1 S. B. CRIMINAL MISC. PETITION NO.217/2008 OM PRAKASH V. STATE OF RAJASTHAN & ANOTHER. DATE: 10/09/2008. HON'BLE MR. JUSTICE C. M. TOTLA Mr. J.S.Choudhary, for Petitioner (s). Mr.S.N.Tiwari, PP, for the State. Mr.H.S.Balot, for Respondent No.2. Proceedings, relevant for disposal of this petition under Section 438, Cr.P.C., are laike this that on an FIR lodged by petitioner alleging ofence of Section 376, IPC, etc. After investigation presented for respondent No.2 an appliclation under Section 376, IPC, and then to the petitioner – thereafter on an application by respondent NO.2, asserting himself to be minor, learned Magistrate ordered to file charge-sheet against him before the Juvenile Court – then thereafter, this order of Magistrate was set aside by Hon'ble High Court in revision petition proceedings and consequently, for both the offences, case committed to the Court of Sessions - in Court of Sessions, on behalf of respondent No.2, an application preferred to the effect that he being a minor, an inquiry may be condcuted under Section 49 of the Juvenile Justice Act. In course of inquiry under Section 49, regarding juvenility of respondent No.2, three witnesses for respondent No.2 and six witnesses on behalf of the prosecution examined. Prosecution moved an application under Section 311, Cr.P.C., requesting for recalling of respondent No2's father and mother for cross- 2 examination which was rejected by the learned Sessions Judge vide order dated 25.01.2008 – prior to it, another application almost to the same effect was rejected by order dated 07.11.2007. Assailing the order dated 25.01.2008, petitioner seeks – order fo summoning AW 1 and AW 2 who are parents of respondent No.2, for further cross-examination. Learned counsel for the petitioner contended that at the time of arrest, respondent No.2 expressed his age to be 18 years and, accordingly, investiglation conducted and charge-sheet presented – thereafter during this inquiry for juvenility, it was mentionedl that respondent No.2 had a elder brother who unfortunately died. Contended that as per school record, date of birth at the time of first admission is December, 1988 which is also apparent from evidence and parents are trying to impress something like this that December, 1988 is the date of birth of elder brother of respondent No.2 and (as per parents), birth of respondent No.2 is of the year, 1990, whereas, as per contention of the learned counsel for the petitioner, date of brith was changed for the same fro whom December, 1988 was recorded, so it is necessary to further cross-examine AS 1 and AW 2 as this fact was not within the knowledge of the learned Public Prosecutor. In this context, attention also invited on the named person on application under Section 43. Learned Public Prosecutor contended, as above stated that in the interest of justice and to know essential facts, recalling of above witnesses is essential. Learned counsel for respondent No.2 stated that (1) December, 3 1988 is the date of birth of elder brother of respondent No.2, who unfortunately died. (2) Name Bhanwar Lal @ Vijay Kumar or Vijay Kumar @ Bhanwarlal is simply to create confusion. (3) Suffice to say that AW-1, AW-2 and AW-3 have already been cross-examinedl at length. (4) On behalf of the complainant, as many as six witnesses examined which includes school teacher of other school. Considered arguemnts and perused the record and copies of evidence produced. On first application, decided vide order dated 07.11.2007, it is mentioned that only after evidence of Heamaster, Government Secondary School, Jelu Gagari, the position can be clear. Thereafter, another application under Section 311, Cr.P.C., is rejected vide order dated 25.01.2008, by which time, Jelu Gagari Headmaster examined. As the inquiry for determination of juvenility of concerned person – respondent No.2 is going on, so only, the very necessary said facts should be mentioned and examined in this petition. In the statements of father and mother of respondent No.2, same description as to whether or not school record ever says – similarly, something regarding Bhanwar Lal and/or Vijay Kumar is one and the same, found mentioned in the prosecution evidence. Now, on the basis of the material and evidence, age is to be determined by the concerned. Looking to the controversy, suffice it say that for determining age and for appreciation of evidence in this context or on this quelstion, if the learned Judge feels that clarification or further examination of this witness or any other evidence is essential, he may invoking provisions do so. 4 There is no reason to assume that even clarification of evaluation or apprecialtion of the evidence becomes necessary, learned Judge shall not take recourse to these provisions, still it is clarified that if such a necessity arises, the earlier order shall not come in the way. Accordingly, the petition is disposed. All above observations are very restricted, while disposing of this petition under Section 482, Cr.P.C., exclusively for diposal of this application. (C. M. TOTLA), J. scd