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Kuldeep Kumar And Others v. State Of U.P. - APPLICATION U/s 482 No. - 11905 of 2006  RD-AH 15982 (25 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court NO. 36
Criminal misc. Application No. 11905 of 2006
Amresh Kumar and another Vs. State of U.P.
This is an application under section 482 Cr.P.C. to set aside the order dated 29.4.2006 and 16.9.06 passed by Addl. Sessions Judge, Court no. 6 Kanpur Dehat in Sessions Trial No. 286 of 2002, State Vs. Kuldeep and others under section 376 I.P.C., P.S. Rura District Kanpur Dehat.
The facts relevant for disposal of this application are that the applicants are accused in the aforesaid case under section 376 I.P.C. They moved an application before the trial court stating that they were juvenile on the date of the incident and they also filed some documentary evidence of their educational record for proving the allegation of juvenileship but that evidence was not found to be reliable by the court concerned. Thereafter they made a prayer that they should be got medically examined for ascertaining the fact whether they were juvenile on the date of the incident or not. This prayer was also rejected by the trial court on the ground that this prayer had been made at a belated stage only to delay the proceedings of the case and so the prayer for medical examination of the applicants was also rejected . Aggrieved with that order the applicants have filed this application under section 482 Cr.P.C.
I have heard the learned counsel for the applicants as well as the learned A.G.A. for the State.
It is to be seen that it has been laid down by Hon'ble Apex court in Bhola Bhagat and others Vs. State of Bihar: 1997(35) ACC 835(S.C.) that the plea that the accused was juvenile can not be rejected on the ground that this plea has been taken at a belated stage, and it was held that such a plea can be raised during pendency of the appeal also . As such in the present case the learned Addl. Sessions Judge has committed a legal error by not allowing the prayer for medical examination of the applicants on the ground that this prayer has been made at a belated stage.
It is also to be seen that under Rule 22 of U.P. Juvenile Justice ( Care & Protection of Children) Rule ,2004 , birth certificate of the child or School record regarding date of birth has first to be considered for ascertaining his age and if the above evidence is not available or is found to be not trustworthy, then the medical evidence regarding age is to be considered. Hence in the present case, where the educational records filed by the applicants were found to be unreliable , the proper course for the trial court was to get the applicants medically examined and refusal to get the applicants medically examined for ascertainment of their actual age is erroneous.
Now, I take up the impugned orders dated 29.4.06 and 16.9.06. The order dated 29.4.06 which is on other documentary evidence regarding age of the applicants does not suffer from any illegality and so it is maintained. So far as order dated 16.9.06 is concerned, that part of it whereby co accused Mukesh has been disbelieved to be a juvenile is maintained, and that part of it whereby the other documentary evidence regarding age of the applicants has been declared is also maintained, but its that portion whereby their prayer for their medical examination for ascertainment of the age has been rejected is set aside and the present application under section 482 Cr. P.C. deserves to be allowed to this extent only.
The application under section 482 Cr.P.C. is therefore partly allowed. The order 16.9.06 passed by Addl. Sessions Judge, Court no. 6 Kanpur Dehat in Sessions Trial No. 286 of 2002, State Vs. Kuldeep and others under section 376 I.P.C., P.S. Rura District Kanpur Dehat is partly set aside only to the extent pointed out above. Learned Addl. Sessions Judge shall now get the applicants medically examined and after receipt of the report of the C.M.O., shall provide an opportunity to both the parties to file objections , if any , against the report of the C.M.O. and thereafter he would pass suitable orders regarding so called juvenileship of the applicants on the date of the incident.
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