Judgment S.P. Pathak, J.-By this revision petition, challenge has been made to an order passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur in Sessions Case No.102/2005 titled as State vs. Sanjay Singh & Ors., in relation to FIR No.299/04 dated 14.02.2006, whereby the application moved under Section 49 of the Juvenile Justice (Care & Protection of the Children) Act, 2000 (for short, hereinafter to be referred as ‘the Juvenile Act’) has been rejected. 2. Briefly stated, the facts giving rise to the present case are that on a report lodged at the Police Station, Pratap Nagar, Jodhpur on 11.07.2004 by complainant Shri Bhoma Ram, a criminal case was registered against the petitioner and others under Section 302 of the IPC alongwith other offences of the Penal Code. After completion of investigation, challan was filed before the Sessions Judge and ultimately the case came for trial before the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur (to be referred hereinafter as ‘the trial Court’). Before the charges could be framed, an application under Section 49 of the Juvenile Act was filed on behalf of the petitioner stating inter-alia therein that the petitioner’s date of birth was 010.1988, the incident is alleged to be of 11.07.2004, as such on that date the age of the petitioner was below 16 years, therefore, according to the provisions of the Juvenile Act, he was a juvenile and was to be tried separately from other accused persons. Alongwith the application, the education certificates etc. were also filed. It was also stated in the application that the petitioner was not involved in the alleged crime. 3. The State has filed reply to the application stating inter-alia therein that during the course of investigation, at the time of remand or till completion of investigation, the petitioner did not disclose the fact that he was a minor/juvenile. It has also been stated that the petitioner was also facing trial in some other cases where also no such plea was ever taken by him. In the hospital also, he did not disclose that he was a juvenile and the application has been submitted to avoid trial as a heinous crime has been committed by him. Therefore, his prayer made in the application was required to be rejected. 4. In the hospital also, he did not disclose that he was a juvenile and the application has been submitted to avoid trial as a heinous crime has been committed by him. Therefore, his prayer made in the application was required to be rejected. 4. In support of his claim, petitioner has produced AW 1 Shiv Raj, AW 2 Vidhya Sagar Roy, AW 3 Smt. Madhu Kothari, AW4 Sukh Ram, AW 5 Pancharam and in documentary evidence produced Exhibit-1 Admission Form, Exhibit-2 Scholar’s Register, Exhibit-3 Application Form submitted in Adarsh Bal Senior Higher Secondary School, Jodhpur, Exhibit-4 the Transfer Certificate issued by Oxford Public School on account of passing out Class 8th, Exhibit-5 the Transfer Certificate from Adarsh Senior Secondary School, Exhibit-6 Transfer Certificate of Jesus Mary Public School, Exhibit-7 Admission Form of Oxford School, Exhibit-8 Transfer Certificate of Maheshwari Senior Secondary School, Exhibit-9 Entries of Scholar Register, Exhibit-10 Marksheet, Transfer Certificate of Oxford Public School and Exhibit-12 Horoscope. No evidence was produced on behalf of the opposite side. .5. The learned trial Court, after hearing both sides, rejected the application vide its order dated 14.02.2006 holding that: - .(1) That the petitioner in the previous cases pending against him in different Courts did not disclose the fact that he was a juvenile and even during the investigation it was not disclosed that he was a juvenile. The petitioner’s application to treat him juvenile has been moved so that he may escape from the trial. .(2) That there were over-writings on Exhibit-1 & 2 and the basis on which the date of birth was entered in the admission form was not stated and there was no proof in relation to the date of birth as there was no registration regarding date of birth got done in the office of the Registrar, Births and Deaths and by appearance also the petitioner appeared not a juvenile. .(3) That the petitioner has created evidence as horoscope which has been filed appears to have been made subsequently as it does not appear to be an old document and the person who made it was also not produced in the Court and by producing sufficient evidence regarding petitioner being juvenile on the date of offence has not been established. Having felt aggrieved with the impugned order passed by the learned trial Court, the present revision petition has been filed. 6. Heard Mr. Having felt aggrieved with the impugned order passed by the learned trial Court, the present revision petition has been filed. 6. Heard Mr. H.M. Saraswat, learned Counsel for the petitioner, Mr. H.S. Balot, Special Public Prosecutor and Public Prosecutor Mr. V.R. Mehta. 7. Contention of the learned Counsel for the petitioner that petitioner was a juvenile on the date of alleged offence and the plea that petitioner was a juvenile was taken at the earliest occasion before framing of the charge. It has also been contended that plea which is based on fact and is a legal plea can be raised at any stage of the trial. It has also been submitted that even if the plea of being juvenile has not been taken by the petitioner in other cases then it would not mean that petitioner is legally debarred to take the plea that he was a juvenile on the date of the commission of the offence. 8. On the other hand, it has been contended that the petitioner to avoid trial of a serious offence like murder has taken this plea that he was juvenile on the date of commission of the offence. It has also been submitted that had there been truth in the plea of the petitioner then during the course of investigation, the petitioner would have filed relevant documents to show that he was a juvenile on the date of alleged commission of the crime. It has also been submitted that there are other criminal cases pending for trial in different Courts and in those cases also no such plea has been taken, therefore, the conduct of the petitioner debars him from taking such plea. 9. I have considered the submissions made before me. 10. To appreciate the contentions raised before me, relevant provisions of Section 2(k), Section 18 and Section 49, which require consideration in the present case of the Juvenile Act are being reproduced below:- Section 2 (k) “Juvenile” or “Child” means a person who has not completed eighteenth years of age. Section 18 No. Joint proceedings of juvenile and person not a juvenile.-(1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. Section 18 No. Joint proceedings of juvenile and person not a juvenile.-(1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile. (2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person. 49. Presumption and determination of age.- (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but on an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person. A perusal of the above provisions of the Juvenile Act clearly indicate that a juvenile or a child means a person who has not completed 18 years of age and is liable to be tried separately under the provisions of the Juvenile Act 2000. It also appears that when a question is raised that a person is a juvenile then the same is required to be decided on the basis of evidence by the competent authority. 11. It shall be relevant to discuss here some of the important cases on the point. 12. It also appears that when a question is raised that a person is a juvenile then the same is required to be decided on the basis of evidence by the competent authority. 11. It shall be relevant to discuss here some of the important cases on the point. 12. In 2004 CrLJ 3465 - Munshi Khan vs. State of Rajasthan, this Court has held that in view of provisions contained in Juvenile Justice Act, plea that a person is juvenile can be taken at any stage of the case even in appeal. This Court has held that such plea being a legal plea and in view of Section 49 of the Juvenile Act, the petitioner cannot be denied his right to be considered juvenile when on the date of committing offence he was juvenile. In this case, at the time of bail, plea about the juvenile was not taken by the accused. This Court came to the conclusion that it is essential under Section 49 of the Act for the trial Court to have conducted enquiry and in case after enquiry the trial Court comes to the conclusion that the petitioner is a juvenile then the Court is required to pass proper orders for the trial of a juvenile in the concerned juvenile Court. 13. In 2005 (1) Cr. Court Cases 790 (P&H) -Balkar Singh vs. State of Punjab, the Punjab & Haryana High Court in Para 10 & 13 observed as under:-“10. Learned Counsel for the petitioner, while relying upon Judgment of the Hon’ble Supreme Court in Bhoop Ram vs. State of U.P., 1989 Supreme Court Cases (Cri) 486, submitted that the impugned order passed by the trial Court is liable to be set aside as it runs contrary to the observations made by the Hon’ble Apex Court. While dealing with the case of juvenile based on the school certificate, Hon’ble Apex Court held that in absence of anything showing that the entries in the school leaving certificate did not relate to the accused or were incorrect, the same cannot be rejected on the basis of surmise that generally parents understate the age of their children at the time of admission to school. In the absence of any independent material, nothing should prevail over the entries in school certificate. In the absence of any independent material, nothing should prevail over the entries in school certificate. Learned Counsel for the petitioner contended that in this case, the petitioner has not only placed on record the documentary evidence in the shape of school leaving certificates, but he has also led the oral evidence, which clearly establish that on the date of alleged occurrence and on the date, when the petitioner was summoned to face trial, he was a juvenile. He further contended that all this evidence was not controverted by the prosecution nor any contrary evidence has been led and the learned trial Court rejected the claim of the petitioner merely on the basis of conjectures and surmises. Learned Counsel, while referring to another decision of the Hon’ble Supreme Court in Rajinder Chandra vs. State of Chhatishgarh, 2002 (1) Apex Court Judgment s 254 (SC): 2002 (1) Recent Criminal Reports 586 (SC), has submitted that the Court dealing with the question of determining the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile, and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be juvenile. In view of these submissions, learned Counsel for the petitioner submitted that the view taken by the learned trial Court is totally contrary to the aforesaid principle of law and the impugned order is liable to be set aside. 13. The Juvenile Justice Act provides for justice after the onset of delinquency. Once a boy or a girl has assumed delinquency, his or her treatment and trial at the hands of the justice delivery system is taken care of by the provisions of the Juvenile Justice Act. The Act aims at laying down a uniform juvenile justice system in the country avoiding lodging in jail or police lock-up of the child; and providing for prevention and treatment of Juvenile delinquency, for care, protection etc. post-juvenility. In short the field sought to be covered by the Act is not the one which had led to juvenile delinquency but the field when a juvenile having committed a delinquency is placed for being taken care of post-delinquency. post-juvenility. In short the field sought to be covered by the Act is not the one which had led to juvenile delinquency but the field when a juvenile having committed a delinquency is placed for being taken care of post-delinquency. Thus the legislative aims and objectives go to show that this legislation has been made for taking care of and custody of a juvenile during investigation, inquiry and trial, i.e. from the point of the time when the juvenile is available to the law administration and justice delivery system.” In 2004 (3) Criminal Court Cases 552 (Gauhati) - M.D. Somesh Ali vs. State of Assam, it has been observed by the Gauhati High Court that even if the plea has been taken for the first time in the High Court that the accused was a minor then such plea is not required to be ignored and it require enquiry, therefore, the case was remitted back for proper enquiry and orders. 14. In 2002 CrLJ 1529 -State of U.P. vs. Ram Bharat & Ors., the Division Bench of Allahabad High Court has held that even if plea of petitioner being juvenile is not raised at the stage of the trial and was raised in the statement recorded of the accused under Section 313 CrPC, such a plea is maintainable. 15. After having considered the submissions made before me and the law which has developed on the point, there remains no doubt in my mind that even if the petitioner has not raised this plea during the course of investigation in the present case and has raised this plea in this case before framing of the charge then this plea could be raised by the petitioner because the intendment of the legislation is very clear that such a plea can be raised at any stage during the course of trial and even at the appellate stage as well. The technicality should not come in the way of imparting justice. The provisions of the Juvenile Act are mandatory in nature and whatever benefit is extended to a juvenile it should be given to a juvenile provided the Court is satisfied that the person asking for the benefit is really entitled for the same. The contention, therefore, raised that such a plea has not been raised in other criminal cases or during the course of investigation by the petitioner has got no substance. 16. The contention, therefore, raised that such a plea has not been raised in other criminal cases or during the course of investigation by the petitioner has got no substance. 16. The next contention of the learned Counsel for the petitioner is that the trial Court has not properly appreciated evidence and infact the petitioner was able to prove his case that he was a juvenile as he has not only adduced the oral evidence but the documentary evidence as well. On the other hand, it has been submitted that there were over-writings in the documents submitted by the petitioner i.e. his admission form and scholar’s register and further there being no evidence led to show that on what basis the entry was made in the school form by the petitioner and there being no reliable evidence available on record the application moved by the petitioner was liable to be rejected on this count also. 17. I have considered the submissions made before me. 18. In the present case, AW1 is Shiv Raj, who has stated in his statement that he is Headmaster of Jesus Mary Public School and is looking after the administrative work of the school as his son Anand had expired and after his death he is discharging the administrative functions of the school. He has further stated that the admission form of petitioner is Exhibit-1 wherein the age of petitioner Dinesh in portion ‘A’ to ‘B’ has been mentioned 010.1988 and at place ‘C’ to ‘D’ there are signatures of his son which he knows to be of his son. He has further proved the entry made in the original scholar’s register at Serial No.307 i.e. Exhibit-2. In the Scholar’s Register entries are made at the time students is admitted in the school and whenever leave the school. The entries in the scholar register have been proved him. He has also stated that Dinesh has left the school on 05.05.1999 and TC Exhibit-6 was issued and in that TC the date of birth has been entered as 10.1988. In the cross-examination he has stated that he does not know who filled the form Exhibit-1. He has denied the suggestion that Serial No.303 has been made as 307. He has admitted that Exhibit-2 and Exhibit-6 were not in his handwriting. 19. AW2 is Vidhya Sagar, who is the Headmaster of Senior Higher Secondary School, Kamla Nehru Nagar, Jodhpur. In the cross-examination he has stated that he does not know who filled the form Exhibit-1. He has denied the suggestion that Serial No.303 has been made as 307. He has admitted that Exhibit-2 and Exhibit-6 were not in his handwriting. 19. AW2 is Vidhya Sagar, who is the Headmaster of Senior Higher Secondary School, Kamla Nehru Nagar, Jodhpur. He has stated that since 1993 he was discharging the functions of Headmaster in the school. He has proved Exhibit-3 the form of the school of Dinesh filled by Shri Sukhram. He has also stated that Dinesh was admitted in the school on 15.06.2002 and in Exhibit-3 his date of birth has been mentioned as 10.1988, on the back of the form he has stated the signatures are be available of the boy at place ‘E’ to ‘F’. The boy Dinesh was given admission in Class 9th. He has also stated that at the time of admission to his school, Dinesh has submitted Transfer Certificate obtained from Oxford Public School, Jodhpur alongwith marksheet issued by District Education and Training Institute (DIET), Jodhpur. The original was returned and photocopy was kept on record. The date of birth entered was 010.1988. Entries made in the Scholar Register Exhibit-5 have been proved. In the cross-examination, he has stated that the father of the petitioner might have filled up the entries in the form. He has stated that on Exhibit-3 the student and his father signed before him. He has stated that entries made in the Transfer Certificate regarding date of birth are considered to be correct. 20. AW3 Madhu Kothari is a clerk of Oxford Public School, Jodhpur. She has deposed in her statement that student Dinesh was given admission in Class VI of Oxford Public School. The original form, she has stated that it has been brought in the Court, and she has proved the Admission Form Exhibit-7. She has stated that the date of birth of Dinesh mentioned in the form was 010.1988. She has proved Transfer Certificate Exhibit-8 issued by Maheshwari Senior Secondary School. She has also proved entries in the scholar register available at page 9. She has also stated that after passing Class 8th, Dinesh has left the school. She has proved marksheet Exhibit-10. She has stated that the date of birth of Dinesh mentioned in the form was 010.1988. She has proved Transfer Certificate Exhibit-8 issued by Maheshwari Senior Secondary School. She has also proved entries in the scholar register available at page 9. She has also stated that after passing Class 8th, Dinesh has left the school. She has proved marksheet Exhibit-10. In the cross-examination, she has stated that entries made in Exhibit-7 regarding admission in relation to Dinesh was in her own hand and the same were made on the instructions of the Administrator of the school. She has stated that on that day when entries in relation to Dinesh in the admission form were made, Smt. Usha Sharma was the Headmistress. She has stated that the parent of the student filled the form. She has also stated that the sister of the petitioner who was known to her as she was coming for depositing fees etc brought the form. She has denied the suggestion that the Form Exhibit-7 was subsequently taken by them. She has stated that she maintained Scholar Register. 21. AW 4 is Sukh Ram, who is the father of the petitioner. He has stated that petitioner was born in village Soorpura, District Jodhpur on 010.1988 and one Pandit Jagdish Prasad, who is now no more, prepared the horoscope of the boy. The horoscope has been stated to be Exhibit-12. He stated that his younger brother Pancha Ram got admitted his son Dinesh in Jesus Mary Public School and he gave him a slip regarding age of Dinesh wherein date of birth Dinesh was mentioned as 010.1988. He has also stated that in Class 9th he got admitted his son Dinesh in Adarsh Senior Secondary School. He has proved the form and other documents. Questions have been put to him in relation to the address of Pandit Jagdish Prasad as to where he used to live and what was his father’s name and when he died. Suggestions have been denied that his brother at the time of admission of Dinesh according to his own estimation entered the date in the admission form. It has been denied that accused petitioner being a person of 21 years of age. 22. Suggestions have been denied that his brother at the time of admission of Dinesh according to his own estimation entered the date in the admission form. It has been denied that accused petitioner being a person of 21 years of age. 22. AW5 Pancha Ram has stated that boy Dinesh was got admitted in the school by him and his brother, the father of Dinesh, told him the date of birth of Dinesh. He has also stated that his brother had asked him to get admitted Dinesh in school as he was going to attend his duty. In the cross-examination nothing has come to doubt about the statement of this witness. 23. The trial Court has stated that there is interpolation in the Scholar’s Register but the perusal of Exhibit-2 nowhere suggests that there has been any interpolation. A perusal of above evidence adduced on behalf of the petitioner clearly indicates that from the very beginning when the boy was got admitted in Jesus Mary Public School, the date of birth has been stated there as 010.1988. There are various other documents, reference of which has come in the statement of above witnesses and the school authorities have proved those documents. The finding of the learned trial Court that the basis has not been disclosed regarding actual date of birth and in the absence of certificate of birth issued by Registrar of Births and Deaths at the time of filling up the form, therefore, age of petitioner as 010.1988 cannot be considered as the correct date of birth filled in the form of admission and further finding of the trial Court that by appearance petitioner appears to be major, in my considered opinion, is not liable to be sustained for the simple reason that even if no effort was made to get entries made in the office of Registrar, Births and Deaths in relation to the petitioner, then it cannot be presumed that the date of birth stated in the Form should be presumed to be false unless sufficient material is placed on record to show that the evidence has been created subsequently. In the instant case, no evidence has been brought on record to show that the entries made in the different schools in the registers, admission forms etc. In the instant case, no evidence has been brought on record to show that the entries made in the different schools in the registers, admission forms etc. are false or fabricated one then it cannot be presumed that the petitioner’s parents at the time of getting their boy admitted were knowing that such an entry would be used later on for considering the petitioner as a juvenile. The entries made in the Transfer Certificate, Scholar’s Register are being made in regular course of business then only for the reason that there is no document produced of the Registrar, Births and Deaths, then the date of birth mentioned in the school Admission Form, TC, Marksheets etc. is not the correct date of birth, in my humble opinion, by no stretch of imagination can be said that such a finding is legally sustainable finding. It is common knowledge that in India in villages normally the parents are not so vigilant or even aware that it is their duty to see that entries in relation to birth or death is required to be informed to the Registrar, Births and Deaths for the purpose of making entries in the Birth and Deaths Register maintained at the Office of the Registrar. The authorities which have been discussed hereinabove also lay down the principles that in the absence of any independent material brought on record, nothing should prevail over the entries made in the School certificate regarding the date of birth etc. (kindly see 1989 SCC (Cri.) 486 - Bhoop Ram vs. State, of UP). 24. The trial Court has stated that there are over-writings in Exhibit-1 and 2. A perusal of Exhibit-1 and 2 the Photostat copies of certificates, which have been placed on record, do not show that the date filed in the form i.e. 010.1988 has been changed. What appears in Exhibit-1 is that the date of birth has been mentioned as 10.1988 and in the column of age it has been mentioned as 2 years and 9 months and there appears using of pen twice on word 9 but there is no overwriting whatever as far as date of birth 010.1988 is concerned. In all other documents produced, the date of birth of the boy is 010.1988. 25. In all other documents produced, the date of birth of the boy is 010.1988. 25. In AIR 1982 SC 1057 - Umesh Chandra vs. State of Rajasthan, the Hon’ble Apex Court while considering the provisions of Section 35 of the Indian Evidence Act has observed that where there were two different public schools showing the age of the delinquent child who had committed an offence under Section 364, 302 of the IPC as 22.06.1957 and both these documents have been signed by his father and were in existence, ante litem motam, there could be no ground to doubt the genuineness of those documents. It has further been observed in this authority in Para 9 that it is common knowledge that in villages the people are not vigilant in reporting either births or deaths and therefore an omission of this type cannot be taken to be a most damaging circumstance to demolish the case of the appellant regarding his actual date of birth. 26. In my opinion, the date of birth mentioned in the forms, school records, TCs etc. are good proof in relation to age of a boy. In the instant case, the proper enquiry has been held and in the cross-examination nothing has been extracted that the witness/witnesses were telling lies in relation to the date of birth. The learned trial Court’s further finding that since the horoscope appears to be a prepared document as it appears not that old is concerned, it is suffice to say that in this case even if this evidence is discarded then also sufficient material has been brought on record which suggest the date of birth of the petitioner to be 010.1988 on the date of the alleged offence committed by him. The father of the petitioner has stated that petitioner was born in village and the date of birth was given to his younger brother Pancha Ram, who took the petitioner with him for admission in the school. His evidence along with the other oral evidence adduced and the documentary evidence produced in this case without doubt proves the date of birth petitioner as 010.1988 at the time of commission of offence. 27. His evidence along with the other oral evidence adduced and the documentary evidence produced in this case without doubt proves the date of birth petitioner as 010.1988 at the time of commission of offence. 27. So far as the finding of the learned trial Court that the petitioner did not appear as a juvenile by his appearance is concerned, it is suffice to say that the built up and appearance of a person depends upon so many factors viz., climate, environment, nourishment and so many other things. Simply for the reason that by appearance a boy appears to be more healthy then it cannot be said that it is a positive finding about the age and such a finding in my opinion cannot decide the factum that the age stated by him and proved by oral and documentary evidence should be discarded only on the basis of assessment made by the appearance. Thus, this finding is also of no assistance to the prosecution. 28. In view of what has been discussed hereinabove, I am of the opinion that the trial Court has miserably failed to appreciate the evidence in its correct perspective and it appears that the trial Court has misread the evidence, therefore, findings recorded by the trial Court in relation to the age of petitioner that he was not a juvenile on the date of commission of offence being contrary to the esta