Ashwani Kumar Saxena vs State Of M.P

Appellant – Ashwani Kumar Saxena and two others, namely, Jitender and Ashish were charge-sheeted for the offences punishable under Section 302 of the Indian Penal Code (for short ‘the IPC’) read with Section 27 of Arms Act and Section 302 IPC read with Section 34 of the IPC, respectively, for an offence committed on 19.10.2008 at 12.30 am in front of Krishna Restaurant, Chhatarpur which resulted in the death of one Harbal Yadav for which Sessions Case No.28/09 was pending before the First Additional Sessions Judge, Chhatarpur, Madhya Pradesh (M.P.). On 11.11.2008 the appellant filed an application before Chief Judicial Magistrate (CJM) Court, Chhatarpur under Sections 6 and 7 of the J.J. Act claiming that he was juvenile on the date of the incident and hence, the criminal court had no jurisdiction to entertain this case and the case be referred to Juvenile Justice Board and he be granted bail.

6. The C.J.M. court thought of conducting an ossification test for determination of the age of the appellant. Dr. R.P. Gupta, PW-2 conducted age identification of the body of the appellant by X ray and opined that epiphysis of wrist, elbow, knee and iliac crest was fused and he was of the opinion that the appellant was more than 20 years of age on 14.11.2008 and a report exhibited as P-5 was submitted to that extent. Dr. S.K. Sharma, Medical Officer, District Hospital, Chhatarpur was examined as PW-3, who conducted teeth test on the appellant for age identification. PW-3 had found that all 32 teeth were there including all wisdom teeth, so the age of the appellant was more than 21 years.

7. Dr. R.P. Gupta (PW-2) and Dr. S.K. Sharma (PW-3) were cross-examined by the counsel for the appellant. Dr. R.P. Gupta (PW-2) stated that there might be margin of 3 years on both side while Dr. S.K. Sharma (PW-3) had denied the said statement and he was of the opinion that wisdom teeth never erupt before the age of 17 years and might be completed upto the age of 21 years. Dr. S.K. Sharma (PW-3) concluded since all four wisdom teeth were found erupted, the appellant would be more than 21 years as on 14.11.2008.

9. The C.J.M., therefore, placing reliance on the report of the ossification test took the view that the appellant was more than 18 years of age on the date of the incident. Consequently, the application was dismissed vide order dated 1.01.2009. The appellant aggrieved by the above mentioned order filed Criminal Appeal No. 15 of 2009 before the First Additional Sessions Judge, Chhatarpur.

12. Learned First Additional Sessions Judge, on the above reasoning, dismissed the appeal though the Principal of Jyoti Higher Secondary School himself had appeared before the Court with the School Admission Register, which showed the date of birth as 24.10.1990. Aggrieved by the same, the appellant approached the High Court and the High Court confirmed the order passed by the C.J.M. Court as well as the First Additional Sessions Judge stating that the appellant had failed to establish his onus that his age was below 18 years on the date of the incident.

23. In Anil Agarwal and Another v. State of West Bengal [(2011) 2 SCALE 429], this Court was examining the claim of juvenility made at a belated stage stating that the appellants were minors at the time of the alleged offence and hence should not be tried along with the adult co-accused. The trial court dismissed the appellant’s application as not maintainable as it had been filed at a belated stage. The High Court, in revision, while holding that the application had been made belatedly, granted liberty to appellants to raise their plea of juvenility and to establish the same before the Sessions Judge at the stage of the examination under section 313 Cr.P.C.

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47. We notice that the accused is also involved in few other criminal cases as well. Since we have found that the appellant was a juvenile on the date of the incident, in this case, we are inclined to set aside the sentence awarded in sessions case No. 28/2009 by Sessions Court and direct the High Court to place the records before J.J. Board for awarding appropriate sentence in accordance with the provisions of Act, 2000, and if the appellant has already undergone the maximum sentence of three years as prescribed in the Act, needless to say he has to be let free, provided he is not in custody in any other criminal case. We are informed that the appellant is involved in few other criminal cases as well, those cases will proceed in accordance with law.

48. The appeal is allowed. Sentence awarded by the court below is accordingly set aside and the case records be placed before the concerned J.J. Board for awarding appropriate sentence.

September 13, 2012