SHAHZAD ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS revision application has been filed under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short the Act). It is directed against the judgment and order dated 17.11.2005 passed in Cr. Appeal No. 52 of 2005 by Sri Uday Bhanu Narain Singh, 7th Addl. Sessions Judge, Muzaffarpur by which he has confirmed the order dated 23.9.2005 passed by the Juvenile Justice Board, Muzaffarpur (in short the Board) adjudging the petitioner Md. Shahzad Ansari a major in the eyes of law. The petitioner is an accused in a case under Sections 302, 201, 376 and 120 -B/34 of the Indian Penal Code which is pending trial.

(2.) FROM the facts of the present case it appears that one Sajjad Alam submitted a written report on 10.3.2005 before the Officer Incharge of Parihar police station alleging therein that his seven years old daughter Nagmi Begum had left the residence for the coaching institute in the village at about 6 p.m. Her grand father had also gone with her. On the way the present petitioner alleged to be aged 19 years gave her Gulgulla to eat and also had accompanied her. When by 7 p.m. Nagmi Begam did not return a search for her is started. On the following morning her dead body was found in a bush near Idgah. Her Chappal, Towel, drops of blood and Gulgulla were found in the fuel shed of Md. Islam.

(3.) CR . Appeal No. 52 of the 2005 was filed against this order which was heard and disposed of by the 7th Addl. Sessions Judge, Muzaffarpur who by his order dated 17.11.2005 dismissed the same. It is against this order that the present application has been filed. It has been contended that both the orders, namely, the order passed by the Board as also the order passed by the learned 7th Addl. Sessions Judge are bad in law, misconceived and fit to be set aside. It has been pointed out that the learned Court below has wrongly relied on the case of Arnit Das V/s. State of Bihar, 2000 (1) East Cr C 548 (Pat) : 2000 (1) PCCR 400, to hold that the relevant date for ascertainment of the age of the petitioner was the date of his production before the Board since this decision has been over -ruled by a Bench of five Hon ble Judges of the Hon ble Supreme Court in the case of Pratap Singh V/s. State of Jharkhand, reported in 2005 (2) East Cr C 244 (SC) : 2005 (3) East Cr C 244 (SC) : 2005 Cri LJ 309. In this decision it was held that the relevant date for determining the age to declare an offender as juvenile is the date of occurrence and not the date of his production before the Board. Both the Courts below have also erred in law in discarding the report of the Medical Board on the misconceived assumption and on hypothetical basis. It is well settled that if two views are possible the view which is favourable to the accused should be accepted. The learned Courts below came to the wrong conclusion that the age of the petitioner was 19 years on the basis of his physical appearance in the first remand order. The physical appearance cannot be made a basis for ascertaining the age of an accused. The Courts below have wrongly rejected the statement oh oath of the parents of the petitioner. The learned Addl. Sessions Judge has failed to appreciate the judgment reported in 2005 (3) BLJR 325. which is fully applicable to the facts of the present case. On these grounds it has been prayed that the impugned orders be set aside and the petitioner be declared to be a Juvenile.