- (1.) B. K. Rathi, J. This revision has been preferred under Section 397, Cr P. C. against the order dated 1-9-98 passed by the Vlth Additional Sessions Judge, Muzaffarnagar in Session Trial No. 427 of 1996 under Section302/34, I. P. C.
(2.) THE facts giving rise to this revision are that the applicant and other persons are being prosecuted under Section 302/34, I. P. C. THE applicant moved an ap plication 34-Kha alleging that he is a juvenile, being below 16 years of age and therefore, his matter may be separated and referred to the Juvenile Judge. That ap plication was rejyned by the impugned order. The contention of the applicant is that on the application of the applicant a report was called for from the C. M. O. , Muzaffarnagar and that report is dated 14-8-97. According to this report, the C. M. O. found the age of the applicant to be 17 years. It is contended that this age was found on 14-8-97, whereas the inci dent took place on 29-1-96 i. e. about one and a half years before. Therefore, accord ing to this report the applicant was 15 -1/2 years at the time of incident and he should be tried by the Juvenile Judge. It is further contended that the learned Vlth Addl. Sessions Judge has erred in rejecting the report and, if he was not satisfied with the report, he should have asked the C. M. O. to produce the data on which the conclusion regarding the age of the applicant was arrived at and should have also recorded the statement of the C. M. O. , but that was not done and the report was rejected without any sufficient reason. I have considered the arguments. The applicant moved an application that he is a juvenile. He did not produce any evidence what-so-ever in support of his application. Even an affidavit was not filed. It appears that the applicant was interrogated orally by the learned Addi tional Sessions Judge and he stated that he does not know his age. The affidavit of the parents was not filed. Therefore, the learned Additional Sessions Judge called for the report from the C. M. O.
(3.) AS against this, the complainant filed an affidavit that the applicant was not a juvenile. The applicant was also sum moned by the learned Additional Sessions Judge and was present before him. After looking at him the Presiding Officer was of the opinion that he was above 16 years of age on the date of incident. In the light of this evidence, the report of the C. M. O. was not accepted. The report of the C. M. O. is based on physical and radiological tests and there may be a mistake of two years on either side and is only an opinion evidence. On the face of other evidence available it was rejected by the Additional Sessions Judge. I do not find any illegality in the order of the Vlth Additional Sessions Judge, Muzaffarnagar.;