At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE B.N. CHATURVEDI
For the Appearing Parties: R.N. Sharma, Sunil Sharma, Advocates.
B.N. CHATURVEDI, J.
(1). Is the petitioner a juvenile?
(2) THE Court of Additional Sessions Judge returned a negative finding on this question which made the petitioner to seek recourse to revision. That is how, present revision petition comes up for hearing and disposal.
(3) THE petitioner is accused of having been found in unlawful possession of 49 gms. of smack on 22nd of June, 2002 at 6. 45 p. m. at Budh Bazar Road, near Hari Hospital, Hari Enclave, Sultanpuri, Delhi within the jurisdiction of police Station Sultanpuri, Delhi. He was charged accordingly for an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act.
(4) UPON an application dated 8. 5. 2002 being made on behalf of petitioner seeking to be declared as
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a juvenile and dealt with accordingly, an enquiry into his age was undertaken by the learned trial court and in the process statements of Smt. Premwati, mother of the petitioner, and one Pyarey Lal Sharma, an Assistant Clerk from Janta Intercollege, Naujheel Mathrua, were recorded. A school leaving certificate mentioning the date of birth of the petitioner as 1. 7. 1983 was proved on record to show that on the alleged date of commission of offence, the petitioner was less than 18 years of age, and, thus, a juvenile. The Court of Additional Sessions Judge, however, did not accept the petitioner's date of birth as mentioned in the school leaving certificate as she felt that the genuineness and authenticity of the certificate was questionable. She, in the circumstances, by her Order dated 15. 11. 2002, directed ossification test by a medical board of Maulana Azad Medical College to ascertain the petitioner's age. In pursuance of that order, physical examination of the petitioner was carried out on 25th of November, 2002 by a board comprising three medical doctors. Apart from general, physical and dental examination of the petitioner, he was subjected to a radiological examination. The details of his radiological examination read as under: shoulder - all epiphyses around shoulder joint fused elbows - all epiphyses around elbow fused with respective shaft wrist - all epiphyses at lower ends of raduis and ulno fused with the shaft pelvis.- iliac crests, eschewal tubero sities fused, epiphyses at upper ends of temur fused with shaft(5) BASED on physical, dental and radiological findings taken together, age of the petitioner was opined to be above 21 years. The learned Additional Sessions Judge, accepting the opinion of the Medical Board, by impugned order dated 20. 1. 2003, held that the petitioner was more than 18 years of age on the date of commission of offence and, accordingly, declined the prayer of the petitioner to be dealt with as juvenile. (6) I have heard arguments on either side.(7) LEARNED counsel for the petitioner contended that the margin of error in age ascertainment by radiological examination is two years on either side and the benefit of such margin of error should have gone in favour of the. The learned Additional Sessions Judge, however, acted to the contrary by adding two years to 21 years as opined by the Medical Board. The finding of the learned court below in this respect, as recorded in the impugned order, was obviously erroneous. (8) IN "jaya Mala v. Home Secretary, Government of Jammu and kashmir and Others", AIR 1982 SC 1297, the Supreme Court has clearly declared that in case of radiological examination one can take judicial notice that the margin of error in age ascertainment is two years on either side and it was rightly argued by the learned counsel for the petitioner that the benefit of margin has to go to the petitioner. (9) A Single Bench decision of this Court in "gurmit Singh v. The State", 2000 (2) JCC 487 (Delhi): 2000 (55) DRJ 159, holding that school leaving certificate indicating the age of the accused ought not to be discarded and that presumption is that the age mentioned in the school records is correct unless shown to be otherwise, was referred to by the learned counsel for the petitioner in support of his plea that the learned court below was not justified in discarding the date of birth mentioned in the school certificate. No doubt, the age, as reflected in the school certificate, is preferable to a medical opinion based on radiological examination, however, this is subject to condition that the genuineness and authenticity of such certificate stands duly proved. (10) PYAREY Lal Sharma, Assistant Clerk, Janta Inter College, Naujheet, mathura, who appeared as a witness to prove the school leaving certificate on the basis of scholar register, testified that the petitioner was admitted in the school on the basis of a transfer certificate issued by Primary School mubarakpur, Mathura. The entry in the scholar register was, thus, based on a transfer certificate issued by another school. The admission register of Primary School, Mubarakpur, Mathura, was, however, not produced to show the basis on which the date of birth of the petitioner was recorded at the time of his admission in the said primary school. (11) APART from testimony of Shri Pyarey Lal Sharma, the statement of smt. Premwati, mother of petitioner, was held unacceptable, by the learned court below, keeping in view nature and quality of her statement. Correctness of the date of birth recorded in school leaving certificate, was accordingly held questionable. In the circumstances, determination of petitioner's age on the basis of his medical examination was the only way left open. (12) ACCORDING to authorities on medical jurisprudence, there can be an error of two years on either side at the maximum in determining the age of a person based on Ossification test. A passage extracted from Jhala and Raju's medical Jurisprudence (6th Edn. page 198), however, reads:"if ossification test is done for a single bone, the error may be two years either way. But if the test is done for multiple joints with overlapping age of fusion, the margin of error may be reduced. Sometimes this margin is reduced to six months on either side. "(13) IN the present case, the radiological examination of the petitioner was done for multiple joints, which is evident from the report of the Medical board. According to the petitioner's own plea, he was just short of eight days in completing 18 years on the date of alleged commission of offence by him. Learned counsel for the petitioner contended that even if the age of the petitioner is to be ascertained in the light of medical report, by giving the benefit of margin of two years, on the date of alleged commission of offence, he would be found to be less than 18 years of age, and, thus, a juvenile. While advancing such an argument, learned counsel for the petitioner appears to have taken the age as reflected in the medical report exactly at 21 years losing sight of the fact that it is actually above 21 years, which implies that it could be anything above 21 years. Taking into account radiological examination in respect of multiple joints, in view of above extracted passage from Medical jurisprudence by Jhala and Raju, the margin of error in ascertaining the age of the petitioner could be reduced to six months on either side. In the circumstances, it is rendered difficult to accept the contention of the learned counsel for the petitioner that even on the basis of medical report the age of the petitioner on the date of alleged commission of offence would work out to be less than 18 years. (14) TAKING into account the opinion of the Medical Board and other evidence relating to the age of the petitioner, the finding recorded by the learned court below cannot be held to be based on no evidence and, accordingly, no illegality or infirmity is noticeable in the impugned order warranting an interference in exercise of provisional jurisdiction. (15) FINDING no merit, the revision petition is dismissed. (16) TRIAL court record be sent back immediately. The petitioner is directed to appear-before the learned trial court on 4th of August, 2003.
"2003 (106) DLT 481" == "2003 (5) AD(Del) 273" == "2003 (69) DRJ 668"