D.K.SINHA, J. - (1.) THIS Cr. Revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 is directed against the order impugned passed by the Additional Judicial Commissioner, F.T.C. -VIII, Ranchi in Cr. Appeal No. 128 of 2008 by which the prayer for bail of the petitioner was rejected on 29.11.2008 arising out of Mander P.S. Case No. 30 of 2007 corresponding to G.R.No. 1814 of 2007 affirming the order dated 29.3.2008 passed by the Juvenile Justice Board, Ranchi in enquiry conducted under Section 49 of the Juvenile Justice Act by which the age of the petitioner Mirza Tirkey was determined about 19 years 9 months.
(2.) IT was alleged in the written report that while the prosecutrix Kiran Tirkey aged about 11 years was returning after answering the call of nature at about 10 p.m., she was held up by as many as 10 accused persons including the petitioner who committed gang rape on her one by one as a result of which she became unconscious. When, she gained senses after sometime and demanded water from them it was alleged that the culprits served urine. At the initial stage, the petitioner was taken to Remand Home. He claimed his juvenility before the Juvenile Justice Board, Ranchi to which an enquiry was conducted under Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (in short J.J. Act) and during such enquiry certain documents were produced. A medical report was also called for from the Civil Surgeon -cum - C.M.O., Ranchi. The learned J.J. Board upon enquiry under Section 49 of the J. J. Act observed that the petitioner Mirza Tirkey had not produced any oral evidence in proof of his age except that he had filed admission card, marks -sheet and the registration receipt bearing No. 1022015 of Annual Secondary Examination, 2007 issued by the Jharkhand Academic Council. Yet, from perusal of such educational certificates the Board observed that the same were issued in favour of Mirza Tirkey who was son of Naresh Tirkey but the petitioner was Mirza Tirkey son of Naru Tirkey and no evidence was adduced on behalf of the petitioner in support of the contention that Naresh Tirkey and Naru Tirkey were the same and similar person. The charge -sheet was also submitted against the petitioner Mirza Tirkey being the son of Naru Tirkey and that the petitioner had nowhere taken plea that his father was also known and addressed as Naresh Tirkey and for such reason the educational certificates that were filed on behalf of the petitioner could not be taken into account for consideration. The medical report issued by the Civil Surgeon -cum - C.M.O., Ranchi indicated that the age of the petitioner was assessed about 20 years on 6.8.2007 and as the date of alleged occurrence was 16.5.2007 the Juvenile Justice Board assessed the age of the petitioner 19 years 9 months. Such finding of the Juvenile Justice Board has been affirmed in Cr. Appeal No. 128 of 2008 on 29.11.2008 by the Additional Judicial Commissioner, F.T.C. -VIII, Ranchi. Equivalent Citation:2009 -JX(Jhar) -0 -1154 Learned Counsel Mr. Sarkhel appearing on behalf of the petitioner submitted that the courts below in succession grossly erred by not appreciating the provisions of Section 22 of the Jharkhand Juvenile Justice (Care and Protection of Children) Rules, 2003 though the same has been discussed by the Appellate Court while dismissing the petition of the petitioner. The provisions have been clearly laid down under Rule 22(5) as to how the age of a person could be determined who claims juvenility which speaks: '' "In every case concerning a juvenile or a 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; (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, when (regarding his age and, passing orders in such case 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."
(3.) THE Rule as mentioned hereinbefore clearly gives a preferential option for consideration in determination of the age and only in absence of sub -rules (i), (ii), & (iii) of Rule 5 the medical opinion by a duly constituted Medical Board is required, subject to a margin of one year. But in the instant case, all the documentary evidence such as admission card, marks -sheet and registration receipt bearing No. 1022015 of Annual Secondary Examination, 2007 issued by the Jharkhand Academic Council that were produced on behalf of the petitioner were ignored only on the ground that the father's name of Mirza Tirkey was mentioned as Naresh Tirkey in those documents whereas the petitioner Mirza Tirkey was shown to be the son of Naru Tirkey and not Naresh Tirkey in the F.I.R. The learned Counsel further submitted that the Counsel before the courts below consistently stated that the father Naresh Tirkey was an ex - servicemen of the Indian Army who was being addressed by both the names. School certificate that was brought on the record indicated that the date of birth as shown therein of Mirza Tirkey was recorded as on 7.9.1991 and in that manner he was below 18 years of age on the alleged date of occurrence. The certificates issued by the Jharkhand Academic Council was of much more importance and would certainly prevail over the medical evidence in view of the provisions of sub -rule V of Rule 22 of the Rules referred to hereinbefore.;