# Aman @ Monu Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 5 ILRA 1030
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Criminal Revision No. 1103 of 2019
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aman-monu-revisionist-v-state-of-u-p-anr-50071
- **Pages:** 7

## Headnote

Criminal Law - Juvenile Justice (Care &
Protection of Children) Act, 2015 - Section
94 - Indian Penal Code, 1860 - Sections
363, 366, 376, 328, 506 & 120B -
Protection
of
Children
from
Sexual
Offence
Act,
2012
-
Section
3⁄4
-
Determination
of
age
after
attaining
majority
-
Reliability
of
St.ment
of
prosecution witness - Appellate Court
concluded that there was conflict in date
of
birth
of
revisionist,
directed
for
radiological age - Finding of Juvenile
Justice Board was based on family register
and St.ment of PW-2, in which she St.d
revisionist never got admission in Gaytri
Shishu Mandir - The St.ment of PW-1 was
based on basis of T.C. of said school -
According to St.ment of CW-1 and CW-2,
supported the family register, the date of
birth of revisionist was 6.3.2003 - Proper
inquiry has been done by Juvenile Justice
Board, rightly concluded that date of birth
of revisionist was 6.3.2003 - If St.ment of
PW-1
was
accepted,
then
age
of
revisionist was 23 years - Impugned order
set aside (Para 9, 10, 14)

Criminal Revision allowed. (E-13)
List of Cases cited:

## Text

1030 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 5 ILRA 1030
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.05.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 1103 of 2019

Aman @ Monu ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Lalu Prasad Bhatt, Ashok Kumar Shukla, Dinesh
Chandra Tewari, Lalu Prasad Bhatt, Rakesh
Kumar Tripathi

Counsel for the Opp. Party:
Govt. Advocate, Manoj Kumar Singh

Criminal Law - Juvenile Justice (Care &
Protection of Children) Act, 2015 - Section
94 - Indian Penal Code, 1860 - Sections
363, 366, 376, 328, 506 & 120B -
Protection
of
Children
from
Sexual
Offence
Act,
2012
-
Section
3⁄4
-
Determination
of
age
after
attaining
majority
-
Reliability
of
St.ment
of
prosecution witness - Appellate Court
concluded that there was conflict in date
of
birth
of
revisionist,
directed
for
radiological age - Finding of Juvenile
Justice Board was based on family register
and St.ment of PW-2, in which she St.d
revisionist never got admission in Gaytri
Shishu Mandir - The St.ment of PW-1 was
based on basis of T.C. of said school -
According to St.ment of CW-1 and CW-2,
supported the family register, the date of
birth of revisionist was 6.3.2003 - Proper
inquiry has been done by Juvenile Justice
Board, rightly concluded that date of birth
of revisionist was 6.3.2003 - If St.ment of
PW-1
was
accepted,
then
age
of
revisionist was 23 years - Impugned order
set aside (Para 9, 10, 14)

Criminal Revision allowed. (E-13)
List of Cases cited:

1. Ashwani Kumar Saxena Vs St. of M.P. (2012)
9 SCC 750, (Para 34, 35 , 43)

2. Mukarrab Etc Vs St. Of U.P (Criminal Appeal
Nos. 1119-1120 of 2016, decided on 30
November, 2016), (Para 17, 18, 19, 22, 27)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. On 11.5.2023, following order was
passed by this Court:

"1. Heard learned counsel for the
parties.

2. This criminal revision U/s 102 of
the Juvenile Justice (Care & Protection of
Children) Act, 2015 has been against the
order dated 31.7.2019 passed by the
Special Judge (POCSO Act)/8th Additional
District & Sessions Judge, Bahraich in
Criminal Appeal No. 08/2019, U/s 101 of
the Juvenile Justice (Care & Protection of
Children) Act,
2015,
Police
Station-
Dargah Sareef, District- Bahraich whereby
the appeal filed by the respondent no.2 has
been allowed and order dated 6.3.2019
passed by Juvenile Justice Board has been
quashed in case no. 70/12/2018 vide case
crime
no.
48/2018,
U/s
363,366,376,328,506,120B
IPC
and
Section 3/4 of the Protection of Children
from Sexual Offence Act, Police Station-
Dargah Sareef, District- Bahraich.

3. Learned counsel for the revisionist
submitted that the revisionist conflict with
law is juvenile. In this matter, the alleged
date of mentioned in the FIR as 26.2.2018.
The Juvenile Justice Board arrived at a
conclusion that as per the educational
certificate of Class V marks sheet, scholar
register and transfer certificate form, the
date of birth of the revisionist is 6.3.2003.
Thus the age of the revisionist on the
5 All. Aman @ Monu Vs. State of U.P. & Anr.
1031
alleged date of incident was 14 years 11
months and 20 days.

4. It is further submitted that the
Juvenile Justice Board during inquiry CW1 Amita Rana who is the sister of the
revisionist was examined and CW-2 Sushila
Rani who is the Head Master of Nehru
Shishu Mandir Vidyalaya Gulam Alipura,
Bahraich and she clearly stated that on the
basis of scholar register the date of birth of
the revisionist is 6.3.2003.

5. Learned counsel for the revisionist
further submitted that on behalf of the first
informant, PW-1 Laxman Prasad Gupta
was examined who clearly stated that as
per scholar register date of birth of the
revisionist was mentioned as 16.7.2000. He
further stated that this student has got
admission in class III. At the time of
admission, the father of the revisionist
furnished the T.C. of Gaytri Shishu Mandir,
Bahraich. On the basis of said T.C., date of
birth of the revisionist was registered in the
scholar register of Class IV passed by the
student in his school.

6. On perusal of the judgement of the
trial court as well as the revisional court, it
reveals that PW-2 Usha Patak, Principal of
Gaytri Shishu Mandir, Bahraich was also
examined before the Juvenile Justice
Board, but the statement of PW-2 Usha
Patahk has not been annexed by the
revisionist's
counsel.
However,
the
conclusion of the trial court as well as
revisional court is totally based on the
statement of PW-2 Usha Pathak but the
same is not annexed with this file.
Therefore, without the statement of PW-2
Usha Pathak, the instant revision could not
be decided. During course of dictation, this
fact came into light.

7. Since for just decision of the case,
statement of PW-2 Usha Pathak is
inevitable,
consequently,
the
learned
counsel for the revisionist is directed to file
statement of PW-2 Usha Pathak.

8. List on 16.5.2023 for further
hearing."

2. In pursuance of earlier order dated
11.5.2023, the learned counsel for the
revisionist filed the statement of the PW-2
Usha Pathak by way of supplementary
affidavit which is taken on record.

3. In the statement of PW-2, Usha
Pathak who is the Principal of the Gaytri
Shishu Mandir, Bahraich, she clearly stated
that Aman Gautam (revisionist) is never the
student of her school. In her cross
examination,
she
clearly
stated
that
although there are two branches of the
school. Another branch is looked after by
the Assistant Principal. She further stated
that the S.R. register of both the branches is
same but attendance register is separate.
She further stated that all the documents are
kept in main branch.

4. On the basis of above statement of
PW-2, Usha Pathak, the learned counsel for
the revisionist submitted that learned
Juvenile Justice Board has rightly arrived at
a conclusion that the revisionist conflict
with law is never the student of Gaytri
Shishu Mandir. So, the statement of PW-1,
Laxman Prasad Gupta is factually incorrect
and thus, the revisionist is never the student
of his school.

5. The main grievance of the learned
counsel for the revisionist is that the
appellate court quashed the order passed by
the trial court on 6.3.2019 and arrived at a
conclusion that since the birth certificate of
the revisionist was issued on 4.7.2018 i.e.
after 15 years of birth. So the appellate
court doubted the date of birth of the
revisionist i.e. 6.3.2003 and on this basis,
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
the learned appellate court arrived at a
conclusion that date of birth which is fixed
by the Juvenile Justice Board is doubtful.
The appellate court directed to get medical
examination
of
the
revisionist
and
determining the age by way of radiological
age as per provision of section 94 of the
Juvenile Justice (Care & Protection of
Children) Act, 2015 (hereinafter referred to
as "the Act").

6. In support of his submissions, the
learned counsel for the revisionist has
relied on the judgement of the Apex Court
in the case of Ashwani Kumar Saxena vs.
State of Madhya Pradesh (2012) 9 SCC
750. The relevant paragraphs of which are
being reproduced hereunder:

"34.
Age
determination
inquiry
contemplated under the JJ Act and the
2007 Rules has nothing to do with an
enquiry under other legislations, like entry
in service, retirement, promotion, etc. There
may be situations where the entry made in
the matriculation or equivalent certificates,
date of birth certificate from the school first
attended and even the birth certificate
given by a corporation or a municipal
authority or a panchayat may not be
correct. But court, Juvenile Justice Board
or a committee functioning under the JJ Act
is not expected to conduct such a roving
enquiry and to go behind those certificates
to examine the correctness of those
documents, kept during the normal course
of business. Only in cases where those
documents or certificates are found to be
fabricated or manipulated, the court, the
Juvenile Justice Board or the committee
need to go for medical report for age
determination.

35. We have come across several cases
in which the trial courts have examined a
large number of witnesses on either side
including the conduct of ossification test
and calling for odontology report, even in
cases, where matriculation or equivalent
certificate, the date of birth certificate from
the school last or first attended, the birth
certificate given by a corporation or a
municipal authority or a panchayat are
made available. We have also come across
cases where even the courts in the large
number of cases express doubts over
certificates produced and carry on detailed
probe which is totally unwarranted.

43. We are of the view that admission
register in the school in which the
candidate first attended is a relevant piece
of evidence of the date of birth. The
reasoning that the parents could have
entered a wrong date of birth in the
admission register hence not a correct date
of birth is equal to thinking that parents
would do so in anticipation that child
would commit a crime in future and, in that
situation, they could successfully raise a
claim of juvenility."

7. I have heard Shri Rakesh Kumar
Tripathi, learned counsel for the revisionist,
learned AGA for the State and perused the
record.

8. Section 94 of the Act reads as
under:

"94. Presumption and determination
of age.-(1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before it
under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child,
the Committee or the Board shall record
such observation stating the age of the
child as nearly as may be and proceed with
the inquiry under section 14 or section 36,
5 All. Aman @ Monu Vs. State of U.P. & Anr.
1033
as the case may be, without waiting for
further confirmation of the age.

(2) In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Committee or
the Board, as the case may be, shall
undertake the process of age determination,
by seeking evidence by obtaining-

(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination
Board, if available; and in the absence
thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i) and
(ii) above, age shall be determined by an
ossification test or any other latest medical
age determination test conducted on the
orders of the Committee or the Board:

Provided such age determination test
conducted on the order of the Committee or
the Board shall be completed within fifteen
days from the date of such order.

(3)
The
age
recorded
by
the
Committee or the Board 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."

9. Considering the entire facts and
circumstances of the case and the law laid
down by the apex court, I am of the view
that the learned appellate court arrived at a
conclusion that there is dispute in regard to
date of birth of the revisionist. The
conclusion of the Juvenile Justice Board is
based on the family register which is
annexed as Annexure-4 as well as the
statement of PW-2 Usha Pathak in which
she
clearly
denied
stating
that
the
revisionist never got admission in Gaytri
Shishu Mandir. The statement of PW-1
Laxman Prasad Gupta is totally based on
the basis of the T.C. of Gaytri Shishu
Mandir, but this fact is established that the
revisionist never studied in the Gaytri
Shishu Mandir School. So the findings
arrived by the learned appellate court that
there is dispute in respect of date of birth of
the revisionist. In the statement of CW-1
and CW-2 Sushila Rani, Head Master of
Nehru Shishu Mandir Gulam Alipura,
Bahraich, it is clearly established that the
date of birth of the revisionist is 6.3.2003.
Submission of the CW-1 and CW-2 is also
supported with family register in which
date of birth of the revisionist is mentioned
as 6.3.2003.

10. Though no any mechanism
developed to determine the radiological age
of the juvenile at this stage. The juvenility
as per radiological age is determinable only
when the revisionist at the verge of
majority. As per birth certificate and family
register of the revisionist and statement of
CW-1 and CW-2, presently revisionist
conflict with law has already attained the
majority i.e aged about 19-20 years. The
radiological age could be determined on the
basis of fusion of epiphysis generally
which is started from age of 16 years and
almost completed in age of 18 years.
Further, if the finding of the appellate court
is accepted as true, when any conflict arises
regarding the age of the juvenile or child
and on the basis of oral statement it could
not be possible to determine the correct
date of birth and age of the juvenile, then
the medical opinion will be sought from the
duly constituted medical board which will
declare the age of the juvenile or child. In
this case, the appellate court categorically
arrived at a conclusion that there is conflict
in the date of birth of the revisionist and
directed the revisionist for readiological
age.
1034 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Now the moot question arises in
this matter whether after attaining majority
the exact age could be determined or not. In
this context, the Apex Court in the case of
Mukarrab Etc vs State Of U.P [decided
on 30 November, 2016 in Criminal
Appeal Nos. 1119-1120 of 2016], has held
as under:

"17. As already noted, by an order
dated 18.02.2016, this Court had directed
the concerned District and Sessions Judge
to conduct an inquiry and submit a report
as to the age of the appellants (Mukarrab
and Arshad). As per the report submitted by
the VIIIth Additional District and Sessions
Judge, Moradabad both the appellants
(Mukarrab and Arshad) were major on the
date of the incident. After perusing the
report of the District Judge, by order dated
06.04.2016, this Court has directed medical
examination of the appellants (Mukarrab
and Arshad) to be conducted by a duly
constituted Medical Board of the AIIMS,
New Delhi. Accordingly, the doctors of
AIIMS have examined the appellants
(Mukarrab and Arshad) and given their
opinion as under:-

"Alleged history in Brief: On perusal
of the documents submitted to AIIMS, it
was revealed that the year of commission of
crime was 1994 i.e. 22 years before today
i.e. 02.05.2016.

The said accused Mukarrab alleged
his date of birth to be 1st July, 1978.

The
said
accused
Arshad
has
submitted the documentary proof of his age
stating date of Birth as 5th February, 1979.

Examination Proceedings: Both the
accused were examined after taking due
informed consent along with signature and
left thumb impression.

.....

Their
physical,
dental
and
radiological examinations were carried
out. X- ray examination of Skull (AP and
lateral view), Sternum (AP and lateral
view) and Sacrum (lateral view) were
advised and performed. There was no
indication for Dental X-rays since both
accused were much beyond 25 years of age
in any case.

Physical and Dental Examination: In
both cases, general physical examination
findings are consistent with findings of
normal adult male. Dental examination
shows presence of complete 8 sets of
permanent teeth in all 4 quadrants.

Report of Radiological Examination-

Mukarrab Medical end of clavicle
fused-age>more than 22 years Xiphoid
process not fused with sternal body-age<40
years Manubrium not fused with sternal
body-age<50 years Complete fusion of
sacral bodies-age>32 years Saggital suture
obliterated in posterior 1/3rd and coronal
suture obliterated in lower 1⁄2-age<40
years.

Arshad Medical end of clavicle fusedage>more than 22 years Xiphoid process
not fused with sternal body-age<40 years
Manubrium not fused with sternal bodyage<50 years Complete fusion of sacral
bodies-age>32
years
Saggital
suture
obliterated in posterior 1/3rd and coronal
suture intact- age<40 years.

Opinion: Both accused have been
brought for examination at AIIMS on
02.05.2016, 22 years after the alleged date
of incidence. After going through the
various findings of physical, dental and
radiological examinations; medical board
is of considered opinion that the age of
accused viz. Mukarrab s/o Mr. Mulla Zafar
as well as Arshad s/o Rashid is between 3540 years on the date of examination i.e.
02.05.2016.

18.
The
question
falling
for
consideration is whether the opinion of the
Medical Board of AIIMS determining the
5 All. Aman @ Monu Vs. State of U.P. & Anr.
1035
age of the appellants between 35-40 years,
can be accepted or not.

19. Learned Senior Counsel for the
appellants contended that the general rule
about age determination is that the age
determined by the Medical Board vary plus
or minus two years but the Medical Board
in this case had fixed the age of the
appellants at 35-40 years and going by the
general rule, the age of the appellants is to
be estimated as 38 years on the date of
medical examination and giving additional
benefit of one year in lowering the age in
terms of Rule 12(3)(b), age of the
appellants is to be determined as 37 years
as on the date of medical examination on
02.05.2016. It was, therefore, submitted
that taking the age of the appellants as 37
years as on 02.05.2016 which means that at
the time of commission of the offence in
1994, the appellants would have been only
aged about 15 years and, therefore, the
benefit of Juvenile Justice Act to be
extended to the appellants. Contending that
the benefit of benevolent provisions of
Juvenile Justice Act and the Rules must be
extended to the appellants herein, learned
Senior Counsel for the appellant relied
upon Darga Ram alias Gunga v. State of
Rajasthan (2015) 2 SCC 775 wherein it has
been held as under:-

"16. The medical opinion given by the
duly
constituted
Board
comprising
Professors of Anatomy, Radio diagnosis
and Forensic Medicine has determined his
age to be "about" 33 years on the date of
the examination. The Board has not been
able to give the exact age of the appellant
on medical examination, no matter the
advances made in that field. That being so,
in terms of Rule 12(3)(b) the appellant may
even be entitled to the benefit of fixing his
age on the lower side within a margin of
one year in case the Court considers it
necessary to do so in the facts and
circumstances of the case. The need for any
such statutory concession may not however
arise because even if the estimated age as
determined by the Medical Board is taken
as the correct/true age of the appellant he
was just about 17 years and 2 months old
on the date of the occurrence and thus a
juvenile within the meaning of that
expression
as
used
in
the
Act
aforementioned. Having said that we
cannot help observing that we have not felt
very comfortable with the Medical Board
estimating the age of the appellant in a
range of 30 to 36 years as on the date of
the medical examination.

17. The general rule about age
determination is that the age as determined
can vary plus minus two years but the
Board has in the case at hand spread over
a period of six years and taken a mean to
fix the age of the appellant at 33 years. We
are not sure whether that is the correct way
of estimating the age of the appellant. What
reassures us about the estimate of age is the
fact that the same is determined by a
Medical Board comprising Professors of
Anatomy, Radiodiagnosis and Forensic
Medicine whose opinion must get the
respect it deserves. That apart, even if the
age of the appellant was determined by the
upper extremity limit i.e. 36 years the same
would have been subject to variation of
plus minus 2 years meaning thereby that he
could as well be 34 years on the date of the
examination. Taking his age as 34 years on
the date of the examination he would have
been 18 years, 2 months and 7 days on the
date of the occurrence but such an estimate
would be only an estimate and the
appellant may be entitled to additional
benefit of one year in terms of lowering his
age by one year in terms of Rule 12(3)(b)
(supra) which would then bring him to be
17 years and 2 months old, therefore, a
juvenile."
1036 INDIAN LAW REPORTS ALLAHABAD SERIES

22. It is well settled that it is neither
feasible nor desirable to lay down an
abstract formula to determine the age of a
person. The date of birth is to be
determined on the basis of material on
record and on appreciation of evidence
adduced by the parties. The medical
evidence as to the age of a person, though
a very useful guiding factor, is not
conclusive and has to be considered along
with other cogent evidence.

27. The benefit of the principle of
benevolent legislation attached to the JJ
Act would thus apply to only such cases
wherein the accused is held to be a juvenile
on the basis of at least prima facie evidence
regarding his minority as the benefit of the
possibilities of two views in regard to the
age of the alleged accused who is involved
in grave and serious offence which he
committed and gave effect to it in a wellplanned manner reflecting his maturity of
mind rather than innocence indicating that
his plea of juvenility is more in the nature
of a shield to dodge or dupe the arms of
law, cannot be allowed to come to his
rescue." [Emphasis added] From the above
decision, it is clear that the purpose of
Juvenile Justice Act, 2000 is not to give
shelter to the accused of grave and heinous
offences."

12. Since in this matter the proper
inquiry has been done by the Juvenile
Justice Board and the Juvenile Justice
Board has rightly concluded that the date of
birth of the revisionist is 6.3.2003.
Presently as per conclusion of the Juvenile
Justice Board, age of the revisionist is more
than 20 years. If the statement of PW-1 is
accepted as true, then the age of the
revisionist is 23 years.

13. Keeping in view the above ruling
of the Apex Court in Mukarrab Etc (supra)
that when the revisionist has attained
majority, then at this stage exact age could
not be determined. So the learned Juvenile
Justice
Board
determined
the
age
considering
the
material
facts
and
circumstances. Even at this stage, the
medical board could not determine the
exact age of the revisionist conflict with
law. So in this matter, there is no reason to
disbelieve the conclusion arrived by the
Juvenile
Justice
Board.
Thus,
the
conclusion arrived by the appellate court is
erroneous.

14. Consequently, the present revision
is hereby allowed and the impugned order
dated 31.7.2019 passed by the appellate
court is hereby set aside.
----------
(2023) 5 ILRA 1036
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.03.2023

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Crl. Misc. Transfer Appl. No. 286 of 2022

Manju Bansal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Sri Prateek Kumar Srivastava, Sri Ritukar Gupta,
Sri V.P. Srivastava(Sr. Advocate)

Counsel for the Respondents:
G.A., Sri Raj Kumar Kesari

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 407 - Indian Penal
Code, 1860-Sections 498-A, 323, 504,
506, 307, 120-B - Section 3/4 Dowry
Prohibition Act -the marriage of applicant
and opposite party was solemnized two
years ago and the allegations are that the