The entries in the school register furnish relevant material to come to the conclusion as to what is the age of student.

1. - The learned Sessions Judge, Dholpur declined to accept the application filed on behalf of the accused petitioner under the Juvenile Act, 1986, (for short 'the Act'), that as the accused petitioner had attained the age of 16 years at the time occurrence or even at the time of the application was tiled and the learned Sessions Judge has no jurisdiction and the case should be tried only by the juvenile court establish ed under the Act The learned Session judge had dismissed the application under his order dated 20-11-1989.

2. It was contended' by the learned Counsel for the petitioner that sufficient documentary proof had been furnished to the learned "Sessions Judge that the date of birth of the accused petitioner is 31-12-197 3and as such on the day of the occurrence i.e. 16-12-1989 he bad not even attained the i.e of 16 years and had not even attained that age on the date when the application was filed, but the learned Sessions Judge dismissed the application.

3. It is well settled that after the question of age of the accused petitioner is raised before any court and the question which is raised is that the accused is a juvenile within the meaning of Section 2(h) of the Act, this question should be decided first as it relate to the jurisdiction of the Court. It is a well settled proposition of law that if the accused is a juvenile within the meaning of Section 9(1) of the Act, the only court which has exclusive jurisdiction to try the accused, is the juvenile court and no other court. In the instance case, such a question was raised before the learned Sessions Judge that the date of birth of the accused petitioner from the school record is 31-12-1973 and therefore on the day of the offence i.e. 16-2-1989 he had not attained the age Of 16 years add as Such was a juvenile. The learned Sessions Judge made an enquiry into the matter as he should have made and was bound to make and under the impugned order dated 28-1-1989 dismissed the application. It appears that during the course of enquiry in respect of the age of the accused petitioner. The statement of Vishalgiri (PW 1). Bhim Singh Parmar (PW 2) and of Dr. N.L. Sarth were recorded in respect of the age of the accused.

4. A look at the statement of Vishalgiri (PW. 1) the Head Master of Primary School, Virampur, Panchayat Samiti Badi which was recorded will show that he was the Head Master in the year 1985. He has slated on the basis of record that the date of birth was 31-12-1973, He was also proved when the petitioner was admitted and when be left the school and the petitioner' was admitted in the school in Second Class on 31-81981. Bhim Singh Parmar (PW 2) was the Head Master of the aforesaid school from the year 1981 to 1985 add be has also proved the age of the accused petitioner as per School record. Smt. Rumali Devi is the mother of the accused petitioner and it appears that she is not literate and even otherwise so far as oral evidence is concerned in my opinion it would not be much relevant, more so when it is the evidence of persons who are not literate. Or. Sarin was examined and he has said that the age of the accused was in between 18 to 19 years. The learned Sessions Judge in the impugned order has observed that he has seen the accused petitioner in the Court and as per his height which is 5.6' and his built, he does not appear to be 16 years. In my opinion such a procedure is not warranted by law and is defective. The reason is that the built and height depends not only on the family but also on the diet etc. and therefore it was not proper for the learned Sessions Judge to have passed the order also on his own observation of the height and built of the accused petitioner. It may also be said that looks at times are deceptive and cannot furnish the criteria to determine age. The learned Sessions Judge it appears, bats basically founded his order on his personal observations and the medical evidence and he has also said that it is not known as to who ha