Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Onkar Tiwari Alias Karia vs State Of U.P. on 8 August, 2000
Equivalent citations: 2000 CriLJ 4723
Author: B Rathi
Bench: B Rathi


ORDER

B.K. Rathi, J.

1. Both these revisions involve same question for decision and they are being disposed of by this common judgment.

2. I have heard Sri Namwar Singh and Sri B. N. Singh, learned counsel for the revisionist and the A.G.A.

3. The facts giving rise to these revisions are as follows :

The revisionist is an accused in Case Crime No. 165 of 1999 under Sections 302 and 307, I.P.C. and Section 3(2)(5) S.C./S.T. Act, P. S. Rampur Karkhana, District Deoria. He was arrested by the police in the above crime and was sent to jail. The applicant moved an application before the Juvenile Judge that he is a juvenile. The Juvenile Judge, Deoria by an order dated 2-11-99 declared the revisionist as ajuvenile. Against that order, State of U. P. preferred Criminal Appeal No. 2 of 2000, which has been decided by the Special Judge, (S.C./S.T. Act) Deoria on 14-6-2000 and the order of the Juvenile Judge dated 2-11-99 holding the revisionist as ajuvenile, has been set aside. Aggrieved by the same, Criminal Revision No. 1134 of 2000 has been filed by the revisionist.

4. After declaration of the revisionist as a juvenile by the Juvenile Judge by an order dated 2-11-99, the revisionist moved an application for bail in the above crime under Section 18 of the Juvenile Justice Act. However, his application for bail has been rejected by the Juvenile Judge. Against that order, Criminal Appeal No. 1 of 2000 was preferred by the revisionist for bail under Section 37 of the Juvenile Justice Act. That appeal has been dismissed on 14-6-2000 on two grounds. Firstly, that the applicant is also involved in three other crimes and secondly, the order of the Juvenile Judge dated 2-11-99 has been set aside. Aggrieved by that order, Criminal Revision No. 1135 of 2000 has been filed.

5. The main question for decision in both the revisions is whether the revisionist is a juvenile. In support of the same, the revisionist filed the Kutumb Register and also the School Leaving Certificate. As regards the School Leaving Certificate, it appears from the judgment of the learned Special Judge (S.C./S.T. Act), Deoria that a photostat copy was filed. It was sent for verification and on verification it was found to be forged and that it was issued from the alleged school. Therefore, the School Leaving Certificate is not relevant in this case.

6. The other evidence filed was the Kutumb Register in which the date of birth of the revisionist is mentioned as 15-10-85, which has been rejected by the learned Special Judge for valid reasons and he has mentioned that there are abundant chances for fabricating the documents. The entries in the Kutumb Register are never made in regular course. The Kutumb Register is an evidence to show that the person is living in the family, but not an evidence regarding the age. The document regarding age is the Birth and Death Register. Therefore, the Kutumb Register is also of no help for determining the age of the revisionist.

7. The last evidence is the certificate of the C.M.O. according to which the revisionist was about 17 years of age. It is contended that the learned Special Judge has wrongly rejected that certificate and recorded a finding against the certificate. It has been argued that there are consistent decisions that in the estimation of the age given by the C.M.O. on the basis of radiological tests, there can be a difference of two years on either side. It is contended that the benefit of the same should be given to the accused.

8. I agree that the certificate of the C.M.O. regarding the age is an opinion evidence, in which there can be a difference of two years. However, the benefit of the same, in every case, cannot be given to the accused. In any case, its benefit cannot be given to the revisionist to declare him to be a juvenile. The learned Special Judge considered the data of certificate in great detail with the help of the opinion of Medico-legal Experts as expressed in the text-books and expressed his opinion that the age might be between 17-18 and cannot be below 17 years.

9. The following observation of the learned Special Judge is fit to be extracted from his judgment:

The C.M.O. has opined after examination the age of the accused-applicant Onkar Tiwari alias Karia to be about 17 years. This is based on his perusal examination of teeth, hair and X-ray report. On X-ray report all the epiphyses around the elbow and wrist joint were found to be fused. He also found that epiphyses of hip joint is also fused. He found 16 upper and 16 lower, in all 32 teeth and in minor signs he found that the hair of the head were fully developed and were in black colour whereas the hair on upper lip was scanty but pubic hairs were well developed. No hair on chin. According to Medical Jurisprudence of Dr. N. J. Modi hair begins to appear on the chin and upper lip between 16 to 18 years. Dr. Modi has also opined a thick growth of dark hair is well marked on the pubis at about 16 or 17 years and third molars and teeth appear between 17 to 25 years.

Dr. Modi has also opined that fusion of epiphyses around the elbow joint, wrist and hip take place after 17 years. Thus the opinion given by the doctor is based on certain examination and data given by him, which shows that the age of Onkar Tiwari was not less than 17 years at the time of the occurrence.

10. The reasonings recorded by the Special Judge are very sound and show that the revisionist was not below 17 years at the time and date of incident. It was, therefore, rightly held that he was not a juvenile.

11. In view of the above, I have no reason to interfere in the order challenged in Criminal Revision No. 1134 of 2000 and the same is liable to be dismissed.

12. As regards the impugned order in Criminal Revision No. 1135 of 2000 it is sufficient to mention that in view of the finding that the revisionist is not a juvenile, he is not entitled to bail under Section 18 of the Juvenile Justice Act.

13. Both the revisions are accordingly dismissed.


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