Judgment:
ORDER
Piyush Mathur, J.
1. This criminal revision has been preferred on being aggrieved by the order passed on dated 11-8-2009 by the Sessions Judge, Gwalior, in Sessions Trial No. 206/09, whereby an application filed for determination of the age of accused Banti alias Santosh, s/o Malkhan Singh Parihar, for declaring him to be a Juvenile has been rejected.
2. The prosecution has submitted a charge-sheet/challan against the petitioner/accused Banti alias Santosh under Section 302/34 of the Indian Penal Code read with Section 25/27 of the Arms Act as petitioner-Banti and co-accused Soni had caused injuries to one Uma on dated 25-7-2009 who died due to gun shot injuries.
3. The petitioner has submitted an application on dated 14-7-2009 before the Sessions Court, during the pendency of the Sessions Trial that his age is less than 18 years and as such, he should be tried by the Juvenile Court/Juvenile Board in terms of the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000, and which was forwarded by the Sessions Court to the Juvenile Board for the ascertainment and determination of the age of the accused-petitioner.
4. The Juvenile Board has collected the evidence and subjected the accused to the medical examination and recorded its opinion, based upon the oral and documentary evidence that the accused Banti was less than 19 years of age, but not more than 21 years of age on the date of the incident, i.e., on dated 25-7-2009.
5. The report of the Juvenile Board dated 6-8-2009 was considered by the Sessions Court and the application preferred by the accused was rejected on the ground that the accused was aged 18 years, 8 months and 13 days on the date of the incident. The accused-petitioner has challenged this order dated 11-8-2009 passed by the Sessions Court in this Criminal Revision.
6. The Counsel for the petitioner has submitted that the finding of the Juvenile Board and the conclusion of the Sessions Court, derived on the strength of the Medical Report of the Radiologist, cannot be relied upon as there exists a difference of two years in between the two terminal years and that could not be treated to be a conclusive evidence of the exact age of the petitioner and since the Sessions Court has primarily and solely based its conclusion on the report of the Radiologist, therefore, the findings are perverse.
7. The Counsel for the petitioner has further relied upon the mark-sheet of the Board Examination of Class 5th, where a specific date 22-4-1992 has been mentioned and an argument has been advanced on this basis that since the document is 17 years old, therefore, its content should be considered and relied upon for the purposes of determination of the age of the petitioner-accused.
8. The Counsel for the State has opposed the contentions of the petitioner on the ground that the Sessions Court has not committed any error in determining the age of the accused. He further submitted that the procedure prescribed in the Juvenile Justice (Care & Protection of Children) Act, 2000, as also the Rules framed in the year 2007, has been followed in letter and spirit both, in as much as the Juvenile Board has examined all the documents including the report of Medical Board, School Certificate and the statements of the witnesses and has classified the Categories of the evidence, in terms of Rule 12 of the Juvenile Justice Rules, 2007, and as such, there exists sufficient evidence to corroborate the report of the Radiologist with the exact age of the accused.
9. It is apparent from the perusal of the record that the accused was subjected to the Radiological Examination, where a categorical finding has been recorded by the Medical Board that when the X-ray Plates of right elbow joint and right iliac bone were obtained and examined, it was found that there was a clear fusion of the joints and the iliac fusion was on the verge of its completion, which demonstrates that the accused must be bordering in between 19 to 21 years of age. Therefore, there remains no doubt about the correctness of the conclusion arrived at by the Court below that the accused was certainly above the age of 18 years and was not a Juvenile on the date of incident, in terms of the provisions of the Juvenile Justice (Care & Protection of Children) Act, 2000.
10. The issue of determination of date of birth had come up before the Supreme Court on many occasions, and in its latest decision in the case of Babloo Past v. State of Jharkhand reported as (2008) 13 SCC 133, the Supreme Court had observed that the procedure prescribed in the Juvenile Justice (Care & Protection of Children) Act, 2000 has to be strictly followed and the report of the Medical Board should be relied upon only when it gives sound reasonings about the age of the person.
11. The ossification test and the exact opinion of the Medical Board in relation to the fusion of the iliac bone, gives a conclusive evidence of the fact that the accused was about to complete 21 years of age and as such, it could not be said that he was below the age of 18 years at the time of the occurrence of the incident.
12. Therefore, when the opinion of the Medical Board find confirmation with the established norms in the field of Medicine and Radiology, the Expert's Opinion becomes the primary evidence for reaching the conclusion about the age of the person, who was subjected to such medical examination. The Sessions Court has analytically and correctly examined the other evidence brought on the record on behalf of the accused about his age and has rightly given weightage to the Medical Report in comparison to other set of evidence, on being found to be trustworthy and reliable. Therefore, this Court find no reason to interfere with the order passed by the Sessions Court.
Consequently, the revision petition is dismissed.
A copy of this order be sent to the concerned Trial Court.