ORDER :

1. The instant criminal revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioner assailing the Offences Act, 2012 order dated 10.10.2019 passed by Special Judge, Protection of Children from Sexual Cases, Sirohi in Special POCSO Case No. 11/2019 (State of Rajasthan vs. Lalaram), whereby the application under Section 34 of Protection of Children from Sexual Offences Act, 2012 filed by the petitioner to treat him as child and release him, was dismissed.

2. Brief facts of the case in short are that on 11.12.2018, an F.I.R. was lodged by father of the victim against the petitioner with the allegation that he raped his minor daughter. The victim delivered fetus of eight months on 12.12.2018. The accused-petitioner was arrested on 25.12.2018. After investigation, challan was filed by the police against the petitioner. During trial, the petitioner filed an application on 22.04.2019, wherein it was stated that he had studied in the school. In the school record, his date of birth was entered as 22.06.2001. The incident was alleged to be taken place before eight months from lodging the report. Since the police did not inquire about age of the accused-petitioner during the investigation, though, he being less than 18 years of age, was juvenile at the time of incident, hence, the prayer was made to determine age of the petitioner and release him from custody.

3. At the request of the petitioner, enquiry was made by the Special Judge, POCSO Cases, Sirohi. During enquiry, statements of Amara Ram, father of the petitioner and Rahul Meena, Headmaster of the school, in which he was studying, were recorded. Being not convinced with the statements and the school record, the trial court ordered for conducting medical examination of the petitioner. In pursuance whereof, the petitioner was examined by the Medical Board on 25.09.2019. As per report of medical examination, radiological age of the petitioner was found between 20-22 years. After completion of enquiry, the trial court by passing the order impugned found that the petitioner was not child. Relying upon the judgment of the Hon'ble Supreme Court in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 AIR 1796, it was observed by the trial court that age mentioned in the school record was not substantiated by statement of father of the child. Placing reliance on the opinion of the Medical Board, the child was not found juvenile at the time of incident. Aggrieved with impugned order passed by the trial court, instant revision petition has been preferred by the petitioner.

4. Heard learned counsel for the parties and perused the material on record as well as order impugned.

5. Learned counsel for the petitioner has submitted that the trial court grossly erred in ordering medical examination of the accused and placing reliance on it, in spite of availability of school record, which is in favour of the petitioner. The medical opinion is not conclusive proof of the age. He has further submitted that the incident took place more than 8 months before lodging the F.I.R. on 11.12.2018 and the medical examination of the petitioner was conducted on 25.09.2019. It means that the incident took place around one and a half years before the date of medical examination of the petitioner. In the medical examination report, radiological age of the petitioner was found between 20-22 years. He has further submitted that on the basis of medical report, it cannot be concluded that the petitioner had attained the age of 18 years at the time of incident. As per legal proposition of law, there can be a variation of 2-3 years of age from radiological age. Hence, the trial court was not correct in arriving at the conclusion that the petitioner was not a child on the relevant date.

6. Learned counsel for the petitioner has relied upon the judgments of the Hon'ble Apex Court in the case of Ashwani Kumar Saxena vs. State of M.P. (2012) 9 SCC 750 as well as Birad Mal Singhvi vs. Anand Purohit,