PANWAR, J. - (1.) BY the instant criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short `the Code' hereinafter) the petitioner has challenged the order dated 10. 6. 2005 passed by Additional Sessions Judge (Fast Track) No. 2, Pali (for short `the trial court' hereinafter) in Criminal Misc. Case No. 12/2005, whereby the trial Court held that the petitioner is not juvenile as envisaged under Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short `the Act' hereinafter ). Aggrieved by the order impugned, the petitioner has filed the instant revision petition.
(2.) I have heard learned counsel for the parties. Perused the order impugned and record of the trial Court. Section 2 (k) of the Act provides that `juvenile' or `child' means a person, who has not completed eighteenth year of age. The relevant date to determine as to whether the person who committed the offence was juvenile or not, is the date of commission of crime. It is contended by the learned counsel for the petitioner that the occurrence in the instant case took place on 4. 12. 2004 and as per the school certificate, the date of birth of the petitioner is 7. 6. 1988 and therefore, on the date of occurrence i. e. 4. 12. 2004 on the basis of date of birth recorded in the School Register, the petitioner had not completed 18 years of age. Learned counsel further submits that according to medical evidence, the age of the petitioner has been shown between 17 to 19 years and therefore, taking variance of two years on either side, the variance of the age is to be taken in favour of the accused-petitioner. Learned counsel submits that in the instant case, the trial Court, while determining the age of the petitioner, held that the variance of two years plus or minus may be taken and read with the age mentioned in the voter-list which according to learned counsel is erroneous. Learned counsel for the petitioner has relied on a decision of this Court in Jabra Ram vs. State of Rajasthan, 2005 (2) R. Cr. D. 342 (Raj. ). Learned public prosecutor and counsel appearing for the complainant submit that it was the petitioner who himself filled up the form for getting the identity card for the purpose of casting a vote before the Returning Officer, in which he has shown his age to be more than 18 years and on the basis of disclosure of age by the petitioner, the identity card and voter- list were prepared. It is further submitted that the petitioner being more than 18 years of age married to deceased and thereafter the allegation against the petitioner is that he committed murder of his wife, that shows that the petitioner was more than 18 years of age. In order to determine the age of the petitioner on the relevant date of occurrence, the parties led the evidence before the trial Court.
(3.) AW-1 Bhanaram stated that he is Headmaster in Govt. School, Artiya since 1996. On the basis of school record he stated that petitioner studied in the said school from Class-I to Class-V. As per the scholar register's entry No. 741, the date of birth of the petitioner is 7. 6. 1988. He further stated that the petitioner left the school in the year 1999 after passing Class-V. He has produced the scholar register Ex. P. 1. The transfer certificate was issued by the then Headmaster Rohitash Kumar. He further stated that at the time of admission of a student in the school, an admission form is to be filled in and in the case of the petitioner, the admission form is dated 12. 7. 1992. He has produced the original form Ex. P. 3 and proved it. Photo copy of which is Ex. P. 3a, in which the date of birth of the petitioner has been mentioned as 7. 6. 1988 bearing signature of the then Headmaster on the back side of the form. However, he stated that on 12. 7. 1993 who was the headmaster of the school he could not say. He further admitted that along with the admission form, an affidavit in respect of age is also required to be filed by the guardian of the student, but in the instant case no such affidavit was filed by the guardian of the petitioner along with the admission form. Aw-2 Bhanaram S/o Shivdan Ji, father of the petitioner stated that the petitioner born on 7. 6. 1988 and had studied in the School at Artiya from Class-I. He stated that school admission form Ex. P. 3 was got filled by him and the date of birth of his son i. e. 7. 6. 1988 was got written on his saying. He has proved the school admission form Ex. P. 3 wherein the date of birth of the petitioner has been mentioned as 7. 6. 1988. He stated that he has also made an entry of the date of birth of his son in the diary maintained by him and on the basis of which he got written the same in the school form. However, he failed to produce the diary in which the date of birth alleged to have been recorded by him. As against this evidence produced by the petitioner, the State of Rajasthan produced NAw-1 Pradeep Sharma, CW-1 Dr. Paras Khinchi, CW-2 Dr. Ambadan Rao and CW-3 Prakash Chand Rathore. ;