ORDER
S.K. Dubey, J.
1. This is a revision under Section 38 of the Juvenile Justice Act, 1986 (for short, the ‘Act’) against the order dated 15-11-1991, passed by the First Additional Sessions Judge, Bhind, in Criminal Appeal No. 58/ 1991, preferred against the order dated 18-9-1991 passed by the Juvenile Court, Morena under Section 32 of the Act holding the accused/ respondent No. 1 as a juvenile.
2. The complainant/petitioner was sexually assaulted by the accused on 10-5-1991 at about 6 p.m. On a report a case under Section 376, IPC, at Crime No. 145/1991 was registered by P. S. Gohad against accused Atal Bihari, who apprehending his arrest applied for grant of anticipatory bail, which was rejected; therefore, the accused approached this Court in Misc. Criminal Case No. 1090/1991, decided on 13-6-1991, wherein this Court after hearing the accused, the State and the complainant, directed the accused to surrender before the Juvenile Court, Morena, who then shall hold an inquiry in accordance with Section 32 of the Act, where the prosecution, the complainant and the accused would be at liberty to place material before the Court to demonstrate the age of the accused at the time of commission of the offence. The Juvenile Court after holding due inquiry as to the age of the accused recorded a finding that the accused is a juvenile. Against this order the complainant preferred an appeal under Section 37 of the Act. The appellate court after perusing the material on record and taking into consideration the birth certificate issued under (the) Registration of Births and Deaths Act, 1969 (for short, the ‘Act of 1969), wherein the date of birth of the accused was entered as 12-9-1976, entry of which was made on 14-12-1976, affirmed the order of the Juvenile Court. Aggrieved of this order, the complainant has preferred this revision.
3. Shri K. S. Shrivastava, counsel for the petitioner, Shri R. D. Jain and Shri T. C. Bansal, counsel for the accused, and Shri J. P. Sharma, Panel lawyer for the State were heard. Record perused.
4. The counsel for the petitioner drew the attention of this Court to two inconsistent entries of the date of birth entered in the school records and the ration card, wherein the age of the accused has been shown to be more than 16 years. Counsel submitted that according to the prosecution the age of the accused is 18 years and, as per the report of radiological examination, the accused’s age is between 16 and 18 years. Therefore, counsel placing reliance on Rajan Sinha v. State of Bihar, AIR 1991 SC 1377: (1991 Cri LJ 1369) and Dayachand v. Sahib Singh, AIR 1991 SC 930 : (1991) Cri LJ 1370), contended that in view of the conflicting evidence on record, the Juvenile Court erred in holding that the accused was a juvenile because as per the medical opinion the age of the accused is between 16 and 18 years. It was also contended that the entry of date of birth in the Birth. Register was not duly proved and, therefore, could not have been relied on.
5. In my opinion, the contention raised cannot be accepted in the facts of the present case. True, there is a conflict between the entries about the date of birth made in the School Register and the ration card. The accused has filed his horoscope and with affidavits, but even if the said material is not considered, there is a specific evidence of the entry of the date of birth in the record of Registration of births and deaths maintained in accordance with the provisions of the Act of 1969. That is a certificate of the entry of date of birth duly made in accordance with the provisions of the Act of 1969, issued by the Registrar of Births and Deaths. The Registrar who acts or purports to act in pursuance of the provisions of the Act of 1969 or any rule or order made thereunder, is deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, as laid down in Section 26. Therefore, the document, i.e., the certificate was admissible under Section 35 of the Evidence Act, as it fully satisfies the three conditions, namely, (i) the entry of the date of birth relied on was made in the Register of Births and Deaths, a public record; (ii) it is an entry stating a fact in issue or relevant fact, and (iii) it was made by a public servant in discharge of his official duty. Hence, the entry relating to date of birth entered in the public record, maintained statutorily, was rightly admitted in evidence. See Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796; D. K. Arya v. Union of India, 1990 (1) MPWN 204 (DB) and Pramy V. Ram Nayak v. Smt. Tirath Bai, 1985 MPWN 185. True, the report of the radiological examination of the accused gives the age between 16 and 18 years. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. See Jaya Mala’s case, AIR 1982 SC 1297 : (1982 Cri LJ 1777). The medical opinion is after all an opinion evidence. In Modi’s Medical Jurisprudence and Toxicology, 20th edn., at p. 32 it is stated that too much reliance should not be placed on the Table showing the age in years of the appearance and fusion of some of the epiphyses as observed by different authors, as it merely indicates an average and is likely to vary in individual cases even of the same province owing to the eccentricities of development. It is further stated that recent work has shown that the range of error may be up to three years on either side. An ossification test may provide a surer basis for determination of age of an individual than the opinion of a medical expert, but the opinion of the Radiologist cannot be preferred to the positive evidence of the entry of date of birth made in the Register of Births and Deaths, immediately after two months of the date of birth of the accused. As there remains a margin of error in age of two years on either side, as said in Jaya Mala’s case (supra) by the apex Court, the Courts below were right in holding that the accused is a juvenile as defined under Section 2(h) of the Act. The finding of the two Courts below being concurrent, no interference can be made by this Court. See Dayachand’s case (supra).
6. In the result, the revision has no merit and is dismissed. The records of the Courts below be sent back immediately.