Hon'ble Ramesh Sinha, J. - (1.) CASE called out in the revised list. None responds on behalf of the revisionist to press this revision. Heard learned A.G.A. for the State and Sri Amit Mishra, learned counsel appearing on behalf of opposite party No. 2 and perused the judgment and order impugned herein. This revision has been preferred against the order dated 11.11.2008 passed by the Additional District and Session Judge Court No. 7 in Criminal Appeal No. 129 of 2007, Gajendra Singh and others v. State of U.P., under Sections 147, 149 and 3021 P.C. and 7 Criminal Law Amendment Act by which the lower appellate Court set aside the order dated 23.10.2007 passed by the Juvenile Justice Board, Bareilly in Case Crime No. 924 of 2006, police station Cantt., District Bareilly rejecting the application of the revisionist for declaring him juvenile.
(2.) THE brief facts giving rise to the present revision are that the trial Court passed an order 20.4.2007 on the application dated 2.4.2007 of the revisionist for considering his application for being declared juvenile directed the Juvenile Justice Board Bareilly which in pursuance to the order considered the application of opposite party No. 2 and finding that as the age of opposite party No. 2 Vikram Singh @ Vikki cannot be ascertained from the family register and the school certificate, hence it ordered that the medical examination of opposite party No. 2 which was conducted on 22.2.2007 in which he was found to be on the date of incident being 19 years 7 months and 12 days of age. The trial Court rejected the application of opposite party No. 2 for declaring him juvenile vide order dated 23.10.2007 of the Juvenile Justice Board. The opposite party No. 2 being aggrieved filed an appeal before the Additional District and Session Judge, Court No. 7 Bareilly and the lower appellate Court also confirmed that the Juvenile Justice Board was right in getting the age of opposite party No. 2 medically examined in view of the fact that the age of accused opposite party No. 2 could not be ascertained on the basis of school certificate and the family register and had rightly ordered for the medical examination of opposite party No. 2. But the lower appellant Court treating the age of opposite party No. 2 as 19 years 7 months 12 day as held by the Juvenile Justice Board considering the judgment of the Apex Court in the case of Vimal Chaddha v. Vikas Chaudhary,, 2008 LAWS 5 (SC) 19. has observed that it is a established preposition of law that two years variations can be considered as per the age recorded in the medical report and placed reliance in the case of Vimal Chaddha (Supra) and taken into account the said judgment of the Apex Court considered that as per medical report though the accused has been found to be major as his date of birth according to the medical examination was 19 years 7 months and 12 days and after relaxation of two years on the lower side is given to the accused then his age would come to 17 years 7 months and 12 days, hence on this assumption has set aside the order of Juvenile Justice Board declaring the opposite party No. 2 to be a juvenile. Learned counsel for opposite party No. 2 has argued that the lower revisional Court has rightly given the benefit of two years to the accused opposite party No. 2 on the basis of the judgment of the Apex Court in the case of Vimal Chaddha (Supra), hence the order of the appellate Court has rightly set aside the order of the Juvenile Justice Board. It has been argued by the learned State counsel who assisted the Court in the absence of counsel for the revisionist that the lower appellate Court has committed error in allowing the appeal of accused opposite party No. 2 and declaring him juvenile by giving two years margin in the age though under Rule (22) (5) of the Juvenile Justice (Care and Protection of Children) Rules, 2004 only one year margin may be given hence the order of the appellate Court is liable to be set aside by this Court.
(3.) CONSIDERED the submission of the counsel for the parties. Rule -22 (5) of the Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules,. 2004 provides as under : in every case concerning a juvenile or child, the Board shall either obtain - (i) a birth certificate given by a corporation or a Municipal Authority; or (ii) a date of birth certificate from the school first attended; or (iii) Matriculation or equivalent certificates, if available; and (iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and when passing orders in such cases shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age. From a perusal of Rule 22(5) of the said Rules, it is clear that in the absence of a birth certificate given by a corporation or a municipal authority or a date of birth from the school first attended or matriculation certificate is not available then the medical opinion by a duly constituted medical board subject to a margin of one year in observing cases for the reasons to be recorded by such medical board regarding his age can be given to a juvenile.;