- (1.) This Criminal revision is directed against the order impugned dated 11.5.2009 passed by the Additional Sessions Judge, FTC No. III Dhanbad in S.T. No. 38 of 2009 arising out of Nirsha (Kalubathan) P.S. Case No. 188 of 2008 corresponding to G.R. No. 3063 of 2008 by which the prayer made on behalf of the petitioner claiming his juvenility was rejected.
(2.) The prosecution story in short was that the daughter of the informant namely Bano Bibi was found hanged to death in her matrimonial home and earlier there was allegation of demand of a motor cycle and also cash of Rs. 50,000/- as dowry The informant instituted a case against all the family members of the husband of the deceased including the petitioner, who was admittedly the younger brother of the husband for the alleged offence and the I.O after investigation submitted charge sheet under sections 304B/34 of the Indian Penal Code against them all. The petitioner took the plea of juvenility in the court of CJM, Dhanbad itself whereupon the Civil Surgeon-cum-Chief Medical Officer, Dhanbad was requested for constituting a Medical Board to examine the petitioner and to submit its report. But in the meantime, the case was committed to the court of sessions and finally the record was transferred to the court of Additional Sessions Judge, FTC No. III, Dhanbad where the petitioner again took plea of his juvenility and requested the Additional Sessions Judge, FTC No. III for producing him before the Medical Board for assessment of his age. When the learned Additional Sessions Judge came to learn that a report was already called for by the CJM Dhanbad, he again sent a requisition to the Civil Surgeon-cum-Chief Medical Officer, Dhanbad and pursuant to that, the petitioner was produced before the Medical Board for determination of his age. The Board submitted its report by determining the age of the petitioner Lalu Ansari S/O Sidique Aansari between 17 to 18 years relying upon his radiological examination. All the members of the Medical Board signed the report which was submitted in the court on 11.4.2009. The petitioner then took a plea that he was below 18 years of age and he should be declared juvenile but instead thereof, the learned Addl. Sessions Judge, F.T.C. No. III rejected the plea of the petitioner on the following premises: I find that the Board has assessed the age of the petitioner Lalu Ansari between 17 and 18 years. This case has been instituted under sections 3040/34 of the Indian Penal Code against several accused persons including this petitioner on 13.10.2008. It is well settled that the medical report regarding the age assessment cannot be perfect and the real age may vary 2 years either side. Considering the aforesaid settled proposition the petitioner cannot be conclusively held to be juvenile on the alleged date of occurrence. The Radiological finding also do not support the contention that the petitioner was juvenile on the alleged date of occurrence. Considering the aforesaid Lalu Ansari cannot be held Juvenile. The petition is accordingly disposed of. 3 Mr. A.K. Das, the learned Counsel assailed the said order on the ground that the learned Addl. Sessions. Judge F.T.C.III failed to appreciate the variation of (plus-minus) two years while assessing the age of the petitioner in right perspective. The interpretation of law always leans in favour of a juvenile in conflict with law under the Juvenile Justice(Care and Protection of Children) Act 2000 being the benevolent law , therefore, if such variation of two years could have been considered towards lower side ,the age of the petitioner could have been assessed only 16/17 years, a juvenile under 18 years of age on the date of alleged occurrence and accordingly the petitioner should have been declared juvenile under Section 7A bf the Act. 4. Heard Mr. Hatim the learned A.P.P. on behalf of the State. 5. Having regard to the facts and circumstances, the occurrence as alleged took place on 12.10.2008 and the F.I.R. was lodged against five named accused including the petitioner, admittedly the younger brother of the husband of the deceased, for the alleged offence under sections 304B/34 IPC. I find substance in the contention that no specific overtact was attributed against the petitioner and even assuming his age about 17/18 years as per determination report there was no finding that on the date of determination on 11.4.2009 the petitioner had crossed 18 years of age though the occurrence as alleged had taken place about 6 months ago 2.10.2008.The learned Addl. Sessions Judge failed to consider the benevolent schemes for the juvenile who comes in conflict with law and therefore, opportunity has been accorded at any stage of enquiry, trial or appeal to the petitioner to claim his juvenility. The learned court though observed in the impugned order that the medical report regarding assessment of age could not be a perfect and the real age and could vary plus-minus two years but the court was silent as to why the age of the petitioner was assessed 'plus two' years towards the higher side when the statute was benevolent and much interest has been shown for the rehabilitation of the juvenile under conflict with law. Under the given facts and circumstances as also under benevolent scheme of the statute the order impugned is unsustainable and accordingly it is set aside. The petitioner Lalu Ansari is declared juvenile under 18 years of age on the date of alleged occurrence. The trial court is directed to pass appropriate order by transferring the case record of the petitioner to the Juvenile Justice Board, Dhanbad for Enquiry and disposal. Accordingly this petition is allowed.;