ROOP SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) A Sessions case was committed to the learned Sessions Judge and a question arose before him as to whether non petitioner Surjia alias Surjan Singh is a child within the meaning of Section 2(g) of the Rajasthan ChildrensT Act, 1970 (for short the Act). The learned Sessions Judge under his order dated September 27, 1983 ordered that he shall make an inquiry on the question to whether the accused is a child within the meaning of section 2(g) of the Act or not? Thereafter evidence for the parties were recorded and the learned Sessions Judge under -the impugned order dated February 18, 1984 recorded a finding that the accused-non- petitioner is a child within the meaning of section 2(g) of the Act, because at the time when the offence was committed he had not attained the age of 16 years. Because any offence committed by a child as defined in section 2(g) of the Act Is exclusively triable by a Children's Court. In this case the Chief Judicial Magistrate, Jodhpur the learned Sessions Judge ordered that the case shall be tried by the Children Court. Aggrieved against the order the present revision has been filed.

(2.) The facts relevant for the disposal of the revision petition may now be stated. The accused-non- petitioner is said to have Inflicted Kulhari blow on the bead of Ram Singh on May 18, 1983. F.I.R. No. 17 was registered against the accused-non-petitioner at the Police Station, Mandari under section 302 of the Indian Penal Code. The accused was arrested the same day and in the arrest memo the age of the accused was shown as 18 years. After investigation a charge-sheet was filed against the accused non-petitioner and the learned Magistrate committed the accused to the court of Sessions, Balotra. An application was filed on behalf of the accused-non-petitioner on September 27, 1983 wherein it was stated that at the time when the offence was committed i.e. on May 18, 1983 the accused had not attained the age of 16 years and as such was a child under section 2(d) of the Act. The learned Session Judge gave notice of this application to the Public Prosecutor heard the arguments and held that by virtue of subsection (3) or section 7 of the Act, the Sessions Judge was empowered to exercise powers of the Children Court in so far at the question as to whether the accused is child within the meaning of Section 2(d) of the Act or not and, therefore, be ordered that he will make an inquiry into the question of age of the accused whether he had or not attained the age of 16 years on the date of the offence is said to have been committed. During the course of inquiry on the question of age on behalf of the prosecution the statement of Sampatram (P.W. 1) and Shri Bhagwan Rajmadori, (P.W. 2) were recorded. On behalf of the accused statements of Kanaram (P.W. 1) Gumna (P.W. 2) and Vishnu (P.W. 3) father of accused were recorded. The accused did not examine himself. Besides the ocular evidence the prosecution and the accused also placed reliance on the documentary evidence and the learned Sessions Judge under his order dated February 14. 1984, as already stated earlier held that on the day of the incident i.e. May 18, 1983 the accused had not attained the age of 16 years and, therefore, was a child under section 2(d) of the Act. Because on offence committed by a child is exclusively triable by the Childrens Court and, therefore, the Sessions Judge sent the case to the Children Court for trial in accordance with law.

(3.) The contention of Mr. Bisnoi learned counsel for the petitioner, who is the father of deceased Ramesh is that the finding of the learned Sessions Judge that the accused Sura Jam had not attained the i.e. of 16 years on May 18, 1983 is a perverse finding and is such which could not be arrived at on such evidence. According to him, the learned Sessions Judge has not taken into consideration the very important piece of evidence, Ex. D 5 statement of accused-non-petitioner recorded in criminal case No.218/1979 on February 20, 1981 wherein the accused has given his age as 15 years: the estimate about his age of the learned Sessions Judge was also 15 years. The learned Sessions Judge only referred to this document but did not advert to it. The contention of learned Advocate is that if this document would have been looked into, it would corroborate case of the prosecution that the date of birth of the accused-non-petitioner was May 2, 1966 and the accused had not only attained the age of 16 years but had crossed that age on May 18, 1983. He further contends that the learned Sessions Judge lost sight of the fact that Sampat Raj P.W. I a Head Master knew the accused and his father. According to the statement of Sampatraj be joined his school. Government Primary School, Araha on September 1. 1975 and had left it on August 25, 1976. He, therefore, could not have joined Government Higher Middle School Samdari on July 7, 1976. His last contention is that the best person to depose about age of the accused could have been his father, who has appeared as P.W. 3, but he does not say as to when the accused-non- petitioner was born. He is unable to give the date of birth of any of his children and therefore, the accused failed to prove that he had not attained the age of 16 years on the date when the offence was committed. Mr. Rajpurohit learned counsel for the accused-non-petitioner on the other hand has contended that on the appreciation of evidence the learned Sessions Judge arrived at a finding of fact that the accused non-petitioner had not attained the age of 16 years on the day of the incident I.e. May 18, 1983. The said court had Jurisdiction to record such a finding and as such no jurisdictional error has been committed and while sitting in revision the finding of the learned Sessions Judge on the question of age should not be interfered with. In support of his contention the learned counsel placed reliance on Thakur Ram v. State of Bihar1. Bhawani & Ors. v. State of Rajasthan2. Ramesh Chandra v. State of Rajasthan3, and Mahavir v. State of A.P.4