# Juvenile X Revisionist (In Jail) v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-10
- **Case number:** Criminal Revision No. 557 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/juvenile-x-revisionist-in-jail-v-state-of-u-p-anr-51866
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323/34, 302, 504,
395 & 412 - Determination of Age -
Revisionist was involved under aforesaid
sections and produced before J.J.Board -
Upon
age
determination
inquiry,
supported
by
evidence
and
medical
opinion, two Board members held him to
be 16 years and 6 months old on date of
incident, while on same day, Principal
Magistrate, on same material, found him
above 18 years and directed transfer of
4 All. Juvenile X Vs. State of U.P. & Anr.
893
case to competent court - Both orders
were challenged in Criminal Appeal by
victim and juvenile respectively - By
common order, appellate court allowed
victim's appeal, dismissed that of juvenile,
and held him to be adult - Aggrieved,
juvenile preferred instant revision - Held,
there was no good material before court
concerned to corroborate or to calculate
age by reducing it or increasing it with
certain margins - In the facts of case, it is
directed that J.J.Board shall obtain further
evidence
regarding
age
by
recalling
witnesses
for
examination
or
crossexamination and by summoning relevant
documentary records, including pariwar
register or any other material aiding
proper determination - Board may also
summon
additional
witnesses
at
its
discretion - Impugned order, set aside -
Matter remanded. (Para 3, 12, 13)

Revision allowed. (E-13)

List of Cases cited:

## Text

892 INDIAN LAW REPORTS ALLAHABAD SERIES
on the ground that revisionist/wife is B.A.
pass and has done some professional
course, no presumption can be drawn that
she is earning sufficient money to maintain
herself and her minor daughter. Thus the
plea advanced on behalf of the opposite
party No.2 (husband) is without any legal
basis.

18. In Kalyan Dey Chowdhury vs.
Rita Dey Chowdhury Nee Nandy: (2017)
14 SCC 200 has held that 25% of the
husband's net salary would be just and
proper to be awarded as maintenance to the
wife.

19. Taking into consideration the
income of the opposite party No.2, it may
be just and reasonable that he may provide
Rs.10,000/- per month as maintenance
allowance to his daughter.

20. From the above discussion, I am
of the view that the maintenance allowance
fixed by the trial Court in the impugned
order should be modified and maintenance
allowance provided by the trial Court to the
revisionist
Nos.1
and
2
should
be
enhanced. It is provided that revisionist
No.1 (wife) shall be granted for Rs.18,500/-
per month as maintenance allowance as
well as Rs.10,000/- per month for her
minor daughter.

21. Thus, opposite party No.2 shall be
bound to provide maintenance allowance of
Rs.18,500/-
per
month
to
his
wife
(revisionist No.1) and Rs.10,000/- for his
minor daughter (revisionist No.2), total
Rs.28,500/- per month payable to the
revisionists from the date of application.
The arrears of maintenance allowance shall
be paid by the opposite party No.2 in four
equal instalments at the interval of four
months. The monthly interim maintenance
shall be paid regularly till 10th of each
month.
The
amount
of
maintenance
allowance already paid shall be set-off
against this amount. The order impugned
dated 22.03.2022 is modified.

22. The present criminal revision is
allowed and impugned order is modified as
mentioned above.

23. The copy of the order be sent to
the trial Court concerned forthwith for
necessary compliance.
----------
(2024) 4 ILRA 892
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 557 of 2023

Juvenile X ...Revisionist (In Jail)
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Sri Nafees Ahmad, Sri Jai Prakash

Counsel for the Respondents:
G.A., Sri Santosh Kumar Upadhyay, Sri
Rishabh Kumar Pandey, Sri Vinod Kumar
Upadhyay

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 323/34, 302, 504,
395 & 412 - Determination of Age -
Revisionist was involved under aforesaid
sections and produced before J.J.Board -
Upon
age
determination
inquiry,
supported
by
evidence
and
medical
opinion, two Board members held him to
be 16 years and 6 months old on date of
incident, while on same day, Principal
Magistrate, on same material, found him
above 18 years and directed transfer of
4 All. Juvenile X Vs. State of U.P. & Anr.
893
case to competent court - Both orders
were challenged in Criminal Appeal by
victim and juvenile respectively - By
common order, appellate court allowed
victim's appeal, dismissed that of juvenile,
and held him to be adult - Aggrieved,
juvenile preferred instant revision - Held,
there was no good material before court
concerned to corroborate or to calculate
age by reducing it or increasing it with
certain margins - In the facts of case, it is
directed that J.J.Board shall obtain further
evidence
regarding
age
by
recalling
witnesses
for
examination
or
crossexamination and by summoning relevant
documentary records, including pariwar
register or any other material aiding
proper determination - Board may also
summon
additional
witnesses
at
its
discretion - Impugned order, set aside -
Matter remanded. (Para 3, 12, 13)

Revision allowed. (E-13)

List of Cases cited:

1. St. of U.P. Vs Chote Lal AIR 2011 SC 697

2. Jitendra Ram Vs St. of Jharkhand 2006 (9)
SCC 428

3. Mukarrab Vs St. of U.P. 2017 (2) SCC 2010

4. Jyoti Prakash Rai Vs St. of Bihar 2008 (3)
SCALE 348

5. Manoj Kumar @ Monu @ Vishal Chaudhary Vs
St. of Har. & ors. AIR 2022 SC 1060

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

7. Ashwani Kumar Saxena Vs St. of M.P. 2012
(9) SCC 750

8. Sanjeev Gupta Vs St. of U.P. 2019 (12) SCC
370

9. Om Prakash Vs St. of Rajasthan 2012 (5) SCC
201

10. Juvenile X Vs St. of U.P & anr.), Criminal
Revision No. 5477 of 2023, Neutral Citation No.
2024:AHC:14440 decided on 30.01.2024, (Para
9)

11. Rishipal Singh Solanki Vs St. of U.P. & ors.;
2021 (11) ADJ 489 decided on 18.11.2021,
(Para 29)

(Delivered by Hon'ble Mrs. Jyotsna Sharma, J.)

1. Heard Sri Nafees Ahmad, learned
counsel for the revisionist and Sri Rishabh
Kumar Pandey, holding brief of Sri Santosh
Kumar Pandey, learned counsel for the
opposite party no. 2 and learned A.G.A. for
the State and perused the record.

2. By means of this criminal revision,
the revisionist has challenged an order
dated 01.10.2022, passed by learned
Sessions Judge/Special Judge (POCSO
Act)/Children Court, District Meerut in
Criminal Appeal No. 128 of 2022 arising
out of case crime no. 55 of 2022 under
sections 147, 148, 149, 323/34, 302, 504,
395 and 412 IPC, whereby the order dated
27.08.2022 passed by the Juvenile Justice
Board, holding him as adult has been
confirmed and the Criminal Appeal No.
118 of 2022, preferred by the juvenile has
been dismissed.

3. The relevant facts are as below:-

The instant revisionist has been found
involved in case crime no. 55 of 2022 under
sections 147, 148, 149, 323/34, 302, 504,
395, 412 IPC and produced before the
Juvenile
Justice
Board.
In
the
age
determination inquiry conducted by the
Juvenile Justice Board, the evidence has
been led and further the medical opinion has
also been obtained. After conclusion of
inquiry, two members of the Board passed
an order on 27.08.2022 holding the juvenile
as aged about 16 years and 6 months on the
date of the incident. The same day, on the
894 INDIAN LAW REPORTS ALLAHABAD SERIES
basis of the same material, the Principal
Magistrate passed a separate order holding
him to be above 18 years and further
directed that his case may be transferred to
the court concerned for further proceeding.
Both the orders, one passed by the Principal
Magistrate and the other passed by the rest
of two members of the Juvenile Justice
Board,
were
separately
challenged
respectively on behalf of the juvenile
(Criminal Appeal No. 128 of 2022) and on
behalf of the victim (Criminal Appeal No.
118 of 2022). Both the appeals have been
decided by a common order passed by the
appellate court, on 01.10.2022 in which the
Criminal Appeal No. 118 of 2022 filed by
the victim was allowed and the Criminal
Appeal No. 128 of 2022 filed on behalf of
the juvenile was dismissed. Consequentially,
he has been held as an 'adult'. Now the
juvenile is before this Court in revision filed
on his behalf.

4. The submission in brief are that
his school leaving certificate showing his
date of birth as 12.09.2005, has not been
considered. His date of birth is 12.09.2005
and the same has been proved by the
testimony of his father. Though the school
leaving certificate was available but he was
wrongly sent for medical examination. In
the medical examination, his age has been
found 19 years and therefore even on the
basis of medical examination, taking into
account probability of two years margin, he
should have been held as below 18 years.
Further the medical opinion said that he
was not exactly 19 years but below 19
years, but his aspect has not been
considered by the Principal Magistrate.
Further submission is that the two members
of the Board gave a different opinion, and
that the majority opinion shall prevail, over
the opinion of the Principal Magistrate. The
appellate court gave a contrary finding
which is against the law.

5. As per the admitted case of the
revisionist, he did not obtain any formal
education from class 1 to 4 and directly
took admission in class 5th in certain
school at Mawana, Meerut and thereafter in
class 6th at his bua's place at Daraula,
Meerut and that he did not study any
further. His date of birth is 12.09.2005 and
the same has been shown in his T.C. of
class 5th, a copy thereto is on record.

6. I perused the papers on record, the
perusal of the T.C. shows that in that
school he got admitted on 6.7.2015 and left
that school next year in the month of
March, 2016 i.e. he studied there only for 8
months. Two diverse orders have been
passed by the J.J. Board, one by the
Principal Magistrate alone and the other by
rest of the two members. However, in both
the orders it has been clearly observed that
the T.C. of class 5th was a doubtful paper
and that date of birth mentioned in T.C.
could not be relied upon. Interestingly, the
Principal Magistrate as well as the rest of
the two members of the J.J. Board both
have relied upon the medical opinion but
with two different approach. The members
expressed an opinion that the medical
opinion as regard age is not conclusive and
that there is probability of margin of two
years on both the sides and therefore,
giving benefit of such a margin, held him to
be 16 and half on the date on the incident.
On the other hand, the Principal Magistrate
observed as below:

"प्रर्थम सूचना ररपोर्ज के अनुसार
प्रश्नगत मामिे की घर्ना हदनांक 31.01.2022
िै। हदनांक 11.08.2022को (name hidden) पुर्त्र
4 All. Juvenile X Vs. State of U.P. & Anr.
895
प्रमोद कुमार का धचहकत्सीय आयु परीक्षण
हकया गया म्जसमें उसकी आयु िगभग 19 िषज
अंहकत की गई िै। (name hidden) का आयु
परीक्षण घर्ना के 06 माि 10 हदन बाद कराया
गया िै। धचहकत्सीय आयु परीक्षण ररपोर्ज को
आिार मानते िुए (name hidden) पुर्त्र प्रमोद
कुमार घर्ना के समय 18 िषज से अधिक आयु
का पाया जाता िै। उपरोि तथ्य पररम्स्र्थधतयों
में साक्ष्य के विश्लेषण उपरान्त (name hidden)
घर्ना की धतधर्थ 31.01.2022 को अियस्क िोना
निीं पाया जाता िै। तद्नुसार आिेदक की ओर से
(name hidden) को नाबाधिग घोवषत कराये
जाने िेतु प्रस्तुत प्रार्थजना पर्त्र धनरस्त हकया जाने
योग्य िै।"

7. I perused the order of the appellate
court, the learned appellate court referred to
a judgment of Supreme Court in State of
U.P. Vs. Chote Lal AIR 2011 SC 697,
Jitendra Ram Vs. State of Jharkhand 2006
(9) SCC 428 and Mukarrab Vs. State of
U.P. 2017 (2) SCC 2010, and observed that
the two members of the J.J. Board while
determining his age, reduced two years in
the medical age without any basis or
material before it for reduction of the same.
Further, the appellate court referred to
judgments of the Supreme Court in Jyoti
Prakash Rai Vs. State of Bihar 2008 (3)
SCALE 348, Manoj Kumar @ Monu @
Vishal Chaudhary Vs. State of Haryana
and Others AIR 2022 SC 1060, Parag
Bhati Vs. State of U.P. 2016 (12) SCC 744,
Ashwani Kumar Saxena Vs. State of M.P.
2012 (9) SCC 750, Sanjeev Gupta Vs.
State of U.P. 2019 (12) SCC 370, Om
Prakash Vs. State of Rajasthan 2012 (5)
SCC 201 and observed that the offender had
claimed juvenility on the basis of fabricated
documents. It may be noted at this point of
time that the Principal of the concerned
school who had issued the T.C., in his on
oath statement first stated that the juvenile
never studied in his school and that the T.C.
is a fabricated paper however, subsequently
he resiled from his earlier statement and said
that the juvenile had studied in his school.
Several discrepancies were found in papers
produced by the juvenile and also in the oral
testimony and therfore the papers produced
on behalf of the juvenile were rightly not
relied upon. The appellate court too found
the evidence given on behalf of juvenile on
this issue very suspicious and agreed with
the findings of the Principal Magistrate as
well as by two members of the J.J. Board as
regard non-reliability of papers filed on
behalf of juvenile. The appellate court
agreed with such findings after its own
assessment of the material produced on
behalf of the juvenile. But as far as the
determination of age on the basis of medical
examination is concerned, the appellate
court expressed an opinion that there was no
question of reducing the age by one year or
two years, from the medical age.

8. It appears that the appellate court
has treated the medical evidence as
conclusive proof of age. It may be noted
that though the oral and documentary
evidence produced on behalf of juvenile
was rightly found unreliable and inadequate
to be read in evidence and to form basis of
age, however, in my opinion in such
circumstances it was expected from the J.J.
Board that it shall obtain further evidence
by calling papers like copy of pariwar
register, academic records of his siblings
and other evidence of like nature besides
medical opinion.

9. In Criminal Revision No. 5477
of 2023 (Juvenile X Vs. State of U.P and
896 INDIAN LAW REPORTS ALLAHABAD SERIES
Another)
Neutral
Citation
No.
2024:AHC:14440 decided on 30.01.2024,
the Allahabad High Court has observed in
paragraph no. 9 as below:

" 9. There is no strict law as
regard lowering the age by two years from
the medical age. Undoubtedly, the age
determined on the basis of medical tests is
merely an opinion. In view of probability
of error, a general rule has evolved that
there may be error of 2 year on either side.
This is not to say that in all the cases, 2
year have to be deducted or added. A
mechanical adherence to such law may
entail failure of interest of justice. The
courts ought to apply the judicial mind
when it decides to lower the age by certain
margin. The law on probable error in
determining age on the basis of medical
evidence has evolved and has a general
application but the question is whether the
Court is expected to go mathematically?
or is it mandatory to consider the age of
accused 2 years less than the medical age?
The answer is 'No'. Possibility of error
cannot be equated with actual error.
Definitely in certain cases evidence might
be available which may show the margin
of error on the higher side rather than on
lower side. This is well established that the
medical age can act as a guideline only
and not as a conclusive proof. This is an
accepted fact that radiological age may
not give precise or exact age. Other
relevant facts and circumstances may
assist the Court in arriving at the right
conclusion."

10. The Apex Court in Rishipal
Singh Solanki vs. State of U.P. and
Others; 2021 (11) ADJ 489 decided on
18.11.2021 has, after traversing through a
number of judgments on the issue of
determination of age, summed up the
conclusions in Para 29 of the judgment
which is as below:

"29.
What
emerges
on
a
cumulative consideration of the aforesaid
catena of judgments is as follows:

(i) A claim of juvenility may be
raised at any stage of a criminal
proceeding, even after a final disposal of
the case. A delay in raising the claim of
juvenility cannot be a ground for rejection
of such claim. It can also be raised for the
first time before this Court.

(ii) An application claiming
juvenility could be made either before the
Court or the JJ Board.

(ii-a)
When
the
issue
of
juvenility arises before a Court, it would
be under sub-section (2) and (3) of section
9 of the JJ Act, 2015 but when a person is
brought before a Committee or JJ Board,
section 94 of the JJ Act, 2015 applies.

(ii-b) If an application is filed
before the Court claiming juvenility, the
provision of sub-section (2) of section 94
of the JJ Act, 2015 would have to be
applied or read along with sub-section (2)
of section 9 so as to seek evidence for the
purpose of recording a finding stating the
age of the person as nearly as may be.

(ii-c)
When
an
application
claiming juvenility is made under section
94 of the JJ Act, 2015 before the JJ Board
when the matter regarding the alleged
commission of offence is pending before a
Court, then the procedure contemplated
under section 94 of the JJ Act, 2015 would
apply. Under the said provision if the JJ
Board has reasonable grounds for doubt
regarding whether the person brought
before it is a child or not, the Board shall
undertake
the
process
of
age
determination by seeking evidence and the
age recorded by the JJ Board to be the age
of the person so brought before it shall,
4 All. Juvenile X Vs. State of U.P. & Anr.
897
for the purpose of the JJ Act, 2015, be
deemed to be true age of that person.
Hence the degree of proof required in
such a proceeding before the JJ Board,
when an application is filed seeking a
claim of juvenility when the trial is before
the concerned criminal court, is higher
than when an inquiry is made by a court
before which the case regarding the
commission of the offence is pending (vide
section 9 of the JJ Act, 2015).

(iii) That when a claim for
juvenility is raised, the burden is on the
person raising the claim to satisfy the
Court to discharge the initial burden.
However, the documents mentioned in
Rule 12(3)(a)(i), (ii), and (iii) of the JJ
Rules 2007 made under the JJ Act, 2000
or sub-section (2) of section 94 of JJ Act,
2015, shall be sufficient for prima facie
satisfaction of the Court. On the basis of
the aforesaid documents a presumption of
juvenility may be raised.

(iv) The said presumption is
however not conclusive proof of the age of
juvenility and the same may be rebutted by
contra evidence let in by the opposite side.

(v) That the procedure of an
inquiry by a Court is not the same thing as
declaring the age of the person as a
juvenile sought before the JJ Board when
the case is pending for trial before the
concerned criminal court. In case of an
inquiry, the Court records a prima facie
conclusion
but
when
there
is
a
determination of age as per sub-section
(2) of section 94of 2015 Act, a declaration
is made on the basis of evidence. Also the
age recorded by the JJ Board shall be
deemed to be the true age of the person
brought before it. Thus, the standard of
proof in an inquiry is different from that
required in a proceeding where the
determination and declaration of the age
of a person has to be made on the basis of
evidence scrutinised and accepted only if
worthy of such acceptance.

(vi) That it is neither feasible nor
desirable to lay down an abstract formula
to determine the age of a person. It has to
be on the basis of the material on record
and on appreciation of evidence adduced
by the parties in each case.

(vii) This Court has observed
that a hyper-technical approach should
not be adopted when evidence is adduced
on behalf of the accused in support of the
plea that he was a juvenile.

(viii) If two views are possible on
the same evidence, the court should lean
in favour of holding the accused to be a
juvenile in borderline cases. This is in
order to ensure that the benefit of the JJ
Act, 2015 is made applicable to the
juvenile in conflict with law. At the same
time, the Court should ensure that the JJ
Act, 2015 is not misused by persons to
escape
punishment
after
having
committed serious offences.

(ix) That when the determination
of age is on the basis of evidence such as
school records, it is necessary that the
same would have to be considered as per
Section 35 of the Indian Evidence Act,
inasmuch as any public or official
document maintained in the discharge of
official duty would have greater credibility
than private documents.

(x) Any document which is in
consonance with public documents, such
as matriculation certificate, could be
accepted by the Court or the JJ Board
provided such public document is credible
and authentic as per the provisions of the
Indian Evidence Act viz., section 35 and
other provisions.

(xi) Ossification Test cannot be
the sole criterion for age determination
and a mechanical view regarding the age
of a person cannot be adopted solely on
898 INDIAN LAW REPORTS ALLAHABAD SERIES
the
basis
of
medical
opinion
by
radiological examination. Such evidence
is not conclusive evidence but only a very
useful guiding factor to be considered in
the absence of documents mentioned in
Section 94(2) of the JJ Act, 2015."

It appears that the Supreme Court has
not put any fetters on the powers of the
court to seek evidence of any other kind, if
the evidence as mentioned in section 94 of
the J.J. Act, 2015 is found inadequate,
false, fabricated and unreliable. In several
cases the Supreme Court has found the
entries in pariwar register and other
documentary evidence as relevant and
having some value as far as the date of
birth is concerned.

11. The court concerned may be
impelled to determine the age considering
the margin of error, in the background of
other material available. There is no
absolute law that in all the cases, two years
or even one year is to be mandatorily
reduced from the medical age, ignoring all
other material whether that tended to rebut
or tended to corroborate the medical age.

12. As far as the instant case is
concerned, it appears that there was no
good material before the court concerned to
corroborate or to calculate the age by
reducing it or increasing it with certain
margins. In such circumstances, the proper
course, which ought to have been adopted
by the J.J. Board, is to probe further in the
matter and to obtain other evidence as may
be available. In my opinion, the J.J. Board
should have sought evidence on its own
initiative rather than depending upon the
parties, as the ultimate responsibility lies on
it only. The appellate court failed to notice
the lack of material and treated the medical
evidence as conclusive proof of age.

13. In the peculiar circumstances of
the case, I am of the view that J.J. Board
should be directed to obtain further
evidence as regard age by recalling the
witness for further examination or crossexamination and also call for documentary
evidence as might be available in other
records which may include the pariwar
register, or any other document which may
assist the court/the J.J. Board in arriving at
the right conclusion. The J.J. Board can call
for
additional
witnesses
as
per
its
discretion. In such cases, where attempts
are made to mislead the court by producing
suspicious and doubtful documents, the
court ought to be more cautious and
careful. No law bars the court to adopt a
proactive approach and to look for truth.

14. In view of the above this revision
is allowed. The impugned order dated
01.10.2022, passed by learned Sessions
Judge/Special
Judge
(POCSO
Act)/Children Court, District Meerut, is
hereby set aside.

15. The matter is remanded back to
the J.J. Board to hold further inquiry and
determine the age, in accordance with law.
----------
(2024) 4 ILRA 898
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.04.2024

BEFORE

THE HON'BLE SURENDRA SINGH - I, J.

Criminal Revision No. 1516 of 2023

Smt. Shaily Mittal & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Sumit Daga