A. K. SIKRI, J. ( 1 ) THE question involved in this case is as to whether the petitioner is a juvenile and is, therefore, to be tried by the Juvenile Board. ( 2 ) THE petitioner is charged under Sections 304-B/498-A/34, IPC along with certain other co-accused. He was arrested on 11. 10. 2002 and is in custody till date. The case is being tried by Mr. Lal Singh, ASJ, New Delhi. The petitioner had moved an application under Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, read with Section 439, Cr. P. C. (hereinafter referred as 'the act' for short) praying for sending his case to Juvenile Court for trial and for grant of bail alleging that he was juvenile under the aforesaid Act. The application of the petitioner had been rejected by the ASJ vide order dated 7. 1. 2004 and in these circumstances present petition is filed under Section 482 of the Code of Criminal procedure for quashing of order dated 7. 1. 2004 and to release the petitioner on bail. In support of his submission the petitioner has relied upon School Leaving certificate (SLC) wherein his date of birth recorded as 6. 7. 1986. The alleged incident took place on 25. 9. 2002. It may be noted that the petitioner was married to one Babita on 2. 12. 2001 and she died on 25. 9. 2002. According to the petitioner she committed suicide but on the complaint of Mr. Ajit Singh, brother of deceased babita, FIR is registered under Sections 304-B/498a/34, IPC. As per SLC date of birth of the petitioner is 6. 7. 1986. Thus as per this certificate age of petitioner as on the date of offence was 17 years two months and 19 days and on the date of arrest it was 17 years three months and 4 days. ( 3 ) THIS certificate was produced before the Trial Court as well which was sent by the Trial Court for investigation through Investigating Officer (IO ). On investigation, genuineness of the said certificate was established. However, the learned Trial Court sent the petitioner for medical determination of his age. Report dated 13. 3. 2003 was received as per which Doctor opined that radiological bone age of the petitioner is to be above 21 years. On investigation, genuineness of the said certificate was established. However, the learned Trial Court sent the petitioner for medical determination of his age. Report dated 13. 3. 2003 was received as per which Doctor opined that radiological bone age of the petitioner is to be above 21 years. In fact witnesses from three different schools where the petitioner had studying from time-to-time were also examined as Court witnesses in order to find out the authenticity of the SLC. These were Shri puran Singh as CW-1 from Government Boys Sr. Sec. School, Pooth Khurd, New delhi, Vice-Principal Maharashi Dayanand Public School, Ishwar Colony, bawana, New Delhi as CW-2 and Kishan Lal from Sarvodya Bal Vidyalaya as cw-3. All these witnesses stated that date of birth of the petitioner as per their school record was 6. 7. 1986. ( 4 ) IT is clear from the aforesaid narration that as per the schools records and slc the date of birth of the petitioner is 6. 7. 1986. If one has to reckon the age on the basis of this certificate the petitioner was minor and juvenile within the meaning of the aforesaid Act. However, the learned Trial Court dismissed the application preferring medical opinion to the said school certificate. Whether this approach of the learned ASJ is correct is the question? ( 5 ) THE impugned order would reveal that the learned Trial Court was conscious of the judgment of Supreme Court in the case of Bhoope Ram v. State of U. P. , AIR 1989 SC 1329 , wherein the Supreme Court had held that the SLC is to be preferred over the report of the medical examination and even following observations were quoted from the said judgment:"on a consideration of the matter we are of the opinion that the appellant could not completed 16 years of age on 3. 10. 1975 when the occurrence took place and as such he ought to have been treated as a "child" within the meaning of Section 2 (4) of the U. P. Children Act, 1951 and dealt with under Section 29 of the Act. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24. 6. 1990 against the column 'date of birth'. We are persuaded to take this view because of three factors. The first is that the appellant has produced a school certificate which carries the date 24. 6. 1990 against the column 'date of birth'. There is no material before us to hold that the school certificate does not relate to the appellant or that the entries therein are not correct in their particulars. The Sessions Judge has failed to notice this aspect of the matter and appears to have been carried away by the opinion of the chief Medical Officer that the appellant appeared to be about 30 years of age as on 30. 7. 1987. Even in the absence of any material to throw doubts about the entries in the school certificate the Sessions Judge has brushed it aside merely on the surmised that it is not unusual for parents to understand the age of their children by one or two years at the time of their admission in school for securing benefits to the children in their future years. The second factor is that the Sessions Judge has failed to bear in mind that even the Trial Judge had thought it fit to award the lesser sentence of imprisonment for life to the appellant instead of capital punishment when he delivered judgment on 12. 9. 1977 on the ground the appellant was a boy of 17 years of age. The observation of the Trial Judge would lend credence to the appellant's case that he was less than 16 years of age on 3. 10. 1975 when the offences were committed. The third factor is that though the doctor has certified that the appellant appeared to be 30 years of age as on 30. 07. 1987 his opinion is based only on an estimate creeping into the opinion cannot be ruled out. As regards the opinion of the Sessions Judge, it is mainly based upon the report of the Chief medical Officer and not on any independent material. On account of all these factors, we are of the view that the appellant would not have completed 16 years of age on the date the offences were committed. It, therefore, follows that the appellant should have been dealt with under the u. P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts. It, therefore, follows that the appellant should have been dealt with under the u. P. Children Act instead of being sentenced to imprisonment when he was convicted by the Sessions Judge under various counts. " ( 6 ) THE learned Trial Court also extracted from the judgment of this Court in the case of Gurmit Singh v. State, 87 (2000) DLT 496=2000 1 AD [delhi] 392 wherein the Court held as under:"learned Counsel for appearing for the petitioner has argued before me that it is settled law that where school leaving certificate is available and that it is shown to be an authentic school leaving certificate, should be given preference over any ossification test which leaves a margin of two years on either side. I have heard learned Counsel for the petitioner as also Counsel for the state and have gone through the record of the case. I am of the opinion that the admission register maintained at the school where the petitioner was a student ought to be given due weightage and that the test conducted by the Radiologist is not an accurate test which leaves a margin of two years. In this case, the test shows the age of the petitioner to be more than 17 years but less than 18 years as on 12. 11. 1999 could well be an estimate giving a margin of two years in which case on 11. 4. 1999 the petitioner could very well be slightly over 16 years or below 16 years. This test as already stated not being absolutely accurate, there is no reason why the school leaving certificate should not be given due weightage. No doubt an entry on the birth and death register maintained by the Corporation or the Chowkidar of the village would have added to the authenticity of the school leaving certificate but in the absence of the same, school leaving certificate indicating the age of the accused ought not be discarded. Presumption is that the age mentioned in the school records is correct unless shown to be otherwise. Presumption is that the age mentioned in the school records is correct unless shown to be otherwise. " ( 7 ) NOTWITHSTANDING the aforesaid clear principle of law laid down to the effect that date of birth recorded in school certificate is to be given due weightage and the test conducted by the Radiologist is not an accurate test, the learned ASJ disregarded the SLC and accepted the report of the doctor by stating that the date of birth was not based on the basic document of birth like entry from Municipal Register or from hospital record where he was born and for this reason there was doubt on the genuineness of the date of birth in SLC. He also observed that since the petitioner was married and the said marriage took place on 2. 12. 2001, and as legally marriage can take place only when boy is above 21 years, his age would be more than 21 years. ( 8 ) THE aforesaid reasons given by learned ASJ is clearly erroneous. As discussed above, the petitioner had studied in three different schools and the date of birth recorded in three schools was produced through three witnesses who were examined as Court witnesses. He was admitted in Maharashi Dayanand Public school, Ishwar Colony, Bawana, New Delhi on 3. 8. 1990, in Sarvodya Bal vidyalaya on 28. 4. 1999, and in Govt. Boys Sr. Sec. School, Pooth Khurd, New delhi on 30. 10. 2001 and at the time of admission the date of birth recorded was same in all the school i. e. 6. 7. 1986. It cannot be presumed that when the petitioner was admitted in Maharashi Dayanand Public School in the year 1990 and the date of birth recorded as 6. 7. 1986, the same would be in anticipation of committing some crime in future and, therefore, his parents got recorded wrong date of birth, inasmuch as in 1990 the petitioner was a very small boy of tender age. Further, merely because the petitioner was married cannot be a ground of presumption that he would be of 21 years of age as that is marriage age prescribed. The cases of child marriages are not uncommon. What is significant is that petitioner was married on 2. 12. 2001 and at that time he was studying in Govt. Boys Sr. Further, merely because the petitioner was married cannot be a ground of presumption that he would be of 21 years of age as that is marriage age prescribed. The cases of child marriages are not uncommon. What is significant is that petitioner was married on 2. 12. 2001 and at that time he was studying in Govt. Boys Sr. Sec. School, Pooth khurd, New Delhi where he was admitted on 30. 10. 2001 and left that school only on 10. 7. 2002. Thus even at that time of his marriage he was a school student and continued with the studies for almost 7 months after the marriage. ( 9 ) IN view of the above, the Trial Court could not have been influenced by the non-production of MCD record regarding registration of birth. It is explained by the petitioner in the petition that there is no such record available and unfortunately the father and mother have also died, fact remains that there is no evidence on record contrary to the School Leaving Certificate. ( 10 ) THE determination of age on the basis of ossification test is only an estimation and not conclusive. According to Modi's Medical Jurisprudence while ascertaining the age of young persons radiograms of several main joints of the upper or lower extremity of one or both sides of the body should be taken and an opinion should be given according to the table. But it must be remembered that too much reliance should not be placed on this table as it merely indicates an average and is likely to vary in individual cases, even of the same province owing to the eccentricitic of development. It further says that the range of error in ossification test may be upto plus-minus three years. ( 11 ) AS per table given in Modi's Jurisprudence the age of fusion of humerus 14 to 18 years and the age of Fusion of Iliac Crust is 19-20 years and the age of fusion of wrist bones known as Metacarpels is 16-18 years for Bengali males. ( 12 ) AS per Jhalu Raju Medical Jurisprudence - appearances of centres of ossification and fusion of epiphyses are more reliable factors; although opinion based on these factors is also liable to an error of about 2 years. ( 12 ) AS per Jhalu Raju Medical Jurisprudence - appearances of centres of ossification and fusion of epiphyses are more reliable factors; although opinion based on these factors is also liable to an error of about 2 years. ( 13 ) ACCORDING to the text book of Forensic Medicine and Toxicology, principles and Practice - Third Edition by Krishan Vij. "the time of appearance of centres of ossification and the process of union of the epiphyses with the diaphyses have a sequence and time period, which is generally utilized towards age determination. However, countable differences may be noticed in the appearances and fusion activities as ossification centres depend upon race set and geographical distribution. The process of ossification may also be influenced by food, habit nutritional status and presence of some disease, physical activity and hormonal and metabolic disorder. Generally speaking, ossification activity occurs earlier in Indian population than in Western population. The activity are generally earlier in females than in males, if all the epiphyses of the long bones are found united the subject is most probably over 25 years of age. X'ray of elbow, wrist and shoulder joint in case of upper extremity and of the hips knee and ankle joint in case of lower extremity are usually recommended. X'ray of the jaws will be of added advantage. " ( 14 ) SOME further case law which has emerged over a period of time and would support the case of the petitioner may now be noted - ( 15 ) IN State of Rajasthan v. N. K. , reported in III (2000) SLT 389=11 (2000)CCR 14 (SC)=2000 SCC (Crl.) 898 where the age of prosecutrix was in question the Hon'ble Apex Court relying on Medical jurisprudence i. e. there is a possibility of variation of 3 years on plus or minus side held that the predecessor was more than 16 years of age. ( 16 ) IN case titled as Mahavir Prasad v. State, 76 (1998) DLT 324, the High court of Delhi placing reliance on the Division Bench judgment of this Court in case of State v. Musha and Ors. , ILR (1970) II Del. ( 16 ) IN case titled as Mahavir Prasad v. State, 76 (1998) DLT 324, the High court of Delhi placing reliance on the Division Bench judgment of this Court in case of State v. Musha and Ors. , ILR (1970) II Del. 198 wherein it was held that an x'ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the correct number of years and days he has lived. Hence opinion of medical expert based on such test cannot be regarded to be conclusive. ( 17 ) IN the case titled as Umesh Chandra v. State of Rajasthan, reported in air 1980 SC 1057, the Apex Court held that two documents of two different public schools showing same age of the child, the said documents would be admissible under Section 35 of the Evidence Act. ( 18 ) IN another case Shantenu Mitra v. State of West Bengal reported in IX (1998) SLT91=iv (1998) CCR 89 (SC)= air 1999 SC 1587 , where the genuineness of the entry mentioned in the date of birth register was not disputed, the supreme Court held that once the entry was recorded by an official in performance of his duty it cannot be doubted on the mere argument that it was not contemptuous with the date suggested by the appellant. The occurrence took more than 10 years after making entry and it could not have been expected on that date that the appellant would claim benefit thereof after committing a crime in future. ( 19 ) IN Rajendra Chander v. State of Chhattisgarh, I (2002) SLT 389=1 (2002) CCR 97 (SC)= air 2002 SC 748 , the Supreme Court has held that while considering the question whether accused was a juvenile and two views are possible on the evidence adduced, the view in favour of the juvenile should be adopted and further held that hyper-technical approach in such cases should lean in favour of holding the accused to be juvenile. ( 20 ) IN this conspectus present petition is allowed. The impugned order dated 7. 1. 2004 passed by learned ASJ is set aside. The case of the petitioner is to be sent to Juvenile Board for trial as per the Act. ( 20 ) IN this conspectus present petition is allowed. The impugned order dated 7. 1. 2004 passed by learned ASJ is set aside. The case of the petitioner is to be sent to Juvenile Board for trial as per the Act. The necessary consequence would also be that the petitioner is released on bail subject to his furnishing personal bond in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of the Trial Court. This petition stands disposed of. Petition allowed. .