- (1.) This is a revision against the order dated 10.02.2011 passed by the Additional Sessions Judge, Hisar, whereby, the Additional Sessions Judge, Hisar has dismissed the application filed by the present petitioner to declare him as juvenile.
(2.) Facts of the case are that FIR No. 260 dated 13.07.2009 under Sections 323, 506, 307, 34 IPC at Police Station Narnaund, District Hisar has been registered against the present petitioner along with his co-accused. During the pendency of the aforesaid case, the present petitioner has filed an application before the trial Court that his date of birth is 16.09.1991 as per the birth certificate issued by the Registrar (Birth and Deaths) under Rule 8. Thus, at the time of commission of the aforesaid offence, he was minor and juvenile as his age was 17 years and 10 months. However, the trial Court dismissed the application filed by the present petitioner vide order dated 10.02.2011. Instead of relying on the Birth Certificate issued by the appropriate authority under Section 17 of the Birth and Deaths Registration Act, 1969, gave weightage to the entry of Date of Birth in the Matriculation Certificate of the petitioner. The said impugned order has been challenged by the petitioner on the following grounds ; (a) that the date of birth recorded by the birth certificate issued by the competent authority as per Rule 8, is per se admissible in evidence and the same need not be proved in any manner. Moreover, the date of birth recorded in the birth certificate is admissible as per Section 35 of the Indian Evidence Act, 1872. (b) that the date of birth recorded in the school entries is not admissible as per provisions laid down under Section 35 of the Indian Evidence Act, 1872 and this fact has also been proved and settled by Hon'ble the Supreme Court of India in SLP (Crl.) No. 6629 of 2006, decided on 12.03.2010 titled as Jabar Singh v. Dinesh and another. (c) that the respondent failed to bring on record as on what basis and from which document the date of birth of the petitioner was recorded in the school certificate and in absence thereof, no reliance can be placed on the school entries as the same is inadmissible. (d) that as per the date of birth recorded in the birth certificate i.e. 16.09.1991, the present petitioner was 17 years 10 months at the time of commission of offence and the date of birth recorded in the school certificate which was relied by the trial Court is 03.06.1991 and as per this, the present petitioner was 18 years and 01 month at the time of commission of the alleged offence. Thus, it is a case of border line and the benefit of being juvenile should be given to the present petitioner in view of the judgments of Hon'ble the Apex Court of India.
(3.) Learned counsel for the respondent-State while opposing the same, submitted that there was no illegality in the order passed in view of Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, wherein, a priority was given to Matriculation Examination Certificate. It was further contended that the petitioner failed to produce the register of the Chowkidar in which the date of birth was alleged to have been recorded by him, therefore, the date of birth as 16.09.1991 allegedly recorded by the Chowkidar cannot be taken into consideration while determining the age of the petitioner. Heard.;