ORDER
Shantanu Kemkar, J.
1. The applicant (accused) claiming himself to be juvenile being 17 years of age on 28-6-2002 - the day of the commission of the alleged offence under Section 376 of the Indian Penal Code, filed an application under Section 49 of the Juvenile Justice (Care & Protection of Children) Act, 2000. The learned Additional Sessions Judge, Sihora vide orders dated 22-5-2003 passed in Sessions Trial No. 654/2002 rejected the application of the applicant. Hence this revision.
2. In support of his claim before the Court below, the applicant had examined his mother Kesharbai (P.W. 1), Headmaster of the Govt. School, Jagdeoprasad (P.W. 2) and his brother Chandrabhah (P.W. 3). The non-applicant did not led any evidence and relied only on the ossification test report done in pursuance of the order of the Judicial Magistrate First Class, Sihora.
3. The Additional Sessions Judge after considering the evidence on record has held that the applicant was not a 'juvenile' as per Section 2(k) of the Juvenile Justice Act, 2000 as he was of more than 18 years of age on the date of the commission of the alleged offence.
4. Heard Shri A Usmani, learned Counsel for the applicant and Shri Prakash Gupta, learned Counsel for the State.
5. Kesharbai (P.W. 1) in her evidence recorded on 21-2-2003 deposed that the applicant at the age of 8 years was admitted to Class-I in the school of Village Bhitoni by Chandrabhan. She further deposed that this year in the month of Ashadh the applicant was aged 17 years. Jagdeoprasad (P.W. 2) Headmaster of Govt. Primary School, Bhitoni where the applicant was admitted in Class-I proved the school leaving certificate (Ex. P-1) bearing his date of birth to be 5-6-85. Declaration form (Ex. P-2) filled-up on 14-7-93 by Chandrabhan (P.W. 3) while admitting the applicant in the school also bears his date of birth as 5-6-85. Jagdeoprasad (P.W. 2) proved these documents on the basis of the registers brought by him from the school. Chandrabhan (P.W. 3) also deposed that he declared in Ex. P-2 the age of the applicant as told by his mother, and at the time of admission of applicant on 14-7-93 in the school, the applicant was of 8 years. Against this evidence in the ossification test report the age of the applicant is opined to be more than 18 years.
6. The Court below discarded the evidence led by the applicant by holding that there are variances in the evidence of Kesharbai (P.W. 1) and Chandrabhan (P.W. 3) regarding the age of the applicant and they have not stated the month and year of the birth of the applicant and in such circumstances the age mentioned in documents (Ex. P-1 and Ex. P-2) is not proved.
7. I have carefully scrutinized the evidence of Kesharbai (P.W. 1), Jagdeoprasad (P.W. 2) and Chandrabhan (P.W. 3) and the documents: school leaving certificate (Ex. P-1) and declaration form (Ex. P-2). In my considered opinion the finding arrived at by the learned Additional Sessions Judge is legally infirm and is not sustainable. The Court below has appreciated the evidence in hypertechnical manner. The evidence on record clearly proves that the applicant was admitted on 14-7-93 in Class-I of the Govt. Primary School and at that time he was aged 8 years. From the oral evidence and the documents (Ex. P-1 and Ex. P-2) it is amply proved that the applicant on the date of incident was of 17 years of age. In the ossification test report the applicant is opined to be of more than 18 years of age. There is always a margin of about 2 years on either side, therefore, on the basis of such test no definite opinion could be formed. Thus it can be safely held that on 28-6-2002 - the date of incident the applicant was of 17 years of age and was juvenile as per Section 2(k) of the Juvenile Justice (Care & Protection of Children) Act, 2000.
8. The Apex Court in Rajinder Chandra v. State of Chhattisgarh, 2002(1) M.P.H.T. 536 = AIR 2002 SC 748, while affirming the order of High Court setting aside the orders of Judicial Magistrate First Class and the Sessions Court reiterated its earlier view taken in Arnit Das v. State of Bihar, AIR 2000 SC 2264, in which it has been laid down :
'While dealing with the question of determination of the age of the accused for the purpose of finding out whether he is juvenile or not a hyperteehnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in border line cases.'
9. The law laid down by the Apex Court in the above referred cases squarely apply to the facts of the present case. Therefore, the impugned order of the Additional Sessions Court, Sihora, is not sustainable and is hereby set aside. The applicant is held to be juvenile on the date of incident. The revision is allowed.