JUDGMENT 1. - This revision petition under Section 397 read with Section 401 Cr.PC. is directed against the order dated 14.7.2005 of the learned Addl. District Judge No. 2, Kishangarh Bas, Alwar in Sessions Case No. 26/2005 whereby the age of petitioner Ayub Khan has been determined to be 20 years and the application filed under Section 49 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (here-in-after called in short 'the Act') for trial of the petitioner as a juvenile has been rejected. 2. Succinctly stated, the relevant facts are that FIR No. 282/2004 came to be registered at PS Mundawar Distt. Alwar for offences under Sections 302, 202, 376 and 120-B IPC against accused, Bablu and Khurshid. An application was filed by the petitioner under Section 49 of the Act for trying him as a juvenile whereupon after inquiry regarding his age it was held that his age was 20 years and, therefore, the application was rejected. Hence, this petition against the said order. 3. It is contended by the learned counsel for the petitioner that the learned court below has wrongly held that there is over-writing in the transfer certificate whereas there is no over-writing at all and the date of birth i.e. 10.10.1988 is clearly written in words. It is also submitted that the medical evidence has been wrongly relied upon by the learned court below. The entry in the school leaving certificate was made as back as in 1994 when there was no controversy about his date of birth or age. The learned court below has proceeded with a pre-conceived notion to reject the application of the petitioner as a result of which the order impugned is un-sustainable in law and on facts. He has referred to Pratap Singh v. State of Jharkhand, 2005 (1) WLC (SC) Cri. 452 : 2005 (1) WLC (SC) 452 , Bhoop Ram v. State of U.P., AIR 1989 SC 1329 , Umesh Chandra v. State of Rajasthan, (1982) 2 SCC 202 , Rajinder Chandra v. State of Chhattisgarh, 2002 (1) WLC (SC) Cri. 210 : 2002 (2) SCC 287 , Munshi Khan v. State of Rajasthan, RLW 2004 (4) Raj. 2342 . Learned PP has tried to support the order of the learned court below. 4. 210 : 2002 (2) SCC 287 , Munshi Khan v. State of Rajasthan, RLW 2004 (4) Raj. 2342 . Learned PP has tried to support the order of the learned court below. 4. I have carefully considered the rival submissions made at the bar and have perused the relevant record and the impugned order particularly the evidence recorded by the learned court below regarding the age of the petitioner. 5. It is evident from the impugned-cyder dated 14.7.2005 that besides producing certified copy of the transfer certificate Swaroop Lal Arora AW-1, Smt. Kotni AW-2 and Rahmat AW-3 have been examined to prove that the petitioner was a child on the date of occurrence. The court has examined Dr. Ravi Kumar Mathur and Dr. Phool Singh Choudhary as CW-1 and CW-2. The court has also taken on record the X-ray report Exh. P-1, X-ray plate Exh.P-2 and clinical examination report of petitioner-Ayub Khan Exh. P-3. Learned Additional District and Sessions Judge who has conducted the enquiry has relied upon the medical evidence and declined to rely upon the evidence of the transfer certificate and oral evidence produced on behalf of the petitioner. He has held that the age of the petitioner is 20 years and, therefore, the application moved on his behalf for trying him as a juvenile has been rejected. 6. But, it has been held in the case of Pratap Singh v. State of Jharkhand (supra) as under : "The age of the delinquent juvenile, therefore, cannot be determined in terms of the model Rule 62. Any law mandating court to take into consideration certain documents over others in determining an issue, must be provided for only by law. Only a validly made law can take away the power of the court to appreciate evidence for the purpose of determination of such a question in the light of Section 35 of the Indian Evidence Act. It cannot be done by the Central Government in exercise of the executive power." 7. Only a validly made law can take away the power of the court to appreciate evidence for the purpose of determination of such a question in the light of Section 35 of the Indian Evidence Act. It cannot be done by the Central Government in exercise of the executive power." 7. In Bhoop Ram v. State of U.P. (supra), the Hon'ble Apex Court on a consideration of the matter, was of the opinion that the appellant would not have 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 S.2(4) of the U.P. Children Act, 1951 and dealt with under S.29 of the Act. The Hon'ble Apex Court has observed as under : "The appellant has produced a school certificate which carries the I date 24.6.1960 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 30.4.1987. 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 surmise that it is not unusual for parents to understate 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 other factor is that though the Doctor has certified that the appellant appeared to be 30 years of age on 30.4.1987 but, his opinion is based only on an estimate and the possibility of an error of creeping into the opinion is based only on an estimate and the possibility of an error of 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." 8. 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." 8. In Umesh Chandra v. State of Rajasthan (supra) it has been held by the Hon'ble Apex Court that the entries made in school register and admission form, maintained in the course of regular official duty and existing ante litem motam are reliable under Section 35 of the Indian Evidence Act, 1872.In the case of Rajinder Chandra v. State of Chhattisgarh and anr. (supra) it has been held that : "It is true that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit Das v. State of Bihar this Court has, on a review of judicial opinion, held that while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechnical 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 a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case." This Court in the case of Munshi Khan v. State of Rajasthan (supra) has observed as under : "The burden of proving the age of a delinquent is not on juvenile delinquent and it is for the Court to hold an inquiry into the age to find out whether such a person would be a delinquent juvenile for the purpose of the Act." 9. In the instant case, as per the school record the date of birth of the petitioner is 10.10.1988 and the occurrence is of 25.11.2004. Thus, the petitioner was 16 years, 1 month and 15 days of age on the date of the occurrence. Swaroop Lal Arora AW-1 Headmaster of the Govt. Middle School Maccha, Tehsil Kishangarhbas, District Alwar has stated on oath that petitioner's date of birth is 10.10.1988 and he was admitted to the school on 6.7.1994 at Sr. No. 1468. Thus, the petitioner was 16 years, 1 month and 15 days of age on the date of the occurrence. Swaroop Lal Arora AW-1 Headmaster of the Govt. Middle School Maccha, Tehsil Kishangarhbas, District Alwar has stated on oath that petitioner's date of birth is 10.10.1988 and he was admitted to the school on 6.7.1994 at Sr. No. 1468. Original record was produced by him. Though, the original entries have not been made by him but the copy of transfer certificate Exh.D-1 was issued by him under his signatures and stamp of the school. He has also produced the admission form Exh.D-2. The observation of the learned court below that there is over writing in the date of birth -mentioned in the transfer certificate Exh.D-1 is against the record because the date of birth of the petitioner Ayub Khan is clearly mentioned as 10.10.1988 in Exh.D-1 and the same date of birth is also written in words in the admission form Exh.D-2. So, it cannot be said that the transfer certificate or" the admission form does not relate to the petitioner or entries made therein are in any way doubtful and not reliable. This entry in the school record was made on 6.7.1994 ante litem motam. The school record is maintained regularly and in the official discharge of duties. 10. It is true that Smt. Kotni AW-2 and Rahmat AW-3 have not stated the exact date of birth of the petitioner in their statements in court recorded during the enquiry but they have both clearly stated that the age of the petitioner is about 16 years. There is no evidence in rebuttal thereof. The doctors have no doubt opined that the age of the petitioner was around 19 to 20 years but i.e. an opinion only and no definite date of birth is possible to be deduced on the basis of this opinion. 11. In view of the law laid down by the Hon'ble Apex Court in this behalf, the order of the learned Additional District & Sessions Judge is clearly unsustainable and deserves to be set-aside. 12. Consequently, this revision petition is allowed. The order dated 14.7.2005 of the learned Additional District and Sessions Judge No. 2, Kishangarh Bas, Alwar is hereby set-aside. In view of the law laid down by the Hon'ble Apex Court in this behalf, the order of the learned Additional District & Sessions Judge is clearly unsustainable and deserves to be set-aside. 12. Consequently, this revision petition is allowed. The order dated 14.7.2005 of the learned Additional District and Sessions Judge No. 2, Kishangarh Bas, Alwar is hereby set-aside. As per the school record the petitioner was 16 years, 1 month and 15 days of age on the date of occurrence and as such he was a juvenile within the meaning of Section 2(k) of the Act of 2000. So, the application filed from and on behalf of petitioner Ayub Khan is allowed and it is directed that his case be tried as a juvenile.Revision Allowed. *******