JAI SINGH SEKHON,J - (1.) HARI Singh convict is undergoing imprisonment for life in a case of murder. He has actually suffered more than five years of sentence besides having earned some remission more than, 10 years including remissions. He had applied to the State Government for premature release on the ground that he was less than 20 years of age at the time of commission of the offence on the basis of the instructions issued by the State Government Annexures P 1 to P 3.
(2.) IN reply, the State Government has maintained that his case was rightly rejected as he was 23-24 years old at the time of his conviction and thus could not be said to be 20 years old at the time of commission of offence. The perusal of Annexure P8, the judgment of the then learned Sessions Judge, Bhatinda, shows that the convict had given his age as 18 years, but the Court had recorded his age as 23-24 years by appearance. The judgment does not indicate whether the trial Court had obtained the opinion of some medical expert regarding the age of Hari Singh accused. Thus, it appears that the trial Court had depended upon its imagination about the age of the accused from his physical appearance. Such an imaginative approach had adversely been commented upon by the Supreme Court in Raisul v. State of U.P., AIR 1977 SC 1822. In that case, not only the Sessions Judge had recorded the age to be more than 18 years by appearace but the High Court had also concurred with him. Under these circumstances, this imaginative approach on the part of both the Courts was not appreciated by the Supreme Court by holding as under : "It is true that the learned Sessions Judge on looking at the appellant thought that he must not be less than 24 years of age and the High Court also, on seeing the appellant personally, took the view that the estimate of the age given by the Sessions Judge was correct, but we do not think that the learned Sessions Judge as well as the High Court were right in substituting their own estimate in regard to the age of the appellant and on the basis of such estimate rejecting the statement as to his age made by the appellant. Appearances can often be deceptive. We must, therefore, proceed on the basis that the appellant was below 18 years of age when he committed the offence". In view of the above ratio laid down by the apex Court there is no option but to hold that Hari Singh detenu was less than 20 years of age at the time of his conviction on 21-10-1982. The occurrence having taken place on 24-1-1981 he was certainly less than 20 years of age at the time of commission of offence. This conclusion is also fortified from the fact that Surjit Kaur, mother and co-accused of the petitioner had given her age as 35 years, which was accepted by the Sessions Judge. If the age of Hari Singh is taken as 23-24 years then it is to be presumed that Surjit Kaur had given birth to him at the age of 11-12 years, i.e., before attaining the age of puberty, which appears to be impossible. Thus, the conclusion of the concerned authorities that the petitioner was more thin 20 years at the time of commission of offence was ill founded and is hereby set aside.
(3.) A perusal of copy of the order of the State Government dated 10th November, 1989 (Annexure P7) reveals that the concession of premature release was withheld to the petitioner only on the ground that he was more than 20 years old at the time of commission of offence. There is no material to conclude from the reply filed by the respondents that the detenu had committed any jail offence after the passing of the impugned order.;