Bheem vs State of Uttrakhand

Servesh Kumar Gupta, J.—Having heard the learned counsel for the applicant, it transpires that the Trial u/s 302 of IPC was going on against the accused Bheem. He claimed himself to be the juvenile. So, he moved an application on 21.12.2010 for his ossification test because there was no other written paper/document with him to disclose his date of birth. By the intervention of the Court, the said test was conducted on 11.01.2011 and the Chief Medical Officer/Radiologist reported that his age was 19 years.

On the basis of precedent of the Hon''ble Apex Court in the case of Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and Another, Page No. 1194", the learned Magistrate gave the benefit of 2 years in calculating his age in the lower side. So, his age was determined by the learned Magistrate as 17 years. Thus, he was declared juvenile.

Feeling aggrieved, the complainant Akash filed revision before the learned Sessions Judge, which was adjudicated by the learned Additional Sessions Judge on 31.05.2014, who overturned the judgment of the learned Magistrate on the basis of the law laid down by the Hon''ble Apex Court in the case of Shah Nawaz Vs. State of U.P. and Another, wherein it was held that at the most, one year margin on the lower side can be extended to the accused in order to determine his age.

Learned counsel for the applicant has argued that even if the said benefit is given to the accused, then reducing one year, his age can be assessed as 18 years on 11.01.2011. The incident happened on 04.11.2010. This way, he was short of 2 months in completing the age of 18 years at the time of the incident.

It may be noted that Hon''ble Apex Court has propounded the law in the case of State of U.P Vs. Chhoteylal, The bench was adorned by the present C.J.I. Mr. R.M. Lodha and it was propounded that there is no such rule, much less an absolute one that 2 years margin is to be counted in assessment of the age, so determined by the Doctor.

So, in view of what has been stated above, the Court find that there is no force in the petition. Thus, the petition is hereby dismissed.