Criminal Revision No.1996 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1996 of 2010 Date of decision 29 .09.2010. Krishan Parshad ...... Petitioner. versus State of Haryana ...... Respondent. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Ms. Rahish Pahwa Dudeja, Advocate for the petitioner. Ms. Shalini Attri, D.A.G. Haryana for the respondent. K.C.PURI, J. Krishan Parshad has preferred this revision petition against order dated 30.7.2010 passed by Ms. Sarita Gupta, Additional Sessions Judge, Panipat vide which the application moved by the petitioner for declaring him as juvenile was dismissed. It has been alleged by the petitioner that his date of birth is 8.7.1994. In support of his contention the petitioner has also placed on record copy of transfer certificate issued by Government Model School, Noorwala. Criminal Revision No.1996 of 2010 2 Respondent-State denied the allegations of the petitioner and the learned trial Court after appraisal of the records and hearing the counsel for the parties dismissed the application of the petitioner on the ground that the petitioner had himself stated that he was 22 years old and himself got executed an affidavit to that effect and he has been stopped from claiming that he was less than 18 years of age at the time of alleged incident. Feeling dis-satisfied with the aforesaid order of the trial Court, the petitioner has preferred the present revision petition. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the petitioner has submitted that date of birth of the petitioner is 8.7.1994. The petitioner has produced the records from the School, in which his date of birth has been recorded as 8.7.1994. The ossification test was conducted and from that report, the age of the petitioner is determined as 15½ to 17 years. Both these cogent and convincing evidence have been ignored by the trial Court on flimsy grounds. The Hon'ble Apex Court in authority Hari Ram vs. State of Rajasthan & Anr. 2009(2) R.C.R. (Criminal) 878 has held that even if a person was not juvenile under the earlier Act and he is found to be below 18 years, he is to be treated as juvenile under the Juvenile Justice Act, 2000. According to this authority, the date of occurrence is relevant. It is further submitted that the learned trial Court has relied upon the affidavit of petitioner in which he has given his age as 22 years. The said affidavit cannot be relied upon. In the said affidavit, the age of prosecutrix has been mentioned as 19 years and in case that affidavit is Criminal Revision No.1996 of 2010 3 accepted as correct, then no offence under Sections 363 and 366 of the IPC is made out. So, the prayer has been made for acceptance of the petition and for declaring the petitioner as Juvenile. On the other hand, learned State counsel has submitted that so far as school leaving certificate is concerned, the name of the person whose record has been produced is different. Even his father's name is also different and as such the learned trial Court has rightly not relied upon the said document. The petitioner himself has sworn affidavit in which he has mentioned his age as 22 years. In case the affidavit is wrong in that case proceedings for perjury can be initiated against him. In fact, the said affidavit is correct so far as the age of the prosecutrix is concerned i.e. not within the special knowledge of the petitioner and as such the age of the prosecutrix as mentioned in the affidavit cannot be relied upon. There can be variation of two years in respect of age determined by ossification test. So, in these circumstances, if the age is added by two years even then the petitioner is not juvenile. So, the prayer has been made for dismissal of the revision petition. I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. To declare an accused as juvenile, there must be legal evidence regarding his age. In the present case, the accused has relied upon the oral testimony of his mother, besides, his school record as well as the report of ossification test. The trial Court has not accepted that evidence to prove the fact that petitioner is juvenile. The date of birth certificate of petitioner has Criminal Revision No.1996 of 2010 4 not been placed on the file. The school record has not been relied upon by the trial Court as the name mentioned in the school record was different and even the father's name is also different than the actual name and father's name of the petitioner. So, this Court is left with the oral testimony of mother of the petitioner. The trial Court has discussed her testimony and reached to the conclusion that her testimony does not prove the petitioner as juvenile. The trial Court has relied upon the affidavit submitted by the petitioner himself in which he has mentioned his age as 22 years. The counsel for the petitioner has submitted that the said affidavit should not be relied upon but I am of the considered view that admission by the petitioner regarding his age is a relevant factor to determine whether the petitioner is juvenile or not. So far as the age mentioned by the petitioner in respect of prosecutrix is concerned, that has to be appreciated during the course of trial. Prima facie the petitioner could not have special knowledge regarding the age of the prosecutrix. So, in these circumstances, I see no illegality in the order passed by the trial Court. Consequently, the petition is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE September 29th, 2010 sv