- (1.) K. N. Sinha, J. Heard learned Counsel for the revisionist and learned AGA. Perused the impugned order.
(2.) THE revisionist was challaned by Police of Bahadurgarh District Ghaziabad in Case Crime No. 103 of 2001 under Section 326 IPC. THE revisionist moved to First Additional Chief Judicial Magistrate, who declared him to be juvenile. Against the said order an appeal was filed by the prosecution under Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'act') before the Sessions Judge Ghaziabad who allowed the appeal and set aside the order dated 1-3- 2002 passed by Court below holding the revisionist to be of 19 years. I have perused the impugned orders. The revisionist filed the School records in which his date of birth was mentioned as 10-7-1986. The witness Govind Saran Sharma Principal of the said School and Ashok Kumar Sharma Assistant Clerk were also examined. The medical examination was also conducted in which the age of the revisionist was given to be about 18 years. The occurrence had taken place on 19- 5-2001. According to the date given in the School records the age of the revisionist was below 15 years. The Medical evidence also disclosed about 18 years of age. The medical report is only an opinion of the doctor and there can be variation of two years either way. The age given by doctor was about 18 years. It was not above 18 years. On the basis of this the First Additional Chief Judicial Magistrate declared him to be juvenile. The appellate Court has however, reversed the said order on the ground that no family member was produced. Admittedly, the father of the revisionist had died, the mother was no doubt not produced but it cannot be inferred that non production of the mother will in any way falsify the report of the doctor or the school records. The apex Court in the case of Rajinder Chandra v. State of Chattisgarh & another, 2002 (1) JIC 609 (SC), has held that: "a hyper technical approach should not be adopted while determining the age of accused for the purpose of finding out whether he is juvenile or not. If two views may be possible, the Court should lean in favour of holding the accused to be juvenile in borderline cases. "
(3.) THE learned appellate Court in his judgment has not property appreciated the evidence and taken a hyper technical view. When the evidence of the school records and also of the doctor was in favour of the revisionist he should not have twisted the matter in order to arrive at a different finding. Thus, the revision is allowed and the order dated 3-2-2003 passed by appellate Court is set aside the order dated 1-3-2002 passed by First Additional Chief Judicial Magistrate, is confirmed.;