M.A. Siddiqui, Jut. This revision has been preferred being aggrieved by the order dated 12.2.2009 passed in Criminal Appeal No. 15/2009 by which 1st Addl. Sessions Judge, Chhatarpur rejected the appeal by affirming the order passed by Chief Judicial Magistrate. Chhatarpur dated 1.1.2009 in Criminal Appeal No. 2468/2008 whereby the prayer of petitioner being Juvenile has been rejected.

2. According to revision the incident took place on 19.10.2008 under the jurisdiction of police Station-Civil Lines, District-Chhatarpur where Darbal Yadav had succumbed to his life, consequently offence punishable under section 307, 302/34 read with section 25/27 of Arms Act was registered vide Crime No. 349/2008. In that case petitioner was main accused with two other persons, namely, Jitendra Awasthy and Ashish Tiwari. The matter was investigated and challan was filed, undisputed fact is that petitioner has been punished in Sessions Trial No. 28/09 by 1st. Addl. Sessions Judge, Chhatarpur along with other accused persons treating him to be an adult man against which he has filed Criminal Appeal No. 1134/2009 which is pending in this Court.

3. The contention of petitioner is that he is a Juvenile and his date of birth is 24.10.90 so he was minor by five days to complete the age of 18 years on the day of incident. The police has wrongly shown his age more than 18 years so he agitated against it and moved proceeding before Chief Judicial Magistrate, Chhatarpur, who after full enquiry wrongly held on 1.1.09 that age of petitioner was more than 18 years. Against which an appeal was preferred before Sessions Judge, Chhatarpur and case was heard by 1st Addl. Sessions Judge, Chhatarpur who has also on 12.2.09 rejected the appeal holding the accused-petitioner to be an Adult. Against this appeal, this criminal revision has been preferred by the accused-petitioner.

4. We have heard both the sides and perused the original record of Sessions Trial and concerned record.

5. From a perusal of original record, it is very much clear that an enquiry under section 7 A of the Juvenile Justice (Care and Protection of Children) Act, 2000 has been made by learned Chief Judicial Magistrate, Chhatarpur in which father of applicant Ram Mohan Saxena, Dr. R.P. Gupta, Dr. S.K. Sharma and Savitri Saxena, mother of petitioner have been examined as Court wit 1esses. The version of Ram Mohan Saxena (CW 1) and Savitri Saxena (CW 4) was that the date of birth of Ashwani Saxena is 24.1 0.1990 and firstly he was admitted, in Jyoti English School in 1st Class. By Ram Mohan Saxena, mark sheet of petitioner of 5th Class vide Ex. P.11 was exhibited. Dr. R.P. Gupta has conducted age identification by X-ray, etc. and found that epiphysis of wrist, elbow, knee and iliac crest was fused. The doctor was of the opinion that he was more than 20 years on 14.11.08 and he gave report vide Ex. P/5 Dr. S.K. Sharma (CW 3), Medical Officer, District Hospital, Chhatarpur on the same day i.e. 14.11.08 conducted the teeth test of petitioner for age identification. The doctor found that all 32 teeth were there including all wisdom teeth, so age of Ashwin was more than 21 years. Dr. R.P. Gupta (CW 2) and Dr. S.K. Sharma (CW 3) have been cross-examined by the counsel for petitioner. Though Dr. R.P. Gupta stated that there might be margin of 3 years on both side, but Dr. S.K. Sharma (CW 3) has categorically denied such margin and he was of the firm opinion that wisdom teeth never erupt before the age of 17 and may be completed up to the age of 21 and since all four wisdom teeth were found erupted so he found that the age of petitioner was more than 21 years.

6. Learned Chief Judicial Magistrate on the ground that original admission form and admission register were not called by the petitioner so in absence of primary evidence, the date of birth according to school certificate was not proved, learned CJM has relied on various authorities in his Order dated 1.1.2009.

7. According to Birad Mal Singhvi v. An