M.D. Jamal vs State of West Bengal

Ranjan Kumar Mazumdar, J.—The instant Criminal revisional application u/s 401 read with Section 482 of the Code of Criminal Procedure is directed against the order dated February 1, 1991 passed by learned Additional Sessions Judge, 4th court, 24 Parganas (South) at Alipore in Sessions Trial No. 1(1)86 u/s 302/34 of the Indian Penal Code.

The case of the accused-Petitioner Md. Jamal was in brief that he was facing trial before the learned Additional Sessions Judge, 4th Court 24 Parganas (South), Alipore in respect of the alleged offences punishable u/s 302/34 of the Indian Penal Code. In the said trial the Petitioner put in an application stating that he was below the age of 18 years on the alleged date of occurrence i.e. on November 18, 1984, and accordingly he was liable to be tried by the learned Juvenile Court being a Juvenile. In connection with the hearing of the said petition the Petitioner was medically examined on December 30, 1986, and the doctor opined that the Petitioner was about 20 years old on December 30, 1986, when he was medically examined by the doctor As against the said opinion of the doctor the Petitioner got his father examined on the question of age of the Petitioner and it was stated by the father of the Petitioner before the learned trial court that the Petitioner was born in September, 1969, i.e. his son was far below 18 years. But unfortunately the learned court below disbelieved the evidence of the father of the Petitioner and accepted the evidence of the doctor that the Petitioner was about 20 years old on the date of his medical examination. According to the Petitioner he was a minor on the alleged date of occurrence and hence the impugned order passed by the learned court below was liable to be set aside.

I have had the opportunity of hearing learned Counsel for the Petitioner as well as the learned Counsel for the State in the matter at length.

The only question requiring consideration was whether the Petitioner was a. minor on the alleged date of occurrence i.e. November 18, 1984.

At the time of hearing learned Counsel for the Petitioner vehemently submitted that his client was a minor on the alleged date of occurrence and accordingly he was liable to be tried, if at all, as a minor before the learned Juvenile Court. In that connection it was submitted by the learned Counsel that the father of the Petitioner, while giving evidence before the learned court below, specifically stated that his son was born in September, 1969 but such evidence was not accepted by the learned court below. Instead the learned court below reposed faith on the evidence and opinion of the doctor, who examined the Petitioner and held ossification test. Accordingly, learned Counsel for the Petitioner submitted that it was a fit case where the impugned order passed by the learned court below regarding the age of the Petitioner was liable to be quashed.

Learned Counsel for the State submitted, on the other hand, that the evidence of the Petitioner''s father regarding the age of the Petitioner as on the alleged date of occurrence was totally unacceptable as no documentary evidence was filed by the Petitioner to show his exact date of birth and that the Petitioner''s father even stated in his cross-examination that he mentioned the age of the Petitioner only by guess. It was further submitted that learned court below very fairly accepted the evidence of the doctor, who medically examined the Petitioner on December 30, 1986, and opined on the basis of the ossification test held in the hospital that the Petitioner was 20 years old on the date of his medical, examination on December 30, 1986.,

It appears from record that the Petitioner and some others were facing trial before the learned court below for committing an offence of murder punishable u/s 302 read with Section 34 of the Indian Penal Code. Date of occurrence has been mentioned by prosecution as November 18, 1984. It also appears from record that on the crucial question of age of the Petitioner on the date of occurrence, learned court below recorded evidence as adduced on behalf of the Petitioner in this case viz. by the father of the Petitioner and brother of the Petitioner. It also appears that the learned court below also took steps for getting the Petitioner examined medically at the M.R. Bangur hospital, Calcutta. Necessary ossification test of the Petitioner was accordingly held in the said hospital and the concerned Medical Officer was also examined by the learned court below in the matter. Again, it appears from record while giving evidence before the learned court below the father of the Petitioner viz. Md. Ramjan stated in his evidence-in-chief that the Petitioner was born in September, 1969. But in cross-examination he stated that he mentioned the age of the Petitioner only by guess. Accordingly, learned court below was justified in rejecting such evidence of the Petitioner''s father regarding the age of the Petitioner. The records indicated that on the question of age of the Petitioner, it was the definite and specific evidence of the doctor Salil Kumar Mukherjee a Radiologist, that in his opinion the age of the Petitioner was about 20 years on the date of his medical examination as per ossification test conducted by him in the hospital. This evidence was accepted by the learned court below. The Petitioner was examined on December 30, 1986, and as per opinion of the doctor the Petitioner was about 20 years old on that date. As already stated, the date of occurrence was November 18, 1984, as per Prosecution. Hence, if the doctor''s evidence is accepted as true, the accused was certainly below 18 years on the date of occurrence. To be specific, the age of the accused was 17 years, 10 months and 18 days on the date of occurrence as per mathematical calculation based on the doctor''s evidence.

In this context, another important factor cannot be lost sight of and this is in regard to variation of the age by 2 years on either side. According to this yardstick, the age of the accused was below 16 years on the date of occurrence and according to law this benefit of inner limit goes in favour of the accused-Petitioner. I am, therefore, of the clear view that the accused was a juvenile being below 16 years on the date of occurrence and he should be tried by the Juvenile Court according to the provisions contained in the Juvenile justice Act.

In the aforesaid circumstances, the learned court below is directed to split up the case and send the accused-Petitioner M.D. Jamal to the Juvenile Court concerned to stand trial there in respect of the alleged offences. Learned court below will, however, continue to hold trial in respect of the remaining accused persons according to law as expeditiously as possible.

Ad interim order of stay of all further proceedings in Sessions Trial No. 1 (1)86 as granted by this Court is hereby vacated.

Let the lower courts reports be sent down to the learned court below as expeditiously as possible. Let a copy of this order be also sent to the learned court below immediately.

The Criminal revisional application is thus disposed of.