Advocates:
['SURESH SAHNI', 'P P', '', 'RAJESH GOSWAMI', 'HARI KRISHAN SHARMA']

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In the High Court of Judicature for Rajasthan

at Jaipur Bench Jaipur

Judgment

Om Singh alias Kuldeep

vs

State of Rajasthan and another

S.B.Criminal Misc. Petition No.2341/2012

Date of Judgment – 21.2.2013

Present

Hon'ble Mrs Justice Nisha Gupta

Mr.Suresh Sahni with Mr.RM Sharma for the

petitioner.

Mr. NR Saran, Public Prosecutor for the State

Mr.Rajesh Goswami for the respondent no.2.

By the Court:

This Misc. Petition under Section 482

Cr.P.C has been filed against the order dated

12.7.2012 passed by the Special Judge, Dacoity

Effected Area, Bharatpur in Criminal Appeal

No.11/2012, whereby order passed by Juvenile

Justice Board dated 9.2.2012 the present

petitioner has been declared juvenile was set

aside.

The short facts of the case are that the

petitioner is facing trial for the offence u/s

302 IPC and 3/181 and 134/187 of Motor Vehicles

Act.

The petitioner moved an application to

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treat him as juvenile. The Juvenile Justice

Board vide order dated 9.2.2012 has opined

that the present petitioner is juvenile. The

appeal has been preferred. The order of

Juvenile Justice Board dated 9.2.2012 was set

aside. It is also pertinent to note that

earlier

S.B.Criminal

Misc.

Petition

No.1567/2012, the court has remanded the matter

to the lower appellate court to pass fresh

order taking into consideration the ratio laid

down by Hon'ble Supreme court in the case of

Shah Nawaz vs State of Uttar Pradesh and

another, 2011(13) SCC 751.

The contention of the present petitioner

is that he is a juvenile and the court below

has rightly considered the class 10^th mark sheet

and according to provisions of rule 12 (3) of

the Juvenile Justice (Care and Protection of

Children) Rules, 2007 the court is duty bound

to make the inquiry for the determination of

the age and the matriculate certificate or

equivalent certificate if any is the foremost

evidence to be considered and when class 10^th

marksheet was available the court below has

rightly considered the document and rightly

declared the petitioner as juvenile.

Per contra contention of the respondent is

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that if the school or birth record are not free

from ambiguity and do not conclusively prove

the age of the accused then medical evidence

should only be relied upon and other documents

are irrelevant for the determination of age

under Rule 12(3) of the Juvenile Justice (Care

and Protection of Children) Rule, 2007 and his

contention is that the medical opinion

regarding age of the juvenile be called for.

Heard learned counsel for the parties and

perused the impugned orders as well as the

record of the case.

The Juvenile Justice Board has relied upon

class 10^th certificate and opined that the date

of birth of juvenile is 15.7.1994 and he was

juvenile at the time of the incident. The

appellate court has considered the fact that

class 10^th mark sheet could not be relied upon

as it has been drawn on the basis of Ex.1 which

is the admission form of the present petitioner

in class I and there is over writing in the

year of birth and hence all other documents in

which the date of birth have been recorded on

the basis of Ex.1 are also unreliable. Ex.2 is

the student record register wherein the date of

birth has been written as 15.7.1994 and

admittedly there is no cutting in the said

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entry. On the basis of the fact that there is

cutting or overwriting in the entry of date of

birth in Ex.1. The appellate court has found

that school records are not reliable and to

ascertain the age, reliance has been placed on

ration card, voter list and Phoshahar Register

of Medical Department.

To deal with the controversy, relevant

provisions are Rule 12(3) of the Juvenile

Justice (Care and Protection of Children) Rule,

2007 which read as under:

(3) In every case concerning a child or

juvenile in conflict with law, the age

determination i