IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1726 of 2009 MURARI YADAV @ MURARI RAI,son of late Surendra Rai,resident of village-Chotahi, P.S.-Riga,Dist.-Sitamarhi. Versus STATE OF BIHAR ----------- For the Petitioner: M/s Jagdish Prasad No.1 & Virendra Kumar, Advocates. For the State : Mr. Matloob Rab,APP ----------- 02/ 07-11-2009 Heard learned counsel for the petitioner and the State. This revision application has been filed against the judgment dated 06-10-2009 passed in Cr.AppealNo.66 of 2009/09 of 2009 by the Additional Sessions Judge-F.T.C.-VII, Sitamarhi, by which he has dismissed the appeal affirming the order dated 19-08- 2009 passed by the Juvenile Justice Board, Sitamarhi in Riga P.S.Case No.38/2009, G.R.No.579/2009, Tr.No.35/2009 in which petitioner Murari Yadav was declared major. Petitioner is accused in a case in which it is alleged that he along with others entered into the victim’s house, committed rape upon her and set her on fire. A claim was made while it was the stage of commencement of trial that petitioner was juvenile. In enquiry set up by the Juvenile Justice Board parties are allowed to lead evidence that has been done also. Apart from oral evidence documentary evidence also produced. Petitioner was decided major by the Juvenile Justice Board, which was challenged in appeal and the order of assessment of Juvenile Justice Board is confirmed vide Cr. Appeal No.66 of 2009/09 of 2009 by the Additional Sessions Judge-F.T.C.-VII, Sitamarhi. 2 A simple plea as submitted by the learned counsel for the petitioner is that documents, statements and other materials, which ought not to be accepted, have been made basis for observing the petitioner as major one. Some citations have been also there in the judgment of appellate court i.e. 2004(2) PLJR 218 and 2007(4) PLJR 479 to justify the observation. It is made clear that documents (i)transfer certificate from Rajkiye Madhya Vidyalay, Chautahi and (ii)voter list have been produced. A report of Medical Board constituted by the Juvenile Justice Board is also there on record. Both the documents have been discarded while observation of Medical Board has not been accepted. There has been much controversy over accepting the age of juvenile. Conflicting decisions were there on the point. So to rid out from all controversy rules was framed namely the Juvenile Justice (Care and Protection of Children) Rules, 2007 making provision for acceptance of documents while assessing the age, even after making mandatory provisions. Any decision of any court earlier to come in force of this rule is not acceptable, nor can be followed may had every honour for that. Rule 12(3) is relevant to lay down, which runs as follows:- “12(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii)the date of birth certificate from the school(other than a play school) first attended; and in the absence whereof ; (iii)the birth certificate given by a corporation or a municipal authority or a panchayat; 3 (b)and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, given benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing order 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 and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” So, it is mandatory to accept the matriculation or equivalent certificate if available and in its absence date of birth certificate from the school (other than a play school) first attended and its absence the birth certificate given by a Corporation or a Municipal Authority or a Panchayat and in absence of all the three medical opinion is to be sought also that has come that never can be ignored. Therefore, order of the Juvenile Justice Board, Sitamarhi passed in Trial No.35 of 2009 as well as judgment of the appellate court passed in Criminal Appeal No.66 of 2009/09 of 2009 is set aside and the matter is remitted back to the Juvenile Justice Board, Sitamarhi for re- assessment of the petitioner’s age after taking into consideration of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. Accordingly, this revision application is allowed. AH /AFR ( Mandhata Singh, J. )