R. C. Lahoti, J. -
(2.)Pranjal Tiwari, the accused-respondent No. 2 has been apprehended on 27-2-1997 for an offence under Ss. 302/34, I.P.C. committed on the same day. The accused claimed himself to be a juvenile as having not attained the age of 16 years and, therefore, entitled to the benefit of the Juvenile Justice Act, 1986. An enquiry was held. The learned Judicial Magistrate First Class and the Sessions Court held the accused not to be a juvenile. The accused preferred a revision in the High Court which has been allowed. The orders impugned before the High Court have been quashed and the accused has been held to be a juvenile. The complainant, father of the victim in the incident, has preferred this appeal by special leave.
(3.)At the enquiry, on behalf of the accused, mark sheets of Class VIII and High School, birth certificate, horoscope and entry in Kotwar Book were tendered in documentary evidence. In all of these documents, the date of birth of the accused is entered as 30-9-1981. in oral evidence, Savita Tiwari, P.W. 1, mother of the accused, Gopal Tiwari, P.W. 2, father of the accused, Vinod Kumar Mishra, P.W. 3, Head Master of Saraswati Shishu Mandir, where the accused took his primary education. R. S. Nayak, P.W. 4, Assistant Teacher of the High School where the accused had taken subsequent education and whereat his date of birth was entered into records on the basis of transfer certificate issued by Saraswati Shishu Mandir, Uttam Kumar Soni, P.W. 5, Assistant Teacher, Examination Centre, Government Basic School Kota, who proved the mark sheets and Hari Shankar Tandon, Kotwar, who brought the birth and death register wherein the factum of birth of the accused is recorded, were examined. The learned Magistrate and the learned Sessions Judge scrutinized the evidence adduced on behalf of the accused by applying the principle that it was the accused who was claiming the benefit of the Juvenile Justice Act, and therefore, the onus lay on him to prove that he was a juvenile and inasmuch as the oral and documentary evidence adduced by him left open room for doubt, the onus could not be said to have been discharged. The accused was also subjected to radiological examination. In ossification test report, he was opined to be of 15-16 years of age. The learned Sessions Judge, by reference to Modi's Medical Jurisprudence, held that a variation of 2 to 3 years on either side was permissible in the result of ossification test, and therefore, on the basis of such test no definite opinion could be formed.