JUDGMENT 1. - For the murder of Asuram on 26.6.94, the police submitted a challan against 11 accused including Banwarilal S/o Shri Krishna (petitioner). After the charges were framed against the petitioner an application was filed by him stating that he was child on the date of occurrence, and therefore, his case should be sent to the Children Court. The learned Addl. Sessions Judge, who is holding trial of the case, after recording the evidence of the petitioner held vide order dated 13.8.96 that Banwarilal was not child and his trial would proceed in his court. This order has given rise to the petition. 2. Mr. Purohit, learned counsel for the petitioner, contended that by the oral and documentary evidence produced by the petitioner, it is fully established that Banwarilal had not attained 16 years of age on the date of occurrence, and therefore, the trial court ought to have sent his case to the Children Court. Relying on the cases of Umesh Chandra v. State of Rajasthan ( 1982 (2) SCC 202 , Balbir Singh v. State of Rajasthan, 1994 Cr.L.J. 2750 and Narsingh v. State of Rajasthan, 1997 Cr.LR (Raj.) 815 , he canvassed that the petition should be allowed and the case of the petitioner be directed to be sent to the Children Court. 3. Learned PP., on the other hand, relying on the report of the Medical Board, submitted that the petitioner was not less than 16 years of age on the date of occurrence. According to him the order passed by the learned Addl. Sessions Judge is proper. 4. I have considered the submissions of the learned counsel for the parties. 5. The petitioner has examined his father Shri Krishna as C.W. 5. He deposes that he was married to Pana Devi on 1.12.78 and Banwarilal was born out of the wedlock on 26.12.79. He says that he had got his son Banwarilal admitted in 1st Class in the Bal Niketan Vidhyalaya, Bikaner. According to him, Banwarilal also got education in the Rashtriya Unnati Vidhyalaya, Rani Bazar School, Bikaner and Ganga Sadul Saskrati School, Bikaner. The petitioner has produced the record of the schools. Document Ex. C-1A is the application for admission submitted by Shri Krishna, father of the petitioner on 3.1.86 for getting the petitioner admitted in Bal Niketan Vidhyalaya. In that application the date of birth of the petitioner was mentioned as 26.12.79. The petitioner has produced the record of the schools. Document Ex. C-1A is the application for admission submitted by Shri Krishna, father of the petitioner on 3.1.86 for getting the petitioner admitted in Bal Niketan Vidhyalaya. In that application the date of birth of the petitioner was mentioned as 26.12.79. In the `Scholars' Register the same date was mentioned. So also, in the Transfer Certificate issued by the school and in the next school where the petitioner got admission, this date 26.12.79 was recorded as his date of birth. The documents produced in the case stand proved by the statements of the persons from whose custody they are coming. Under Section 35 of the Evidence Act an entry in the School Register stating the fact in the issue made by a person in the performance of his duty is the relevant fact. By the oral and documentary evidence it is fully established that the date of birth of the petitioner is 26.12.79. 6. Of course, the age recorded in years, months and days is not consistent with the date of birth written in form Ex.C-1A but that does not prove that the date of birth, which is recorded not only in figures but also in words is not correct. It appears that a mistake was committed while calculating the age of the date of admission, and therefore, there is slight inconsistency. 7. The trial court has disbelieved the evidence of the petitioner on the ground that the Medical Board opines that the petitioner was 18 to 22 years of age on 20.2.95. It is noticed that the prosecution has not produced the Medical Officer as a witness in the Court who had examined the petitioner. Without the statement of the Medical Officer on oath the medical report does not stand proved. It is noticed that the prosecution has not produced the Medical Officer as a witness in the Court who had examined the petitioner. Without the statement of the Medical Officer on oath the medical report does not stand proved. This Court in the case of Balbir Singh v. State of Rajasthan (supra) has held that Section 32 of the Juvenile Justice Act makes it obligatory to make an inquiry of the age of an accused and for that purpose to take such evidence as may be necessary and the Court is required to record a finding on the basis of evidence and material before Sections 32 and 39 of the Act if read together undoubtedly make it clear that the determination of age of an accused should be after holding an inquiry like a summons case, and the parties are given an opportunity to lead oral evidence and also a right of cross-examination to the witnesses of the opposite party. In the instant case the prosecution did not examine the Medical Officer who prepared the report stating the age of the petitioner to be between 18 to 22 on 20.2.95 The petitioner thus did not get an opportunity to cross-examine the Medical Officer. Without affording an opportunity of cross-examination the report could not be read in evidence against the petitioner. That being so, the learned Addl. Sessions Judge has erred in rejecting the oral and documentary evidence of the petitioner on the basis of the medical report. 8. The learned Addl. Sessions Judge has relied on the case of Shiv Singh v. State, 1994 Cr.LR (Raj.) 715 to give more importance to the medical evidence in comparison to the oral evidence. It is significant to point is out that in that case the Medical Officer was examined in Court and opportunity of cross-examination was given to the accused. That case was thus decided on the basis of appreciation of evidence. In that case it has not been laid down that the medical evidence without proof, can be accepted in preference to the oral evidence of the parents. 9. The learned Addl. Sessions Judge had drawn adverse inference against the petitioner for not producing the record of the Municipality showing the date of birth of the petitioner. Sri Krishan, C.W. 5 clearly says that he had not got the entry of the birth recorded in the Municipality. 9. The learned Addl. Sessions Judge had drawn adverse inference against the petitioner for not producing the record of the Municipality showing the date of birth of the petitioner. Sri Krishan, C.W. 5 clearly says that he had not got the entry of the birth recorded in the Municipality. It may be that Sri Krishan was educated person and was employee in the Police Department but by that it cannot be inferred that he could not omit to get the birth registered in the Municipal Office. If the prosecution thought that there was entry of the birth of the petitioner in the Municipal record it could prove the same in rebuttal. In my opinion, the learned Addl. Sessions Judge was not Justified in drawing adverse Inference against the petitioner. 10. There being reliable evidence on record that the petitioner was born on 26.12.79, it is obvious that he had not attained 16 years of age on the date of occurrence i.e. 26.6.94. The petition, therefore, deserves to be allowed. 11. Consequently, the petition succeeds. The order of the trial court is set aside. It is directed that the case against the petitioner be sent to the Children Court for enquiry/trial in accordance with law.The petition succeeds. *******