JUDGMENT
H.R. Panwar, J.
1. By the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short ‘the Code’ hereinafter) the petitioner has challenged the order dated 10.6.2005 passed by Additional Sessions Judge (Fast Track) No. 2, Pali (for short ‘the trial court’ hereinafter) in Criminal Misc. Case No. 12/2005, whereby the trial Court held that the petitioner is not juvenile as envisaged under Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short ‘the Act’ hereinafter). Aggrieved by the order impugned, the petitioner has Filed the instant revision petition.
2. I have heard learned Counsel for the parties. Perused the order impugned and record of the trial Court.
3. Section 2(k) of the Act provides that ‘Juvenile’ or ‘child’ means a person, who has not completed eighteenth year of age. The relevant date to determine as to whether the person who committed the offence was juvenile or not, is the date of commission of crime.
4. It is contended by the learned Counsel for the petitioner that the occurrence in the instant case took place on 4.12.2004 and as per the school certificate, the date of birth of the petitioner is 7.6.1988 and therefore, on the date of occurrence i.e. 4.12.2004 on the basis of date of birth recorded in the School Register, the petitioner had not completed 18 years of age. Learned Counsel further submits that according to medical evidence, the age of the petitioner has been shown between 17 to 19 years and therefore, taking variance of two years on either side, the variance of the age is to be taken in favour of the accused-petitioner. Learned Counsel submits that in the instant case, the trial Court, while determining the age of the petitioner, held that the variance of two years plus or minus may be taken and-read with the age mentioned in the voter-list which according to learned Counsel is erroneous. Learned Counsel for the petitioner has relied on a decision of this Court in Jabra Ram v. State of Rajasthan 2005 (2) R.Cr.D. 342 (Raj.).
5. Learned public prosecutor and counsel appearing for the complainant submit that it was the petitioner who himself filled up the form for getting the identity card for the purpose of casting a vote before the Returning Officer, in which he has shown his age to be more than 18 years and on the basis of disclosure of age by the petitioner, the identity card and voter-list were prepared. It is further submitted that the petitioner being more than 18 years of age married to deceased and thereafter the allegation against the petitioner is that he committed murder of his wife, that shows that the petitioner was more than 18 years of age.
6. In order to determine the age of the petitioner on the relevant date of occurrence, the parties led the evidence before the trial Court.
7. AW-1 Bhanaram stated that he is Headmaster in Govt. School, Artiya since 1996. On the basis of school record he stated that petitioner studied in the said school from Class-I to Class-V. As per the scholar register’s entry No. 741, the date of birth of the petitioner is 7.6.1988. He further stated that the petitioner left the school in the year 1999 after passing Class-V. He has produced the scholar register Ex. P.1. The transfer certificate was issued by the then Headmaster Rohitash Kumar. He further stated that at the time of admission of a student in the school, an admission form is to be filled in and in the case of the petitioner, the admission form is dated 12.7.1992. He has produced the original form Ex. P.3 and proved it. Photo copy of which is Ex. P.3A, in which the date of birth of the petitioner has been mentioned as 7.6.1988 bearing signature of the then Headmaster on the back side of the form. However, he stated that on 12.7.1993 who was the headmaster of the school he could not say. He further admitted that along with the admission form, an affidavit in respect of age is also required to be filed by the guardian of the student, but in the instant case no such affidavit was filed by the guardian of the petitioner along with the admission form.
8. AW-2 Bhanaram S/o Shivdan Ji, father of the petitioner stated that the petitioner born on 7.6.1988 and had studied in the School at Artiya from Class-I. He stated that school admission form Ex. P.3 was got filled by him and the date of birth of his son i.e. 7.6.1988 was got written on his saying. He has proved the school admission form Ex. P.3 wherein the date of birth of the petitioner has been mentioned as 7.6.1988. He stated that he has also made an entry of the date of birth of his son in the diary maintained by him and on the basis of which he got written the same in the school form. However, he failed to produce the diary in which the date of birth alleged to have been recorded by him.
9. As against this evidence produced by the petitioner, the State of Rajasthan produced NAW-1 Pradeep Sharma, CW-1 Dr. Paras Khinchi, CW-2 Dr. Ambadan Rao and CW-3 Prakash Chand Rathore.
10. NAW-1 Pradeep Sharma who at the relevant time was posted at police station Rohat and arrested the petitioner in FIR No. 227/2004, stated that on being asked, the petitioner disclosed his age as 19 years which was recorded by him in the arrest memo. He further stated that physically the petitioner appeared to be of that age. He has proved the voter list Ex. A-1 of Pali Legislative Assembly Constituency wherein the age of the petitioner was mentioned as 20 years. The said voter-list was prepared on the basis of the age of voters as on 1.1.2002.
11. CW-1 Dr. Paras Khinchi, the Medical Jurist, Govt. Hospital, Bangad, Pali stated that after the X-ray report of the petitioner Ex. C-2, the medical board opined the age of the petitioner between 17 to 19 years vide report Ex. C-1.
12. CW-2 Dr. Ambadan Rao, the Radiologist, Govt. Hospital Bangad, Pali who medically examined the petitioner for the purpose of determination of his age, stated that on the basis of X-ray report, the age of the petitioner is not less than 17 years but not more than 19 years on the date of examination on 9.5.2005.
13. CW-3 Prakash Chand Rathore, Tehsildar Pali stated that in the voter-list, the names of the persons are added on the basis of documents produced by the Election Officer. For the Assembly Constituency No. 164 at Election Booth Centre No. 023, one Madanlal made in application Ex. C-5 for adding name, on the basis of which, the name of the petitioner was added in the voter-list taking his age as on 1.1.2002. The voter-list Ex. C-6 was prepared on 29.4.2002. The petitioner filed an application before the Returning Officer as required by Election Commission for issuing identity card for the purpose of casting vote in election. In the said application, the petitioner mentioned his age as 20 years as on 1.1.2003, the original application is Ex. C-7, the certified copy of which is Ex. C-7A. He has proved his signature on the said application as Certifying Officer. On the basis of the application made by the petitioner for identity card for the purpose of casting vote which was recorded fn the register of Artiya Centre No. 23 at serial No. 27 vide Ex. C-8, certified copy of which is Ex. C-8A on which he has proved his signature. He admitted that in Ex. C-5 there is no signature of petitioner but the signature of his elder brother is there. He further stated that when the said form was presented, whether the father of the petitioner was alive or not he could not say. He further stated that as to whether the brother of the petitioner was head of the family or not he could not say. He also stated that before whom Ex.C-7 was filed, he could not say. In Ex. C-8 at place ‘C to ‘D’ Malaram is written, but he could not say as to whose signature it is because it was not signed before him.
14. It is contended by the learned Counsel for the complainant that Ex. C-7, copy of which is Ex. C-7A, place marked ‘C to ‘D’ bears the signature of the petitioner which he failed to explain before the trial Court and it being the admission of the petitioner made in the form filled before the Election Commission at Election Booth Centre No. 023 for Assembly Constituency No. 164 for the purpose of getting the voter’s identity card prepared, wherein the age of the petitioner has been shown as 19 years as on 18.10.2002, therefore, the admission of the marker is the best evidence. The trial Court has relied on this evidence holding the petitioner not being juvenile on the date of occurrence.
15. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties.
16. On close scrutiny of the statement of AW-1 Bhanaram, Head Master, Govt. School, Artiya it is clear that he has produced original school form of the petitioner Ex. P.3 and scholar Register Ex. P.1, wherein the date of birth of the petitioner has been shown as 7.6.1988. The school admission form has been proved by AW-2 Banaram S/o Shivdan, father of the petitioner who categorically stated that at the time of admission of the petitioner to the school it was he who got the date of birth written in the form. He further stated that he had made an entry of the date of birth of his son in a diary maintained by him and on the basis of which he got written the same in the school form Ex. P.3. CW-1 Dr. Paras Khinchi, the Medical Jurist who has proved the X-ray report Ex. C-2 and opinion Ex. C-1, his statement finds support from the statement of CW-2 Dr. Ambadan Rao, the Radiologist who stated that on 9.5.2005, he examined the petitioner and according to X-ray reports, his age was not less than 17 years but not more than 19 years.
17. In the instant case, the occurrence took place on 4.12.2004 and the petitioner was medically examined almost after more than five months, therefore, according to the statements of these witnesses on the relevant date of occurrence, the petitioner was not less then 16 years and seven months but was not more than 18 years and seven months. However, the doctor admitted that there may be a variance of two years minus or plus on either side.
18. So far as the evidence produced by the non-petitioner is concerned, NAVV-1 Pradeep Sharma is the Officer who arrested the petitioner and produced the copy of voter list Ex. A-1. The voter list has been prepared on what basis has not been produced, who filled the form and what date has been mentioned in the form seeking to include the name of the petitioner in the voter list. The original form has not been produced on record.
19. So far as the statement of CW-3 Prakash Chand Rathore, is concerned, he categorically admitted that the on the basis of application for getting the name of the petitioner included in the voter list, the form was signed by his brother and the form Ex. C-7 which is said to be filed for getting the voter’s identity card prepared, neither presented before him nor signed by the petitioner before him and therefore, he could not say as to who has signed at place ‘C’ to ‘D’ on Ex. C-7 and therefore, it cannot be said that the document Ex. C-7 the form for getting the voter’s identity card prepared filed before the Election Commission, was filled by the petitioner himself. In absence of this, it cannot be said that the document Ex. C-7 was signed and produced by the petitioner before the Election Commission. There being no other evidence on the basis of which it can be said that the petitioner himself admitted his age to be more than 18 years before the Returning Officer or the Election Commissioner. The medical evidence is of no help to the non-petitioner for the reason given herein above that there may be a variance of two years and even according to the statement of CW-1 Dr. Paras Khinchi and CW-2 Dr. Ambadan Rao, the age of the petitioner on the relevant date of examination i.e. 9.5.05 was not more than 19 years which is worked out from the date of occurrence. If the variance of two years is taken in favour of the petitioner in view of the decision of Hon’ble Supreme Court in Rajindra Chandra v. State of Chhattisgarh 2002 SCC (Cri) 333 then the age of the petitioner on the relevant date of occurrence would work out to be less than 18 years.
20. More over, in the instant case, the school admission form dated 12.7.92 has been proved by AW-1 Bhanaram, Head Master of the School and AW-2 Bhanaram, father of the petitioner, who categorically stated that it was he who got the date of the petitioner filled in the school admission form Ex. P.3. On the relevant date, he could not have anticipated that after some years his son would commit some offence for which a lesser age may be mentioned.
21. In Rajinder Chandra v. State of Chhattisgarh (supra) Hon’ble Supreme Court held that while considering the question whether the accused was a juvenile, in borderline cases, if two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile accused should be adopted.
22. In Arnit Das v. State of Bihar 2900 (5) SCC 488, Hon’bje Supreme Court on review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases.
23. In Jabra Ram v. State of Rajasthan (supra) this Court held that as per the school record, the date of birth of the petitioner therein is 1.2.1987 and occurrence took place in that case in the year 2002. As per the ossification test and medical evidence age of the petitioner was about 17 years. Relying on date of birth from the school record as also medical evidence, this Court held that on the relevant date the petitioner therein was a juvenile. It was further held that it is no doubt tru6 that there may be variation of plus/minus two years on either side but relying on a decision of Hon’ble Supreme Court it was held that the benefit of such variance should go to the accused.
24. In view of the aforesaid discussion, in my view, the court below fell in error in not declaring the petitioner juvenile on the relevant date of occurrence on the basis of medical evidence taking variance on the higher side and on the voter list and the form for identified card, which in my view have not been proved in accordance with law, and therefore, the order impugned cannot be sustained and is liable to be set aside.
25. Consequently, the revision petition is allowed. The order impugned dated 10.6.2005 passed by the trial Court is hereby set aside and it is held that petitioner Mallaram on the relevant date of occurrence i.e. 4.12.2004 had not completed the 18 years of age and therefore, he was a juvenile. The stay petition stands disposed of.