JUDGMENT 1. - Under his order dated 17th July. 1986 the learned Sessions Judge. Sawai Madhopur has held that the age of the accused non-petitioner Ram Avtar @ Ramesh S/o Ram Sukha on the date of occurrence was below 16 years and therefore he was a child and could only be tried by the Children Court. That order was challenged in this revision petition by the present petitioner who had filed the First Information Report and who is son of deceased Ram Kunwar. 2. The learned counsel for the petitioner has challenged the order of the learned Sessions Judge inter alia on the ground that on the day of occurrence the accused non-petitioner No. 2 Ram Avtar @ Ramesh was not below 16 years of age. The learned Sessions Judge has not cared to discuss the evidence on record in the manner in which it would have been discussed. He further contends that he learned Sessions Judge has committed a mistake in placing reliance on Umesh Chand Vs. State of Rajasthan. AIR 1982 S.C. 1057 and that ruling has no application in the facts and circumstances of this case. 3. The incident took place on 24th December. 1955 at about 12.00.1.00 p. m. and it is alleged that the deceased alongwith others was sitting in the fields of one Gopi Bairwa and his animals were grazing in the fields. In the fields of Kanhaiya Lal the animals of Ram Avtar were grazing. At that time he noticed that Ram Avtar came from the side of the village and started giving beating to the deceased by Saria' on his head and other parts of the body. A report was lodged. After investigation charge sheet was filed against the accused petitioner and the learned Magistrate sent the case of the accused to the court of learned Sessions Judge Sawai Madhopur. Before the learned Sessions Judge an application was filed on behalf of the accused non-petitioner No. 2 and with the application some affidavits were also filed wherein it was stated that the age of the accused petitioner was less than 16 years as his date of birth was 20th April 1970. Before the learned Sessions Judge an application was filed on behalf of the accused non-petitioner No. 2 and with the application some affidavits were also filed wherein it was stated that the age of the accused petitioner was less than 16 years as his date of birth was 20th April 1970. The learned Sessions Judge examined Mehar Singh PW 1, Ram Sukha PW 2, Kanhiya Lai PW 3, Rakhlal PW 4, Sohan Lal PW 5, It appears that the accused was also medically examined by the doctor and on the basis of the general examination and the report of the X-rays. the Medical Officer General Hospital Sawai Madhopur opined that the age of the accused Ram Avtar may be about 6 years according to the clinical findings. But the doctor also had given another report on 10th Jan. 1986 that on the basis of the ossification of bones the age of the accused was about 15 years and below 18 years. It was on the basis of the general examination that the age of the accused was given about 16 years. 4. I shall presently show that the ocular evidence in respect of the date of birth of the accused-non-petitioner No. 2 is such which could hardly be relied upon. A bare reading of the order of the learned Sessions Judge will show that he has not analysed the statement of the witnesses in respect of age. It further appears that so far as horoscope is concerned the learned Sessions Judge disbelieved it as the some having been prepared much after the birth of the accused and on the ground that the pandit who has prepared the horoscope was not present in the court. But the learned Sessions Judge had only said that on the basis of the statement of five witnesses the date of birth of the accused was 20th April. 1970. He also placed reliance on the clarification given by the father of the accused petitioner Ram Sukha that the date of birth of the accused was 20th April 1968 was wrongly recorded in the scholar register in the school by him because the Head Master gave out to him that if the age is recorded as 20th April. 1970 his son will not attain the age of 20 years and as such he will not be eligible to appear in the secondary school examination. 1970 his son will not attain the age of 20 years and as such he will not be eligible to appear in the secondary school examination. The learned Sessions Judge did not discuss the oral testimony in the manner in which it should have be. n discussed. Mehar Singh PW 1 is not a relation of the accused non-petitioner and according to his statement he knows Ram Sukha and earlier he was posted at Gangapur City and his brother Jetha Singh was posted in Railways as Point Jamader and was residing in railway quarters. He used to have meals with Ram Sukha. He has also stated that she date of birth is 20th April. 1970 and he says it on the basis of the information furnished to him by none-else but by Ram Sukha father of the accused. According to him when on 21st April 1970 he had gone to Sawai Madhopur. Ram Sukha had told him that on 20th April. 1970 a son has been born to him. On cross examination he admits that his family resides in Bharatpur and at that time he was posted in Sawai Madhopur where his family was also residing with him. Though he has given the year of his marriage as 1951 but he was unable to give the date. He states that he has intimate relations with the father of the accused and the accused has studied upto 8th class. He was unable to say as to whether it was Monday or any other day on 20th April. 1970. He has stated that he does not remember as to in what respect he went to Sawai Madhopur on 21st April. 1970. Ram Sukha other of the accused non-petitioner has stated that his son was born on 20th April. 1970. The learned Sessions Judge has not placed reliance on the horoscope and has said that it was got prepared later on. A look at the horoscope will show that it does not appear to be an old one and that apart it could also be said that it was printed in Dohati Pustak Bhander Chawdi Bazar Chowk Badshahbula Delhi. An evidence could have been brought that the paid printed from on which the horoscope was prepared lateron was intact printed in the year 1970 or immediately prior to it. An evidence could have been brought that the paid printed from on which the horoscope was prepared lateron was intact printed in the year 1970 or immediately prior to it. It has got six digit telephone numbers and an argument was advanced before the learned Sessions Judge that in the year 1970 there were no six digits telephone number of any telephone in Delhi. Ram Sukha PW 2 further states that he had taken his son Ram Avtar to the school for admission and he was admitted in school on 2nd July. 1974. Though infact the age of the accused was four years at that time but it was given out by the Head Master that if the age is entered as four years his son will not be eligible to appear in the secondary school examination as he will not attain the age of 16 years. He does not state that in which school the boy was admitted. There is no dispute that in the school where the boy was admitted by none else but by Ram Sukha father of the accused non- petitioner Ram Avtar the date of birth was entered as 10th April 1968. It appears that the accused was admitted in the school on 8th July. 1974 and left the school on 16th May 1979 after passing 5th class. This is apparent from the certificate issued in this regard by the Head Mister of the School and which is available with the learned counsel for the petitioner and which was also produced for perusal before the learned Sessions Judge. It is common knowledge that Rajasthan was the first State to bring in Panchayati Raj System and death and birth registers are maintained. It could be the best evidence if the extract of the birth register would have been produced but the best evidence was not produced. He stated that he has filled a form in the school in which he has entered the date of birth as 20th April 1970 but the same was not produced. It was also stated that he has two daughters elder than the accused Ram Avtar and the date of birth of the first daughter is 20th October. 1965 and the second daughter was born on 23rd October 1967. There appears to be a gap of two years in between both the daughters. It was also stated that he has two daughters elder than the accused Ram Avtar and the date of birth of the first daughter is 20th October. 1965 and the second daughter was born on 23rd October 1967. There appears to be a gap of two years in between both the daughters. Therefore no reliance on the statement of PW Ram Sukha could be placed and the learned Sessions Judge in my opinion had wrongly placed reliance on his statement. 5. Kanhaiya lal PW 3 states that his son Pappu had died when he was about 1.1 /4 years old on 9th April 1970 and therefore he remembers the date of birth of the accused as 20th April. 1970. He resides in village Kutubpura and the father of the accused also resides in the same village. On cross examination he states that he does not remember the date of birth of his son but he remembers that his son was born in January. 1969. He also states that he and Ram Sukha used to work in separate departments in a cement factory of Jaipur Udyog. 6. PW 4 is Rakhlal and he states that Ram Avtar accused is his nephew (Bhanja) and he was born in Smt. year 2027 Chetshudi Puno. He was born after the birth of three to four daughters had taken place to the father of Ram Avtar. He states that first daughter was born to his sister in Smt. year 2019. The second daughter was born in Smt year 2023 and the third was born in Smt. year 2025 then said the third was born near about Smt. year 2023 and the fourth daughter was born in Smt. year 2025. A reference has already been made earlier in this judgment that as per the statement of Ram Sukha father of the accused non-petitioner the accused was born after the birth of two daughters each of them was born according to his statement on 20-10-1965 and 23-10-1967. Smt. year 2019 comes to year l962 and Smt. year 2021 is equivalent to year 1964. Similarly Svt. year 2023 and 2025 are corresponding to the year 1966 and 1968 respectively. As per the statement of Ram Sukha his first daughter was born on 20th October. Smt. year 2019 comes to year l962 and Smt. year 2021 is equivalent to year 1964. Similarly Svt. year 2023 and 2025 are corresponding to the year 1966 and 1968 respectively. As per the statement of Ram Sukha his first daughter was born on 20th October. 1965 and the second daughter was born on 23rd October 1967 and it will therefore be clear, that he has not given the true statement. 7. PW 5 is Sohan Lal and he only states that he knows that accused Ram Avtar who is(?) Ram Sukha and his date of birth is 20th April. 1970. The reason of remembering the date of birth is as given out by him that about four days prior to the date of birth of accused a daughter his taken birth in his family to him and about 6 days prior to the birth of daughter to me my father was died. On cross examination states that his father died on 10th April 1970. He is unable to give the dates on which during the last few days he had deposited the rent for his agricultural land. He is unable to give the dates of birth of the sisters of the accused. 8. A perusal of the above ocular evidence shows that not a single witness can be relied upon and the learned Sessions Judge has not cared to discuss any evidence in the manner in which was required to he discussed. It can be said that the ocular evidence is not reliable in view of the date of birth recorded as 20th April 1968 in the school register at the instance of none else but Ram Sukha father of the accused. 9. Coming to the medical evidence it may be stated that doctor was not examined and these are certificates which have been referred to earlier and in one it is stated that the age of the accused was 15 to 18 years and then again opined that the age may be about 16 years. When attempt to get the horoscope prepared was made by Ram Sukha to prove the date of birth as 20th April 1970. which horoscope even has not been relied upon by the learned Sessions Judge. I am not inclined to place on record medical evidence more so when the doctor was not examined and when he was not produced for cross examination. which horoscope even has not been relied upon by the learned Sessions Judge. I am not inclined to place on record medical evidence more so when the doctor was not examined and when he was not produced for cross examination. Learned Sessions Judge has placed reliance on a case of Umesh Chand (supra) and has said that the explanation furnished by Ram Sukha that he entered the date of birth of his son as 20-4-1968 in the school at the time of admission because the head master gave out that if the date of birth is entered as 20-4-1970 his son will not be of 16 years when he will be due to appear in secondary school examination has been denied by the learned Sessions Judge. In the case of Umesh Chand there were two documents of the two different public schools showing the age of the delinquent child and both the documents had been signed by the father. It was held that there can be no ground to doubt the genuineness of those documents. The date of birth in that case was lateron changed to 22nd Sept.l956 to 22nd June 1956 because as per the explanation furnished by the father his son could not have been eligible for the High School examination. It can therefore be said that in the facts of that case the court held that the explanation should be relied upon. It cannot be said that in every case any explanation furnished in respect of the date of birth should be relied upon. In the instant case there is only one date of birth entered in the school register i.e. 20th April 1968 and the explanation furnished in my opinion can hardly be accepted because in the year 1974 when the son was admitted in the school it could not be said as to what shall be its academic career and whether he will read upto High school. He left the school after 5th class. 10. Consequently on the evidence recorded it cannot be said that the age of the accused was below 16 years and his date of birth was 20th April 1970 but on the other hand as appears from the school register his date of birth was 20th April. He left the school after 5th class. 10. Consequently on the evidence recorded it cannot be said that the age of the accused was below 16 years and his date of birth was 20th April 1970 but on the other hand as appears from the school register his date of birth was 20th April. 1968 and if that be so he had crossed the age of 16 years on the date of occurrence and in my opinion was not a juvenile within the meaning of Section 2 (h) of the Jueline Justice Act 1986 and could not be tried by the Children Court and should be tried by the learned Sessions Judge. 11. Consequently, hereby allow this revision petition set aside the order dated 17th July 1986 of the learned Sessions Judge and hold that accused non. petitioner Ram Avtar is not a juvenile as aforesaid being not below the age of 16 years but his date of birth was 20th April. 1968. He shall now be tried by the learned Sessions Judge.Revision allowed. *******