Court No. - 49
Case :- CRIMINAL REVISION No. - 3911 of 2017 Revisionist :- Prem Singh Thru His Father Chhatrapal Singh Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Madan Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Rejoinder affidavit and supplementary affidavit filed today and the same is taken on record.
Heard learned counsel for the applicant, Sri Sanjay Singh,learned counsel for the opposite party no.2 and learned A.G.A. for the State.
Present criminal revision has been filed against the order dated 21.11.2017 and 27.5.2016 while the Juvenile Justice Board had allowed the claim of juvenelity by its order dated 21.11.2017. However, the Special Judge (POCSO)/ Additional Session Judge, Court no.10, Moradabad allowed the appeal there against and set aside the order dated 27.5.2016.
The order dated 21.11.2017 had been passed by the learned Special Judge on the reasoning that though there is no documentary evidence as to the age of the applicant, the medical opinion expressed by the C.M.O., Moradabad estimated the age of the applicant to be 'above' 18 years. It has further been reasoned that the certain photo copies filed by the opposite party no.2 (claimed the copies of the Panchayat Electoral List, Ration Card and Family Register), are to the effect that the applicant's age was more than 18 years.
Learned counsel for the applicant has submitted that the finding recorded by the Appellate Court on the basis of the medical opinion is clearly perverse. He relied on the report of the C.M.O., Moradabad that has been considered by the appellate court to submit that as to the age of the applicant the opinion expressed by the C.M.O. was to the following effect:
"AGE :- According to X-Ray Reports his/her Radiological age in my opinion is about '18' Eighteen Years."
This fact is stated to have been confirmed by the C.M.O. in the intimation furnished under the RTI Act by communication dated 5.8.2018 annexed with the supplementary affidavit filed today.
It is then submitted that the date of the incident being 29.7.2015 and the applicant having been found to be 'about' 18 years of age on 8.1.2016, clearly he was a juvenile on the date of the incident. The learned court below has misread the word 'about' as 'above' to reach opposite conclusion.
Next, it has been submitted that clear hierarchy and preference of evidence having been provided under the statute, no other evidence could have been examined for the purpose of determining the age of the applicant. Thus, neither the Panchayat Electoral List nor the Ration Card nor the Family Register could have been looked into to determine the age of the applicant. It is also submitted that in any case, since the opposite party no.2 had only filed photo copies of certain documents claimed to be copy of the Panchayat Electoral List, Ration Card and Family Register, the same could not have been looked or read in evidence Sri Sanjay Singh, learned counsel for the opposite party no.2 on the other hand submits that documents filed by the opposite party no.2 being such as had been prepared by the applicant or his guardians, the same had been rightly looked into by the learned court below.
Having considered the arguments advanced by the learned counsel for the parties in the first place it appears that the learned court below has completely erred in reading the word 'about' appearing in the report of the C.M.O., Moradabad as 'above'. Such misreading has clearly resulted in order that has to be described as perverse. As to the photocopies of the certain documents relied by the learned counsel for the opposite party no.2, the same could not be looked into for the purpose of determination of the age of the applicant.
In view of the above order dated 21.11.2017 is set aside and the matter is remitted to the learned court below to decide the appeal afresh in accordance with law. While engaging in such exercise, the learned court below may allow one last opportunity to either party to lead any evidence as they may be advised. The proceeding may be concluded as expeditiously as possible preferably within a period of three months from the date of production of certified copy of this order.
Accordingly, the revision is disposed of. Order Date :- 24.8.2018 Gaurav Pal