner would have completed just 13 years 9 months on 17-3-92, the date of commission of the offence, while if one goes by the voters' list, the petitioner would have completed 18 years on the relevant date. In other words, on the question of age of the petitioner the admission register and the voters' list contradict each other. No other evidence was, however, adduced by either party during that inquiry. The learned Judge observed that both the admission register and the voters' list were based upon the declaration of the parents of the petitioner. But he preferred the voters' list to the admission register for the purpose of coming to a finding regarding the age of the petitioner as on the date of commission of the offence, because he was of the view that the voters' list was a public document having been prepared by the proper authority of the Government specially empowered to verify the age of a voter and accordingly, by his order No. 11 dated 19-2-94, he rejected the contention of the petitioner to the effect that he was a juvenile within the meaning of the Juvenile Justice Act and as such, was entitled to be dealt with under the Juvenile Justice Act. This order was challenged on behalf of the petitioner-accused in an earlier revision being Criminal Revision No. 191 of 1994 before this Court and His Lordship, N. A. Chowdhury, J. by order dated 2-2-95 set aside that order and directed the trial Court to send the petitioner to a Govt. Hospital for his ossification test and consider the medical report and medical evidence and also to consider the other materials and determine the age of the petitioner.

(3.) Pursuant to this order of this Court, the petitioner was sent to a Govt. hospital for his ossification test which was held on 20-7-95. According to the ossification test report, the petitioner was aged between 20 and 21 years on the date of examination. If one goes by this report, the petitioner would have been aged between 16 years 8 months and 17 years 8 months on 17-3-92, the date of commission of the offence. The learned Judge, who proceeded to determine the age afresh on the basis of the materials already on record and the new material, that is to say, the ossification test report was of the view that as there was clear discrepancy between the evidence afforded by the school register as well as the voters' list regarding the age of the petitioner which were based on the statement of the petitioners' parents, no reliance could be placed on either of them. The learned Judge relied on the ossification test report and came to a finding that the accused-petitioner was aged more than 16 years at the time of commission of the offence and accordingly by Order No. 26 dated 13-9-95, the learned Judge rejected the prayer of the accused-petitioner to be dealt with under the Juvenile Justice Act. Being aggrieved by this order, the accused-petitioner has come up in the present revision.