- (1.) HEARD learned counsel for the petitioner and learned counsel for the State.
(2.) THIS revision is directed against the judgment dated 9.9.2008 passed by the learned Sessions Judge, Sahibganj in Cr. Appeal No.34 of 2008, by which judgment, he found that the appellant is not a juvenile and his claim is based on a school register, which is not correct and he is more than eighteen years of age and thereby he confirmed the order passed by A.C.J.M. Rajmahal dated 5.12.2007, whereby learned A.C.J.M had also found that as per the medical board, petitioner is aged about 18 and 1/2 years on the date of occurrence i.e. 13.10.2007. It has been submitted by the learned counsel for the petitioner that petitioner who was made accused in Rajmahal (Radha Nagar), P.S. case No.172 of 2007, under Section 302/34 of the Indian Penal Code, claimed vide his petition dated 21.9.2007, that he is a juvenile, aged about 14 years and he is a student of class -7 of Radha Nagar High School. The petitioner claimed that his date of birth is 5.12.1994 and hence claimed that an enquiry may be made with regard of his age and he may be declared juvenile. On the basis of the said claim, inquiry was started by learned A. C.J.M. and learned A.C.J.M., in course of enquiry, examined three witnesses. Inquired Witness No.1 is Niren Mandal, father of the petitioner, Inquired witnesses No.2 is Jhapani Devi, mother of the petitioner and inquired witness No.3 is Dharnidhar Ravidas, teacher of the middle school, Begamganj. Learned A.C.J.M. after considering the evidence of the witnesses, found that the evidence of age, given by witnesses are not reliable and since medical board was also held and which was duly constituted by civil surgeon, found petitioner aged about 19 and half to 20 years and hence the court found that on the date of occurrence, the appellant was aged about 18 and 1/2 years. The Medical Board was held on 13.10.2007 and the date of occurrence is 23.8.2007, which is two months before and hence rejected the petition and found that the appellant is not a juvenile. Learned Sessions judge also after discussing the evidence, found that the witnesses are not reliable and hence relied upon the medical evidence and passed the impugned order, dismissing the appeal and confirmed the order.
(3.) IT has been submitted by learned counsel for the petitioner that as per the Juvenile Justice Rule, Chaptar -2, Section 22(5) which correspond to chapter12 (3) of the Juvenile Justice, care and protection Rule, 2007, it is stated that in an enquiry, the court will first rely upon birth certificate granted by municipality or its equivalent or birth certificate given by corporation or municipal authority and if they are not available, then they will rely on Medical Board which declares the age of a Juvenile on the basis of exact assumption. It is further submitted that since the age as per the school certificated was available, learned A.C.J.M as also learned Sessions Judge wrongly relied on medical certificate and thus passing the impugned order is bad and fit to be set aside.;