DHIRE ALIAS DHRUVENDRA SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.) 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 had taken the petitioner for admission to the school and who; had made entries in the admission from which at the time of admission the student in school. The approach of the learned Sessions Judge was not correct. It is well known that so far as medical evidence is concerned it is not conclusive and there is always possibility of difference of about 2 years either way. But so far as the scholar register of school is concerned, there is no reason not to rely on it. This court examined a similar question in Gurvinder Singh v. The State of Raj. (Cr. L.R (Raj.) 1989 page 345. The learned Judge considered the matter in detail referred to the case law on the point, and said that the entries in the school register furnish relevant material to come to the' conclusion as or what is the age of student. In my opinion when the petitioner got admission in the year 1981 there was Mo reason not to mention the Correct date of birth, as then the accused petitioner could not have expected to be involved in future in a criminal case, on the aforesaid case of Gurvinder Singh, the learned Judge considered the case of Umesh Chandra v. State of Rajasthan : [1982]3SCR583 in which the Supreme Court has indicated the manner in Which the evidence should be appreciated and the Supreme Court has said that they do not give much credence to oral evidence in cases about the dertermtoation of correct age of the person, and oral testimony may him utility only if no documentary evidence is forthcoming. Even the horoscope was held to be not a reliable test, since it can be prepared at any time to week needs of the particular situation. But the Supreme Court said that the entries in the school register and admission Form regarding date of birth furnishes good proof of age. In my opinion, the approach of the learned Sessions Judge was not according to law when beside placing reliance on the medical evidence he also look into consideration his own observations so far as built and height is concerned, there was no reason for the learned Sessions Judge to have ignored the evidence as well as the entries in the school register and in respect of the age of the accused petitioner at the time of admission in the Second Class in the year 1981.