IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.142 of 2008
DHARMENDRA KUMAR SON OF LATE BALESHWAR PD.
R/O- VILLAGE BRANDI, P.S.- RAHUI, DISTT- NALANDA
Versus
1. THE STATE OF BIHAR
2. SURAJDEO PASWAN SON OF BALLABH PASWAN,
R/O- VILLAGE BRANDI, P.S.- RAHUI, DISTT- NALANDA.
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4 10.03.2011 Heard learned for the petitioner and the State.
Informant of Rahui P.S. case No. 116 of 2006
registered under Sections 302/34 IPC, is aggrieved by order
dated 19.2.2007 passed by learned Addl. Sessions Judge,
F.T.C., Nalanda at Biharsharif on Cr. Appeal No. 172 of
2007/48/2007 whereby the O.P. No. 2 herein has been
declared juvenile in terms of the provisions of Juvenile
Justice Act 2000.
It appears that an F.I.R. was lodged wherein the
O.P. No. 2 was made accused. A claim of juvenility was
raised on behalf of O.P. No. 2. The matter was inquired into
wherein the opinion of the Medical Board was also obtained
for determination of age. Certain documents were produced
on behalf of the O.P. No. 2 including the admission register
of Middle School, Brandi, District- Nalanda according to
which his date of birth was 16.3.1989. Witnesses were also
examined. The Medical Board submitted its report
(Annexure-1) assessing him between 18 to 19 years on the
date of report. The informant also produced certain
2
documents including voter list in order to show that he was
not juvenile/minor on the date of occurrence i.e.. 27.8.2006.
Learned Juvenile Justice Board by order dated 31.8.2007
rejected the said claim observing as under;-
“It is essential to mention here that the
medical Board has assessed the age of
Suryadeo Paswan in between 18-19 years
but as per medical jurisprudence the age
assessed by the medical Board will be
either plus or minus two years but our 22 JJ
Rules speaks by margin of one year plus or
minus and this case. The concept of lawyer
is difficult to be accepted. From physical
appearance it is very much evident that
bear and moustache have been developed
on the person Suryadeo Paswan.
Therefore, the age of Suryadeo Paswan is
above 18 years on alleged date of
occurrence i.e. 27.8.06.”
Aggrieved over the said order, the O.P. No. 2
preferred appeal which was considered and disposed by the
order impugned.
Learned counsel for the petitioner, while assailing
the order impugned, submits that learned Juvenile Justice
Board had rightly rejected the claim of the O.P. No. 2.
Learned Appellate Court has not assigned adequate
reasons for allowing the appeal and interfering with the order
of learned Juvenile Justice Board.
This Court finds from the appellate order that the
finding based on assessment of age made by the Board on
physical appearance of the opposite party has been given
weightage over the material on record. Determination of age
3
of a delinquent is a complex exercise. The Act, therefore,
does not lay down any inflexible or fixed norms which could
be applied for determining the age of a person. This
Legislation has been found by Courts to be a welfare
legislation and the effort of the Court should be to see that a
juvenile derives full benefits of the provisions of the Act.
However, this is subject to one rider that the provisions of
the Act should not be allowed to be misused by
unscrupulous persons to escape punishment. Reference in
this regard may be made to judgment of the Hon’ble
Supreme Court rendered in the case of Babloo Pasi versus
State of Jharkhand since reported in (2008) 13 S.C.C. 133.
A Bench of this Court in the case of Dhanjay Singh versus
State of Bihar since reported in 2004 (2) PLJR 218 has
deprecated ascertainment of age of a juvenile based on
personal assessment made by the Court. It has been found
therein that true it is that Court is considered to be expert of
experts but this principle has its own limitations.
Learned Appellate Court in paragraph No. 10 has
observed as under:
” From the oral evidence and the Ext. 1 the
page No. 29 of Admission Register of year
1993 of the said school, it has also been
found that there is no any fact on the record
to create any doubt upon the same as
discussed above. From the case law referred
above of the Hon’ble Apex Court I am also of
view that while ascertaining the question of
the determination of the age of the accused
for the purpose of finding out whether he is
juvenile or not a higher technical approach
4should not be adopted while appreciating the
evidence adduced on behalf of the accused
in support of the plea that he was a juvenile.
And if two views may be possible on the said
evidences the Court should lean in favour of
holding the accused to be a juvenile in
boarder line cases. From the discussions in
respect of the report of Medical Board it has
already been found three views after minus
and plus of one year of age 17-18 year i.e.
the age of appellant accused may be either
16-17 years or 17-18 year or 18-19 years.
Under the circumstances it should be lean in
favour of holding the accused to be a
juvenile in boarder line cases the age of the
appellant-accused is said to be less than 18
years on 27.8.2006 the date of the alleged
occurrence of the case. ”
Thus, in my view, the order impugned is based
on sound reasonings supported by the provisions of law
interpreted by superior Courts and do not call for any
interference.
The application is dismissed.
pkj (Kishore K. Mandal, J)