Allahabad High Court
Mushahid vs State Of U.P. And Another on 24 July, 2023
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:146984
Court No. - 80
Case :- CRIMINAL REVISION No. - 251 of 2022
Revisionist :- Mushahid
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Jadu Nandan Yadav,Agnivesh
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Chandra Sharma,J.
Heard Mr. Pranvesh Advocate, holding brief of Sri J.N. Yadav learned counsel for the revisionist as well as learned A.G.A. for the State and perused the record.
The present criminal revision has been preferred by the revisionist through his father with a prayer to allow this revision and set aside the judgment and order dated 04.08.2021 passed by learned Additional District & Sessions Judge/ Special Judge (POCSO Act), Amroha in Criminal Appeal No. 08 of 2021 as well as order dated 19.01.2021 passed by Juvenile Justice Board, Amroha in Trial No. 491 of 2004 arising out of Case Crime No. 818 of 2004 under Section 302, 307, 411, 394 I.P.C., Police Station Mandi Dhanaura , District Amroha.
It is submitted that in this case the delinquent/ revisionist was convicted by the learned trial court and appeal was dismissed, special leave appeal was also dismissed by the Hon'ble Supreme Court. In the mean time, an application for declaring the revisionist to be juvenile was moved before the learned J.J. Board who conducted the enquiry and in the course of enquiry medical examination of the delinquent was done and his age was determined as 26 years by the doctor. He was also examined as C.W. 2 before the learned J.J. Board in which he deposed the age of the revisionist to be 26 years on the basis of radiological findings. Learned J.J. Board while determining the claim of juvenility held the revisionist to be major on the basis of principles as propounded in Modi's Medical Jurisprudence without considering the opinion of the doctor examined as C.W. 2. No question regarding the opinion as drawn by the Board that the age of the delinquent was about 26 to 30 years on the basis of principles, as contained in Modi's Medical Jurisprudence was put before the doctor C.W. 2 to explain as to why he determined the age of the delinquent to be 26. When the order passed by the learned J.J. Board was questioned in appeal before the learned appellate court the same conclusion was drawn by the learned appellate court without considering the opinion given by the doctor C.W. 2 and without placing the principles of Modi's Medical Jurisprudence before him to differ from his opinion. In this way, learned J.J. Board as well as the learned appellate court committed error in placing their own opinion on the opinion of radiologist C.W. 2 who was an expert. Therefore the orders passed by learned courts cannot sustain in the eye of law and this criminal revision is liable to be allowed while setting aside the orders as passed by the learned J.J. Board as well as the learned appellate court. It is further submitted that he is in custody since 20.07.2020 and his psychology is being affected adversely,
Learned A.G.A. though opposed the prayer for declaring the revisionist to be juvenile but are on accord with the fact that no any question regarding principles as contained in Modi's Medical Jurisprudence was put before the doctor C.W. 2 who drew his opinion about the age of the delinquent on the basis of ossification test, though it might have been asked to the doctor C.W. 2 as to how he drew the conclusion regarding age against the principles as contained in Modi's Jurisprudence.
Considering the facts and circumstances of the case, submission made by learned counsel for the revisionist as well as learned A.G.A. for the State, perusal of record, the statement of C.W. 2 the doctor ( the radiologist) and the opinion drawn by the learned J.J. Board as well as the learned appellate court while differing with the opinion of the doctor on the basis of principles as contained in Modi's Medical Jurisprudence, this Court is of the considered opinion that the points related to the principles as contained in Modi's Medical Jurisprudence which were taken into consideration by the learned J.J. Board as well the learned appellate court must have been referred before the doctor C.W. 2 who drew the opinion about the age of the delinquent as 26 at the time of his examination before the learned court, as to why he drew such an opinion whereas the principles as laid down in Modi's Medical Jurisprudence infer some different conclusions as drawn by the learned courts but this was not done by the learned J.J. Board or by the learned appellate court while drawing the conclusion regarding age of the delinquent. In this point of view the orders passed by Juvenile Justice Board as well as the appellate court cannot be said to be in conformity with the settled principles of law, as a result, the orders passed by both the courts cannot sustain in the eye of law and are liable to be set aside and the revision is to be allowed.
Accordingly, the orders passed by Juvenile Justice Board dated 19.01.2021 and the appellate court dated 04.08.2021 are, hereby, set aside and the matter is remanded back to the learned J.J. Board with direction that doctor C.W. 2 be examined on the points as indicated in Modi's Medical Jurisprudence regarding determination of age based on ossification test and then to draw the conclusion about the juvenility of the revisionist within a period of three months. Accordingly, this criminal revision is, hereby, allowed.
Order Date :- 24.7.2023
Suraj Srivastav
