Sonu Kushwah vs State of Madhya Pradesh

S.K. Palo, J.—Heard.

This revision petition is directed against the order 28.6.2013 passed by the learned 1st ASJ, Vidisha in S.T. No. 266/2012 (State of Madhya Pradesh Vs. Mahendra and others).

Briefly stated that the petitioner Sonu Kushwah arrayed accused No. 4, filed an application before the trial Court for determination of his age, which was decided on 11.12.2012 and the same was rejected. Subsequently, Cr. Revision No. 37/2013 was filed before this Court and the same was decided on 30.01.2013 and this Court directed the learned Trial Court to adjudicate the matter following the law laid down in Ashwani Kumar Saxena Vs. State of M.P., . The learned Trial Court thereupon pronounced the impugned order on 28.6.2013 after adducing the evidence of the medical officer. The learned Trial Court has held that the petitioner Sonu Kushwah was above the age of 18 years on the date of incident ie 20.4.2012.

The impugned order has been challenged by the petitioner Sonu Kushwah on the ground that the Trial Court did not take into consideration the provisions of Juvenile Justice Act and Rules made thereunder. It is also alleged that the medical test was performed and reports were submitted and oral testimony of the medical officers were recorded. The Dentist Dr. Rakesh Saxena and Radiologist Dr. Sanjay Jain were examined, who have clearly stated that the petitioner was less than 18 years of age on the date of incident ie on 20.4.2012. However, the learned Trial Court ignored the same. Assertion of the Trial Court regarding the determination of the age without following the principle laid down in Ashwani Kumar Saxena (supra) liable to be quashed.

Heard both the parties and perused the record.

The learned Panel Lawyer for the State opposed the submissions and claimed that the order of the Trial Court is just and proper.

On perusal of the statement of Dr. Rakesh Saxena (Age Determination Witness No. 1, who examined the denture of Sonu Kushwaha, it is evident that the molar teeth of the accused has erupted. Therefore he is held to be 17 years or above, but less than 21 years. In his cross examination Dr. Rakesh Saxena has stated that on 10.10.2012 when the examination was conducted Sonu Kushwah could be less than 17 years.

On perusal of statement of Dr. Sanjay Jain, Radiologist, Age Determination Witness No. 2, it is evident that the radiological examination of Sonu Kushwah was performed by him and he opined that the age of Sonu Kushwah is appeared to be less than 18 years. Further in his cross examination, he agreed that on 10.10.2012 when the petitioner was examined, he was less than 18 years.

Dr. Sanjay Khare, (Witness No-3) has physically examined the petitioner Sonu Kuwshwah. He has stated that at the age of 13 years secondary sexual characteristics are seen. He has submitted report Ex.P/1. But, he did not mention any definite age of Sonu Kushwah. In his cross examination, he agreed that secondary sexual characteristics starts developing at the age of 13 years and become complete at the age of 15-16 years.

The learned Trial Court vide impugned order referred the Text Book of Medical Jurisprudence and Toxicology, 24th Edition and observed that mustache appeared on the face of the Sonu Kushwah, therefore, he must be above the age of 18 years. Report submitted by Dr. Sanjay Jain has not been accepted by the Trial Court on the ground that as per Medical Jurisprudence written by V.B. Raju and R.M. Jhala it can be ascertained that the wisdom teeth if erupted suggests complete of 18 years. But it''s absence does not give certain indication of age. Therefore, the Trial Court held the age of Sonu Kushwah is 18 years.

The learned counsel for the petitioner relied on Bhagwandas Vs. The State of Rajasthan, , in which it is held that:

"Where the opinions of authors were neither shown to have been given in regard to circumstances, exactly similar to those in the particular case before Court nor were they put to the medical witness it is not a satisfactory way of disposing of the evidence of the witness to discredit it on the ground that the doctor was a comparatively young man and his statements did not accord with the opinions expressed in the books. Sunderlal Vs. The State of Madhya Pradesh, Rel. on.

The Hon''ble Supreme Court in the case of Suresh Vs. State of Madhya Pradesh, has held that if two vies are possible, the view favourable to the accused should be adopted.

This view of the Hon''ble Supreme Court has been later followed in catena of decisions.

In view of the above, the age determined by the Medical Officers in the present case has been below the age of 18 years. Even if, the age determined by the learned Trial Court on the basis of reasoning made thereunder is only a surmise and not fact. Therefore, the benefit would go in this regard in favour of the petitioner. Thus, the revision petition is allowed partly.

Order dated 28.6.2013 passed by the trial Court is set aside and case is remanded to the learned 1st A.S.J for determination of age according to law laid down in Ashwni Kumar (Supra).

Accordingly, petition is disposed of