# Pushpendra Singh v. State of U.P. & Anr

- **Citation:** (2024) 4 ILRA 739
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-01
- **Case number:** Application U/S 482. No. 34899 of 2022
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpendra-singh-v-state-of-u-p-anr-51848
- **Pages:** 15

## Headnote

Law
-

Code
of
Criminal
Procedure,1973
-Section
482-
The
Protection
of
Children
from
Sexual
Offences (POCSO) Act 2012 - Section 5/6
- Indian Penal Code,1860 - Sections 363,
366, 376 - Quashing of Charge-Sheet and
Cognizance Order Denied - The applicant
sought to quash the charge-sheet dated
16.03.2022
and
cognizance
order
dated
13.05.2022 under Sections 363, 366, 376 IPC
and Section 5/6 of the POCSO Act - Held, prima
facie offence was made out as the victim was a
minor on the date of the incident, and no
grounds existed for quashing the proceedings.
(Paras 2, 27, 28)

B. Determination of Victim's Age - Section
94 of JJ Act, 2015 - The School Leaving
Certificate indicated the victim's date of birth as
19.01.2005, establishing her as a minor on
26.12.2021 - Held, under Section 94(2) of the
JJ Act, the school certificate takes precedence
over the ossification test, which showed the
victim's age as about 20 years, rendering the
medical examination irrelevant. (Paras 5, 7, 18,
26)

C. Consent of Minor Irrelevant under
POCSO Act and IPC - The victim, though
claiming to have gone with the applicant
willingly and married him, was a minor - Held,
as per Independent Thought Vs U.O.I., consent
of a minor has no legal consequence for
offences under Section 375 IPC (Exception 2)
and the POCSO Act, even if married. (Paras 12,
14, 27)

D. Presumption under Section 29 of
POCSO Act - The prosecution established a
prima facie case under Sections 363, 366, 376
IPC and Section 5/6 of the POCSO Act - Held,
Section 29 of the POCSO Act creates a
740 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of guilt against the accused, which
the applicant failed to rebut at this stage. (Paras
6, 10, 27)

E.
Reliability of
Documents
for
Age
Determination - The applicant's reliance on a
birth
certificate
registered
post-incident
(17.02.2022) was rejected - Held, as per Jarnail
Singh Vs St. of Har. and Rishipal Singh Solanki
Vs St. of U.P., the School Leaving Certificate is
prioritized over a belated birth certificate or
ossification test for age determination. (Paras
18, 20, 26, 27)

Application Dismissed.

List of Cases cited:

## Text

_Characters 0–39,864 of 49,121. This is a partial read: ask again with offset=39864 for what follows._

4 All. Pushpendra Singh Vs. State of U.P. & Anr.
739
already examined, and the matter had been
listed fifty-seven times before the Board;
no cogent reason has been assigned in the
impugned order, and in fact, the impugned
order has been passed on a gross
misinterpretation of section 14(4) of the
Act1.

37. In the instant case, failure to
comply with the provisions of sections
14(3) and 15 of the Act1 would result in an
injury or prejudice to the substantial rights
of the child and shall occasion a failure of
justice. It would result in a serious
inconvenience for the promotion of the real
aim and objective of the legislation for
which the Juvenile Justice (Care and
Protection of the Children) Act, 2000 is
amended from time to time.

38. In the foregoing discussions, the
petition is allowed, and the impugned order
dated 19.7.2019 is set aside.

39. The petitioner's case shall be tried
before the Juvenile Justice Board in
accordance with law. The Additional
District Judge (POCSO), Lalitpur, is
directed, through the District Judge, to
remand Sessions Trial No.01 of 2019 titled
as State v. Shanu Raja, to the concerned
Juvenile Justice Board immediately after
receipt of a copy of this order for
completion of the trial.
----------
(2024) 4 ILRA 739
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2024

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 34899 of 2022

Pushpendra Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
SriBinod Kumar Tripathi

Counsel for the Opposite Parties:
G.A., Sri Geetam Singh, Ms. Shweta Singh
Rana

Criminal
Law
-

Code
of
Criminal
Procedure,1973
-Section
482-
The
Protection
of
Children
from
Sexual
Offences (POCSO) Act 2012 - Section 5/6
- Indian Penal Code,1860 - Sections 363,
366, 376 - Quashing of Charge-Sheet and
Cognizance Order Denied - The applicant
sought to quash the charge-sheet dated
16.03.2022
and
cognizance
order
dated
13.05.2022 under Sections 363, 366, 376 IPC
and Section 5/6 of the POCSO Act - Held, prima
facie offence was made out as the victim was a
minor on the date of the incident, and no
grounds existed for quashing the proceedings.
(Paras 2, 27, 28)

B. Determination of Victim's Age - Section
94 of JJ Act, 2015 - The School Leaving
Certificate indicated the victim's date of birth as
19.01.2005, establishing her as a minor on
26.12.2021 - Held, under Section 94(2) of the
JJ Act, the school certificate takes precedence
over the ossification test, which showed the
victim's age as about 20 years, rendering the
medical examination irrelevant. (Paras 5, 7, 18,
26)

C. Consent of Minor Irrelevant under
POCSO Act and IPC - The victim, though
claiming to have gone with the applicant
willingly and married him, was a minor - Held,
as per Independent Thought Vs U.O.I., consent
of a minor has no legal consequence for
offences under Section 375 IPC (Exception 2)
and the POCSO Act, even if married. (Paras 12,
14, 27)

D. Presumption under Section 29 of
POCSO Act - The prosecution established a
prima facie case under Sections 363, 366, 376
IPC and Section 5/6 of the POCSO Act - Held,
Section 29 of the POCSO Act creates a
740 INDIAN LAW REPORTS ALLAHABAD SERIES
presumption of guilt against the accused, which
the applicant failed to rebut at this stage. (Paras
6, 10, 27)

E.
Reliability of
Documents
for
Age
Determination - The applicant's reliance on a
birth
certificate
registered
post-incident
(17.02.2022) was rejected - Held, as per Jarnail
Singh Vs St. of Har. and Rishipal Singh Solanki
Vs St. of U.P., the School Leaving Certificate is
prioritized over a belated birth certificate or
ossification test for age determination. (Paras
18, 20, 26, 27)

Application Dismissed.

List of Cases cited:

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

2. P. Yuvaprakash Vs St., 2023 SCC OnLine SC
846

3. Ravinder Singh Gorkhi Vs St. of U.P., (2006)
5 SCC 584

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

5. Rishipal Singh Solanki Vs St. of U.P., (2022) 8
SCC 602

6. Manoj @ Monu @ Vishal Chaudhary Vs St. of
Har., (2022) 6 SCC 187

7. Sanjay Vs St. of U.P., 2020 SCC OnLine All
1397

8. Bajrang Lal Vs St. of Rajasthan, 2006 SCC
OnLine Raj 1392

9. Madan Gopal Kakkad Vs Naval Dubey, (1992)
3 SCC 204

10. Neeharika Infrastructure Pvt. Ltd. Vs St. of
Maharashtra, 2021 SCC OnLine SC 315

11. St. of Har. Vs Bhajan Lal, 1992 Supp (1)
SCC 335

12. R.P. Kapoor Vs St. of Punj., AIR 1960 SC
866
13. Praveen Kumar Singh @ Pravin Kumar Vs St.
of U.P., Application U/S 482 No. 2941 of 2023

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

1. Heard Sri Binod Kumar Tripathi,
learned counsel for the applicant, Sri
Geetam Singh, learned counsel for opposite
party no.2 and Sri Pankaj Srivastava,
learned A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing the charge-sheet no.33 of 2022
dated 16.03.2022, arising out of Case
Crime No.27 of 2022, under Sections 363,
366, 376 I.P.C. and Section 5/6 Protection
of Children from Sexual Offences Act,
2012 (hereinafter referred as 'the POCSO
Act') Police Station Dholna, District
Kasganj.

3. The facts in brief in the instant case
are that the opposite party no.2, the father
of the victim, had lodged an F.I.R. on
12.02.2022, alleging that on 26.12.2021
when his daughter went to the tubewell, in
the evening at 5:00 P.M., from where the
accused/applicant
herein,
namely
Puspendra Singh, took away the daughter
of the opposite party no.2, in which his
brothers Prem Singh and Rajendra Singh
have also assisted the applicant herein. On
the basis of the aforesaid F.I.R., the
investigation was started and the victim
was recovered. In her statement under
Section 161 Cr.P.C., the victim stated that
her age is 17 years and she is educated upto
Class VIII and she stated that she had gone
alongwith the applicant out of her own free
will and thereafter they went to Mathura
and from there they went to Allahabad and
she has solemnized the court marriage and
both are living together as husband and
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
741
wife. She further stated that she is pregnant
for two months. This statement was
recorded on 28.02.2022. In her statement
she has further stated that she still want to
live with the the applicant herein. In her
medical examination, she was found
pregnant and her age, as per the X-Ray
Examination, was stated to be about 20
years. Such medical examination was
conducted on 02.03.2022. During her
medical examination, she has stated that
her father used to shout at her, therefore,
she
ran
away
with
the
applicant.
Subsequently, in her statement under
Section 164 Cr.P.C., she claimed that she
is 19 years old and had gone with the
applicant out of her own free will and she
knew Puspendra Singh for about 45
months. Now, she is pregnant and she
further stated that she don't want go with
her father but she want to go with her
husband, namely the applicant herein.
After due investigation, having found the
victim being minor on the date of
incident, the charge-sheet was filed on
16.03.2022 against the applicant for
offences under Sections 363, 366 and 376
I.P.C. and Section 5/6 of the POCSO Act.
The instant application has been filed
challenging the aforesaid charge-sheet
dated 16.03.2022 as well as the order
dated 13.05.2022 passed by the learned
Additional
District
and
Sessions
Judge/Special
Judge,
POCSO
Act,
Kashganj, whereby the cognizance has
been taken by the learned Special Judge
on the aforesaid charge-sheet.

4. Learned counsel for the applicant
submits that as per the Ossification
Report, the age of the victim at the time
of incident has been found to be about 20
years and in her statements under Section
161 and 164 Cr.P.C., the victim has
categorically stated that she has gone with
the applicant out of her own free will and
she has married with the applicant and she
is pregnant. After her 164 Cr.P.C.,
statement, she was sent alongwith her
father. However, she has again left the
house of her father and came to the
applicant and both are living as husband
and wife. Therefore, learned counsel for the
applicant
submits
that
as
per
the
Ossification Report the victim was found to
be
a
major,
therefore,
no
offence
whatsoever is made out against the
applicant, as the victim has come alongwith
the applicant out of her own free will and
there was no force used by the applicant
herein and both are adults and they are
married and living together as husband and
wife. Therefore, learned counsel for the
applicant prays for quashing of the entire
proceedings of the case. In support of his
arguments,
learned
counsel
for
the
applicant relied upon the judgement of the
Apex Court dated 18.07.2023 in the case of
P. Yuvaprakash v. State : 2023 SCC
OnLine SC 846.

5. Per Contra, learned counsel for the
opposite party no.2 submits that as per the
school records the date of birth of the
victim is 19.01.2005. In support of the
same, the opposite party no.2 has filed the
counter affidavit annexing School Leaving
Certificate issued by Primary Junior High
School- Athaiya, District- Kasanj, in which
the date of birth of the victim is mentioned
as 19.01.2005. The said Certificate has
been annexed as CA-1 to the counter
affidavit filed by the opposite party no.2. In
view of the same, learned counsel for the
opposite party no.2 submits that on the date
of first incident i.e., 26.12.2021, the victim
was minor, therefore, prima facie a case
under Sections 363, 366 and 376 I.P.C. and
under Section 5/6 of the POCSO Act, has
been made out against the applicant herein.
742 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Learned counsel for the opposite
party no.2 has also relied upon Section 29
of the POCSO Act and submits that as per
the provision of Section 29 of the POCSO
Act, where a person is prosecuted for
committing or abetting or attempting to
commit any offence under Sections 3, 5, 7
and 9 of this Act, there is a presumption
that such person has committed the said
offence unless the contrary is proved.
Therefore, a presumption against the
applicant in view of Section 29 of the
POCSO Act is made out. However, it is
further submitted that in the instant case
when the statement of the victim was to be
recorded before the Special Judge, the
applicant and the other accused persons
have again took away the victim forcibly at
the gun point and by assaulting the other
family
members
and
making
them
unconscious, for which another F.I.R. No.
82 of 2023 was lodged by the opposite
party no.2 on 01.04.2023, PS- Dholna,
District- Kasganj, wherein it has been
apprehended
that
the
applicants
are
threatening to kill the victim if the opposite
party
no.2
proceeds
against
them.
However, learned counsel for the applicant
submits that so far as the second F.I.R., is
concerned, the same has already been
quashed by this Hon'ble Court in Criminal
Misc. Writ Petition No. 15211 of 2023,
filed by the applicant and 3 others, vide
judgement and order dated 31.10.2023, on
the basis of the fact that on the second date
of incident the victim had become major
which could not be disputed by the
opposite party no.2.

7. Learned counsel for opposite party
no.2 further submits that as per Section 94
of Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred as
'the Act, 2015'), in the presence of the
School Certificate, the age determination
through
medical
examination
is
not
permissible and such determination of age
on the medical examination is of no
consequence. Therefore, so far as the
instant case is concerned prima facie the
victim has been found to be a minor as per
the School Leaving Certificate as she was
less than 18 years of age on 26.12.2021,
and therefore, the charge-sheet has rightly
been filed against the applicant herein.
Therefore, since a prima facie case has
been made out against the applicant in the
instant case, there is no ground for
quashing
of
the
proceedings
before
conclusion of the trial at this stage.

8. In the rejoinder affidavit, the
applicant has stated that now the marriage
between the applicant and the victim has
already been registered on 15.04.2023, and
admittedly
even
as
per
the
School
Certificate the victim was a major girl and
she has duly married to applicant as per her
choice. Therefore, the applicant and the
victim are adult and they have solemnized
their marriage out of their own choice,
therefore, no offence can be alleged to have
been made against the applicant herein.

9. Learned counsel for opposite party
no.2 has relied upon the judgments of this
Court
dated
29.03.2023
passed
in
Application U/S 482 No.2941 of 2023
(Praveen Kumar Singh @ Pravin Kumar
and 2 others Vs. State of U.P. Thru. Prin.
Secy Home Deptt, Lko. and another) and
also the judgment of Apex Court in the
case of Independent Thought Vs. Union of
India and another : 2017 10 SCC 800.

10. Learned counsel for the State has
also submitted that since prima facie on the
date of incident in the instant case i.e., on
26.12.2021, the victim was minor as per the
school records and prima facie a case has
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
743
been made out against the applicant. The
charge-sheet has rightly been filed against
the applicant for the offences under
Sections 363, 366, 376 I.P.C., and Section
5/6 of POCSO Act. Therefore, as per
Section 29 of the POCSO Act, there is
presumptions against the applicant and
prima facie a case has been made out
against the applicant. Therefore, there is no
ground available for quashing of the instant
proceedings at the behest of the applicant.

11. Having heard the submissions
made by learned counsels for the parties,
this Court has carefully gone through the
record of the case.

12. In the case of Independent
Thought Vs. Union of India and another :
(2017) 10 SCC 800, the Apex Court has
observed as under:

20. As a first step in this
direction,
child
marriages
were
criminalised by enacting the PCMA in
2006 but no corresponding amendment was
made in Section 375 IPC, as it existed in
2006, to decriminalise marital rape of a
girl child.

21. The National Charter was
followed by the National Policy for
Children notified on 26-4-2013. The
National Policy explicitly recognised in
Clause 2.1 that every person below the age
of 18 years is a child. Among the Guiding
Principles for the National Policy was the
recognition that every child has universal,
inalienable and indivisible human rights;
every child has the right to life, survival,
development, education, protection and
participation; the best interest of a child is
the primary concern in all decisions and
actions affecting the child, whether taken
by legislative bodies, courts of law,
administrative authorities, public, private,
social, religious or cultural institutions.

23. The National Plan of Action
for Children recognises that the early
marriage of girls is one of the factors for
neo-natal deaths; early marriage poses
various risk for the survival, health and
development of young girls and to children
born to them and most unfortunately it is
also used as a means of trafficking.

(Emphasis Supplied)

13. While, dealing with the conflict
with the provisions of the POCSO Act and
the Exception -2 to Section 375 I.P.C., the
Apex Court has held as under:-

"107. On a complete assessment
of the law and the documentary material, it
appears that there are really five options
before us : (i) To let the incongruity remain
as it is - this does not seem a viable option
to us, given that the lives of thousands of
young girls are at stake; (ii) To strike down
as unconstitutional Exception 2 to Section
375 IPC - in the present case this is also
not a viable option since this relief was
given up and no such issue was raised; (iii)
To reduce the age of consent from 18 years
to 15 years - this too is not a viable option
and would ultimately be for Parliament to
decide; (iv) To bring the Pocso Act in
consonance with Exception 2 to Section
375 IPC - this is also not a viable option
since it would require not only a retrograde
amendment to the Pocso Act but also to
several other pro-child statutes; (v) To
read Exception 2 to Section 375 IPC in a
purposive
manner
to
make
it
in
consonance with the Pocso Act, the spirit
of other pro-child legislations and the
human rights of a married girl child. Being
purposive and harmonious constructionists,
744 INDIAN LAW REPORTS ALLAHABAD SERIES
we are of opinion that this is the only
pragmatic option available. Therefore, we
are left with absolutely no other option but
to harmonise the system of laws relating to
children and require Exception 2 to
Section 375 IPC to now be meaningfully
read as:"Sexual intercourse or sexual acts
by a man with his own wife, the wife not
being under eighteen years of age, is not
rape." It is only through this reading that
the intent of social justice to the married
girl child and the constitutional vision of
the Framers of our Constitution can be
preserved and protected and perhaps given
impetus.

Relief

88.
In
view
of
the
above
discussion, I am clearly of the opinion that
Exception 2 to Section 375 IPC in so far as
it relates to a girl Child below 18 years is
liable to be struck down on the following
grounds:-

iii.........

Sexual intercouse or sexual act
by a man with his own wife, the wife not
being under 18 years, is not rape."

(Emphasis Supplied)

14.

Thus,
from
the
aforesaid
declaration of law any sexual relations with
a girl of less than 18 years of age would
amount to rape, by any person, whether he
is her husband or otherwise would amount
to offence of rape in terms of Exception -2
to Section 375 I.P.C, as has been laid down
by the Apex Court.

15. Therefore, in the instant case, if it
is found that the victim was minor on the
date of incident, when the first sexual
intercourse (with or without her consent)
was committed by the applicant, then the
offence of rape shall be made out against
the applicant herein.

16. Thus, the primary question arises
in the instant case is with regard to the
determination of age of the victim and what
should be the procedure to determine the
age as there is no provision in the POCSO
Act or under the I.P.C. for determination of
the age of the victim.

17. In Ravinder Singh Gorkhi v.
State of U.P. : (2006) 5 SCC 584, the
Apex Court has observed as under:

21. Determination of the date of
birth of a person before a court of law,
whether in a civil proceeding or a criminal
proceeding, would depend upon the facts
and circumstances of each case. Such a
date of birth has to be determined on the
basis of the materials on records. It will be
a matter of appreciation of evidence
adduced by the parties. Different standards
having regard to the provision of Section
35 of the Evidence Act cannot be applied in
a civil case or a criminal case.

38. The age of a person as
recorded
in
the
school
register
or
otherwise may be used for various
purposes,
namely,
for
obtaining
admission; for obtaining an appointment;
for contesting election; registration of
marriage; obtaining a separate unit under
the ceiling laws; and even for the purpose
of litigating before a civil forum e.g.
necessity of being represented in a court
of law by a guardian or where a suit is
filed on the ground that the plaintiff being
a
minor he
was
not
appropriately
represented therein or any transaction
made on his behalf was void as he was a
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
745
minor. A court of law for the purpose of
determining the age of a party to the lis,
having regard to the provisions of Section
35 of the Evidence Act will have to apply
the same standard. No different standard
can be applied in case of an accused as in
a case of abduction or rape, or similar
offence
where
the
victim
or
the
prosecutrix
although
might
have
consented with the accused, if on the basis
of the entries made in the register
maintained by the school, a judgment of
conviction is recorded, the accused would
be deprived of his constitutional right
under Article 21 of the Constitution, as in
that case the accused may unjustly be
convicted.

39. We are, therefore, of the
opinion that until the age of a person is
required to be determined in a manner
laid down under a statute, different
standard of proof should not be adopted. It
is no doubt true that the court must strike a
balance. In case of a dispute, the court may
appreciate the evidence having regard to
the facts and circumstances of the case. It
would be a duty of the court of law to
accord the benefit to a juvenile, provided
he is one. To give the same benefit to a
person who in fact is not a juvenile may
cause injustice to the victim. In this case,
the appellant had never been serious in
projecting his plea that he on the date of
commission of the offence was a minor. He
made such statement for the first time while
he was examined under Section 313 of the
Code of Criminal Procedure.

(Emphasis Supplied)

18. The Apex Court in Jarnail Singh
vs. State of Haryana : (2013) 7 SCC 263,
has relied upon the provisions of Juvenile
Justice (Care and Protection of Children)
Model Rules, 2007, for determination of
age of the victim as well. The Apex Court
in para '23' has held as under:

"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 insofar as the issue
of minority is concerned, between a child
in conflict with law, and a child who is a
victim of crime. Therefore, in our
considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007
Rules, to determine the age of the
prosecutrix VW, PW 6. The manner of
determining age conclusively has been
expressed in 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 under
Rule 12(3), an option is expressed in a
preceding 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 Rule 12(3),
matriculation (or equivalent) certificate of
the child concerned is the highest rated
option. In case, the said certificate is
available, no other evidence can be relied
upon. Only in the absence of the said
certificate,
Rule
12(3)
envisages
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 therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
746 INDIAN LAW REPORTS ALLAHABAD SERIES
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a 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."

(Emphasis Supplied)

19. Thus, the aforesaid opinion
expressed by the Apex Court in Jarnail
Singh (supra), in the absence of any
specific provision for determination of the
age of the victim of the offences under the
POCSO Act or under the provisions of
Indian Penal Code, the provisions of the
Juvenile
Justice
Act,
2015
for
the
determination of the age of the victim can
safely be applied.

20 . In Rishipal Singh Solanki vs.
State of Uttar Pradesh and Others : (2022)
8 SCC 602, the Apex Court had laid down
the following principles with regard to the
determination of age of the child in conflict
of laws, which reads as under:

"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.

33.7. This Court has observed
that a hypertechnical approach should not
be adopted when evidence is adduced on
behalf of the accused in support of the plea
that he was a juvenile.

33.8. 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.

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)

21. In Manoj Alias Monu Alias
Vishal Chaudhary vs. State of Haryava
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
747
and Another : (2022) 6 SCC 187, the Apex
Court has interpreted the procedure to be
followed for determination of the age of a
child, in conflict of laws, which reads as
under:

"7. The appellant relies upon
three documents such as a birth certificate;
school leaving certificate and the report of
the ossification test in support of his plea of
being a juvenile, whereas the State relies
upon the family register prescribed by the
Family Register Rules.

(i) Birth Certificate

8. First, we shall examine the
truthfulness of the birth certificate issued
by the Government of Uttar Pradesh
wherein the date of birth is mentioned as
13-5-1993. Such
date
of birth
was
registered on 19-11-2014 after the filing of
the application under Section 7-A of the Act
on 7-10-2014.

9. We find that such date of
birth certificate has been arranged to
claim benefit under the 2000 Act. The
date of birth certificate produced by the
appellant cannot be relied upon as it was
obtained after filing of the application
under Section 7-A of the Act on 7-102014. As per the birth certificate, the
appellant was born at house. Therefore,
in terms of Sections 8(1)(a) and 10(1)(i)
of the Registration of Births and Deaths
Act, 1969 ("the Registration Act"), birth
had to be reported to the Registrar by the
head of the household or by the nearest
relative of the head present in the house
or by the oldest adult male person
present. In case birth is reported within
30 days, it shall be registered on payment
of such late fee as may be prescribed.
There
are
other
conditions
for
registration of birth after 30 days as well.

10. The relevant provisions of the
Act read thus:

"8. Persons required to register
births and deaths.-(1) It shall be the duty
of the persons specified below to give or
cause to be given, either orally or in
writing, according to the best of their
knowledge and belief, within such time as
may be prescribed, information to the
Registrar
of
the
several
particulars
required to be entered in the forms
prescribed by the State Government under
sub-section (1) of Section 16,-

(a) in respect of births and
deaths in a house, whether residential or
non-residential, not being any place
referred to in clauses (b) to (e), the head
of the house or, in case more than one
household live in the house, the head of
the household, the head being the person,
who is so recognised by the house or the
household, and if he is not present in the
house at any time during the period within
which the birth or death has to be
reported, the nearest relative of the head
present in the house, and in the absence of
any such person, the oldest adult male
person present therein during the said
period;

***

10. Duty of certain persons to
notify births and deaths and to certify cause
of death.-(1) It shall be the duty of-

(i) the midwife or any other
medical or health attendant at a birth or
death,
748 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) the keeper or the owner of a
place set apart for the disposal of dead
bodies or any person required by a local
authority to be present at such place, or

(iii) any other person whom the
State Government may specify in this behalf
by his designation.

to notify every birth or death or
both at which he or she attended or was
present, or which occurred in such areas as
may be prescribed, to the Registrar within
such time and in such manner as may be
prescribed."

(ii) School leaving certificate

11. Therefore, the courts have
rightly not relied upon date of birth
certificate which was granted on 19-11-2014
as it was obtained after filing of the
application and registered many years after
the birth and not immediately or within the
prescribed time period.

12. The school leaving certificate
(Ext. A-3) has been proved by examining
Umesh Kumar, Head Teacher of Adarsh
Siksha Sadan, Pinna. As per the statement of
the witness, the school was functioning in the
year 1999 in Village Kheri, Dudadhari and
was shifted to Village Pinna in the year 20092010 where he had been working as Head
Teacher from the year 2000. As per the
certificate, the appellant was a student of
such school from 12-7-1999 till 2-7-2003. In
cross-examination, he admits that the school
is a private school and the father of the
appellant has not produced any certificate of
the appellant attending the first class. The
appellant was admitted directly in the 2nd
standard. He admits that Ext. A-1, the
admission form, is a loose sheet prepared
in his handwriting and it does not bear any
counter-signature of any higher authority.
He has not even produced any proof of
registration
of
the
school
with
the
Education Department.

(iii) Ossification test report

16. The Medical Board has
opined the age of the appellant between 23
to 24 years, when the appellant was
examined on 13-5-2016. This report has
been relied upon by the learned Additional
Sessions Judge to allow the plea of
juvenility raised by the appellant. However,
it is to be noted that ossification test varies
based on individual characteristics and
hence its reliability has to be examined in
each case.

17.
A
textbook
of
Medical
Jurisprudence and Toxicology by Modi,
26th Edn., p. 221, delineates the factors
relevant to determining the age:

(1) Height and weight.-It is
opined that progressive increase in height
and weight according to age varies so
greatly in individuals that it cannot be
depended upon in estimating age in
medico-legal cases.

(2) Ossification of bones.-This
sign is helpful for determining the age until
ossification is completed, for skiagraphy
has now made it possible to determine even
in living persons, the extent of ossification,
and the union of epiphysis in bones.

18.
Hence,
it
cannot
be
reasonably expected to formulate a uniform
standard for determination of the age of the
union of epiphysis on account of variations
in climatic, dietetic, hereditary and other
factors affecting the people of the different
States of India.
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
749

19. Furthermore, this Court in a
judgment in Jyoti Prakash Rai v. State of
Bihar [Jyoti Prakash Rai v. State of Bihar,
(2008) 15 SCC 223 : (2009) 3 SCC (Cri)
796]
held
that
the
medical
report
determining the age of a person has never
been considered by courts of law as also
by the medical scientist to be conclusive in
nature. It was also found that though the
Act
is
a
beneficial
legislation
but
principles of beneficial legislation are to
be applied only for the purpose of
interpretation of the statute and not for
arriving at a conclusion as to whether a
person is juvenile or not."

(Emphasis Supplied)

22.

In
the
judgement
of
P.
Yuvaprakash (supra), which has been
heavily relied upon by learned counsel for
the applicant, the Apex Court has observed
as under:

14. Section 94(2)(iii) of the JJ Act
clearly indicates that the date of birth
certificate
from
the
school
or
matriculation or equivalent certificate by
the concerned examination board has to
be firstly preferred in the absence of
which the birth certificate issued by the
Corporation or Municipal Authority or
Panchayat and it is only thereafter in the
absence of these such documents the age
is
to
be
determined
through
"an
ossification test" or "any other latest
medical age determination test" conducted
on the orders of the concerned authority,
i.e. Committee or Board or Court. In the
present case, concededly, only a transfer
certificate and not the date of birth
certificate or matriculation or equivalent
certificate was considered. Ex. C1, i.e., the
school transfer certificate showed the date
of birth of the victim as 11.07.1997.
Significantly, the transfer certificate was
produced not by the prosecution but
instead by the court summoned witness,
i.e., CW-1. The burden is always upon the
prosecution to establish what it alleges;
therefore, the prosecution could not have
been fallen back upon a document which it
had never relied upon. Furthermore, DW3, the concerned Revenue Official (Deputy
Tahsildar) had stated on oath that the
records for the year 1997 in respect to the
births and deaths were missing. Since it did
not answer to the description of any class
of documents mentioned in Section 94(2)(i)
as it was a mere transfer certificate, Ex C-1
could not have been relied upon to hold
that M was below 18 years at the time of
commission of the offence.

19. It is clear from the above
narrative that none of the documents
produced during the trial answered the
description of "the date of birth certificate
from the school" or "the matriculation or
equivalent certificate" from the concerned
examination board or certificate by a
corporation, municipal authority or a
Panchayat. In these circumstances, it was
incumbent for the prosecution to prove
through
acceptable
medical
tests/examination that the victim's age was
below 18 years as per Section 94(2)(iii) of
the JJ Act.

(Emphasis Supplied)

23. The Co-ordinate Bench of this
Court in Sanjay v. State of U.P., : 2020
SCC OnLine All 1397, has observed as
under:

"25. Thus it is clear that for the
determination of age of victim, primacy
shall be given to Date of Birth (hereinafter
referred
to
as
'DoB')
mention
in
matriculation (or equivalent) certificate, in
750 INDIAN LAW REPORTS ALLAHABAD SERIES
absence thereof DoB mention in the school
first attended by the victim shall be taken
into consideration, in absence of both, the
entries made by a corporation or a
municipal
authority
or
a
panchayat
regarding DoB shall be taken into account
and finally if none of the aforesaid
document containing DoB is available,
medical evidence regarding age of victim,
shall be taken into consideration. It is
further clear that neither merely ocular
evidence nor any other document shall be
considered for determination of age."

(Emphasis Supplied)

24. With regard to the determination
of age of a prosecutrix, the Rajasthan High
Court in Bajrang Lal v. State of Rajasthan
: 2006 SCC OnLine Raj 1392, has
observed as under:

"19. So far, as the present case is
concerned, as mentioned above, there are
three types of evidence in respect of the age
of the prosecutrix Manohari. Her parents
have stated her age to be 12 years at the
time of occurrence whereas as per the
school certificates, which have been proved
by the Headmaster of the Government
School, the age of the victim approximately
comes to 13 years and 7 months on the date
of incident, whereas as per the ossification
test it comes in between 15 to 17. years.
The trial Court, after considering the
evidence relating to her age, as referred
above,
determined
the
age
of
the
prosecutrix Manohari as 15 years on the
date of occurrence. I have also considered
the statements of the parents of the
prosecutrix Manohari, who have stated her
age as 12 years but (hey have also admitted
in their cross-examination that they do not
remember her exact date of birth. So far as
the documents Exhibit P-12 and Exhibit P18 are concerned, the age of the victim
from 15 to 17 years is based on ossification
test, which cannot be said to be a
conclusive evidence but, in fact, it is an
evidence of advisory character as observed
by the Hon'ble Supreme Court in Madan
Gopal Kakkad v. Naval Dubey, (1992) 3
SCC 204. In the present case the date of
birth entered in the school certificates of
the prosecutrix Manohari has been proved
by PW. 10 Shivpal Nai, the Headmaster of
the school where the prosecutrix studied.
PW. 10 Shivpal Nai, the Headmaster, also
brought the originals of Exhibit P-14A to
Exhibit P-17. If the statements of the
parents of the prosecutrix Manohari are
read with the documentary evidence
Exhibit P-14A to Exhibit P-17 (her school
certificates) relating to the age of the
prosecutrix,
then
certainly
her
age
approximately domes in between 12 to 14
years. As per ossification test of the victim,
her age comes from 15 to 17 years. This
Court in Ganga Ram's case (Supra), has
observed that of-course the ossification test
of bones is helpful but even that is not also
very sure test as owing to the variations in
climatic, dietetic, hereditary and other
factors affecting the people of the different
States of India. There is not a uniform
standard for determination of age of the
union of epiphysis for the whole of India.
According to Modi the range of error in
ossification test may be upto three years. In
Narendra
Singh's
case
(Supra),
the
Madhya Pradesh High Court has also
observed that margin of three years could
be on either side. As per Exhibit P-12 and
Exhibit P-18 the age of the victim is from
15 to 17 years and it can vary on either
side to three years. If 15 years age varies to
12 to 15 years then it is corroborated with
the statement of her parents as well as
school
certificates,
therefore,
school
certificates are more reliable. The exact
date of birth was not known to the parents
4 All. Pushpendra Singh Vs. State of U.P. & Anr.
751
as they are illiterate villagers and it is not
possible for each and every such person,
who resides in interior parts of the country to
know and remember the exact date of birth of
their kids but approximate years of age stated
by them is nearer to the date of birth of victim
i.e., 31.12.1985 mentioned in the school
certificates proved by PW. 10 Shivpal Nai,
the Headmaster of the school in which the
prosecutrix studied.