Anil Yadav @ Bare Yadav and Another vs The State of Bihar

Ghanshyam Prasad, J.—Heard.

This revision application has been filed against the order dated 17.11.2006 passed by Fast Track Court No. 3. Bhoipur in Cr. Appeal No. 65 of 2006 including the order dated 10.5.2006 passed by Juvenile Justice Board. Patna in Case No. 307 of 2005 thereby the Juvenile Justice Board has held the petitioners as not juvenile.

The petitioners are named accused in Ara Muffasil P.S. Case No. 190 of 2005 registered, u/s 302/34 of the I.P.C. The date of occurrence is 20.10.2004. Both the petitioners claimed themselves to be juvenile i.e. less than 18 years on the alleged date of the occurrence. Ultimately, the matter was referred to Juvenile Justice Board. Patna for determination of the age of both the petitioners. In course of enquiry, the Medical Board was formed to assess their age. The Medical Board vide its report dated 16.4.2005 assessed the age of the petitioner Anil Yadav above 18 years and below 20 years and that of petitioner Chhotek Yadav above 17 years but below 18 years. Apart from that the petitioners also examined three witnesses in support, of their age. Photo copies of forms of Class 8th Board were also produced showing their date ''of birth as 2.1.1989 and 12.1.1990 respectively.

The learned Juvenile Justice Board after-consideration of oral as well as documentary evidence as also physical feature of the petitioners held them as not juvenile. According to the Board the age of the petitioner Anil Yadav was 21 years and that of Chhotek Yadav was 19 years on the alleged date of the occurrence.

The petitioners preferred apneal u/s 52 of the Juvenile Justice Care and Protect on Article 2003 against the order which was rejected vide impugned judgment.

It has been contended by the learned Counsel for the petitioners that opinion of the Medical Board on the point of age is a conclusive and. therefore, atleast the petitioner Chhotek Yadav was juvenile on the alleged date of the occurrence. The Juvenile Justice Board has not considered the report of the Medical Board properly and has wrongly held both the petitioners as major on the basis of physical feature which is not legal. Reliance has also been placed upon a decision of the Full Bench of this Court reported in 1989 BLJR 507 Krishna Bhagwat v. State of Bihar.

On the other hand the learned Counsel for the State has vehemently opposed the submission of the petitioners and contended that neither the opinion of the Medical Board nor the form of Class 8th Board is final on the point of determination of the age. The court is entitled to take into account of physical feature of the accused also apart, from opinion of the doctor as also school registers. It has further been submitted that the Juvenile Justice Board has rightly taken into consideration the physical feature of the accused petitioners. Reliance has been placed on a decision of the apex court reported in AIR 2001 2231 Ramdeo Chauhan v. State of Assam.

It is needless to say that under the Juvenile Justice (Care and Protection) Act 2001 heavy duty is cast upon the court. While determining the age the court has to ward itself so that unscruplus should not get himself declared as Juvenile on the basis of wrong certificate. Determination of age is a delicate matter and it cannot be decided on the basis of any single factor. The court has to take into account, of all attending factors including (opinion of doctor. School Register as well as physical feature of the delinquent. Any single factor is not sufficient to clinch the issue.

In case of Ramdeo Chauhan (Supra), the apex court has considered this aspect and ultimately, in paraeraph-43 has laid down criteria for determination of age. It runs as follows:

Relying upon 2 judgment of this Court in Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, the learned defence counsel submitted that the Court can take notice that the marginal error in age ascertained by radiological examination is two years at either side. The aforesaid case is of no help to the accused inasmuch as in that case the Court was dealing with the age of a detenu taken in preventive custody and was not determining the extent of sentence to be awarded upon conviction of an offence. Otherwise also even if the observation made in the aforesaid Judgment are taken note of it does not help the accused, in any case. The doctor has opined the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion, the Court has to, base its conclusions soon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An X-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but: it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot, be placed upon text books, on medical jurisprudence and texicologv while determining the age of an accused. In this vast country with varied latitude, heights environment vegetation and nutrition, the height and weight cannot be expected to be uniform.

So far decision cited by the petitioner is concerned in paraeraph-15 of the decision, it has been held that determination of age should not be based merely on written opinion of the doctor. The court has also ward the lower court to see that un-scrupulous must not get themselves declared as juvenile.

In the present case, teking into account of the decisions of the apex court as well as the findings of the learned lower court, it is court clear that there is no impropriety or illegality in | the impugned order. The court below i.e. Juvenile f Justice Board has taken into account of all the factors including opinion of the Medical Board as well as physical feature of the delinquent. No case is made out for interfere ice in the impugned order.

Accordingly, this application stands rejected.