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Nardev @ Sonu vs The State & Anr on 10 October, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 10.10.2019

+ W.P.(CRL) 1543/2018

NARDEV @ SONU ….. Petitioner

Versus

THE STATE ANR ….. Respondents

Advocates who appeared in this case:

For the Petitioner : Ms Vagisha Kochar, Advocate.
For the Respondents : Mr Rahul Mehra, Standing Counsel with
Mr Chaitanya Gosain and Mr Amanpreet
Singh, Advocates for State.
SI Pankaj Kumar, P.S. Khyala.
Ms Vidhi Gupta for Mr Saurabh Kaushal,
Advocate for R2/Complainant.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present petition, inter alia, praying
that the trial of the case captioned ‘State v. Nardev @ Sonu: FIR No.
448/2014’ under Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (hereafter ‘POCSO Act’) and Section 376 of the
Indian Penal Code, 1860 (IPC) be transferred from the Court of learned
ASJ to the Juvenile Justice Board for its adjudication.

W.P.(CRL) 1543/2018 Page 1 of 18

2. The present petition is founded on the petitioner’s assertion that
he was a minor on the date of the commission of the offence (that is, on
02.06.2014).

3. Briefly stated, the relevant facts are as under:-

3.1 The petitioner is accused of committing an offence under
Sections 5(m) and 6 of the POCSO Act and Section 376 of the IPC. The
said offence is alleged to have been committed on 02.06.2014. This was
reported by the mother of the prosecutrix on 11.06.2014 and FIR No.
448/2014 under Section 376 of the IPC and Sections 5 and 6 of the
POCSO Act was registered with P.S. Khyala. At the material time, the
prosecutrix was aged five years.

3.2 The complainant – the mother of the prosecutrix – had reported
that she along with her husband, three daughters and two sons were
residents of JJ Colony, Raghubir Nagar, Delhi. The petitioner had been
working with her husband and had been residing with them for the past
eight years. She had stated that on the date of the incident, that is on
02.06.2014, she had taken two of her daughters to the market at around
09:00 p.m. At the material time, her husband (the father of the
prosecutrix) was also not available at their home as he had left to visit
his village (Sisarka in district Badaun, Uttar Pradesh). At the material
time, the prosecutrix along with her two brothers and petitioner were at
home. The complainant stated that she came back at around 09:30 p.m.
and found her daughter crying. She pointed out towards her private area
and stated that Sonu (the petitioner herein) had done “gandi baat” with

W.P.(CRL) 1543/2018 Page 2 of 18
her. She had also stated that she saw blood stains in the said area. The
complainant had reported that she washed her daughter and her clothes
and waited for her husband to come back from the village. When he did
not arrive, she went to the village herself. She and her husband came
back from the village and on their return, lodged the aforementioned
FIR on 11.06.2014.

3.3 After the registration of the said FIR, the prosecutrix was
medically examined. Thereafter, her statement as well as statement of
her mother were recorded under Section 164 of the Code of Criminal
Procedure, 1973 (CrPC), before the concerned Magistrate. The
petitioner was arrested on 12.06.2014. After investigation, on
09.07.2014, a chargesheet was filed against the petitioner charging him
with the offence under Section 376 IPC and Sections 5(m) and 6 of the
POCSO Act.

4. The petitioner had, thereafter, filed an application on 18.09.2014,
under Section 7A of the Juvenile Justice (Care and Protection of
Children) Act, 2000 (hereafter the ‘JJ Act, 2000’). The Trial Court had,
after inquiry, determined the year of the petitioner’s birth to be
1989/1990. The offence was alleged to have been committed on
02.06.2014 and since the age of the accused, as determined, was above
eighteen years on the date of the alleged offence, the trial court rejected
the petitioner’s application by an order dated 08.01.2015.

5. The petitioner preferred a criminal revision petition (Crl.
Revision Petition No. 308/2015) challenging the order dated

W.P.(CRL) 1543/2018 Page 3 of 18
08.01.2015 before this Court. However, the same was dismissed in
default and for non-prosecution on 23.11.2015. It is averred that the
petitioner had filed another application under Section 7A of the JJ Act,
2000, claiming that he was a juvenile on the date of the alleged offence.
The Trial Court was of the view that the said application was in effect,
seeking a review of an earlier order dated 08.01.2015 and the Court did
not have jurisdiction to review the said order. Consequently, the said
application was also dismissed by an order dated 26.07.2016.

6. The petitioner had also moved an application, inter alia, praying
that a bone ossification test be conducted. Although the petitioner’s
applications under Section 7A of the JJ Act 2000 had been dismissed,
the Court had not disposed of the petitioner’s application for conducting
the said medical test. On the same being pointed out, the Trial Court
considered the said application and by an order dated 21.12.2016,
allowed the same.

7. Pursuant to the said order, the petitioner was medically examined
on 16.01.2017 by the Age Determination Board at DDU Hospital, Hari
Nagar. The medical report submitted pursuant to the aforesaid
examination, inter alia, stated that ‘the Estimated bone age is between
22 years to 30 years’.

8. It is apparent from the above that the petitioner, essentially, seeks
to challenge the orders dated 08.01.2015 and 26.07.2016, whereby his
applications under Section 7A of the JJ Act, 2000 were rejected.

W.P.(CRL) 1543/2018 Page 4 of 18

9. It is contended on behalf of the petitioner that the Trial Court had
erred in rejecting the school leaving certificate issued by the Primary
School, Sisarka, Badaun. The said certificate clearly recorded the
petitioner’s date of birth as 14.04.1999.

10. Ms Kochar, learned counsel appearing for the petitioner,
contended that there was no doubt as to the genuineness of the
petitioner’s School Leaving Certificate. The Head Master of the said
primary school was examined as CW-1 and had produced the admission
register, which indicated that the petitioner was admitted to the Ist
standard on 30.07.2005 and had studied at the school up to the Vth
standard. She submitted that in terms of Rule 12(3) of the Juvenile
Justice (Care and Protection) Rules, 2007 (hereafter ‘the Rules’), the
date of birth certificate from the school first attended was required to be
given precedence over any medical report. She stated that only in the
absence of any such certificate, the question of seeking a medical
opinion would arise. She submitted that since in the present case, a
school leaving certificate recording the petitioner’s date of birth was
available, there was no necessity for the Court to conduct any medical
test. She relied upon the decision of the Supreme Court in Ashwami
Kumar Saxena v. State of M.P.: (2012) 9 SCC 750, in support of her
contention. She also referred to the decision of the Supreme Court in
Shah Nawaz v. State of Uttar Pradesh and Anr.: (2011) 13 SCC 751.

11. Next, she submitted that the bone ossification test was conducted
on 16.01.2017 and the report had indicated that the lower limit of the
bone age to be twenty-two years. She stated that since the offence was

W.P.(CRL) 1543/2018 Page 5 of 18
allegedly committed on 02.06.2014, the petitioner’s age on the said date
was approximately nineteen and a half years. She submitted that courts
have, in various decisions, allowed for an error of two years; and if this
aspect is factored in, the petitioner’s age at the material time would have
been seventeen and a half years. Consequently, the petitioner was
required to be tried by a Juvenile Justice Board. She relied upon the
decision of the Supreme Court in Ram Suresh Singh v. Prabhat Singh:
(2009) 6 SCC 681; Jaya Mala v. Home Secretary, Govt. of JK:
(1982) 2 SCC 538; and Jyoti Prakash Rai @ Jyoti Prakash v. State of
Bihar: (2008) 15 SCC 233, in support of her contention. She also
referred to the decision of this Court in Shweta Gulati and Anr. v. State
of Govt. of NCT of Delhi: 251 (2018) DLT 667.

12. Mr Mehra, learned Standing Counsel countered the aforesaid
submissions. He referred to the decision of the Supreme Court in
Sanjeev Kumar Gupta v. The State of Uttar Pradesh and Anr.: Crl.
Appeal No. 1081/2019 decided on 25.07.2019 and contended that in
cases where there are doubts as to the correctness of the date of birth as
reflected in the matriculation certificate or the certificate issued by the
school, the Court is required to conduct an inquiry and it is not
necessary that the school certificate be accepted as conclusive proof of
the age of the applicant.

Reasons and Conclusion

13. At the outset, it is relevant to refer to Section 7A of the JJ Act,
2000. The same reads as under:-

W.P.(CRL) 1543/2018 Page 6 of 18

“7A. – Procedure to be followed when claim of
juvenility is raised before any court.

(1) Whenever a claim of juvenility is raised before any
court or a court is of the opinion that an accused person
was a juvenile on the date of commission of the offence,
the court shall make an inquiry, take such evidence as may
be necessary (but not an affidavit) so as to determine the
age of such person, and shall record a finding whether the
person is a juvenile or a child or not, stating his age as
nearly as may be:

Provided that a claim of juvenility may be raised before
any court and it shall be recognised at any stage, even after
final disposal of the case, and such claim shall be
determined in terms of the provisions contained in this Act
and the rules made thereunder, even if the juvenile has
ceased to be so on or before the date of commencement of
this Act.

(2) If the court finds a person to be a juvenile on the date
of commission of the offence under sub-section (1), it shall
forward the juvenile to the Board for passing appropriate
order, and the sentence if any, passed by a court shall be
deemed to have no effect.”

14. In terms of sub-section (1) of Section 7A of the JJ Act, 2000
whenever a claim of juvenility is raised, a Court is required to make an
inquiry and to take such evidence as may be necessary to determine the
age of a person. The Court is required to record a finding whether the
person is juvenile or a child or not stating his age as nearly as may be.
Rule 12 of the said Rules sets out the procedure to be followed in
determination of age. The said Rule is set out below:-

“12. Procedure to be followed in determination of age.–
(1) In every case concerning a child or a juvenile in conflict

W.P.(CRL) 1543/2018 Page 7 of 18
with law, the court or the Board or as the case may be the
Committee referred to in Rule 19 of these Rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.

(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.

(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;

(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, give benefit to the child or juvenile
by considering his/her age on lower side within the margin
of one year.

and, while 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

W.P.(CRL) 1543/2018 Page 8 of 18
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.

(4) If the age of a juvenile or child or the juvenile in conflict
with law is found to be below 18 years on the date of
offence, on the basis of any of the conclusive proof specified
in sub-rule (3), the court or the Board or as the case may be
the Committee shall in writing pass an order stating the age
and declaring the status of juvenility or otherwise, for the
purpose of the Act and these Rules and a copy of the order
shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is
required, inter alia, in terms of Section 7-A, Section 64 of
the Act and these Rules, no further inquiry shall be
conducted by the court or the Board after examining and
obtaining the certificate or any other documentary proof
referred to in sub-rule (3) of this Rule.

(6) The provisions contained in this Rule shall also apply to
those disposed of cases, where the status of juvenility has
not been determined in accordance with the provisions
contained in sub-rule (3) and the Act, requiring dispensation
of the sentence under the Act for passing appropriate order
in the interest of the juvenile in conflict with law.”

15. In Ashwani Kumar Saxena (supra), the Supreme Court had
emphasised that Section 7A of the JJ Act, 2000 obliges the Court to
make an inquiry and not conduct an investigation or trial under the
provisions of the CrPC. The Court explained that such inquiry is
required to be conducted as provided under the Rules. The Court had
further observed as under:-

“29. The Code lays down the procedure to be followed in
every investigation, inquiry or trial for every offence,

W.P.(CRL) 1543/2018 Page 9 of 18
whether under the Penal Code or under other penal laws.
The Code makes provisions for not only investigation,
inquiry into or trial for offences but also inquiries into
certain specific matters. The procedure laid down for
inquiring into the specific matters under the Code naturally
cannot be applied in inquiring into other matters like the
claim of juvenility under Section 7-A read with Rule 12 of
the 2007 Rules. In other words, the law regarding the
procedure to be followed in such inquiry must be found in
the enactment conferring jurisdiction to hold the inquiry.

30. Consequently, the procedure to be followed under the JJ
Act in conducting an inquiry is the procedure laid down in
that statute itself i.e. Rule 12 of the 2007 Rules. We cannot
import other procedures laid down in the Code of Criminal
Procedure or any other enactment while making an inquiry
with regard to the juvenility of a person, when the claim of
juvenility is raised before the court exercising powers under
Section 7-A of the Act. In many of the cases, we have come
across, it is seen that the criminal courts are still having the
hangover of the procedure of trial or inquiry under the Code
as if they are trying an offence under the penal laws
forgetting the fact that the specific procedure has been laid
down in Section 7-A read with Rule 12.

31. We also remind all courts/Juvenile Justice Boards and
the Committees functioning under the Act that a duty is cast
on them to seek evidence by obtaining the certificate, etc.
mentioned in Rules 12(3)(a)(i) to (iii). The courts in such
situations act as a parens patriae because they have a kind
of guardianship over minors who from their legal disability
stand in need of protection.

32. “Age determination inquiry” contemplated under
Section 7-A of the Act read with Rule 12 of the 2007 Rules
enables the court to seek evidence and in that process, the
court can obtain the matriculation or equivalent certificates,
if available. Only in the absence of any matriculation or
equivalent certificates, the court needs to obtain the date of

W.P.(CRL) 1543/2018 Page 10 of 18
birth certificate from the school first attended other than a
play school. Only in the absence of matriculation or
equivalent certificate or the date of birth certificate from the
school first attended, the court needs to obtain the birth
certificate given by a corporation or a municipal authority
or a panchayat (not an affidavit but certificates or
documents). The question of obtaining medical opinion
from a duly constituted Medical Board arises only if the
abovementioned documents are unavailable. In case exact
assessment of the age cannot be done, then the court, for
reasons to be recorded, may, if considered necessary, give
the benefit to the child or juvenile by considering his or her
age on lower side within the margin of one year.”

16. However, the Supreme Court had also observed that in cases
where documents or certificates are found to be fabricated, the Court,
the JJ Board or the Committee was also required to examine the medical
report for age determination. Thus, clearly, where the documents
produced do not inspire confidence and there is reason to believe that
the same do not correctly record the date of birth, the Court is not
precluded from undertaking further inquiry in the matter. In Abuzar
Hossain alias Gulam Hossain v. State of West Bengal: (2012) 10 SCC
489, the Supreme Court observed as under:

“39.3. As to what materials would prima facie satisfy the
court and/or are sufficient for discharging the initial burden
cannot be catalogued nor can it be laid down as to what
weight should be given to a specific piece of evidence which
may be sufficient to raise presumption of juvenility but the
documents referred to in Rules 12(3)(a)(i) to (iii) shall
definitely be sufficient for prima facie satisfaction of the
court about the age of the delinquent necessitating further
enquiry Under Rule 12. The statement recorded Under
Section 313 of the Code is too tentative and may not by itself

W.P.(CRL) 1543/2018 Page 11 of 18
be sufficient ordinarily to justify or reject the claim of
juvenility. The credibility and/or acceptability of the
documents like the school leaving certificate or the voters’
list, etc. obtained after conviction would depend on the facts
and circumstances of each case and no hard-and-fast Rule
can be prescribed that they must be prima facie accepted or
rejected. In Akbar Sheikh: (2009) 7 SCC 415: (2009) 3 SCC
(Cri.) 431] and Pawan: (2009) 15 SCC 259: (2010) 2 SCC
(Cri.) 522] these documents were not found prima facie
credible while in Jitendra Singh: (2010) 13 SCC 523: (2011)
1 SCC (Cri.) 857] the documents viz. school leaving
certificate, marksheet and the medical report were treated
sufficient for directing an inquiry and verification of the
Appellant’s age. If such documents prima facie inspire
confidence of the court, the court may act upon such
documents for the purposes of Section 7-A and order an
enquiry for determination of the age of the delinquent.”

17. The decisions of the Supreme Court in Ashwani Kumar Saxena
(supra) and Abuzar Hossain (supra) were considered by the Supreme
Court in a later decision in Parag Bhati (Juvenile) through Legal
Guardian-Mother-Smt. Rajni Bhati v. State of Uttar Pradesh and
Anr.: (2016) 12 SCC 744. In its decision, the Supreme Court referred
to Section 7A of the JJ Act, 2000 and Rule 12 of the Rules and observed
as under:-

“16) From a reading of the aforementioned statutory
provisions, it is clear that under Section 7A of the JJ Act,
the court is enjoined to make an inquiry and take such
evidence as may be necessary to determine the age of the
person who claims to be a juvenile. However, under Rule
12, the Board is enjoined to take evidence by obtaining
the matriculation certificate if available, and in its
absence, the date of birth certificate from the school first
attended and if it is also not available then the birth

W.P.(CRL) 1543/2018 Page 12 of 18
certificate given by the local body. In case any of the
above certificates are not available then medical opinion
can be resorted to. However, if the Board comes to the
conclusion that the date of birth mentioned in the
matriculation certificate raises some doubt on the basis of
material or evidence on record, it can seek medical
opinion from a duly constituted medical board to
determine the age of the accused person claiming
juvenility.”

18. In a subsequent decision in Sanjeev Kumar Gupta (supra), the
Supreme Court considered the earlier decisions and allowed the appeal
against the decision of the High Court, accepting the claim of juvenility
on the basis of a matriculation certificate. The Court noted that the date
of birth recorded in the matriculation certificate was solely on the basis
of a final list of students forwarded by the Head Master of the Secondary
School. The Head Master of the said school had deposed that the date
of birth of the students was noted down at the time of the admission as
per the information given by the parents. The Court observed that there
were several other documents on record including the Aadhar card and
driving license, which indicated a different date of birth of the accused
and considering the same, the accused was held not to be a juvenile on
the date of the alleged offences.

19. It is clear from the above that Rule 12(3) of the Rules merely sets
out the documents which are required to be accepted in the order of
preference. If a matriculation or an equivalent certificate is available
and there is no reason to doubt the same, the Court must accept the said
certificate as proof of the date of birth of the accused. If an un-
impeachable matriculation certificate is not available, the Court can

W.P.(CRL) 1543/2018 Page 13 of 18
proceed to consider the date of birth certificate from the school first
attended. And, if the same is also not available, the Court is required to
rely on the birth certificate issued by a corporation, a municipal
authority or a Panchayat. A medical opinion is required to be sought
only if none of the aforesaid documents – matriculation or equivalent
certificate, date of birth certificate from the school first attended; or the
birth certificate by a corporation/municipal authority/Panchayat – are
not available. It is implicit in Rule 12(3) of the said Rules that the said
documents be of reliable quality. However, if it is found that the said
documents are not reliable and there is a doubt as to the date of birth
recorded therein, the Court would not be bound to accept the said
documents as conclusive proof of the date of birth of the accused.

20. In the present case, the Head Master of the Primary School,
Sisarka, Block Faizgaon, Badaun, Uttar Pradesh had produced the
school admission register, which clearly indicated that the petitioner
was admitted to the school in the Ist standard on 30.07.2005. His date of
birth was recorded as 14.04.1999. The petitioner had studied up to Vth
standard at the said school and was on the rolls of the school till
30.06.2009. The Head Master had also duly verified the school leaving
certificate and there is no controversy with regard to its genuineness.

21. The petitioner’s father had deposed that he was married in the
year 1985 and the petitioner was born four-five years after his marriage.
He had also stated that his daughter (the younger sibling of the
petitioner) was born one year after the petitioner’s birth. He had further
stated that the petitioner was admitted to school by his wife. However,

W.P.(CRL) 1543/2018 Page 14 of 18
he did not know the date of birth of any of his children. In his cross-
examination, CW-2 had deposed that he did not know the date of his
marriage but it could have been five years prior to 1985 or five years
thereafter.

22. Clearly, the deposition of the petitioner’s father regarding the
date and year of his marriage is unreliable. In his deposition, he had
stated that he was married in the year 1985. However, in his cross-
examination, he had stated that he did not know about the date of his
marriage and it could be either five years prior to 1985 or five years
thereafter. Notwithstanding that no reliance could be placed on the
testimony of petitioner’s father regarding the date of his marriage, the
Trial Court proceeded to fix the petitioner’s date of birth on the
assumption that the petitioner’s parents were married in the year 1985.
The petitioner was born four-five years after their marriage (as deposed
by the petitioner’s father – CW-2). The Court had also observed that
the school leaving certificate was unreliable since the petitioner’s date
of birth had been recorded only on the information as provided at the
time of his admission to the school, without securing any affidavit or
any birth certificate.

23. This Court is unable to accept that the school leaving certificate
could be rejected in the given circumstances. First of all, there was no
material on record, which could lead the Court to doubt the said
certificate. As noticed above, the Head Master of the School had
produced the relevant records which clearly established that the
petitioner’s date of birth had been entered into the school register at the

W.P.(CRL) 1543/2018 Page 15 of 18
time of his admission. As explained by the Supreme Court in Ashwani
Kumar Saxena (supra), it is only in absence of a birth certificate from
the school first attended (other than a play school) that the Court needs
to proceed further to obtain a birth certificate from a corporation or a
municipal authority. In the present case, the certificate from the school
where the petitioner was first admitted had been produced on record and
there was no other material on record indicating to the contrary. If, on
inquiry, it is found that there were other documents or material which
reflected a different date of birth or that the certificate of the date of
birth was fabricated or manipulated, the court could proceed to reject
the same. However, since there was no other material on record – apart
from the testimony of the petitioner’s father – to doubt the petitioner’s
date of birth as recorded in the school leaving certificate, the same ought
to have been accepted. As noticed above, the testimony of the
petitioner’s father could not be relied upon to determine the year in
which he was married. In his cross-examination, he deposed that he was
not aware of the year of his marriage and it could have been five years
before or five years after 1985 and there was, thus, little basis for the
Court to accept the petitioner’s year of birth as 1989/1990. Further
accepting that the petitioner was born in the year 1989 would imply that
he was about sixteen years old at the time of his admission in the Ist
standard, which is difficult to accept.

24. The petitioner has also filed an application under Section 482 of
CrPC, placing on record a copy of the school leaving certificate of his
younger sister and copy of the LIC Policy dated 03.11.2011 along with

W.P.(CRL) 1543/2018 Page 16 of 18
the premium receipt. The school leaving certificate of the petitioner’s
sister indicates her date of birth as 10.04.2000. The petitioner’s father
had deposed that the petitioner’s sister was born one year after the
petitioner’s birth. Thus, the date of birth of the petitioner’s sister, as
recorded in the school leaving certificate, also supports the petitioner’s
claim that he was born on 14.04.1999. The LIC Policy also records the
petitioner’s date of birth as 14.04.1999. The date of proposal and
commencement of the policy is 03.11.2011 and records the petitioner’s
age as on that date as thirteen years.

25. The petitioner had prayed that in view of the said evidence, the
matter may be remanded to the Trial Court for a fresh consideration.
However, the said prayer was not pursued and the learned counsel for
the petitioner had requested that the additional documents be taken on
record and a proper inquiry be conducted by setting aside the impugned
order dated 08.01.2015. The said application was disposed of by an
order dated 31.05.2019 and the additional documents were taken on
record. The State was further directed to verify further documents and
submit a status report. The status report since submitted, indicates that
the said documents (school leaving certificate of the petitioner’s
younger sister, LIC policy and premium receipt) were verified and
found to be genuine.

26. The medical report does not support the petitioner’s claim that he
was a minor on the date of the alleged offence. Although Ms Kochar,
learned counsel for the petitioner, had contended that the Court had
erred in directing that the bone ossification test be conducted, the same

W.P.(CRL) 1543/2018 Page 17 of 18
is not open to the petitioner. This is so because the order dated
21.12.2016 directing that the bone ossification test be conducted was on
the application filed by the petitioner. Clearly, the petitioner cannot be
heard to contend to the contrary.

27. Nonetheless, the only question that falls for consideration by this
Court is whether the medical report is required to be considered in view
of the school leaving certificate produced by the petitioner.

28. Rule 12(3) of the said Rules makes it explicitly clear that recourse
to a medical test can be taken only if the documents, as specified in
Clause (a) of Sub-rule (3) of Rule 12, are unavailable. Since in the
present case, a school leaving certificate from the school first attended
by the petitioner is available and there is no allegation that the same has
been fabricated and manipulated, the Court must accept the same as
conclusive evidence of the petitioner’s date of birth.

29. In view of the above, the petition is allowed. The trial in FIR No.
448/2014 under Section 376 of the IPC and Section 6 of the POCSO
Act is directed to be transferred to the Juvenile Justice Board.

VIBHU BAKHRU, J
OCTOBER 10, 2019
RK

W.P.(CRL) 1543/2018 Page 18 of 18

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