The probative value of the school admission register and the procedure for determining the age of the accused under the relevant statutes and rules.

JUDGMENT

S.G. Mehare, J. - Rule. Rule made returnable forthwith. With the consent of the parties, the petition is finally heard.

2. The applicant who had attained the majority at the time of filing of this petition has impugned the order of the Adhoc District Judge-2 and Additional Sessions Judge, Aurangabad, passed below Exhibit-22 in S.C. (POCSO) No.305/2014 dated 30.11.2018.

3. The brief facts relevant to the facts in issue have been summarized as follows.

4. The applicant was arraigned as an accused of the offences under Section 376(2)(f)(i) and 342 of the Indian Penal Code read with Sections 3, 6 and 5(i)(m) of the Protection of Children From Sexual Offences Act, 2012 ('POCSO Act' for short). The charges were framed. The witnesses were also examined. The accused did not cross-examine the witnesses, as the counsel representing the accused did not attend the case. Subsequently, the lawyer changed. He sought permission to cross-examine the witnesses. The leave was granted; however, instead of cross-examining the witnesses, the applicant/accused raised a plea of juvenility. He claimed that on the date of the alleged incident, he was below 18 years. Therefore, the inquiry may be conducted in that regard, and he may be dealt with accordingly.

5. The investigating officer has collected the proof of the date of birth of the applicant from the school where the applicant was admitted to level first. The certificate issued by the school was attached to the charge sheet. As per the said entry of the school admission, his date of birth was 01.06.1994. The incident occurred on 28.05.2014. The learned Adhoc District Judge and Additional Sessions Judge, Aurangabad, considered these facts and held that at the time of the alleged incident, the applicant was 19 years, 11 months and 27 days old.

6. The learned Additional Sessions Judge granted the leave to examine the witnesses. The applicant examined the headmistress of the school where he was admitted to level first. She produced the extract of the Pravesh Patrak and Nirgam Utara (the extract of the information about the student recorded at the time of his/her admission). He also produced the birth certificate issued by the Village Sarpanch dated 04.07.2001, Ladsawangi wherein his date of birth was recorded as 01.06.1994. He also supplied the certificate of the Village Development Officer, and the office of the Village Sarpanch Ladsawangi dated 06.08.2019, wherein he certified that in the birth register, there was no entry of the birth of the applicant. He would also rely on the ossification test dated 04.07.2014. On the report of ossification test the opinion was expressed that the approximate age of the applicant was between 17 to 18 years. Therefore, if the benefit of a margin of two years is given, he was below 18 years at the time of the alleged incident.

7. Learned counsel for the applicant further argued that the entry in the school admission register has no probative value. Either the parents are examined, or the person on whose information the entry was made has to be examined. To bolster his arguments, he relied on the case of Muskan w/o Shaikh Rashid @ Rafiq Vs. The State of Maharashtra, 2017 ALL MR (Cri) 2722. He further relied on the case of Madan Mohan Singh and Ors Vs. Rajni Kant and Ors, Civil Appeal No.6466 of 2004, decided on 13.08.2010 (Supreme Court). In the said judgment in para 17, it has been observed that 'For determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the school register is to be discarded.

8. He also relied on the case of Alamelu and Ors Vs. State represented by Inspector of Police, Criminal Appeal No.1053 of 2009 decided o