Nadeem Alias Kaliya vs State Of U.P. And Anr.
2023 Latest Caselaw 10193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on  29.03.2023
 
                                                                           Delivered on 07.04.2023
 

 
Court No. - 72
 

 
Case :- CRIMINAL REVISION No. - 2913 of 2019
 

 
Revisionist :- Nadeem Alias Kaliya
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Bhavya Sahai
 
Counsel for Opposite Party :- G.A.,Avnish Kumar Srivastava
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard Sri Brijesh Sahai, learned Senior Advocate assisted by Sri Bhavya Sahai, learned counsel for the revisionist and Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Avnish Kumar Srivastava, learned counsel for the opposite party no. 2.

This revision has been preferred against the judgement and order dated 04.07.2019 passed in Juvenile Criminal Appeal No. 08 of 2019 arising out of Case Crime No. 131 of 2003 under Sections 147, 148, 149, 307 and 302 IPC, Police Station Kotwali, District Meerut.

As per facts of the case Sessions Trial Nos. 668, 669 and 671 of 2003, Case Crime No. 131 of 2003 and 134 of 2003 respectively under Sections 147, 148, 149, 307, 302 IPC and 25/27 Arms Act, Police Station Kotwali, District Meerut were decided by the trial court vide judgement dated 04.08.2007 and all the four accused persons were found guilty. The case was decided into capital punishment. Criminal Reference No. 21 of 2007 - State Vs. Khalid and others, was made to this court to confirm the capital punishment. The accused persons also filed Criminal Appeal No. 5169 of 2007 - Khalid and others Vs. State of U.P. before this court. Both the reference and criminal appeal were heard together by the Division Bench of this court. The reference was dismissed and the appeal was partly allowed vide judgment and order dated 05.09.2008. The death sentence was set aside and was commuted to life imprisonment i.e. imprisonment for whole life with the provision that the accused persons shall not be entitled to be considered for remission of sentence, unless they have undergone an actual term of 20 years imprisonment including the period already undergone by them. The sentence of fine awarded to the appellants under Sections 302/149 IPC as well as sentence of imprisonment and fine awarded to them under Section 307/149 and 148 IPC and the conviction of accused appellants Tahir and Moinuddin and the sentence awarded to them under Section 25 Arms Act were upheld. All the sentences of imprisonment were to run concurrently. The convict/revisionist along with other co-accused persons was thereafter transferred to Central Jail, Agra to serve the sentence.

One Sister Sheeba Jose, a lawyer and human right activist, filed a Public Interest Litigation No. 855 of 2012 (Sister Sheeba Jose Vs. State of U.P. and others) before this Court for release of the prisoners, who may have been below 18 years of age at the time of incident and were detained in various district or Central Jail. For Agra, Central Jail a list of 18 prisoners was made for grant of such relief. This writ petition was decided by the division bench of this Court vide order dated 24.05.2012 and directions were issued to the District Judges, who were also the Chairpersons of their Legal Services Authorities to see that the efficient lawyers were appointed for the purpose of providing legal aid to the prisoners, who were unable to engage private lawyers and who were mentioned in the list furnished by the State Government and described to be below 18 years in age on the date of commission of offence. The present applicant applied (through Jail Superintendent, Central Jail, Agra) before the Secretary, District Legal Services Authority for providing him legal aid. On his application, the District Legal Services Authority appointed an advocate for providing him legal aid and thereafter on 22.03.2017 an application was moved on behalf of the revisionist before the Juvenile Justice Board, Agra claiming therein that he was juvenile at the time of incident and as he was not literate and having no documentary evidence regarding his age, as such by constituting a medical board his age may be determined. His medical was done by the medical board and on the basis of report of medical board dated 19.04.2017 the Principal Magistrate, Juvenile Justice Board, Agra vide order dated 22.04.2017 declared the revisionist juvenile on the date of incident.

On various grounds and vide order dated 03.05.2017 of Juvenile Justice Board, Agra the revisionist, who was said to had served incarceration of more than 13 years 10 months, was ordered to be released from the jail. Against these orders dated 22.04.2017 and 03.05.2017 Application U/S 482 No. 18718 of 2017 was filed by Dr. Mohd Iqbal Gaji, which was withdrawn by him on 11.10.2017 with the version that against these orders the remedy of appeal has been provided in the statute and the application had been filed in the wrong court, hence, with liberty to avail proper legal remedy against the orders, the permission to withdraw this application was seeked, which was allowed accordingly. Then an appeal was filed by Haji Baseeruddin, opposite party no. 2 against the orders dated 22.04.2017 and 03.05.2017, which was allowed vide order dated 04.07.2019 of the Sessions Judge, Agra. The orders dated 22.04.2017 and 03.05.2017 were set aside and the revisionist/accused was ordered to be arrested by issuing non bailable warrant against him.

Admittedly, the revisionist remained absconding and the processes were issued by the concerned court for his arrest. At last vide order dated 17.05.2022 in Writ Petition (Criminal) No. 155 of 2022 the revisionist was directed to be released on bail subject to the conditions to be imposed by the trial court until further orders and vide order dated 06.09.2022 in the same writ petition the Apex Court disposed of the writ petition with the request to this court to dispose of the Criminal Misc. Application No. 20368 of 2017 of the co-accused and Criminal Revision No. 2913 of 2019 (present revision) as expeditiously as possible not later than six months.

This revision was placed before this court along with Application U/S 482 No. 20368 of 2017 of the co-accused on 22.03.2023 for the first time and the learned counsel for the applicant in application under Section 482 Cr.P.C. seeked time so that he may inform the counsel for the revisionist and accordingly 28.03.2023 was fixed and on 28.03.2023 the arguments were heard in Application U/S 482 No. 20368 of 2017 and due to paucity of time on next date i.e. 29.03.2023 the arguments on present revision were heard.

The present revision has been preferred against the order dated 04.07.2019 of the Sessions Judge, Agra in Criminal Appeal No. 08 of 2019 related to Case Crime No. 131 of 2003.

The judgment is assailed on the ground that the impugned judgment is against the settled principles of law. It is based on surmises and conjectures. The District Judge, Agra misread the record, thus, the order is arbitrary and against the principle of natural justice and not sustainable. The provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act have not been followed, whereby the educational certificate/birth certificate by a corporation or municipality or panchayat/ ossification test are relevant for the purpose of determination of age. As per provisions of Juvenile Justice (Care and Protection of Children) Act, the voter ID, statement under Section 313 Cr.P.C. and arms license are irrelevant for the purpose of determination of age. No admissible evidence could be attributed by the appellant regarding the age of the accused revisionist. The order has been passed mechanically and without application of mind, which needs to be quashed.

Admittedly, a person can move an application claiming himself to be juvenile at any stage of the case and even after the judgement of the case. As in the present case, the judgement in S.T. No. 668, 669 and 671 of 2003 was passed on 04.08.2017 and the application for declaring him to be juvenile was moved by the revisionist in the year 2017 and on his medical examination by the medical board, report was submitted on 19.04.2017 and vide order dated 22.04.2017 the revisionist was declared juvenile. On 03.05.2017 he was ordered to be released from the Central Jail.

The only law question involved in this revision is whether in the presence of report of medical examination by the medical board the appellate court could find the revisionist major on the date of incident on the basis of other evidence on record?

Admittedly, this appeal was decided in the absence of revisionist finding sufficient service by refusal on him.

The incident is dated 07.06.2003. Admittedly, at that time Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act') was prevalent and later on in 2007, Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 'Rules 2007') were framed. Regarding procedure for a claim of juvenility Section 7A and Section 49 of the Act are apposite to mention here:-

[7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.]

49. Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.

A reading of Section 7A of the Act makes it clear that as per Section 7A (1) claim of juvenility shall be determined in terms of provisions contained in the Act and the Rules made therein even if the juvenile ceased to be so on or before commencement of this act.

In the case in hand, an application for declaring him juvenile was moved by the present revisionist in the year 2017, till then the above Rules, 2007 had been framed, hence, regarding determination of age of the revisionist Rule 12 of the Rules, 2007 shall be applied.

Rule 12 of the Rules, 2007 runs as under:-

12 Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or Ihe juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

Thus, as per learned counsel for the revisionist for declaration of a person to be juvenile in conflict with law, the court or the board shall determine the age of the child by inquiry and seeking evidence by obtaining (1) the matriculation or equivalent certificates available and in the absence whereof (2) the date of birth certificate from the school (other than a play school) first attended and in the absence whereof (3) the birth certificate given by a corporation or a municipal authority or a panchayat and in the absence of above three, the medical opinion will be sought from a duly constituted Medical Board, that would declare the age of the juvenile or child. In case exact assessment of the age could not be done, the Court or the Board, for the reasons to be recorded, give benefit to the child/juvenile by considering his/her age on lower side within the margin of one year.

It is the version of the learned counsel for the revisionist that as in the present case the revisionist was illiterate person so his matriculation or equivalent certificate or the date of birth certificate from any school were not available and the certificate of any corporation or municipal authority or panchayat was also not available, so the Juvenile Justice Board rightly relied upon the report of medical examination done by the medical board and declared the revisionist juvenile.

This argument of the revisionist counsel is assailed on various grounds.

It is submitted by the learned counsel for the opposite party no. 2 that the medical examination report submitted by the medical board dated 19.04.2017 does not bear the thumb impression/ signature of the revisionist so in the absence of thumb impression/signature of the revisionist this certificate has no legal sanctity and is a bare piece of paper and when there was neither any educational certificate nor any certificate issued by the municipal board or panchayat nor any reliable medical report, the court was free to collect other evidence which could be available before the court and pass an order accordingly.

Learned counsel for the opposite party no. 2 placed before the court judgement in Ram Vijay Singh Vs. State of Uttar Pradesh, LL 2021 SC 117 wherein the apex court held that the medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other circumstances. Paragraphs 26, 27 and 28 of the judgement in Mukarrab & others Vs. State of Uttar Pradesh (2017) 2 SCC 210 were referred in that judgement. These paragraphs run as under:-

"26. Having regard to the circumstances of this case, a blind and mechanical view regarding the age of a person cannot be adopted solely on the basis of the medical opinion by the radiological examination. At p. 31 of Modi's Textbook of Medical Jurisprudence and Toxicology, 20th Edn., it has been stated as follows:

"In ascertaining the age of young persons radiograms of any of the main joints of the upper or the lower extremity of both sides of the body should be taken, an opinion should be given according to the following Table, but it must be remembered that too much reliance should not be placed on this Table as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development."

Courts have taken judicial notice of this fact and have always held that the evidence afforded by radiological examination is no doubt a useful guiding factor for determining the age of a person but the evidence is not of a conclusive and incontrovertible nature and it is subject to a margin of error. Medical evidence as to the age of a person though a very useful guiding factor is not conclusive and has to be considered along with other circumstances.

27. In a recent judgment, State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], it was held that the ossification test is not the sole criteria for age determination. Following Babloo Pasi [Babloo Pasi v. State of Jharkhand, (2008) 13 SCC 133 : (2009) 3 SCC (Cri) 266] and Anoop Singh cases [State of M.P. v. Anoop Singh, (2015) 7 SCC 773 : (2015) 4 SCC (Cri) 208], we hold that ossification test cannot be regarded as conclusive when it comes to ascertaining the age of a person. More so, the appellants herein have certainly crossed the age of thirty years which is an important factor to be taken into account as age cannot be determined with precision. In fact in the medical report of the appellants, it is stated that there was no indication for dental x-rays since both the accused were beyond 25 years of age.

28. At this juncture, we may usefully refer to an article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan", which reads as under:

"There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion.

[Ref.: Gray H. Gray's Anatomy, 37th Edn., Churchill Livingstone Edinburgh London Melbourne and New York: 1996; 341-342];

A careful examination of teeth and ossification at wrist joint provide valuable data for age estimation in children.

[Ref.: Parikh C.K. Parikh's Textbook of Medical Jurisprudence and Toxicology, 5th Edn., Mumbai Medico- Legal Centre Colaba: 1990; 44-45];

Variations in the appearance of centre of ossification at wrist joint shows influence of race, climate, diet and regional factors. Ossification centres for the distal ends of radius and ulna consistent with present study vide article "A study of wrist ossification for age estimation in paediatric group in Central Rajasthan" by Dr Ashutosh Srivastav, Senior Demonstrator and a team of other doctors, Journal of Indian Academy of Forensic Medicine (JIAFM), 2004; 26(4). ISSN 0971-0973].

It was argued on the basis of this finding of the Apex Court that no dental x-ray of the revisionist was done. It was also argued that examination of teeth and ossification, wrist and joint would be considered for age estimation in children and as per medical report itself the revisionist is found to be 29 years of age presently, hence, his age cannot be said to be assessed more accurately.

This argument of the learned counsel for the opposite party no. 2 was opposed by the learned counsel for the revisionist on the ground that as per findings of this judgement no medical reprot was available before the court and in absence of medical report, when High School certificate or the certificate of first school or Nagar Nigam or Panchayat were already not available then only on the basis of admission of the accused revisionist made in the arm license, the age of the accused was determined.

If we go through the provisions of the Act in this regard in Section 7A itself speaks that "whenever a claim is made by the accused in the court and the court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry," which clearly indicates that from the physical appearance of the accused if the court finds prima-facie that the inquiry is must in the matter to determine the age of the person only then the inquiry shall be held. As is opined by the Apex Court in para-15 of the judgement Ram Vijay Singh (supra), which is as under:-

15. As per the Scheme of the Act, when it is obvious to the Committee or the Board, based on the appearance of the person, that the said person is a child, the Board or Committee shall record observations stating the age of the Child as nearly as may be without waiting for further confirmation of the age. Therefore, the first attempt to determine the age is by assessing the physical appearance of the person when brought before the Board or the Committee. It is only in case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. However, when the person is around 40-55 years of age, the structure of bones cannot be helpful in determining the age. This Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. (2020)7SCC 1 held, in the context of certificate required under Section 65B of the Evidence Act, 1872, that as per the Latin maxim, lex non cogit ad impossibilia, law does not demand the impossible. Thus, when the ossification test cannot yield trustworthy and reliable results, such test cannot be made a basis to determine the age of the person concerned on the date of incident. Therefore, in the absence of any reliable trustworthy medical evidence to find out age of the appellant, the ossification test conducted in year 2020 when the appellant was 55 years of age cannot be conclusive to declare him as a juvenile on the date of the incident.

Thus, first attempt of the court to determine the age of the accused is by assessing the physical appearance of the person when brought before the medical board or the committee and it is only in the case of doubt that the process of age determination by seeking other evidence becomes necessary.

If we go through the order of the medical board dated 22.04.2017 wherein on the date of incident the age of the revisionist is determined to be 15 years, 01 month and 18 days, while in his statement under Section 313 Cr.P.C. the accused has disclosed himself to be of 26 years. Thus, he was about 23 years old on the date of incident. Had the accused been 15 years of age on the date of incident it could have very well be assessed by the court by his physical appearance when he used to appear in the trial court at the time of hearing of the trial. Admittedly during complete trial the revisionist remained in jail and he might have appeared from the jail in the court. Thus, in compliance of Section 7A of the Act, the trial court never assessed the accused to be juvenile on his appearance from the jail, so no process of age determination by seeking any evidence was adopted by the trial court. The revisionist himself from the year 2003 till 2017 when he remained in jail for about 13-14 years, he never claimed himself to be a juvenile and its reason has not been disclosed by the revisionist anywhere.

It is argued by the learned counsel for the revisionist that the appeal was heard in the absence of the accused. In the judgment of the appeal itself it has been mentioned that the process was send to the revisionist and the service on him was found to be sufficient by refusal. Admittedly, since the release of the revisionist from the jail after 2017 till today he has not appeared before the court. He is absconding. Even in the revision the affidavit of Subhan Jamal, the nephew of the revisionist, has been filed in support of the prayer in the revision. Thus, it can be said that revisionist has not come in the revisional court with clean hands.

It is also argued by the learned counsel for the opposite party no. 2 that the medical report of the medical board, which was relied upon by the Juvenile Justice Board, does not bear the thumb impression/signature of the revisionist, which makes the report unreliable and in the absence of any medical report the court was bound to decide the age of the accused on the basis of other evidence present on record. A perusal of the medical report submitted by medical board clearly shows that it does not bear the thumb impression or signatures of the accused and this report is of no importance in the absence of the thumb impression or signatures of the convict/revisionist.

In compliance of court's order dated 24.05.2012 passed in Criminal Writ - Public Interest Litigation No. 855 of 2012, the list of 18 persons was prepared in the Central Jail Agra and the age of these 18 persons was to be determined to be below 18 years by the Principal Judge, Juvenile Justice Board. As per the learned counsel for the opposite party no. 2 this list did not include the name of the present revisionist and he, with the ill intention against the order of this court, moved an application through Jail Superintendent before the Juvenile Justice Board to declare him juvenile. As the list of 18 persons prepared in the Central Jail, Agra, for assessing those persons to be juvenile on the date of the incident, is not placed before the court, so this argument of the learned counsel for the opposite party no. 2 has no force.

However, this is admitted fact that the division bench of this court vide order dated 24.05.2012 in Criminal Writ - Public Interest Litigation No. 855 of 2012, held for determination of age of the persons, who may be below 18 years of age on the date of commission of offence and who appear to be wrongly lodged in the regular prisons for adults. It was clearly opined by the division bench that the prosecution and the complainant will also, of course, be given an opportunity to examine their own witnesses and to cross-examine the witnesses, who have been got examined on behalf of the accused and for that purpose notice of the proceedings before the J.J. Board shall be served on the complainant/ prosecution. Admittedly and also from perusal of the impugned order dated 22.04.2017 the presence of the complainant or his counsel is not noted therein. However, learned ADGC is shown to be heard while passing order dated 22.04.2017, but in compliance of this court's order dated 24.05.2012 the complainant was neither heard nor given a notice before being heard. This is not the version of the revisionist also that the complaint was served or his counsel was heard at the time of passing order dated 22.04.2017. There is nothing on record to show that before determination of age of the accused the complainant/opposite party no. 2 was ever heard. Thus, order dated 22.04.2017 was clearly an exparte order wherein the complainant was never given an opportunity of appearing or being heard, wherein in the present appeal it is clear finding of the appellate court that the service on revisionist was found sufficient by refusal.

It is also argued by the learned counsel for the opposite party no. 2 that the Juvenile Justice Board, Agra had no jurisdiction to determine the age of the accused as the matter belonged to District Meerut and it was after conviction from Meerut District Court only that the accused was lodged in Central Jail, Agra. This fact does not give authority to Juvenile Justice Board, Agra to hear the application of age determination of the accused/convict.

In this regard, para-2 of Section 7A(1) is apposite to mention here as under:-

[7A. Procedure to be followed when claim of juvenility is raised before any court.- (1) ........

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

From the above provision, the word 'any court' means the trial court/High Court/Apex Court. It does not mean that any court in U.P. wherever a person wants an application to be moved he could move the same. As the case belonged to District Meerut and it was decided by the District Court Meerut, the District Court, Meerut/Principal Magistrate, Juvenile Justice Board, Meerut only had jurisdiction to decide the question of juvenility of the applicant. Thus, the order dated 22.04.2017 passed by the Principal Magistrate, Juvenile Justice Board, Agra was an order passed without jurisdiction.

It is however further argued by the learned counsel for the opposite party no. 2 that as per the statement under Section 313 Cr.P.C. of the accused he disclosed himself to be 26 years old on 16.05.2006, thus, according to his own admission his age on the date of incident becomes about 22 years and 11 months. In the voter list also in the year 2017, his age is shown to be 40 years, thus, his age becomes 26 years on the date of incident. As per the judgment of the trial court, the revisionist was acquitted for the offence under Section 25 of Arms Act on the ground that he was having a valid gun license in his name. This fact is not opposed by the learned counsel for the revisionist. As gun license is issued in favour of a major person so on this basis also accused was claimed to be major on the date of incident.

Again the attention of the court is drawn that the present revisionist by the name Gulam Shahjad @ Kaliya s/o Jamiluddin has put his thumb impression on agreements to sale dated 20.09.2000 and 15.09.2000 and on a revocable power of attorney dated 27.08.1998. All these documents on record show that on the respective dates the revisionist was major and only then he put his signatures as a major person on the dates mentioned therein on the agreements to sale and the power of attorney. Thus, it was argued by the learned counsel for the opposite party no. 2 that in his statement under Section 313 Cr.P.C., in his valid gun license, on two agreement to sale and power of attorney, the revisionist by putting his thumb impression/signatures himself has admitted to be major on the date of incident.

Learned counsel for the revisionist, however, opposed these arguments and submitted that as the revisionist was minor on the date of incident, so he was not prudent enough to make an admission about his age.

However, the court is not convinced with this argument of the learned counsel for the revisionist.

In compliance of Rule 12 of the Rules, 2007, the revisionist was not having any matriculation or equivalent certificate or birth certificate from any school, corporation, municipal board or panchayat. In absence of these documents his medical was done by the medical board and that medical report does not bear the thumb impression/signature of the accused thereby the presence of the revisionist at the time of medical examination by the medical board cannot be ascertained. Otherwise also, as per above discussion, the age of a person by medical examination can be accurately determined only if he is about 18 years of age and a person, who is shown to be 29 years of age at the time of examination by the medical board, his age cannot be determined by precision. In the light of Section 7A of the Act, on his appearance in the trial court the court never assessed him to be a juvenile to make an inquiry for determination of his age. As per Section 7A of the Act at the time of enquiry the court may take such evidence as it thinks necessary, so as to determine the age of such person and shall record a finding whether the person is juvenile or not. In the present case also, the Appellate Court has clearly reached at a conclusion that at the time of determination of age the complainant was not given a notice while at the time of appeal the revisionist intentionally did not appear before the court even after service by refusal and kept absconding after the non bailable warrants were issued against him by the court concerned. The appellant court found the statement of the revisionist under Section 313 Cr.P.C. and license of DBBL gun issued in the name of revisionist before the date of incident, to be an admission on the part of the accused revisionist of being major on the date of incident. Apart from this, in this court again two agreement to sale and one power of attorney have been placed which bear the thumb impression of the revisionist this again indicates that the revisionist was major before the date of incident as he was putting his thumb impression on the above mentioned documents independently and not under the guardianship of any other person claiming to be minor.

Thus, on the basis of judgement in Ram Vijay Singh (supra) and in absence of any document mentioned in Rule 12 (3a) of Rules, 2007, the only document before the trial court was the report of medical board that was also found to be suspicious not bearing the thumb impression of the revisionist and in the absence of all documents mentioned in Rule 12 above, in the light of Section 7A of the Act, on the basis of evidence produced before the appellate court, the appellate court, in the opinion of this court, has rightly reached at a conclusion that the revisionist was not a juvenile on the date of incident.

In the opinion of this court, the appellate court has rightly placed reliance on the evidence on record other than the medical examination report of the accused and has reached at a right conclusion.

The question whether in the presence of the report of medical examination by the medical board the appellate court could find the revisionist major on the date of incident on the basis of other evidence on record, is decided in affirmative.

There is no illegality, irregularity or improprietary in impugned judgment/order.

The revision having no force is liable to be dismissed.

The revision is hereby dismissed.

Order Date :- 07.04.2023

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