The main legal point established in the judgment is the determination of juvenility based on documentary evidence and the necessity of an ossification test in cases of disputed age.

JUDGMENT :

Manoj Kumar Ohri, J.

1. The present revision petition has been filed assailing the order dated 11.07.2019 passed by the Addl. Sessions Judge in FIR No.465/2013, registered under Sections 363/376 IPC & Section 4 of POCSO Act at Police Station Dabri, Delhi. Vide impugned order, the Trial Court has directed that the petitioner’s ossification test be conducted by a duly constituted medical board.

2. Learned Senior Counsel for the petitioner submitted that the present FIR was registered on 23.08.2013 on the basis of the statement of the complainant with respect to an incident dated 22.08.2013. It was stated by the prosecutrix that when she left her house to buy sweets for her aunt, the petitioner, who was already known to her, met her at the sweet shop. The petitioner forcibly took her to his flat and committed rape upon her.

3. Learned Senior Counsel for the petitioner submitted that on the date of the incident, the petitioner was a juvenile however, no investigation to this effect was carried out by the Investigating Officer.

4. During trial, the petitioner took the plea of juvenility on the basis of a birth certificate issued on 10.05.2019 by Nagar Nigam, Chhappra, Bihar and a transfer certificate dated 10.05.2019 issued by Upgraded Middle School, Hari Har Chhappra District Siwan (Bihar). In the trial court, a Status Report was filed on behalf of State verifying the attested copies of admission form, school certificate and the admission register of the school of the petitioner.

5. On 03.06.2019, the trial court issued notice to the Head Master of the school where the petitioner had studied. On 11.07.2019, Shri Param Hans Mishra, Principal & In-charge, Upgraded Middle School, Hari Har, Chhappra District Siwan (Bihar) was examined as a Court Witness No.1. He produced the admission register of the school, according to which the petitioner was admitted in Class II of their school on 12.02.2002 vide admission No.36. The relevant entry in the admission register was exhibited as Ex.CW-1/A. The witness also stated that the relevant entry was made by the erstwhile Head Mistress, Ms. Girija Sharma. He identified her signatures, having worked with her in the school. The admission register shows the petitioner’s date of birth as 14.07.1996. The witness was cross-examined by the learned APP for the State wherein it was admitted that no documents including any affidavit were produced at the time of admission of the petitioner in the school and the date of birth was recorded as told by the guardian of the petitioner. During cross-examination by the learned counsel for the petitioner, the witness stated that prior to 2010, no document or undertaking regarding date of birth of the student at the time of admission was required to be taken.

6. Learned Senior Counsel for the petitioner urged that as the alleged incident has occurred on 22.08.2013, the petitioner being born on 14.07.1996 was a juvenile on the date of the incident. It is the grievance of the petitioner that despite availability of the evidence in the form of school admission register, duly proved by the Principal of the school (CW-1), the trial court instead of declaring the petitioner a juvenile, rather directed the petitioner to undergo the Ossification test. He further contended that the direction to conduct ossification test of the petitioner was contrary to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

7. Learned APP for the State, on the other hand, has supported the impugned order. He submitted that the petitioner did not take the plea of juvenility before the trial court at the first instance and that the trial is now at the fag end. He further submitted that the petitioner himself has mentioned a different date of birth not only in the Customer Application Form submitted at the time of obtaining a mobile telephone connection but also in his PAN Card, where he mentioned his date of birth as 14.07.1990. Lastly, it was submitted that the cer