# Buddhu Revisionist v. State of U.P. & Anr

- **Citation:** (2021) 11 ILRA 144
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-27
- **Case number:** Criminal Revision Defective No. 393 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/buddhu-revisionist-v-state-of-u-p-anr-46557
- **Pages:** 13

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161 , 164 & 401 -
Indian Penal Code, 1860 - Sections 363 , 366 ,
376 & 506 - The Juvenile Justice (Care and
Protection of Children) Act 2000 - The Juvenile
Justice (Care and Protection of Children) Act,
2015 - Sections 2(5) , 2(12) , 37, clauses (a) to
(h) of Sub-Section (1) of Sections 37 ,94 (2) -
claim of juvenility - first preference or the first
determining factor that should be looked into is
the educational certificate of the child - In
section 94 (2)(i) of 2015 Act both the date of
birth certificate from the school as well as the
matriculation or equivalent certificate placed in
the same category.(Para - 16,17)

Revisionist's daughter kidnapped by opposite party
no.2 - lodged F.I.R. - Investigating Officer produced
minor daughter of revisionist before Chief Judicial
Magistrate - application for custody of daughter -
lawful guardian of her daughter - summoned Head
Master of Primary School - corroborated - as per
school record date of birth of daughter/ victim was
08.03.2006 - order against correct position on law as
11 All. Buddhu Vs. State of U.P. & Anr.
145
in the new Juvenile Justice Act, 2015 - revision filed
by revisionist .

HELD:-Educational certificate showed date of birth of
victim as 08.03.2006 and therefore at the time of
filing of F.I.R. and at the time of moving of the
application by the revisionist she was not 18 years of
age, and not major. Chief Judicial Magistrate
exceeded his jurisdiction and misapplied the law
without correctly appreciating the new Act . Matter
remanded back to pass a fresh order after due
consideration of law and statutory provisions as
notified by the Act of 2015. (Para - 18,19)

Revision disposed of.(E-7)

List of Cases cited:-

## Text

_Characters 0–39,837 of 50,697. This is a partial read: ask again with offset=39837 for what follows._

144 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 5/6 of the POCSO Act, as well as order
dated 27.11.2020 passed by the Addl. Sessions
Judge / Sepcial Judge (POCSO Act), Court
No.1, Gorakhpur in Criminal Appeal No. 62 of
2020, Vishal Kannaujiya Vs. State of U.P. and
others refusing the bail to the revisionist are
hereby set aside and reversed. The bail
application of the revisionist stands allowed.

66. Let the revisionist, Vishal Kannaujiya
through his natural guardian/ father Rajesh
Kannaujiya be released on bail in Case Crime
No. 9 of 2020, under Sections 376 read with
Section 5/6 of P.O.C.S.O. Act, Police Station
Khajani, District Gorakhpur upon his father
furnishing a personal bond with two solvent
sureties of his relatives, each in the like amount
to the satisfaction of the Juvenile Justice Board,
Ballia subject to the following conditions:

(i) That the natural guardian/ father
Rajesh Kannaujiya will furnish an undertaking
that upon release on bail the juvenile will not be
permitted to go into contact or association with
any known criminal or allowed to be exposed to
any moral, physical or psychological danger and
further that the father will ensure that the
juvenile will not repeat the offence.

(ii) That the father will further furnish
an undertaking to the effect that the juvenile will
pursue his study at the appropriate level, which
he would be encouraged to do besides other
constructive activities and not allowed to waste
his
time
in
unproductive
and
excessive
recreational pursuits.

(iii) The revisionist and his father
Rajesh Kannaujiya will report to the District
Probation Officer on the first Monday of every
calendar month commencing with the first
Monday of January, 2021 and if during any
calendar month the first Monday falls on a
holiday, then on the following working day.

(iii) The District Probation Officer will
keep strict vigil on the activities of the
revisionist and regularly draw up his social
investigation report that would be submitted to
the Juvenile Justice Board, Gorakhpur on such
periodical basis as the Juvenile Justice Board
may determine.
----------
(2021)12ILR A144
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision Defective No. 393 of 2021

Buddhu ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sanjay Kumar

Counsel for the Opposite Parties:
G.A., Nand Lal Pandey, Rajneesh Singh, Ujjwal
Pandey, Vivek Tiwari

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 161 , 164 & 401 -
Indian Penal Code, 1860 - Sections 363 , 366 ,
376 & 506 - The Juvenile Justice (Care and
Protection of Children) Act 2000 - The Juvenile
Justice (Care and Protection of Children) Act,
2015 - Sections 2(5) , 2(12) , 37, clauses (a) to
(h) of Sub-Section (1) of Sections 37 ,94 (2) -
claim of juvenility - first preference or the first
determining factor that should be looked into is
the educational certificate of the child - In
section 94 (2)(i) of 2015 Act both the date of
birth certificate from the school as well as the
matriculation or equivalent certificate placed in
the same category.(Para - 16,17)

Revisionist's daughter kidnapped by opposite party
no.2 - lodged F.I.R. - Investigating Officer produced
minor daughter of revisionist before Chief Judicial
Magistrate - application for custody of daughter -
lawful guardian of her daughter - summoned Head
Master of Primary School - corroborated - as per
school record date of birth of daughter/ victim was
08.03.2006 - order against correct position on law as
11 All. Buddhu Vs. State of U.P. & Anr.
145
in the new Juvenile Justice Act, 2015 - revision filed
by revisionist .

HELD:-Educational certificate showed date of birth of
victim as 08.03.2006 and therefore at the time of
filing of F.I.R. and at the time of moving of the
application by the revisionist she was not 18 years of
age, and not major. Chief Judicial Magistrate
exceeded his jurisdiction and misapplied the law
without correctly appreciating the new Act . Matter
remanded back to pass a fresh order after due
consideration of law and statutory provisions as
notified by the Act of 2015. (Para - 18,19)

Revision disposed of.(E-7)

List of Cases cited:-

1. Vandana @ Bandana Saini & anr. Vs St. of U.P. & 5
ors. , Habeas Corpus Writ Petition No.390 of 2021

2. Jarnail Singh Vs St. of Har., 2013 (7) SCC 263,

3. Mahadeo Vs St. of Mah., 2013 (14) SCC 637

4. St. of M.P. Vs Anoop Singh, 2015 (7) SCC 773

5. Independent Thought Vs U.O.I., 2017 (10) SCC
800

6. Subhani & ors. Vs St. of U.P. & ors., S.L. P.
No.8881 of 2018, Civil Appeal no. 4532 of 2018

7. Jitendra Arora & ors. Vs Sukriti Arora & ors., 2 JIC
193 (SC)

8. Rajjak Ahmad Vs St. of H.P., Criminal Appeal
No.1395 of 2005:

9. Jarnail Singh Vs St. of Har. ,2013 (7) SCC 263

10. Mahadev Vs St. of Mah. & anr. ,2013(14) SCC 637

11. M.P. Vs Anoop Singh, 2015 (7) SCC 773

12. Suhani Vs St. of U.P., Civil Appeal No.4532 of
2018 , 2018 SCC Online (Supreme Court) 781

13. Jitendra Arora & ors. Vs Sukriti Arora & ors. ,
2017 (3) SCC 726

14. Razak Mohd Vs St. of H.P., 2018 (9) SCC 248
15. Sanjeev Kumar Gupta Vs St. of U.P., 2019 (12)
SCC 370

16. Parag Bhati Vs St. of U.P. ,2016 (12) SCC 744

17. Ramdev Chauhan Vs St. of Assam ,2001 (5) SCC
714

18. Ashwini Kumar Saxena Vs St. of M.P. ,2012 (9)
SCC 750

19. Abu Zar Hossain Vs St. of Bengal ,2012 (10) SCC
489

20. Akbar Sheikh Vs St. of Bengal, 2009 (7) SCC 415

21. Pawan Vs St. of Uttaranchal ,2009(15) SCC 259

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

1. Heard learned counsel for the revisionist
and learned A.G.A. for the State.

2. This Revision has been filed by the
revisionist under Section 401 Cr.P.C. against the
order dated 05.12.2020 passed by the learned
Chief Judicial Magistrate Bahraich in Case
Crime no.715 of 2020 under Sections 363 and
366 I.P.C., Police Station Nanpara, District
Bahraich.

3. It has been submitted by learned counsel
for the revisionist that the revisionist's daughter
was kidnapped by the opposite party no.2 on
16.11.2020 when she was aged about 14 years.
The revisionist lodged an F.I.R. on 16.11.2020.
During investigation, the Investigating Officer
produced the minor daughter of the revisionist
before the Chief Judicial Magistrate Bahraich.
The Revisionist gave an application before the
Chief Judicial Magistrate Bahraich for custody
of daughter because he was the lawful guardian
of her daughter. The date of birth of the daughter
was 08.03.2006 as per record of the School.
Learned
Chief
Judicial
Magistrate
in
determining the age of the daughter of the
revisionist summoned the Head Master of
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Primary School who in his statement before the
learned trial court corroborated that as per the
school record, the date of birth of the daughter/
victim was 08.03.2006. Despite such statement
made by the Head Master and availability of the
certificate issued from the School, the Chief
Judicial Magistrate Bahraich passed the order
dated 05.12.2020. Such order is against the
correct position on law as in the new Juvenile
Justice Act, 2015, Section 94 clearly provides
the parameters to determine the age of a child in
need of care and protection.

4. It has been argued that learned trial court
has cited judgements for coming to the
conclusion that the daughter of the revisionist
was major which are not applicable as such
judgements were rendered before the Juvenile
Justice Act, 2015. Under the new Act, the Date
of Birth certificate from the School or the
Matriculation or equivalent certificate from the
concerned Examination Board and in absence
thereof, the birth certificate issued by Municipal
Authorities would be the determining factor and
in absence of such certificate being available,
the age has to be determined by ossification test
or any other advanced medical test.

5. Learned counsel for the revisionist has
also placed reliance upon a Division Bench
judgement rendered by this Court in Habeas
Corpus Writ Petition No.390 of 2021: Vandana @
Bandana Saini and Another Vs. State of U.P. and
five others, decided on 30.06.2021, wherein the
petitioner no.1 through her alleged husband
petitioner no.2, had filed the Habeas Corpus
petition saying that she had been wrongly sent to
the custody of Superintendent of Government
Women's Asylum Khuldabad, District Prayagraj
by an order dated 25.12.2020 passed by the Judge,
Child Welfare Committee, Fatehpur. The medical
report had stated the age of the detenue to be as 19
years and thus it was claimed that she was major
and that she had married the petitioner no.2 in a
Temple in Gujarat and was living with him before
she was sent to the Government Women's Asylum
against her wishes. It was alleged that School
Leaving Certificate had wrongly showed her Date
of Birth as 02.04.2004. The court had come to the
conclusion that the School Leaving Certificate of
the detenue showed her Date of Birth as
02.04.2004 and under Section 94 (2) of the
Juvenile Justice (Care and Protection of Children)
Act, 2015 as amended, the first preference has to
be given to an educational certificate in such
matters. Juvenile has been defined as Section 2(5)
of the Act as meaning a child below 18 years.
Under Section 37 of the Act, the Child Welfare
Committee on being satisfied through enquiry that
child before the Committee is a child in need of
care and protection, may, on consideration of
Social Investigation Report submitted by Child
Welfare Officer and taking into account the child's
wishes in case the child is sufficiently mature, pass
orders as provided in clauses (a) to (h) of SubSection (1) of Section 37 of the Juvenile Justice
Act. The Court considered several judgements of
the Supreme Court viz. Jarnail Singh Vs. State of
Haryana; 2013 (7) SCC 263, Mahadeo Vs. State of
Maharashtra; 2013 (14) SCC 637, and State of
Madhya Pradesh Vs. Anoop Singh; 2015 (7) SCC
773, as also the judgment rendered by Hon'ble
Supreme Court in the case of Independent Thought
Vs. Union of India; 2017 (10) SCC 800, to observe
that once the detenue has been found to be a child
as definded under Section 2(12) of the Juvenile
Justice Act, as per the Date of Birth in Educational
Certificate which is 02.04.2004, she would fall in
the category of child in need of care and
protection, and hence the order passed by the Child
Welfare Committee placing a minor child in the
Government
Women's
Asylum,
Khuldabad,
Prayagraj, cannot said to be illegal. The prayer for
issuance of Habeas Corpus was rejected.

6. This Court has considered the
submissions made by learned counsel for the
revisionist and gone through the order dated
03.12.2020
where
learned
Chief
Judicial
Magistrate after referring to the Educational
11 All. Buddhu Vs. State of U.P. & Anr.
147
Certificate showing her date of birth as
08.03.2006, referring to the opinion of the Chief
Medical Officer Bahraich that she was around
19 years of age and to the victim's statement
herself saying that she was of 20 years of age;
had directed the Principal of the Primary School
in which the victim had studied to appear and
give his evidence. After such evidence was
given, the matter was placed before the learned
C.J.M. again on 05.12.2020 where he referred to
the application moved by the father i.e. the
Revisionist herein praying for release of the girl
child to him as she was a minor. Learned
Additional Chief Judicial Magistrate referred to
the statements having been taken of the victim
under Section 161 and 164 Cr.P.C. as well as
medical examination having been done on an
application being made by one Kailash has said
in the order impugned that on her own statement
as well as on the medical certificate and on the
basis of Adhar Card of the victim, she was major
and she should be left on her own to decide for
herself as to where she wanted to live. Learned
Additional Chief Judicial Magistrate referred to
the F.I.R. and also the statement made by the
victim that she was living with the accused out
of her own sweet will. Referring to the
judgments rendered by Supreme Court in Civil
Appeal no. 4532 of 2018: Subhani and others
Vs. State of U.P. and others, S.L. P. No.8881 of
2018: Jitendra Arora and others Vs. Sukriti
Arora and others, 2 JIC 193 (SC) and orders
passed by Supreme Court again in Criminal
Appeal No.1395 of 2005: Rajjak Ahmad Vs.
State of Himachal Pradesh; decided on
23.08.2018, without mentioning the facts of such
judgements and how they were applicable, the
learned Additional Chief Judicial Magistrate
observed that the victim was present in Court
and looking to her physical and mental health
she prima facie appearred to be major as also
from her statement under Section 161 and 164
Cr.P.C. She had given very mature views
regarding her liking for the accused and looking
to her medico legal certificates and Aadhar card
showing her Date of Birth, the court was of the
opinion that on the date of passing of the order,
the victim was prima facie major. As such she
was entitled to live with whoever she wishes and
should be left alone.

7. The application filed by the father for
custody of the victim was rejected by the learned
Chief Judicial Magistrate Bahraich in the order
impugned.

8. In Jarnail Singh versus State of Haryana
2013 (7) SCC 263 Supreme Court was
considering the argument of the accused
appellant that the prosecutrix had eloped with
one of the accused voluntarily and had sexual
intercourse consensually. The learned trial court
and the High Court had found the prosecutrix to
be a minor and therefore held the consent of a
minor as inconsequential. In paragraph 22 of the
judgement the Supreme Court observed -

"on the issue of determination of age
of a minor, one only needs to make a reference
to Rule 12 of the Juvenile Justice (Care and
Protection of children ) Rules 2007, (hereinafter
referred to as the 2007 Rules). The aforesaid
2007 Rules have been framed under section 68
(1) of the Juvenile Justice (Care and Protection
of Children) Act 2000. Rule 12 referred to here
in above provides-

12 "procedure to be followed in
determination of age (1) in every case
concerning a child or a juvenile in conflict with
law, the Court or the Board or as the case
maybe, the Committee referred to in Rule 19 of
these Rules ,shall determine the age of such
juvenile or child or a juvenile in conflict with
law ,within a period of 30 days from the date of
making the application for that purpose.

(2) the Court or the Board or as the
case maybe, the Committee, shall decide the
juvenility or otherwise of the juvenile or the
child or as the case maybe, the juvenile in
conflict with law, prima facie on the basis of
148 INDIAN LAW REPORTS ALLAHABAD SERIES
physical appearance or documents, if available,
and send him to the observation home or in jail.

(3) in every case concerning a child or
juvenile
in
conflict
with
law,
the
age
determination enquiry shall be conducted by the
Court or the Board or as the case may be, the
Committee by seeking evidence by obtaining -

(a)(i)the matriculation or equivalent
certificate, if available, and in the absence
thereof,

(ii) the date of birth certificate from
the School (other than a Playschool )first
attended; and in the absence thereof ;

(iii)the birth certificate given by a
corporation or a municipal authority or a
Panchayat;

(b)and only in the absence of either
(i),(ii),or (iii)of clause (a)above, the medical
opinion will be sought from a duly constituted
medical board, which will declare the age of the
juvenile or the child, in case exact assessment of
which cannot be done. The court or the Board or
as the case maybe the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the child or
juvenile by considering his/her age on the lower
side within the margin of one year;

And, while passing orders in such
cases shall, after taking into consideration such
evidence as may be available,or the medical
opinion, as the case maybe, record a finding in
respect of his age and either of the evidence
specified in any of the clauses (a)(i),(ii),or (iii)
or in the absence where of, clause (b) shall be
the conclusive proof of the age as regards the
child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or
the juvenile in conflict with law is found to be
below 18 years on the date of the offence, on the
basis of any of the conclusive proofs specified in
sub- rule (3); the Court or the Board as the case
maybe, the Committee, shall in writing pass an
order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the
Act and the Rules and a copy of the order shall
be given to such juvenile or the person
concerned.

(5)save and except where, further
enquiry or otherwise is required, inter-alia in
terms of section 7 -A , section 64 of the Act and
the Rules, no further enquiry shall be conducted
by the Court or the Board after examining and
obtaining
the
certificate
Or
any
other
documentary proof referred to in sub- rule (3)of
this Rule.

(6)the provisions contained in this
Rule shall also apply to those disposed of cases,
where the status of juvenility has not been
determined in accordance with the provisions
contained in sub- rule (3) of the Act, requiring
dispensation of the sentence under the Act for
passing appropriate orders in the interest of
juvenile in conflict with the law."

The Supreme Court further observed
in paragraph 23- "Even though Rule 12 is strictly
applicable only to determine the age of a child
in conflict with law, we are of the view that the
aforesaid statutory provision should be the basis
for determining age, even of a child who is a
victim of crime. For, in our view there is hardly
any difference in so far as issue of minority is
concerned, between a child in conflict with law,
and a child who is victim of crime. Therefore in
our considered opinion it would be just and
appropriate to apply rule 12 of the 2007 rRules,
to determine the age of the prosecutrix - - -. The
manner of determining age conclusively has
been expressed Sub rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of
a child is ascertained by adopting the first
available basis out of a number of options
postulated in Rule 12 (3). If, in the scheme of
options postulated in Rule 12 (3) and option is
expressed in a preceeding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option
available would conclusively determine the age
of a minor. In the scheme of this Section Rule 12
(3) matriculation or equivalent certificate of the
child concerned is the highest rated option. In
11 All. Buddhu Vs. State of U.P. & Anr.
149
case, the said certificate is available, no other
evidence can be relied upon. Only in the absence
of the said certificate, Rule 12 (3) can be
referred to and we suggest consideration of the
date of birth entered in the school first attended
by the child, in case such an entry of date of
birth is available, the date of birth depicted
parent is liable to be treated as final and
conclusive, and no other material is to be relied
upon only in the absence of such entry, Rule 12
(3)postulates reliance on birth certificate issued
by the Corporation or a Municipal authority or a
Panchayat. Yet again, if such a certificate is
available then no other material whatsoever is to
be taken into consideration for determining the
age of the child concerned, as the said certificate
would conclusively determine the age of the
child. It is only in the absence of any of the
aforesaid, that Rule 12 (3) postulates the
determination of age of the child concerned, on
the basis of medical opinion.

The Supreme Court thereafter referred
to the fact that the prosecutrix Had studied only
up to class 3 and thereafter had left school and
had started to do household work. The
prosecution in the facts and circumstances of the
case had endeavoured to establish age of the
prosecutrix on the next available basis in the
sequence of options expressed in rule 12 (3) of
the 2007 Rules. The prosecution produced
headmaster of the Government High School
where the prosecutrix had studied up to class III.
The headmaster had proved the certificate as
having been made on the basis of school records
indicating that the prosecutrix was born on 15
May 1977.

The Supreme Court further observed
in paragraph 24 thus:- "in the scheme
contemplated under rule 12 (3)of the 2007
Rules, it is not permissible to determine age in
any other manner, and certainly not on the basis
of an option mentioned in a subsequent clause.
We are therefore of the view that the High Court
was fully justified in relying on the aforesaid
basis for establishing the age of the prosecutrix -
- -. It would also be relevant to mention that
under the scheme of Rule 12 it would have been
improper for the High Court to rely on any other
material including the Ossification test, for
determining the age of the prosecutrix - - - ".
The deposition of the headmaster had not been
contested therefore the date of the birth of the
prosecutrix as given in the certificate issued
from the School assumes finality. Accordingly it
was clear that the prosecutrix was less than 15
years of age on the date of the occurrence in
March 1993. The prosecutrix being a minor on
the date of the occurrence, the conclusion as
recorded by the High Court and by the trial court
was unexceptional. The contention raised by the
appellant accused that she had accompanied him
of her own sweet will and had consensual sex
with him would be clearly inconsequential as
she was a minor.

9. In Mahadev versus State of Maharashtra
and another 2013(14) SCC 637, the Supreme
Court was considering the case of the appellant
who was accused of kidnapping and rape of a
minor girl. The Supreme Court referred to Rule
12 (3) of the Juvenile Justice (Care and
Protection of Children) Rules 2007, and held it
to be applicable to determine the age of the
young prosecutrix/victim. The Appellant had
been proceeded against for offences punishable
under Sections 363, 376 and 506 IPC, and was
punished having been found guilty by the Trial
Court. The High Court by its judgement though
confirmed the conviction of sentence for the
offences under section 363 and 376 IPC, set
aside the sentence for offence under Section 506
IPC. The prosecutrix was aged about 15 years at
the time the offence was committed, she was
studying in ninth standard, her father was a
police head constable. The prosecutrix had a
flair for music and used to participate in singing
bhajans. The appellant who was a musician and
a singer developed acquaintance with the
prosecutrix due to her participation in Bhajan
programmes along with him and he allured her
150 INDIAN LAW REPORTS ALLAHABAD SERIES
by stating that if she goes along with him to
Hyderabad to prepare audio cassettes of a
bhajans and songs she can make a lot of money.
On 18.09.2005 the prosecutrix eloped with the
appellant and after going to Hyderabad and from
there to a relative's house at Kurnool, the
appellant is alleged to have committed forcible
sexual intercourse by confining her in the said
place for a month and twenty days. During the
said period the appellant is stated to have
committed it in the said offence repeatedly. In
support of the case the prosecution produced the
headmistress
of
the
School
where
the
prosecutrix was admitted in fifth standard to
prove the School Leaving Certificate which
disclosed her date of birth as 20.05.1990, the
appellant attempted to find fault with the said
conclusion by making reference to evidence of
the doctor who had examined the prosecutrix
and who in her evidence stated that on her
examination she could state that the age of the
prosecutrix could have been between 17 to 25
years. The Ossification test was not done, and
the age was ascertained only on the basis of
opinion of the doctor. The Supreme Court on
hearing the appeal referred to the Juvenile
Justice (Care and Protection of Children) Rules
2007, in paragraph 12 and subsection (3) thereof
and it observed that under Rule 12 (3)b it is
specifically provided that only in the absence of
alternative methods described under Rules A
(i)(ii)(iii), the medical opinion can be sought for.
In the light of such a statutory rule prevailing for
ascertainment of age of a juvenile, the same
yardstick can be rightly followed by the Courts
for the purpose of ascertaining the age of a
victim as well. The Supreme Court observed that
there were certificates issued by the school in
which the prosecutrix studied upto fifth standard
and in the School Leaving Certificate issued by
such school the date of birth had been clearly
mentioned as 20.05.1990, and this document
was also approved by the headmistress. Apart
from that, the Transfer Certificate and the
admission form maintained by the Primary
School Latur, where the prosecutrix had her
initial education also confirmed the date of birth
as 20.05.1990. The Supreme Court observed that
the reliance placed upon the said evidence by the
Courts below to arrive at the age of the
prosecutrix to hold that the prosecutrix was
below 18 years of age at the time of occurrence
was perfectly justified and dismissed the Appeal.

10. In State of Madhya Pradesh versus
Anoop Singh 2015 (7) SCC 773, the Supreme
Court observed that ossification test is not the
sole criteria for determining the date of birth,
once birth certificate and middle school
certificate are available. Difference of two days
in the date of birth mentioned in both certificates
was a minor discrepancy and was immaterial.
Reliance placed by the High Court upon the
ossification test, because of such difference, for
presuming that the prosecutrix was more than 18
years of age at the time of the incident and was a
consenting party and thus no offence against the
accused is proved, was erroneous. The two
certificates issued by the educational institutions
proved the age of the prosecutrix to be below 16
years on the date of the incident, proving her to
be underage for consent. The conviction of the
accused by the trial court was restored. The
Supreme Court observed in paragraph 12: "the
case involves only one issue for the court to
consider which was regarding the determination
of the age of the prosecutrix." The court referred
to Mahadev versus State of Maharashtra, and
quoted several paragraphs there from. The
Supreme Court observed that the High Court
should have relied firstly on the documents as
stipulated under Rule 12 (3)(b) and only in their
absence, the medical opinion should have been
sought. The trial court had also dealt with this
aspect of the ossification test but had noted that
the ossification test is not the sole criteria for
determination of the date of birth of the
prosecutrix as certificate of birth by municipal
corporation had been enclosed which had not
been disproved.
11 All. Buddhu Vs. State of U.P. & Anr.
151

11. The learned trial court has placed
reliance upon judgement rendered in Suhani
versus state of U.P., Civil Appeal No.4532 of
2018 reported in 2018 SCC Online (Supreme
Court) 781. In the said case the Supreme Court
was considering the question of age of the
petitioner. The father of the petitioner had
lodged an F.I.R. under section 363 and 366 of
the Indian Penal Code. It was contended before
the High Court that the petitioner was about 19
years of age and that her statement was recorded
under section 164 Cr.P.C. where she had stated
that she had entered into wedlock with the
petitioner number two. On behalf of the
contesting respondent number three, a certificate
issued by the Secondary School Examination
showed the date of the birth of the petitioner as
25.09.2003. The High Court came to the
conclusion that she was thirteen years and eight
months old and on that basis treated her as a
minor. However, she expressed an unequivocal
desire not to accompany her parents. The High
Court therefore directed that she should be
allowed to reside in Nari Niketan, Allahabad.
The Supreme Court on hearing the matter had
directed that the petitioner number one should be
examined by the concerned department of All
India Institute of Medical Sciences, New Delhi.
The radiological examination and final report
/opinion Submitted showed x-rays of clavicle,
sternum, pelvis, spine, wrist and elbow, shoulder
and it was observed that all epiphysis at elbow,
shoulder and wrist joints were fused, suggesting
age of 16.5 years fusion of iliac crest epiphysis
suggested her age to be 19+ -1 years, the medial
end of the clavicle was not fused suggestive of
age of 22 to 27 years. S1 vertebrae of sacrum
was not fused with S2, suggestive of the age of
17 to 24 years. The final opinion of All India
Institute of Medical Sciences as quoted by the
Supreme Court in its order stated that the
findings of physical, dental and radiological
examination found the bone age of the petitioner
number 1 to be between 19 to 24 years. The
Court thereafter observed that on the basis of
radiological examination the petitioner number
one was a major and therefore the High Court
had erred in directing her to stay in Nari
Niketan, Allahabad. The petitioner number one
admitted the factum of marriage with the
petitioner number two who was the husband and
therefore she was allowed to accompany him.
The Supreme Court observed that she was an
adult and she had gone voluntarily with the
petitioner number two and had entered into
wedlock therefore the proceedings initiated
under Sections 363 and 366 of the Indian Penal
Code against the petitioner number two stood
quashed. It however clarified that the order
Quashing the proceedings was passed to do
complete justice.

12. The learned Trial court has also relied
upon Jitendra Arora and others versus Sukriti
Arora and others 2017 (3) SCC 726, which was
a case relating to custody of a child/minor, under
the Guardians and Wards Act. In the said case
marriage between the appellant and the
respondent was solemnised in India in 1999. The
parties shifted to U.K. and lived there for some
time. Two daughters are born to them. Later on
relationship between them soured and a divorce
petition was filed by the respondent in the Court
in U.K. where she was granted a divorce decree.
Thereafter the appellant shifted to India along
with The elder daughter. The respondent had in
the meantime obtained a British citizenship for
the elder daughter and came to India and filed a
Habeas Corpus petition in Punjab and Haryana
High Court against the appellant and others
which was allowed by the High Court directing
the appellant to hand over the minor daughter to
the custody of the respondent. Against the said
judgement of the High Court, the father had filed
the appeal before the Supreme Court. During the
hearing of the case the Supreme Court had asked
the respondent as to whether she could shift to
India even temporarily for a year or so, so that
the court could consider giving custody of the
daughter to her for that period. However she
152 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed her inability to do so and had insisted
that the daughter should come to U.K. and live
with her. The Court had interacted with the
daughter in the chambers earlier and on the date
of hearing also she was present in Court and in
front of parents had unequivocally expressed
that she was happy with the father and wanted to
continue in his company and did not want to go
with her mother. The Supreme Court observed
that the child was 15 years of age and quite
mature and she could fully understand what was
in her best interest and therefore competent to
take a decision for herself. There had been
interactions with her by different Benches of the
Supreme Court from time to time from which it
was clearly discernible that she was in a position
to weigh the pros and cons of the two
alternatives and to decide as to which course of
action is most suited to her. She had a developed
personality and formed her opinion after
considering all the attendant circumstances. The
Court observed that her intellectual capacities
had been adequately developed and she was able
to solve problems and think about her future and
understand the long-term effects of the decision
which she was taking. She had been brought up
in a conducive atmosphere and had achieved
sufficient level of maturity. Further, in spite of
giving ample chances to the respondent by
giving temporary custody of the girl child to her,
the respondent had not been able to win over her
confidence. She had wanted the girl child to live
with her in U.K. whereas the daughter had very
categorically stated that she did not want to go to
U.K. and wanted to live with her father. The
court therefore observed that it could not take
the risk of sending the child to a foreign country
against her wishes which may prove to be a
turbulent and tormenting experience for her
which would not be in her interest therefore it
decided that her welfare lay in the continued
company of her father.

It is clear from the facts of the case as
narrated here in above that the learned trial court
had misplaced reliance upon the judgement
which had nothing at all to do with section 363
and 366IPC. Quoting a judgement out of context
and placing reliance thereupon is a hazardous
course of action which should be avoided by the
learned Trial Court.

13. The learned Trial Court has placed
reliance also upon Razak Mohd versus State of
Himachal Pradesh, 2018 (9) SCC 248, the
accused was convicted by the High Court under
Sections 363, 366 and 376 of the I.P.C. He had
been acquitted by the learned trial court. The
High Court in appeal had reversed the order. The
Supreme Court observed that the evidence of the
prosecutrix with regard to the incident of
abduction and commission of rape stood
contradicted by her previous statement in
writing recorded under Section 161 of the Code
of Criminal Procedure with which she was
confronted with during trial. Apart from the
above, it was evident from the evidence of other
prosecution witnesses that the prosecutrix had
remained with the appellant accused in the
village for about 12 days until she was
recovered, and that she had freely moved around
with the appellant accused in the course of
which movement, she had come across many
people at different points of time. Yet, she did
not complain of any criminal act on the part of
the appellant accused. The Supreme Court
observed that the focal point for decision would
be the age of the prosecutrix in order to
determine as to whether she was a major so as to
give her consent. The court thereafter considered
the evidence and material on record. The age of
the prosecutrix had been sought to be proved by
the prosecution by bringing on record School
Admission form, and certificate issued by one
teacher of a Government School. The teacher
P.W.5, in her deposition had stated that the
details mentioned by her in the school admission
form had been obtained from the School
Leaving Certificate issued by the government
primary school. The certificate issued by the
11 All. Buddhu Vs. State of U.P. & Anr.
153
Government Primary School on the basis of
which details in the admission form had been
filled up by P.W.5 has not been exhibited by the
prosecution. The court observed that such a
document which is only a consequential
certificate issued on the basis of entries
mentioned on the basis of an exhibit which was
not proved could not be relied upon. Moreover
in the opinion of the radiologist the prosecutrix
was between 17 to 18 years. The Supreme Court
observed that the age determined on the basis of
a radiological examination may not be an
accurate determination and sufficient margin
either way had to be allowed, yet in the totality
of facts stated by it, read with the report of the
radiological examination of the prosecutrix left
the Court in doubt. The benefit of the doubt
would go naturally in favour of the accused. The
possibility of the prosecutrix being a consenting
party could not be altogether ruled out.
Therefore the order of the High Court convicting
the Appellant accused was set aside by the
Supreme Court.

14. This Court has considered the new Act
of 2015 passed by the Legislature to obviate the
confusion that was prevailing in the Society at
large with regard to the factors that needed to be
looked into for determining the age of the child.
The Act of 2000 did not have any Section to
determine the age of a child in need of care and
protection or a juvenile in conflict with law. The
Rules of 2007 did have such a provision under
Rule 12 but not in the parent act of 2000.
Section 94 was added with a specific purpose to
do away with such confusion and to clarify the
statutory provisions. It has referred to factors
that needed to be looked into in sub section (2)
which is being quoted hereinbelow in its
entirety:-

"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 the child as
nearly as may be and proceed with the inquiry
under section 14 or section 36, 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"

15. There is only one judgement
considering Section 94 of the 2015 Act reported
till date. In the case of Sanjeev Kumar Gupta Vs.
State of U.P., 2019 (12) SCC 370; a Division
bench of the Supreme Court was considering an
appeal by the complainant against the High
court's order declaring the Second respondent as
juvenile at the time of the incident.

16. The claim of juvenility of the accused
on the basis of matriculation certificate was
allowed. The complainant had approached the
Supreme Court mentioning that in the first
154 INDIAN LAW REPORTS ALLAHABAD SERIES
school that was attended by the appellant his
date of birth was mentioned as 17.12.1995. The
second respondent had also filed an application
for obtaining a Driving License and Aadhar
Card in which he had declared his date of birth
is 17.12.1995. However, in the Matriculation
certificate issued by the CBSE his date of birth
was mentioned as 17.12.1998.