# Om Prakash Revisionist v. State of U.P

- **Citation:** (2024) 2 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-23
- **Case number:** Criminal Revision No. 494 of 2013
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-revisionist-v-state-of-u-p-51262
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 323/34 & 504 - Juvenile
Justice (Care and Protection of Children)
Rules, 2007 - Rule 12(3)(a)(iii) - F.I.R.
named four accused including revisionist,
who
are
pattidars
of
complainant
-
Incident arose out of petty dispute when,
upon
altercation,
accused
assaulted
complainant's father and grandfather -
Revisionist, armed with pistol, fired at
complainant's father with intention to kill,
causing injury on his neck, due to which
he died - When complainant attempted to
apprehend him, revisionist struck him
with butt of pistol and fled inside his
house - Co-accused, armed with sticks,
assaulted complainant & ors., during
which revisionist sustained injuries - Trial
court
framed
charges
-
Revisionist's
St.ment recorded wherein he disclosed his
age
28
years
-
Defence
evidence
2 All. Om Prakash Vs. State of U.P.
15
commenced
with
DW-1
examined,
followed
by
additional
St.ment
of
revisionist, in which he again disclosed
same age - He moved application claiming
juvenility, admitting he reduced his age
to 28 years in his St.ment - Clearly
emerges that revisionist, by deliberately
reducing his age, seeks to evade legal
consequences
of
alleged
offence
of
murder - Such admission is important,
cannot be ignored - Entry of revisionist's
year of birth in Parivar Register, made by
public servant in discharge of official duty,
constitutes valid certificate of birth - Since year
of birth certified by Panchayat record, recourse
to medical examination for age determination
was unwarranted, trial court rightly declined to
accept claim based on medical report - Revision
lacks merit, dismissed. (Para 27, 28, 30, 33)

Revision dismissed. (E-13)

List of Cases cited:

## Text

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14 INDIAN LAW REPORTS ALLAHABAD SERIES
was further prayed that an arbitrator be
appointed at the earliest to consider the
claims without delay.

22. The said notice was replied to
by the opposite parties on 23.09.2022
wherein they have referred to all the
claims made by the applicant and
thereafter observed that the aforesaid
claims are not sustainable in view of the
fact that the contract was cancelled
under Clause 61.(1).

23. It is clear from the stand of the
respondents that the opposite parties had
flatly refused to refer the dispute to the
arbitrator as in their view, the claim fell
under the 'excepted matter'. Once that was
the stand of the opposite parties, the prayer
of the applicant for appointment of
arbitrator by this Court cannot be rejected
on the ground that the applicant has not
followed the procedure prescribed for
invoking the arbitration clause.

24. Accordingly, the application is
allowed.

25. This Court proposes the name of
Sri Shashi Kant Gupta, retired Judge of this
Court, for being appointed as Arbitrator.
His address is 9, Elgin Road (in front of
Heart Line Hospital), Civil Lines, Prayagraj
(U.P.), Mobile No. 9415216833.

26. Let the consent of Sri Shashi Kant
Gupta be obtained by the office in terms of
the provisions contained in Section 11(8),
read with Section 12(1) of the Act by
sending a letter to him.

27. In case, the proposed arbitrator
does not give his consent or makes
disclosures in terms of sub-section (1) of
Section 12, the application will be listed
before the Court for the limited purpose of
proposing name of alternate arbitrator.

28. The arbitrator shall be entitled to
fees and expenses as per IV Schedule of the
Act.
----------
(2024) 2 ILRA 14
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2024
BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Revision No. 494 of 2013

Om Prakash ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
R.P. Mishra, Sushil Kumar Singh

Counsel for the Opposite Party:
Govt. Advocate, Alok Singh, Uma Kant
Pandey

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 323/34 & 504 - Juvenile
Justice (Care and Protection of Children)
Rules, 2007 - Rule 12(3)(a)(iii) - F.I.R.
named four accused including revisionist,
who
are
pattidars
of
complainant
-
Incident arose out of petty dispute when,
upon
altercation,
accused
assaulted
complainant's father and grandfather -
Revisionist, armed with pistol, fired at
complainant's father with intention to kill,
causing injury on his neck, due to which
he died - When complainant attempted to
apprehend him, revisionist struck him
with butt of pistol and fled inside his
house - Co-accused, armed with sticks,
assaulted complainant & ors., during
which revisionist sustained injuries - Trial
court
framed
charges
-
Revisionist's
St.ment recorded wherein he disclosed his
age
28
years
-
Defence
evidence
2 All. Om Prakash Vs. State of U.P.
15
commenced
with
DW-1
examined,
followed
by
additional
St.ment
of
revisionist, in which he again disclosed
same age - He moved application claiming
juvenility, admitting he reduced his age
to 28 years in his St.ment - Clearly
emerges that revisionist, by deliberately
reducing his age, seeks to evade legal
consequences
of
alleged
offence
of
murder - Such admission is important,
cannot be ignored - Entry of revisionist's
year of birth in Parivar Register, made by
public servant in discharge of official duty,
constitutes valid certificate of birth - Since year
of birth certified by Panchayat record, recourse
to medical examination for age determination
was unwarranted, trial court rightly declined to
accept claim based on medical report - Revision
lacks merit, dismissed. (Para 27, 28, 30, 33)

Revision dismissed. (E-13)

List of Cases cited:

1. Pawan Kumar Vs St. of U.P.& Others : 2023 SCC
OnLine SC 1492

2. Pratap Singh Vs St. of Jharkhand & anr.AIR 2005 SC
2731

3. St. of Jammu & Kashmir (Now U.T. of Jammu &
Kashmir) & Others Vs Shubam Sangra: 2022 SCC
OnLine SC 1592

4. Ashwani Kumar Saxena Vs St. of M.P., (2012) 9 SCC
750, (Paras 32, 34, 41)

5. Abuzar Hossain Vs St. of W.B., (2012) 10 SCC
489, (Para 39.1 to 39.6)

6. Rishipal Singh Solanki Vs St. of U.P., (2022) 8
SCC 602, (Paras 33.3, 33.6, 33.9 to 33.11)

7. St. of Jammu & Kashmir (Now U.T. of Jammu
& Kashmir) & Others Vs Shubam Sangra: 2022
SCC OnLine SC 1592, (Para 72)

8. Pawan Kumar Vs St. of U.P., 2023 SCC
OnLine SC 1492, (Para 38)

(Delivered by Hon'ble Subhash Vidyarthi,
J.)
(Application Nos. 80656 & 80654 of
2020)

1. The applications seek recall of the
order dated 05.07.2019 whereby the
revision was dismissed in default, as well
as conondation of delay in filing the
application for recall of the order dated
05.07.2019.

2. It has been stated in the affidavitss
filed in support of the applications that
clerk of the counsel for the revisionist had
inadvertently omitted to mark the case in
the
cause
list
and,
therefore,
the
revisionist's counsel could not appear when
the case was taken up and the revision was
dismissed for non-prosecution. As the
counsel was not aware about the listing of
the case, the fact of its dismissal could not
be known to him, which has resulted in a
delay in filing application for recall of the
order.

3. Cause shown in the affidavits for
delay in filing the recall application as well
as for non-appearance of the counsel for the
revisionist is sufficient. Accordingly, both
the applications are allowed.

4. The revision is restored to its
original number.

(Order on Revision)

1. Heard Sri Sushil Kumar Singh
Advocate, the learned counsel for the
revisionist, Sri Anurag Verma, the learned
A.G.A. I for the State and Sri Himanshu
Shukla holding brief of Sri Alok Singh, the
learned counsel for the opposite party No.2.

2. By means of the instant revision
filed under Section 53 of the Juvenile
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Justice (Care & Protection of Children)
Act, 2000, the revisionist has assailed
validity of the order dated 28.09.2013
passed by the Additional Sessions Judge IV,
Sultanpur in Sessions Trial No.398 of 2000,
State versus Paanchu & Others, arising out
of Crime No.410 of 2000 under Sections
323,
504,
302
IPC,
Police
Station
Koorebhar, District Sultanpur, whereby the
revisionist's plea that he was a juvenile at
the time of the incident and he should be
tried accordingly, has been rejected.

3. An interim order was passed in the
revision on 24.10.2013 providing that the
trial Court may proceed with the trial, but
the judgment will not be delivered. The
revision was dismissed for want of
prosecution on 05.07.2019 and the interim
restraint on delivery of judgment in trial
also came to an end. The learned Counsel
for the revisionist has made a request for
urgent hearing of the revision as the trial
Court has fixed 26.02.2024 for delivery of
judgment. Accordingly, the case was taken
up out of its turn and submissions of the
learned Counsel were heard immediately
after restoration of the revision.

4. Case Crime No. 410 of 2000 was
registered at 02:15 a.m. on 13.08.2000
against 4 persons, including the revisionist,
stating that the accused persons are
pattidars of the complainant, i.e. the
complainant and the accused persons are
descendents of a common ancestor. Due to
a dispute that had started by some children
having urinated in a lane, the accused
persons started assaulting the complainant's
father and grand-father. The revisionist was
armed with a pistol and the other persons
were carrying sticks. The complainant, his
mother and several other persons reached
the spot upon hearing the hue and cry. The
revisionist fired a shot with the intention to
kill the complainant's father. The bullet hit
the complainant's father on his neck and he
died resultantly. The complainant caught
hold of the revisionist whereupon the latter
hit on his face with the butt of the pistol,
ran inside his house and locked himself up
from the inside. The other accused persons
had assaulted the complainant and other
persons with sticks and the revisionist had
also suffered some injuries from sticks.

5. The police submitted a charge sheet
under Sections 302, 504 and 325 I.P.C. The
trial Court framed charges under Sections
302/34, 323/34 and 504 I.P.C. The trial
proceeded and 10 prosecution witnesses
were examined. The statements under
Section 313 Cr.P.C. were recorded on
31.03.2010, wherein the revisionist told
his age to be 28 years. DW-1 was
examined on 09.10.2012. After closure of
defence evidence, additional statement
under Section 313 Cr.P.C. was recorded
on 15.01.2013 and in that statement also,
the revisionist again told his age to be 28
years.

6. On 26.06.2013, the revisionist filed
an application stating that in his statement
under Section 313 Cr.P.C. recorded on
15.01.2013, he had stated his age by
reducing it to 28 years. He had not received
any education in any school and as per age
told by himself in the Court, he was
juvenile on the date of the incident, i.e. on
12.08.2000
and
he
should be tried
accordingly.

7. The revisionist was examined
by a Medical Board, which gave its
report dated 24.08.2011 stating that
the revisionist had claimed his age to
be 28 years but the board was of the
opinion that the revisionist was aged
about 30 years.
2 All. Om Prakash Vs. State of U.P.
17

8. The prosecution opposed the
application on the ground that the incident
in question giving rise to the case took
place on 12.08.2000, the revisionist was
arrested on 13.08.2000 and he was
medically examined on the same day. His
medical
examination
report
dated
13.08.2000 mentions his age to be 25 years.
The Doctor who had examined him had
been examined as PW-3 and he stated that
at the time of the incident the accused was
aged 25 years. As per the evidence
available on record, the revisionist was
major on the date of the incident and he had
filed the application for causing delay in
disposal of the proceedings.

9. The complainant also opposed the
application stating that the revisionist had
got prepared a false report regarding his
age whereas he was aged 36 years.

10. The trial Court examined the
Gram Panchayat Adhikari as CW-1, who
produced a copy of the Parivar Register as
Exhibit - 1, which mentions the year of
birth of the revisionist to be 1976 and the
entry in Parivar Register was made long
ago. The trial Court held that even if the
date of birth of the revisionist is taken to be
31.12.1976, i.e. the last date of the year, at
the time of the incident the age of the
revisionist would be 23 years 7 months 11
days.

11. Assailing the validity of the order
passed by the trial Court, the learned
counsel for the revisionist has submitted
that Rule 12 of the Juvenile Justice (Care
and Protection of Children) Rules, 2007
was applicable at the relevant time and it
provided
that
where
no
educational
certificate was available in support of his
date of birth and there was no birth
certificate issued which may certify the
date of birth of the revisionist, his age has
been determined through the medical
examination conducted by a board of
Doctors, which has opined his age to be
about 30 years as on 24.08.2013, from
which the revisionist's age at the time of
incident come about 17 years.

12. Relying upon a decision of
Hon'ble Supreme court in the case of
Pawan Kumar versus State of Uttar
Pradesh & Others : 2023 SCC OnLine SC
1492, the learned counsel for the revisionist
has submitted that in the aforesaid
circumstances, the medical report should be
accepted and he should be treated as a
juvenile at the time of the incident and he
should be tried accordingly.

13. The learned counsel for the
revisionist has also relied upon the
judgment of the Hon'ble Supreme court in
the case of Pratap Singh versus State of
Jharkhand & Another : AIR 2005 SC
2731, which has been relied on in Pawan
Kumar (supra).

14. Per contra, Sri Anurag Verma, the
learned A.G.A. I has relied upon a decision
of the Hon'ble Supreme Court in the case
of State of Jammu & Kashmir (Now U.T.
of Jammu & Kashmir) & Others vs
Shubam Sangra: 2022 SCC OnLine SC
1592

15. Section 7A of the Juvenile Justice
(Care and Protection of Children) Act, 2000
reads as under:

"7A. Procedure to be followed
when claim of juvenility is raised before
any Court-

(1) Whenever a claim of juvenility
is raised before any court or a court is of
the opinion that an accused person was a
18 INDIAN LAW REPORTS ALLAHABAD SERIES
juvenile on the date of commission of the
offence, the court shall make an inquiry,
take such evidence as may be necessary
(but not an affidavit) so as to determine the
age of such person, and shall record a
finding whether the person is a juvenile or
a child or not, stating his age as nearly as
may be:

Provided
that
a
claim
of
juvenility may be raised before any
Court and it shall be recognised at any
stage, even after final disposal of the
case,
and
such
claim
shall
be
determined in terms of the provisions
contained in this Act and the rules made
thereunder, even if the juvenile has
ceased to be so on or before the date of
commencement of this Act.

(2) If the court finds a person to
be a juvenile on the date of commission of
the offence under sub-section (1), it shall
forward the juvenile to the Board for
passing
appropriate
orders
and
the
sentence, if any, passed by a court shall be
deemed to have no effect."

16. From a reading of Section 7A, it
becomes obvious is that whenever a claim
of juvenility is raised, an inquiry has to be
made and such inquiry would take place by
receiving
evidence
which
would
be
necessary, so as to determine the age of
such person.

17. The procedure to be followed for
the determination of age is provided under
Rule 12(3)(b) of the 2007 Rules, which
reads as:

"12. Procedure to be followed in
determination of age.-(3) In every case
concerning a child or juvenile in conflict
with law, the age determination inquiry
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 certificates, if available; and in
the absence whereof;

(ii) the date of birth certificate
from the school (other than a play school)
first attended; and in the absence whereof;

(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 child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the case
may be, 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
lower side within the margin of one year.
and,

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

18. Sub-clause (3) of the aforesaid
Rule
clearly
mandates
that
while
conducting an inquiry about the juvenility
of an accused, the Juvenile Justice Board
would seek evidence by obtaining the
matriculation or equivalent certificates and
in the absence whereof the date of birth
certificate from the school first attended
and in absence whereof the birth certificate
given by a corporation or a Municipal
2 All. Om Prakash Vs. State of U.P.
19
authority or a Panchayat. It is made clear
by sub-clause (b) that only in the absence
of the aforesaid three documents, medical
information would be sought from a duly
constituted Medical Board which will
declare the age of the juvenile or child.
Thus, it is only in the absence of the
aforesaid documents that the Juvenile
Justice
Board
can
ask
for
medical
information/ossification test.

19. In Ashwani Kumar Saxena v.
State of M.P., (2012) 9 SCC 750, the
Hon'ble Supreme Court held that: -

"32."Age determination inquiry"
contemplated under Section 7-A of the Act
read with Rule 12 of the 2007 Rules
enables the court to seek evidence and in
that process, the court can obtain the
matriculation or equivalent certificates, if
available. Only in the absence of any
matriculation or equivalent certificates, the
court needs to obtain the date of birth
certificate from the school first attended
other than a play school. Only in the
absence of matriculation or equivalent
certificate or the date of birth certificate
from the school first attended, the court
needs to obtain the birth certificate given
by a corporation or a municipal authority
or a panchayat (not an affidavit but
certificates or documents). The question
of obtaining medical opinion from a duly
constituted Medical Board arises only if
the
abovementioned
documents
are
unavailable. In case exact assessment of
the age cannot be done, then the court, for
reasons to be recorded, may, if considered
necessary, give the benefit to the child or
juvenile by considering his or her age on
lower side within the margin of one year.

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.
* * *

41. This Court in Babloo Pasi v.
State of Jharkhand (2008) 13 SCC 133
held, in a case where the accused had
failed to produce evidence/certificate in
support of his claim, medical evidence can
be called for. The Court held that:

"22. ... 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."

This Court set aside the order of
the High Court and remitted the matter to
the Chief Judicial Magistrate heading the
Board to redetermine the age of the
accused."
(Emphasis supplied)

20. In the present case, the Gram
Panchayat Adhikari has produced a copy of
the Parivar Register which mentions the
year of birth of the revisionist to be 1976
and the entry in Parivar Register was made
long ago. This document is prepared and
20 INDIAN LAW REPORTS ALLAHABAD SERIES
kept during the normal course of business.
As per the law laid down in Ashwani
Kumar Saxena (Supra) the court is not
expected to go behind this document to
examine the correctness of the entry, more
particularly, when there is no allegation that
the Parivar Register has been fabricated or
manipulated. In these circumstances, there
was no need for medical examination of the
revisionist for ascertaining his age.

21. It is also relevant to note of the
provisions contained in Sections 35 and
114 of the Evidence Act, which provide as
follows: -

"35. Relevancy of entry in public
record or an electronic record], made in
performance of duty.-An entry in any
public or other official book, register or
record or an electronic record, stating a
fact in issue or relevant fact, and made by a
public servant in the discharge of his
official duty, or by any other person in
performance of a duty specially enjoined by
the law of the country in which such book,
register or record or an electronic record is
kept, is itself a relevant fact.
* * *

114.
Court
may
presume
existence of certain facts.-The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
being had to the common course of natural
events, human conduct and public and
private business, in their relation to the
facts of the particular case.

Illustrations

The Court may presume-
* * *

(e) that judicial and official acts
have been regularly performed;

(f) that the common course of
business has been followed in particular
cases;

But the Court shall also have
regard to such facts as the following, in
considering whether such maxims do or do
not apply to the particular case before it-

as to illustration (e)-a judicial
act, the regularity of which is in question,
was
performed
under
exceptional
circumstances;

as to illustration (f)-the question
is whether a letter was received. It is shown
to have been posted, but the usual course of
the post was interrupted by disturbances;
* * *

22. Thus the entry made in the Parivar
register stating the year of birth of the
revisionist, which was made by a public
servant in the discharge of his official duty,
is itself a relevant fact for deciding the age
of the revisionist and it has to be presumed
that the official act of preparation of
Parivar Register was performed in a regular
manner and the entries in the register are
correct. It has to be presumed that the
common course of business has been
followed in preparation, maintenance and
production of the Parivar register.

23. Where the accused is an
uneducated
person
and
he
has
no
educational certificate, the court has to
obtain the birth certificate given by a
corporation or a municipal authority or a
panchayat, which cannot be an affidavit,
but it has to be a certificate or document.
The question of obtaining medical opinion
from a duly constituted Medical Board
would arise only if the abovementioned
documents are unavailable.

24. In Abuzar Hossain v. State of
W.B., (2012) 10 SCC 489, the Hon'ble
Supreme Court summarized the legal
position in this regard in the following
words: -
2 All. Om Prakash Vs. State of U.P.
21

"39.1. A claim of juvenility may be
raised at any stage even after the final
disposal of the case. It may be raised for
the first time before this Court as well after
the final disposal of the case. The delay in
raising the claim of juvenility cannot be a
ground for rejection of such claim. The
claim of juvenility can be raised in appeal
even if not pressed before the trial court
and can be raised for the first time before
this Court though not pressed before the
trial court and in the appeal court.

39.2. For making a claim with
regard to juvenility after conviction, the
claimant must produce some material
which may prima facie satisfy the court
that an inquiry into the claim of juvenility
is necessary. Initial burden has to be
discharged by the person who claims
juvenility.

39.3. As to what materials would
prima facie satisfy the court and/or are
sufficient for discharging the initial burden
cannot be catalogued nor can it be laid
down as to what weight should be given to
a specific piece of evidence which may be
sufficient to raise presumption of juvenility
but the documents referred to in Rules
12(3)(a)(i) to (iii) shall definitely be
sufficient for prima facie satisfaction of
the court about the age of the delinquent
necessitating further enquiry under Rule
12. The statement recorded under Section
313 of the Code is too tentative and may
not by itself be sufficient ordinarily to
justify or reject the claim of juvenility. The
credibility and/or acceptability of the
documents
like
the
school
leaving
certificate or the voters' list, etc. obtained
after conviction would depend on the facts
and circumstances of each case and no
hard-and-fast rule can be prescribed that
they must be prima facie accepted or
rejected. In Akbar Sheikh and Pawan these
documents were not found prima facie
credible while in Jitendra Singh the
documents viz. school leaving certificate,
marksheet and the medical report were
treated
sufficient
for
directing
an
inquiry
and
verification
of
the
appellant's age. If such documents
prima facie inspire confidence of the
court, the court may act upon such
documents for the purposes of Section
7-A
and
order
an
enquiry
for
determination
of
the
age
of
the
delinquent.

39.4. An affidavit of the claimant
or any of the parents or a sibling or a
relative in support of the claim of juvenility
raised for the first time in appeal or
revision or before this Court during the
pendency of the matter or after disposal of
the case shall not be sufficient justifying an
enquiry to determine the age of such person
unless the circumstances of the case are so
glaring that satisfy the judicial conscience
of the court to order an enquiry into
determination of the age of the delinquent.

39.5. The court where the plea of
juvenility is raised for the first time should
always be guided by the objectives of the
2000 Act and be alive to the position that
the beneficent and salutary provisions
contained in the 2000 Act are not defeated
by the hypertechnical approach and the
persons who are entitled to get benefits of
the 2000 Act get such benefits. The courts
should not be unnecessarily influenced by
any general impression that in schools the
parents/guardians understate the age of
their wards by one or two years for future
benefits or that age determination by
medical examination is not very precise.
The matter should be considered prima
facie on the touchstone of preponderance of
probability.

39.6. Claim of juvenility lacking
in credibility or frivolous claim of
juvenility or patently absurd or inherently
22 INDIAN LAW REPORTS ALLAHABAD SERIES
improbable claim of juvenility must be
rejected by the court at the threshold
whenever raised."
(Emphasis supplied)

25. In Rishipal Singh Solanki v.
State of U.P., (2022) 8 SCC 602 it was
held that: -

"33.3.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
Rules
12(3)(a)(i), (ii) and (iii) of the JJ Rules,
2007 made under the JJ Act, 2000 or subsection (2) of Section 94 of the 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.
* * *

33.6. 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.
* * *

33.9.
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
Evidence Act, inasmuch as any public or
official document maintained in the
discharge of official duty would have
greater
credibility
than
private
documents.

33.10. 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
Evidence Act viz. Section 35 and other
provisions.

33.11. 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
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."

(Emphasis supplied)

26. In State of Jammu & Kashmir
(Now U.T. of Jammu & Kashmir) &
Others vs Shubam Sangra: 2022 SCC
OnLine SC 1592, it was held that: -

"72. Thus, it is no doubt true that
if there is a clear and unambiguous case in
favour of the juvenile Accused that he was
a minor on the date of the incident and the
documentary evidence at least prima facie
establishes the same, he would be entitled
to the special protection under the Juvenile
Justice Act. However, when an Accused
commits a heinous and grave crime like
the one on hand and thereafter attempts to
take the statutory shelter under the guise
of being a minor, a casual or cavalier
approach while recording as to whether
an Accused is a juvenile or not cannot be
permitted as the courts are enjoined upon
to perform their duties with the object of
protecting the confidence of a common
man in the institution entrusted with the
administration of justice. As observed by
this Court in Parag Bhati (supra), the
benefit of the principle of benevolent
legislation attached to the Juvenile Justice
Act would thus be extended to only such
cases wherein the Accused is held to be a
juvenile on the basis of at least prima facie
evidence inspiring confidence regarding his
2 All. Om Prakash Vs. State of U.P.
23
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 is alleged to
have committed and gave effect to it in a
well-planned
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 supplied)

27. When we examine the facts of the
present case in light of the law laid down
by the Hon'ble Supreme Court in the above
mentioned cases, what we find is that the
offence was committed at about 10:00 p.m.
on 12.08.2000. The F.I.R. was lodged at
02:15 a.m. on 13.08.2000, i.e. after about 4
hours since the occurrence, alleging that the
accused persons and the complainant are
descendents of a common ancestor and due
to a petty dispute, the revisionist had fired a
shot from a pistol with intention to kill the
complainant's father which hit him on his
neck, due to which he died. The revisionist
is alleged to have hit the complainant with
the butt of his pistol when the latter had
caught hold of him and thereafter the
revisionist had ran inside his house and
locked himself up from inside. The offence
was undoubtedly the most heinous offence
and as the parties are descendents of a
common ancestor, there appears to be no
reasonable probability of misidentification
of the miscreant and also regarding
knowledge of the age of the revisionist to
the complainant and his family members.

28. The trial Court framed charges
under Sections 302/34, 323/34 and 504
I.P.C.
The
trial
proceeded
and
10
prosecution witnesses were examined. The
statements under Section 313 Cr.P.C. were
recorded on 31.03.2010, wherein the
revisionist told his age to be 28 years. DW1 was examined on 09.10.2012. After
closure of defence evidence, additional
statement under Section 313 Cr.P.C. was
recorded on 15.01.2013 and in that
statement also, the revisionist told his age
to be 28 years. Thereafter he filed the
application dated 26.06.2013 taking the
plea of juvenility and he has himself stated
in the application that in his statement
under Section 313 Cr.P.C. recorded on
15.01.2013, he had stated his age by
reducing it to 28 years.

29. Although there is no bar in a plea
of juvenility being raised at a belated stage,
when such a plea is raised belatedly in a
case involving commission of murder of a
relative, the Court has to deal with the
matter with more care and caution and has
to take into consideration all the relevant
facts and circumstances. The age of the
revisionist told by himself at time of his
medical
examination
conducted
on
13.08.2000, i.e. immediately after the
incident and his arrest, was 25 years. There
can be difficulty in ascertaining whether a
person is juvenile or not from a mere
physical appearance when his age is
somewhere around 18 years but a 25 years
old man can be reasonably assessed to be a
major from his appearance. Had the
revisionist claimed himself to be a juvenile
at that stage, his age correct could have
been ascertained immediately, but he chose
not to claim juvenility.

30. In his statement recorded under
Section 313 Cr.P.C. on 31.03.2010, he
claimed himself to be aged 28 years and the
revisionist has stated in the application
claiming himself to be a juvenile that in his
statement under Section 313 Cr.P.C.
recorded on 15.01.2013, he had stated his
24 INDIAN LAW REPORTS ALLAHABAD SERIES
age by reducing it to 28 years. This clearly
establishes that the revisionist is trying to
avoid the necessary legal consequences of
alleged commission of an offence of
murder by stating his age by reducing the
same. This important admission of the
revisionist made in the application cannot
be ignored.

31. The revisionist was arrested on
13.08.2000 and he was medically examined
on the same day. His medical examination
report dated 13.08.2000 mentions his age to
be 25 years. The Doctor who had examined
him has been examined as PW-3 and he
stated that at the time of the incident the
accused was aged 25 years.

32. The Gram Panchayat Adhikari has
produced a copy of the Parivar Register as
Exhibit - 1, which mentions the year of
birth of the revisionist to be 1976 and the
entry in Parivar Register was made long
ago. The trial Court held that even if the
date of birth of the revisionist is taken to be
31.12.1976, i.e. the last date of the year, at
the time of the incident the age of the
revisionist would be 23 years 7 months 11
days.

33. The term "birth certificate given
by a corporation or a municipal authority or
a panchayat" occurring in Rule 12 (3) (a)
(iii) of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 need
not be interpreted in a hyper-technical
manner so as to mean and include a
document titled "birth certificate" only. The
entry of the revisionist's year of birth made
in the Parivar register by a public servant in
the discharge of his official duty, shall be
taken to be a certificate of his birth of the
person in that year. As the birth year is
certified by a document prepared by the
Panchayat, there was no occasion to go to
the next step of medical examination for
ascertaining the revisionist's age and the
claim of determination of age on the basis
of medical report has rightly not been
accepted by the trial Court.

34. The Gram Panchayat Adhikari has
produced a copy of the Parivar Register
which mentions the year of birth of the
revisionist to be 1976 and the entry in
Parivar Register was made long ago. This
document is prepared and kept during the
normal course of business. The entry made
in the Parivar register stating the year of
birth of the revisionist was made by a
public servant in the discharge of his
official duty, is a certificate of the year of
birth of the revisionist and it has to be
presumed that the official act of preparation
of Parivar Register was performed in a
regular manner and the entries in the
register are correct. It has to be presumed
that the common course of business has
been followed in preparation, maintenance
and production of the Parivar register.

35. As per the law laid down in
Ashwani Kumar Saxena (Supra) the court
is not expected to go behind this document
to examine the correctness of the entry,
more particularly, when there is no
allegation that the Parivar Register has
been fabricated or manipulated. As there is
a public document certifying the year of
birth of the revisionist, there is no occasion
for conducting a medical examination for
ascertaining his age.

36. In Pawan Kumar v. State of
U.P., 2023 SCC OnLine SC 1492, a formal
plea of juvenility was supported by the
Scholar Register of National Inter College,
Barabanki which recorded the accused's
date of birth as 05.07.1980 which meant
that on the date when the offence was
2 All. Om Prakash Vs. State of U.P.
25
committed, the accused would be 15 years,
6 months, and 26 days old. However,
during cross-examination the clerk of the
College who had produced the Scholar
Register, admitted that the entry was made
on the basis of a transfer certificate issued
by Purva Madhyamik Vidhyalaya, which
was not placed on record. Further, the
Gram Panchayat Officer was examined
who produced the Family Register of the
appellant where D.O.B. of the appellant
was recorded as 1975. The day and month
of his birth were not mentioned in this
Family Register. In any case, as per the
Family Register of the Gram Panchayat, the
appellant would be around 20 years of age
at the time of the commission of the
offence. In view of this contradiction, a
bone ossification test was conducted under
the supervision of the Chief Medical
Officer of District Hospital, Barabanki
where the age of the appellant was recorded
as approximately 19 years. The trial Court
concluded that the benefit of juvenility
cannot be extended to the appellant and he
was directed to face the trial. In appeal, the
Hon'ble Supreme Court held that the
admitted position is that the appellant had
not completed his matriculation at the time
of the incident in the year 1995 and
therefore the only evidence he could place
before the authorities was the copy of the
admission register of National Inter College
and the transfer certificate of the college,
which had recorded his date of birth to be
05.07.1980. The appellant took admission
in National Inter College, Barabanki on
25.07.1995 and thereafter since he could
not pay his tuition fee, his name was
removed as a student from the college
register on 30.12.1995. The date of birth
which was registered in the said school was
05.07.1980. In the latest enquiry conducted
by
the
Additional
Sessions
Judge,
Barabanki dated 28.09.2022, the appellant
had produced relevant certificates of all
three schools he had attended. In view of
the aforesaid facts and circumstances of
this case, the Hon'ble Supreme Court
accepted the age on the basis of the
educational
documents.
The
Hon'ble
Supreme Court further observed that: -

"38. Further, it must also be kept
in mind that the medical opinion based on
Bone Ossification Test, is not entirely
accurate. This Court in the case of Vinod
Katara v. State of U.P., 2022 SCC OnLine
SC 1204 has held the following:

60. The bone ossification test is
not an exact science that can provide us
with the exact age of the person. As
discussed
above,
the
individual
characteristics such as the growth rate of
bones and skeletal structures can affect the
accuracy of this method. This Court has
observed in Ram Suresh Singh v. Prabhat
Singh, (2009) 6 SCC 681 : (2010) 2 SCC
(Cri) 1194, and Jyoti Prakash Rai v. State
of Bihar, (2008) 15 SCC 223 : (2009) 3
SCC (Cri) 796, that the ossification test is
not conclusive for age determination
because it does not reveal the exact age of
the
person,
but
the
radiological
examination leaves a margin of two years
on either side of the age range as
prescribed by the test irrespective of
whether the ossification test of multiple
joints is conducted. The courts in India
have accepted the fact that after the age of
thirty years the ossification test cannot be
relied upon for age determination. It is
trite that the standard of proof for the
determination of age is the degree of
probability
and
not
proof
beyond
reasonable doubt."

33.