# Rajat Upadhyay (minor) Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 12 ILRA 610
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-08
- **Case number:** Crl. Revision No. 3014 of 2021
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajat-upadhyay-minor-revisionist-v-state-of-u-p-anr-opp-parties-47953
- **Pages:** 6

## Headnote

Law
-Code
of
Criminal
Procedure, 1973 - Section 397/401 -
Indian Penal Code, 1860- Sections 302,
307, 34, 504, 506 & 3/25 - Arms Act,1959
-application for declaring juvenile rejected
by Juvenile Justice Board-discrepancy
between dates of birth recorded upto class
5 as compared to date which came to be
recorded in class 6-a fake story was made
up by the revisionist side that exactly on
same date and month but a year ago
mother of minor gave birth to another
male child, who died within a few weeksthe Board found this fact conspicuous that
the birth of rest of the three children came
to be registered in the Nagar Nigam
except the birth registration of present
juvenile-when he was admitted in another
institution
in
Class-6
no
transfer
certificate or any other document was
produced and different date of birth was
mentioned-The
story
given
by
the
revisionist as to birth and death of second
child has no legs to stand and has been
rightly discarded by the appellate court-no
reliance can be placed on birth certificatein view of unambiguous school papers,
there was no need to go for medical
examination-Hence,
the
court
has
committed no fault in rejecting the
request for medical examination. (Para 1
to 18)

The revision is dismissed. (E-6)

List of cases cited:

## Text

610 INDIAN LAW REPORTS ALLAHABAD SERIES
Court shall conclude trial expeditiously,
preferably within a period of one year from
today, subject to the calender of the Court.
----------
(2022) 12 ILRA 610
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Crl. Revision No. 3014 of 2021
&
Crl. Revision No. 3022 of 2021

Rajat Upadhyay (minor) ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Raj Kumar Kesari

Counsel for the Opp. Parties:
G.A., Sri Sunil Kumar Singh

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973 - Section 397/401 -
Indian Penal Code, 1860- Sections 302,
307, 34, 504, 506 & 3/25 - Arms Act,1959
-application for declaring juvenile rejected
by Juvenile Justice Board-discrepancy
between dates of birth recorded upto class
5 as compared to date which came to be
recorded in class 6-a fake story was made
up by the revisionist side that exactly on
same date and month but a year ago
mother of minor gave birth to another
male child, who died within a few weeksthe Board found this fact conspicuous that
the birth of rest of the three children came
to be registered in the Nagar Nigam
except the birth registration of present
juvenile-when he was admitted in another
institution
in
Class-6
no
transfer
certificate or any other document was
produced and different date of birth was
mentioned-The
story
given
by
the
revisionist as to birth and death of second
child has no legs to stand and has been
rightly discarded by the appellate court-no
reliance can be placed on birth certificatein view of unambiguous school papers,
there was no need to go for medical
examination-Hence,
the
court
has
committed no fault in rejecting the
request for medical examination. (Para 1
to 18)

The revision is dismissed. (E-6)

List of cases cited:
1. Parag Bhati Vs St. of U.P. (2016) 12 SCC 744

2. Sanjeev Kumar Gupta Vs St. of U.P & anr.
(2019) 12 SCC 370 Abuzar Hossain Vs St. of
W.B. (2012) 10 SCC 489

3. Ashwani Kumar Saxena Vs St. of M.P. (2012)
9 SCC 750 Babloo Pasi Vs St. of Jharkhand
(2008) 13 SCC 133

4. Arnit Das Vs St. of Bih.(2000) 5 SCC 488

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

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

1. Heard Sri Raj Kumar Kesari,
learned counsel for the revisionist, Sri Sunil
Kumar Singh, learned counsel for the
opposite party no.2 and Sri O.P. Mishra,
learned A.G.A. for the State in both the
matters.

2. Perused the record.

3. These criminal revisions have been
filed on behalf of the alleged minor through
his natural guardian/mother challenging the
order dated 05.10.2021 passed by the
learned Additional District and Sessions
Judge/Special Judge (POCSO Act), Court
No.2, Varanasi in both the matters in
Criminal Appeal Nos.96 of 2020 and 97 of
2020 affirming the order dated 19.11.2020
and 11.11.2020 passed by the Juvenile
12 All. Rajat Upadhyay (minor) Vs. State of U.P. & Anr.
611
Justice Board, Varanasi respectively, by
which the applications presented by the
revisionist for declaring him juvenile were
rejected and he was declared an adult.

4. Facts in brief leading to filing of
these revisions are as below:-

Two F.I.R.s were lodged against the
revisionist as Case Crime No.247 of 2019,
under section 3/25 Arms Act and Case
Crime No.227 of 2019, under sections-
302, 307, 34, 504, 506 I.P.C. After
investigation, charge-sheets were filed and
cognizance was taken by the court
concerned; thereafter, applications were
moved before the Juvenile Justice Board
for declaring him juvenile along with
affidavit supported by certain papers like
matriculation
certificate
and
school
certificate showing his date of birth as
02.09.2002; the statement of C.W.1- mother
Pooja Upadhyay, C.W.2- Clerk from
Harsewanand Public School, Varanasi,
C.W.3- Rishikant Sharma, a Clerk from
Nagar Nigam Varanasi and C.W.4- Anand
Sharma, a Clerk from Annie Besant
Primary School were examined. The
Juvenile Justice Board was of the view that
on the date of occurrence the accused was
above 18 years of age and passed the order
in both the matters on 19.11.2020 and
11.11.2020, respectively; appeals were
preferred against the aforesaid orders
passed by the Juvenile Justice Board; the
appellate court dismissed the appeal and
also dismissed the application filed on
behalf of the juvenile for his medical
examination moved for the purpose of
determination of age.

5. The contentions of the revisionist
are as below:-

Firstly that the birth certificate issued
by the Nagar Nigam Varanasi, High School
certificate, certificate from school where he
studied from class-6 to class-8 showing his
date of birth as 02.09.2002 were produced;
however, the court committed a grave error
in not relying on them; the Juvenile Justice
Board and the appellate court instead relied
on the papers of Annie Besant Primary
School, where he studied from class-1 to
class-5; in continuation of this argument, it
is contended that there has been ample
evidence to show that in that school the
date of birth was wrongly recorded. To
support this contention, it is stated on oath
by mother of the minor that she infact gave
birth to her second child on 02.09.2001 and
that male child died within 15-20 days.
Therefore, the birth registration in Nagar
Nigam Varanasi showing date of birth as
02.09.2001 is of her second child and not
of present minor accused, who is her third
child; during the pendency of the appeals,
an application dated 04.09.2021 supported
with the affidavit annexing another birth
certificate
(showing
date
of
birth
02.09.2002) issued by the Nagar Nigam
Varanasi was filed in the appellate court by
the revisionist; the appellate court took no
notice of that birth certificate showing the
minor-revisionist's date of birth same as
recorded in matriculation certificate; the
impugned order is silent about filing of that
paper therefore the order cannot be
sustained in law; the application is still
pending. It is vehemently contended that
where clear and unambiguous documents
pertaining to middle school as well as high
school are available supported by a birth
certificate, the court could not ignore them;
the findings are arbitrary and against the
evidence on record, therefore, the revision
deserves to be allowed.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

6. For the purpose of checking the
legality and propriety of the order, I went
through both the impugned orders as well
as the material which was placed before the
Juvenile Justice Board and the appellate
court.

7. Before proceeding to draw an
inference, it will be useful to briefly refer to
the evidence and material which was
available before the Juvenile Justice Board
and the appellate court with reference to
findings given by both the courts. The
Juvenile Justice Board noticed the facts that
as per oral evidence of Pooja Upadhyay,
mother of the minor, she gave birth to four
children, minor being the third one; all her
children were born in a hospital except this
minor, who was born in her house; the date
of birth were recorded of all the children in
the register of Nagar Nigam Varanasi but
no birth certificate showing date of bith
02.09.2002 allegedly of her third child was
produced then. It was noticeable that the
date of death of second child who allegedly
died within two weeks was not recorded
though his date of birth was admittedly
recorded.

8. It may be noted that there is a
serious dispute on the point that whether
she ever gave birth to a male child who
died within 15-20 days of his birth or not. It
is vehemently contended by the other side
that no such thing ever happened; infact the
second child was the present revisionist
whose date of birth in Nagar Nigam
Varanasi was recorded as 02.09.2001 and
on the basis thereof, he was admitted in
class-1 in Annie Besant Primary School
and this fact is amply proved by the Clerk
of that school. Contradicting the above
stand, it is contended on behalf of the
revisionist that exactly a year after i.e.
02.09.2002 present revisionist was born
and the similarity in the dates of birth is
just a co-incidence. The Juvenile Justice
Board found the evidence from certificates
of Annie Besant School, Kamachha,
Varanasi, where the juvenile admittedly
studied from LKG to class-5 reliable. It has
come in evidence of C.W.4- Clerk from
Annie Besant Primary School that juvenile
was admitted in that institution in July,
2005 in LKG and his date of birth
02.09.2001 was mentioned on the basis of
birth certificate issued by Nagar Nigam
Varanasi. It has also come in evidence that
the admission form bore signature of
Rajendra Kumar Upadhyay and Pooja
Upadhyaya, the parents of the child. The
witness not only produced the admission
form but also the date of birth certificate
annexed therewith. There is no theory or
possibility that at the time of his admission
a wrong birth certificate was produced. The
child studied upto class-5 and was issued
transfer certificate in April, 2012. It has
clearly come in evidence of C.W.4 that no
other paper except the birth certificate from
Nagar Nigam was produced at the time of
his admission. Further, it has also clearly
come in evidence that C.W.2- Ashok
Kumar Yadav, Clerk of Harsewanand
Public School (where admittedly the minor
studied from class-6 onwards) that at the
time of admission in that institution no
transfer certificate from any school much
less from Annie Besant School was ever
produced and that the date of birth
02.09.2002 was recorded in school record
on the basis of admission form only. The
witness has also stated that the parents
assured of producing the transfer certificate
but they never produced any. Most
important evidence has come from C.W.3-
Rishikant Sharma- Clerk from Nagar
Nigam Varanasi, who produced the birth
and death register before the court and gave
evidence that on 02.09.2001, a male child
12 All. Rajat Upadhyay (minor) Vs. State of U.P. & Anr.
613
was born to Rajendra Upadhyaya and Pooja
Upadhyaya and on the basis of this
information, a birth certificate was issued.
Here, it may be noted that as per the
version of the revisionist, the minor was
third child, their second child died within
15-20 days. It does not appeal to reason
that birth registration was made of an infant
who allegedly died within 15-20 days of his
birth.

9. Before proceeding further, it will
be useful to refer to settled position of law
relating
to
age
determination
as
to
acceptance of documents and as to need to
go for medical opinion.

10. The judgement in Parag Bhati vs.
State of U.P., (2016) 12 SCC 744 has been
referred to support the contention that in
case High School certificate is available,
other evidence may not be taken into
consideration. In the light of above
contention, I went through the judgement
of the Court in Parag Bhati case. In the
aforesaid case, the High School certificate
was found quite doubtful, therefore, a
medical examination of the minor was
conducted and he was declared adult; on
the basis of medical opinion, the appellate
court had upheld the order of the Juvenile
Justice
Board;
the
criminal
revision
preferred against the two judgements was
dismissed and the matter went before the
Supreme Court; the Supreme Court framed
a question in para-5 "whether the facts
and circumstances of the present case
when the date of birth mentioned in
matriculation certificate is doubtful,
ossification can be the last resort to
prove the juvenility of the accused." In
the aforesaid case of Parag Bhati, the
Apex Court considered several important
judgements and gave an observation that
where doubts are raised as to matriculation
certificate, the medical examination of the
juvenile can form a basis of his age
determination. It may be very importantly
be noted that the Apex Court nowhere said
that the High School or the matriculation
certificate shall be given primacy over
other certificates.

11. In a very recent judgment of Apex
Court in Writ Petition (Criminal) No. 121
of 2022 (Vinod Katara vs. State of U.P.),
the Court had an opportunity to consider
several judgments as regards determination
of age. The Apex Court while referring to
another recent judgment of the Supreme
Court in Rishipal Singh Solanki vs. State
of U.P.; 2021 (11) ADJ 489 agreed upon
following observation that Section- 94 of
the Juvenile Justice Act, 2015 does not give
precedence to the matriculation certificate
over other certificates to determine the age
of the person, since the said section only
dealt with the matter of procedure.

12. The dictum of Hon'ble Apex
Court in Rishi Pal Singh Solanki case
(supra) has been cited before me wherein
the Hon'ble Apex Court had considered the
judgments given in Parag Bhati vs. State
of U.P.; (2016) 12 SCC 744, Sanjeev
Kumar Gupta vs. State of U.P. and
Another; (2019) 12 SCC 370 and Abuzar
Hossain vs. State of West Bengal; (2012)
10 SCC 489, Ashwani Kumar Saxena vs.
State of M.P.; (2012) 9 SCC 750, Babloo
Pasi vs. State of Jharkhand; (2008) 13
SCC 133, Arnit Das vs. State of Bihar;
(2000) 5 SCC 488, Jitendra Ram vs.
State of Jharkhand; (2006) 9 SCC 428
and several others.

13. In Para-25 of the above judgment
(Rashipal Singh Solanki), the Hon'ble Apex
Court has pointed out the difference in the
procedure under the two enactments i.e.,
614 INDIAN LAW REPORTS ALLAHABAD SERIES
the Juvenile Justice Act, 2000 and the
Juvenile Justice Act, 2015, as to inquiry
into determination of age of the juvenile
and also the power to seek evidence, how
and when to exercise that power and when
to go for ossification test. The Hon'ble
Court, in nutshell, held that each case may
be dealt in the light of its own peculiar facts
and circumstances while keeping certain
principles as guiding factor in mind as
described in concluding para of the
judgment of Hon'ble Apex Court. The
Supreme Court in concluding Para-29 (vi)
of Rishi Pal Singh Solanki (supra)
observed as below:-

"(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."

14. In Sanjeev Kumar Gupta vs.
State of U.P., (2019) 12 SCC 370, the
credibility
and
authenticity
of
the
matriculation certificate for the purpose of
determination of age under Section 7(A) of
the Juvenile Justice Act, 2000 came up for
consideration. In the said case, the Juvenile
Justice Board had rejected the claim of the
juvenility and that decision of the Juvenile
Justice Board was restored by the Hon'ble
Apex Court by rejecting the order of the
Hon'ble High Court. It was observed
therein that the records maintained by the
C.B.S.C. were purely on the basis of final
list of the students forwarded by the Senior
Secondary School where the juvenile had
studied from Class-5 onwards and not on
the
basis
of
any
other
underlying
documents. On the other hand, there was
clear and unimpeachable evidence of date
of birth which had been recorded in the
records of another school, which the second
respondent therein had attended till Class
4th and which was supported by voluntary
disclosure made by the accused while
obtaining both, Adhaar Card and driving
license. It was observed that the date of
birth
reflected
in
the
matriculation
certificate could not be accepted as
authentic or credible.

15. To sum up, besides several other
facts and circumstances, the Juvenile
Justice Board found this fact conspicuous
that the birth of rest of the three children
came to be registered in the Nagar Nigam
Varanasi except the birth registration of
present juvenile; that all the children of
Pooja Upadhyay were born in a hospital
except
the
present
revisionist;
the
admission form submitted to Annie Besant
School at the time of admission of present
juvenile bore signature of both the parents
and date of birth therein was mentioned as
02.09.2001 and when he was admitted in
another institution in class-6 no transfer
certificate or any other document was
produced before that institution and a
different date of birth 02.09.2002 from now
on was mentioned.

16. It may be noted that there is a
glaring gap and discrepancy between dates
of birth recorded upto class-5 as compared
to date which came to be recorded in class6. In my view, to fill this gap a story was
made up by the revisionist side that exactly
on same date and month (but a year ago)
mother of minor gave birth to another male
child, who died within a few weeks. That
theory cannot be accepted in view of
overwhelming evidence to disbelieve the
same.

17. Another contention is based on a
birth certificate, again issued by Nagar
12 All. Shoib Ahmad Vs. State of U.P. & Anr.
615
Nigam produced for the first time by
mother of the revisionist before the
appellate court, which showed his date of
birth as 02.09.2002. I heard both the sides
on this point. Admittedly, this birth
certificate was not produced before the
Juvenile Justice Board. Admittedly, there
has not been any statement on oath given
by mother of the revisionist that infact the
birth of her third child was registered in
Nagar Nigam Varanasi though belatedly.
Copy of this paper is on record which
indicates that birth was registered on
17.04.2012 i.e. almost 10 years after his
birth; this certificate was issued on
01.09.2021 i.e. after about 10 months of
passing of the impugned order by the
Juvenile Justice Board. The contention is
that this paper was produced before the
appellate court but the appellate court
wrongly did not took that paper into
consideration. In my view, the production
of this paper was just a next step in the
chain of a concocted theory put up from the
revisionist side. The story given by the
revisionist as to birth and death of second
child has no legs to stand and has been
rightly discarded by the appellate court too
as is very clear from para-22 of the
impugned order. In my view, this birth
certificate is a waste paper on which no
reliance can be placed. As far as the request
for medical examination is concerned, in
view of unambiguous school papers from
Annie Besant school, there was no need to
go for medical examination. Hence, the
court has committed no fault in rejecting
the request for medical examination.

18. I do not find any illegality or
impropriety in the order. The revision is
therefore dismissed.
----------
(2022) 12 ILRA 615
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Revision No. 3848 of 2022

Shoib Ahmad ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Ram Bahadur, Sri Manoj Kumar Srivastava,
Sri Anil Srivastava, Sr. Advocate

Counsel for the Opp. Parties:
G.A., Sri Akhilesh Kumar Dwivedi, Sri Amrendra
Kumar Mishra

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 397/401, 319 -
Indian Penal Code, 1860-Sections 498-A,
304-B - The Dowry Prohibition Act, 1961 -
Section
3⁄4
-deceased
died
in
her
matrimonial home within a short span of
time i.e. 3 months-trial court while
passing
the
impugned
order
only
considered the statement of PW-1 and
PW-2

but
completely
ignored
the
evidence collected by the I.O. during the
course of the investigation based on which
the revisionist was not charge-sheetedthe evidence of PW-1 which came up
during his cross-examination with regard
to the revisionist was not considered by
the trial court-Thus, the impugned order
passed by learned trial court is not
sustainable
and
liable
to
be
set
aside.(Para 1 to 22)

B. Power under Section 319 Cr.P.C. is a
discretionary
and
an
extra-ordinary
power. It is to be exercised sparingly and
only
in
those
cases
where
the
circumstances of the case so warrant. It is
not
to
be
exercised
because
the
Magistrate or the Session Judge is of the
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs