Judicature For Rajasthan High Court · 2008

HON'BLE MR. JUSTICE H.R.PANWAR Mr. Shambhoo Singh for the petitioner Mr. Ashok Upadhyay, P.P. BY THE COURT:- The instant criminal misc. petition under Section 482 Cr.P.C., is directed against the order dated 11.7.007 passed by learned Sessions Judge, Balotra (For short 'the appellate court' hereinafter) in Criminal Appeal No. 06/2006 whereby the request made by the accused petitioner to determine his age at the appellate stage under Section 391 Cr.P.C. by taking additional evidence, came to be dismissed. I have heard learned counsel for the petitioner and carefully gone through the order impugned. The facts and circumstances giving rise to the instant 2 petition are that the accused petitioner was put to trial and by judgment and order dated 20.12.2005 passed by Judicial Magistrate, Balotra (for short 'the trial court' hereinafter) in Criminal Case No.16/2005, he was convicted and sentenced to imprisonment, against which, the petitioner preferred an appeal before the appellate court.

During the pendency of the appeal, an application under Section 391 Cr.P.C. and Section 49 r/w Sections 33 and 6 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Act of 2000' hereinafter) was filed by the petitioner. That application came to be dismissed by the order impugned on the ground that the petitioner appellant himself appeared as defence witness DW-2 and made statement under Section 315 Cr.P.C. stating his age to be 21 years on the date of making statement on Oath and therefore, on the date of occurrence, the petitioner appellant was above 18 years of age and therefore, he was not a child as defined in the Act of 2000. Learned counsel for the petitioner has relied on a decision of this Court in Chuttan and Ors. Vs. State of Rajasthan and Ors., 1999 Western Law Cases (Raj.) UC, 696. On careful perusal of the order impugned, in my view, it is clear that the petitioner appellant has not raised the issue of his age before the trial court during the trial of the case.

In whole of the trial, the petitioner has never came with a case that on the relevant date of occurrence, he was a juvenile. The 3 trial court convicted the petitioner holding him a major person of above 18 years of age and sentenced to imprisonment. However, subsequently, it appears that before the appellate court, the petitioner raised an issue that his age may be determined. The appellate court was justified in dismissing the application on the ground that it is the admission of the appellant petitioner himself that on the date of making the statement on oath before the trial court under Section 315 Cr.P.C. as DW-2, he was 21 years of age and as such on the relevant date of occurrence, he has already attained the age of 18 years. The decision relied on by counsel for the petitioner turns on its own facts and has no application to the facts and circumstances of the present case. In this view of the matter, it cannot be said that the order impugned would result in serious miscarriage of justice or abuse of the process of the Court. The petition is devoid of any merit and therefore, it is dismissed. Stay petition also stands dismissed. (H.R.PANWAR),J.