Poulush Pahan vs State of Jharkhand and Another

Amareshwar Sahay, J.—The petitioner has challenged the order dated 2.8.2004, whereby the ACJM, Khunti in exercise of powers u/s 49 of Juvenile Justice (Care and Protection of Children) Act, 2000, hereinafter called as J.J. Act. 2000, determined the age of the petitioner to be more than 18 years and, thereby, held him to be not a Juvenile.

A First Information Report being Murhu P.S. Case No. 10/2002 was registered u/s 314 of the IPC against the petitioner on the information lodged by one Budhu Munda.

It was alleged in the FIR that the petitioner had love affairs with the married daughter of the informant in course of time she became pregnant which led to her ill ness. The petitioner is alleged to have given her some herbal medicine for abortion, which she took and due to which she died.

The Police after investigation submitted charge sheet against the petitioner u/s 314 of the IPC and then the case was committed to the Court of Session and the accused was put on trial. It is after closure of the evidence of the prosecution and after recording the statement of the accused u/s 313, Cr PC on the basis of medical report regarding the age of the petitioner, the matter was referred to the ACJM, for enquiry under the provisions of Section 49 of the J. J. Act,,2000 for determining the age of the petitioner.

What it appears from the impugned order that the petitioner was medically examined by three members Medical Board on 8.12.2003. After physical and radiological examination the petitioner was found to be of 16 years. The report of the Medical Board was also proved as Ext. 2.

The ACJM gave much weight to the assessment of the age by the Magistrate at the time of remand of the petitioner, whose age was assessed to be of 20 years and at. the time of recording the statement u/s 313 of the Cr PC to be 22 years. He also on his own estimation held that the petitioner was not juvenile as he may be aged 20 years on 8.12.2003.

It is a settled law that for declaring a person as juvenile under the J.J. Act 2000, the age of the accused has to be considered on the dale of occurrence when the offence was alleged to have been committed and not any other subsequent date.

In the present ease, the petitioner was found to be aged about 16-17 years on 8.12.2003 by the Medical Board consisting of three Doctors who examined the petitioner physically as well as radiologically. In view of this finding of the Medical Board, the petitioner was aged 14-15 years on 12.2.2002, i.e. on the date of alleged occurrence.

In view of this position, I find that the ACJM has committed grave error in not declaring the petitioner to be a juvenile. The learned ACJM ought to have held the petitioner on the basis of the report of the three members Medical Board.

Accordingly, this revision application is allowed and the order impugned of the ACJM, Khunti dated 2.8.2004 is hereby set aside. Consequently, the Court below shall proceed against the petitioner in accordance with law.