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

- **Citation:** (2024) 3 ILRA 154
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-30
- **Case number:** Criminal Revision No. 5477 of 2023
- **Bench:** Mrs. Jyotsna Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/x-revisionist-v-state-of-u-p-anr-51540
- **Pages:** 11

## Headnote

Criminal Law - Juvenile Justice (Care and
Protection
of
Children)
Act,
2015
-
Sections
9,
94
-
Code
of
Criminal
Procedure, 1973 - Section 397 - Indian
Penal Code, 1860 - Sections 363, 366 &
3 All. (Juvenile) X Vs. State of U.P. & Anr.
155
376(3) - Protection of Children from
Sexual Offences Act, 2012 - Sections 3,
4(2) - Determination of Juvenility - Reliability
of Documentary Evidence - Radiological Age
Assessment - The revisionist, a juvenile,
challenged the order dated 06.09.2023 by the
Special Judge (POCSO Act), Mainpuri, which set
aside the Juvenile Justice Board's (J.J. Board)
order dated 13.01.2023 declaring him a juvenile
in Case Crime No. 183 of 2021 under Sections
363, 366, 376(3) IPC and Sections 3/4(2)
POCSO Act. The J.J. Board, relying on a medical
examination estimating the revisionist's age as
20-21 years on 30.09.2022, calculated his age
as approximately 17 years, 6 months, and 9
days on the incident date (09.04.2021) by
applying a one-year margin. The revisionist
claimed a birth date of 15.05.2006 based on a
school certificate, while the prosecution relied
on a 05.07.2000 birth date from earlier school
records. The appellate court rejected the
revisionist's certificate as unreliable, citing
inconsistencies and lack of supporting evidence
for an alleged deceased elder sibling with the
same name. Held: The court, referencing Ram
Vijay Singh Vs St. of U.P. ((2021) SCC OnLine
SC 175), Mukarrab Vs St. of U.P. ((2017) 2 SCC
2010), Arnit Das Vs St. of Bihar ((2000) 5 SCC
428), Parag Bhati Vs St. of U.P. ((2016) 12 SCC
744), and Rishipal Singh Solanki Vs St. of U.P.
((2021) 11 ADJ 489), upheld the appellate
court's decision. It found the revisionist's claim
of a 2006 birth date implausible due to lack of
credible evidence, inconsistencies in school
records, and no proof of the elder sibling's
death. The radiological age (20-21 years)
aligned with the 2000 birth date, and a
mechanical two-year deduction was deemed
unwarranted.
The
court
emphasized
that
juvenility claims must be scrutinized to prevent
misuse in heinous offences.

Revision dismissed.

Case Law Cited:

## Text

154 INDIAN LAW REPORTS ALLAHABAD SERIES
Jamiruddin, the Notary Public, who attested
the unregistered Will deed propounded by
respondent No.2 in his favour and
according to the said death certificate, the
date of death of Jamiruddin is mentioned as
17.1.1998, at House No.786/1, Khalapar,
whereas the date of execution of said Will
date is shown as 20.10.2005, thus,
according to the death certificate of said
Notary Public, the genuineness of Will
deed comes under cloud. This fact is also
noticeable that no good ground could be
shown by respondent No.2 as to why the
father of revisionist namely, Hazi Anwarul
Haq, chose to bequeath his share of
property in favour of co-sharer of property
namely, Ansar Khan, excluding his own
sons. There is no legal bar with regard to
proceeding of civil and criminal case
simultaneously on similar set of facts. The
main consideration is that as to whether on
facts of the case put forth before the court
of first instance by the complainant, a
cognizable offence is made out or not. The
complaint was initally filed in the year
2020 and after lapse of more than 3 years
period, the respondent No.2 could not
produce any document in rebuttal of death
certificate
of
Notary
Public
namely,
Jamiruddin, placed on record by the
complainant/revisionist. The intricate facts
of the case need to be investigated by the
police as this is not of such nature that the
complainant will be able to produce
necessary documentary evidence in the
case on his own. This court is not inclined
to subscribe the view of the learned
Magistrate that the matter is essentially of
civil nature, where the allegations of fraud
and forgery are made and some material is
shown in support of the same, this should
not be termed as a matter essentially of
civil nature. In my considered opinion,
learned court below has committed a legal
error and impropriety by dismissing the
application moved by the revisionist under
Section 156(3) Cr.P.C. and impugned order
is not sustainable under law. On facts of the
case, the stand of the revisionist that matter
is
of
such
nature
that
it
requires
investigation by police under Section
156(3) Cr.P.C. appears to be forceful and
reasonable and learned court below should
have considered the case for issuing a
direction to police to register the case and
investigate the same.

17. In view of foregoing discussion,
the revision stands allowed and the
impugned order passed by learned court
below is set aside and the matter is remitted
to court below with direction to hear the
revisionist/complainant
afresh
on
application under Section 156(3) Cr.P.C. in
the light of observation made in this order
and decide the same in accordance with
law.
----------
(2024) 3 ILRA 154
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 5477 of 2023

(Juvenile) X ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Atul Kumar Shahi

Counsel for the Opposite Parties:
G.A.

Criminal Law - Juvenile Justice (Care and
Protection
of
Children)
Act,
2015
-
Sections
9,
94
-
Code
of
Criminal
Procedure, 1973 - Section 397 - Indian
Penal Code, 1860 - Sections 363, 366 &
3 All. (Juvenile) X Vs. State of U.P. & Anr.
155
376(3) - Protection of Children from
Sexual Offences Act, 2012 - Sections 3,
4(2) - Determination of Juvenility - Reliability
of Documentary Evidence - Radiological Age
Assessment - The revisionist, a juvenile,
challenged the order dated 06.09.2023 by the
Special Judge (POCSO Act), Mainpuri, which set
aside the Juvenile Justice Board's (J.J. Board)
order dated 13.01.2023 declaring him a juvenile
in Case Crime No. 183 of 2021 under Sections
363, 366, 376(3) IPC and Sections 3/4(2)
POCSO Act. The J.J. Board, relying on a medical
examination estimating the revisionist's age as
20-21 years on 30.09.2022, calculated his age
as approximately 17 years, 6 months, and 9
days on the incident date (09.04.2021) by
applying a one-year margin. The revisionist
claimed a birth date of 15.05.2006 based on a
school certificate, while the prosecution relied
on a 05.07.2000 birth date from earlier school
records. The appellate court rejected the
revisionist's certificate as unreliable, citing
inconsistencies and lack of supporting evidence
for an alleged deceased elder sibling with the
same name. Held: The court, referencing Ram
Vijay Singh Vs St. of U.P. ((2021) SCC OnLine
SC 175), Mukarrab Vs St. of U.P. ((2017) 2 SCC
2010), Arnit Das Vs St. of Bihar ((2000) 5 SCC
428), Parag Bhati Vs St. of U.P. ((2016) 12 SCC
744), and Rishipal Singh Solanki Vs St. of U.P.
((2021) 11 ADJ 489), upheld the appellate
court's decision. It found the revisionist's claim
of a 2006 birth date implausible due to lack of
credible evidence, inconsistencies in school
records, and no proof of the elder sibling's
death. The radiological age (20-21 years)
aligned with the 2000 birth date, and a
mechanical two-year deduction was deemed
unwarranted.
The
court
emphasized
that
juvenility claims must be scrutinized to prevent
misuse in heinous offences.

Revision dismissed.

Case Law Cited:

1. Ram Vijay Singh Vs St. of U.P., Criminal
Appeal No. 175 of 2021 (SLP (Crl) No. 2898 of
2020)

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

3. Arnit Das Vs St. of Bihar, (2000) 5 SCC 428
4. Parag Bhati Vs St. of U.P., (2016) 12 SCC 744

5. Rishipal Singh Solanki Vs St. of U.P., 2021
(11) ADJ 489

6. Sanjeev Kumar Gupta Vs St. of U.P., (2019)
12 SCC 370

7. Abuzar Hossain Vs St. of West Bengal, (2012)
10 SCC 489

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

9. Babloo Pasi Vs St. of Jharkhand, (2008) 13
SCC 133

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

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

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

1. Heard Sri Atul Kumar Shahi,
learned counsel for the revisionist and Sri
L.D. Rajbhr, learned A.G.A. for the State.

2. This criminal revision has been
filed with a prayer to quash the order dated
06.09.2023 passed by Special Judge,
POCSO Act in Criminal Appeal No. 8 of
2023 arising out of case crime no. 183 of
2021 under sections 363, 366 and 376(3)
I.P.C. and 3/4(2) of POCSO Act, P.S.
Bewar, District- Mainpuri, whereby the
order
passed
by
J.J.
Board
dated
13.01.2023, by which accused was declared
a juvenile, has been set aside and appeal
has been allowed.

3. The relevant facts are as below:

In the enquiry no. 34 of 2021
conducted for determination of age by the
J.J. Board in crime no.183 of 2021, under
156 INDIAN LAW REPORTS ALLAHABAD SERIES
sections 363, 366 and 376(3) I.P.C. and
under section 3/4(2) of POCSO Act, on
behalf
of
the
accused,
oral
and
documentary evidence was produced. The
J.J. Board did not rely upon the statement
given by father of the juvenile and also did
not rely on the certificate as regard date of
birth showing name of Kuldeep Kumar son
of Harish Chandra, issued by Subedar
Pandey Inter College, Pandey Nagar
Kusumra, District Mainpuri. The J.J.
Board instead relied upon the medical
examination done by a panel of doctors
constituted by C.M.O. Farrukhabad. It may
be noted that the accused was medically
examined on 30.09.2022 and as per
doctors' opinion, he was between 20 to 21
years of age. The learned J.J. Board
calculated the age of juvenile, taking him
as minimum 20 years on the date of
medical examination and therefore, 18
years 6 months and 9 days on the date of
incident (i.e on 09.04.2021). The J.J. Board
took a view that the age can be considered
on the lower side by giving a margin of
maximum one year therefore, declared
him as 17 years 6 months and 9 days on
the date of incident.

4. This may be noted that the said
order by the J.J. Board was passed after
the matter of age determination was
remanded for adjudication afresh, by
the appellate court to the J.J. Board.
Notably the J.J. Board had passed a
fresh order in compliance of earlier
direction by the appellate court in
Criminal Appeal No. 5 of 2023. The
freshly passed order dated 13.01.2023
declaring him about 17 and half years,
was challenged in Criminal Appeal No.
8 of 2023 and appeal stood allowed.
Now, the revisionist is before this
Court,
challenging
the order dated
06.09.2023, passed in appeal.

5. The contentions of the revisionist
in nutshell are that the appellate court did
not consider that his date of birth was
recorded as 15.05.2006 in the certificate
issued by Subedar Pandey Inter College.
The appellate court committed gross
illegality in not considering the aforesaid
document. Further that medical age was
found 20-21 years and as per settled law, a
variation of two years is possible on both
the sides. Therefore the benefit ought to
have been given to the accused by lowering
the same by a margin of two years and not
by margin of one year. Hence, he was about
17 years even by medical standards. The
appellate court has ignored provisions of
law and has passed an order which is illegal
and improper.

6. Learned A.G.A. has vehemently
opposed the contentions drawing the
attention of this Court towards oral and
documentary evidence in which date of
birth of the revisionist has been mentioned
as 05.07.2000.

7. I heard both the sides and perused
the material on record. On behalf of
juvenile, a High School certificate has been
produced, which showed name of Juvenile
'X' son of Harish Chandra and Surajmukhi
Devi and date of birth as 15.05.2006. This
paper was admittedly produced before the
appellate court for the first time. Another
certificate dated 19.05.2021, issued by the
Principal, Subedar Pandey Inter College,
has been produced which mentioned his
date of birth as 15.05.2006. Admittedly this
certificate bears a date of issue as
19.052021 and it said that 'X' s/o Harish
Chandra took admission in that Inter
College in class 9th on 2.7.2019. It does not
say that he has been studying there from
class 6th. However, the Principal of that
college, who was examined, says that he
3 All. (Juvenile) X Vs. State of U.P. & Anr.
157
studied from class 6th. At the same time
says that no T.C. was given by him at the
time of admission. On the other hand the
first informant filed a written objection
stating therein that in fact, date of birth of
juvenile has been shown as 5.7.2000, when
he took admission in Class I in Primary
School, Saraichak, Govindepur. The first
informant also produced an information
obtained under Right to Information Act
2005. In this paper, it is clearly mentioned
that 'X', son of Harish Chandra, took
admission in the academic year 2006-2007
in Primary School, Saraichak, Govindepur
and his name was mentioned at serial no.
1021 in the school records. Very interesting
explanation with regard to two different
dates of birth has come before the courts
below that the elder son of Harish Chandra,
who took birth on 5.7.2000, had the same
name 'X' and that he died. Another son was
born to him on 15.05.2006 and he was
again named 'X', therefore, two different
dates of birth have come on record. The
contention is that the instant accused was
born on 15.05.2006, therefore, he should
have been treated as juvenile. The thing
which cannot be ignored is that the
revisionist has no explanation as regard the
reasons why no details have been given as
to how and when did his elder son actually
died. Actually no credible evidence as
regard fact of death, when and how did he
die, has been given. No documentary
evidence like death certificate issued by
Gram Pradhan or Gram Panchayat has been
produced. No copy of pariwar register
showing his death, has been produced. The
story is that for some reason, the younger
one, who was born in 2006 was also named
as 'X'. Very interestingly, paper no. 60,
copy of information obtained through
office of Block Education Officer proves
that 'X' son of Harish Chandra had taken
admission in 2006-07 in Primary School
Saraichak, Govindepur. If the story set up
by
the
revisionist
is
believed
and
presuming that this paper pertained to elder
son only then it should also be presumed
that elder one was alive at least till 200607. If that be so, there appears no logic in
naming the second son as 'X' again when
elder one was still alive. The story of
younger son being named 'X' again is
nothing but ill conceived and false. This
inference is further fortified by another
paper produced on behalf of juvenile which
is a certificate issued by Principal, Subedar
Pandey Inter College. This paper shows
that the juvenile (the younger son) took
admission on 02.07.2019 in class 9. There
is no documentary evidence to demonstrate
where did he actually receive education
before taking admission in academic
session 2019-20. All these facts are too
incohesive to be believed. Only conclusion
which can be drawn is that academic papers
showing his date of birth as 15.05.2006 are
not reliable at all. There appears strong
probability that his actual date of birth is
05.07.2000. The appellate court committed
no mistake in not relying upon the papers
produced on his behalf.

8. Another question is whether the
appellate court was wrong in determining
the age as below 18 on the basis of medical
opinion. Undisputedly, the juvenile was
examined by the medical board constituted
by CMO, and medical opinion said that he
was between 20-21 years on the date of
medical examination and with that being
counted as the base line, his age may be
inferred as 18 years 6 months 9 days on the
date of incident. Notably date of birth as
asserted by the opposite party i.e. 5.7.2000,
gives almost same age, which is found by
the doctors.

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

10. The Supreme Court in Criminal
Appeal No. 175 of 2021 arising out of
S.L.P. Criminal No. 2898 of 2020, Ram
Vijay Singh Vs. State of U.P., considered
the question of reliance upon radiological
age of a person. The Supreme Court
observed in Para 9, 10, 12 and 14 as below:

"9. The judgment in Abuzar
Hossain considered Section 7-A of the Act
and Rule 12 of the Rules. A perusal of Rule
12(3)(b) of the Rules shows that in the
absence of documents as mentioned in
clause (i), (ii) or (iii), the medical opinion
will be sought from a duly constituted
Medical Board, which will declare the age
of the juvenile or child. It was further
provided that in case wherein the exact
assessment of the age cannot be done, the
Court or the Juvenile Justice Board, if
considered necessary, give benefit to the
child or juvenile by considering his/her age
on lower side within the margin of one
year. However, it is to be noted that Section
94 of the Act does not have any
corresponding provision of giving benefit of
margin of age.

10. Admittedly, in the present
case, there is no Date of Birth Certificate
from the school or matriculation or
equivalent certificate or a Birth Certificate
given by a Corporation or Municipal
Authority or Panchayat. Therefore, clause
(iii) of Section 94(2) of the Act to determine
the age by an ossification test or any other
latest medical age determination test
conducted on the orders of the Committee
or the Board comes into play.

11...............

12. Mr. Goel, on the contrary,
argued that procedure as provided under
Rule 12(3)(b) of the Rules is not materially
different from that contained in the Statute.
In fact, the discretion given to the Court to
lower the age by one year in the Rules has
been omitted. He further relied upon a
judgment of this Court in Mukarrab
wherein it has been held that the Courts
have observed that the evidence afforded by
radiological examination is a useful
guiding factor for determining the age of a
person but the evidence is not of a
conclusive and incontrovertible nature and
is subject to a margin of error. 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
circumstances. It was further held that the
3 All. (Juvenile) X Vs. State of U.P. & Anr.
159
ossification test cannot be regarded as
conclusive when the appellants have
crossed the age of thirty years which is an
important factor to be taken into account as
age cannot be determined with precision. It
was held as under:

"26. Having regard to the
circumstances of this case, a blind and
mechanical view regarding the age of a
person cannot be adopted solely on the
basis of the medical opinion by the
radiological examination. At p. 31 of
Modi's
Textbook
of
Medical
Jurisprudence and Toxicology, 20th Edn.,
it has been stated as follows:

"In ascertaining the age of young
persons radiograms of any of the main
joints of the upper or the lower extremity of
both sides of the body should be taken, an
opinion should be given according to the
following Table, but it must be remembered
that too much reliance should not be placed
on this Table as it merely indicates an
average and is likely to vary in individual
cases even of the same province owing to
the eccentricities of development." Courts
have taken judicial notice of this fact and
have always held that the evidence
afforded by radiological examination is no
doubt
a
useful
guiding
factor
for
determining the age of a person but the
evidence is not of a conclusive and
incontrovertible nature and it is subject to
a margin of error. 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
circumstances.

27. In a recent judgment, State of
M.P. v. Anoop Singh, (2015) 7 SCC 773 :
(2015) 4 SCC (Cri) 208], it was held that
the ossification test is not the sole criteria
for age determination. Following Babloo
Pasi [Babloo Pasi v. State of Jharkhand,
(2008) 13 SCC 133 : (2009) 3 SCC (Cri)
266] and Anoop Singh cases [State of M.P.
v. Anoop Singh, (2015) 7 SCC 773 : (2015)
4 SCC (Cri) 208], we hold that ossification
test cannot be regarded as conclusive when
it comes to ascertaining the age of a
person. More so, the appellants herein have
certainly crossed the age of thirty years
which is an important factor to be taken
into account as age cannot be determined
with precision. In fact in the medical report
of the appellants, it is stated that there was
no indication for dental x-rays since both
the accused were beyond 25 years of age.

28. At this juncture, we may
usefully refer to an article "A study of wrist
ossification for age estimation in paediatric
group in Central Rajasthan", which reads
as under:

"There are various criteria for
age determination of an individual, of
which eruption of teeth and ossification
activities
of
bones
are
important.
Nevertheless age can usually be assessed
more accurately in younger age group by
dentition and ossification along with
epiphyseal fusion. [Ref.: Gray H. Gray's
Anatomy, 37th Edn., Churchill Livingstone
Edinburgh London Melbourne and New
York: 1996; 341-342];

A careful examination of teeth
and ossification at wrist joint provide
valuable data for age estimation in
children.

[Ref.:
Parikh
C.K.
Parikh's
Textbook of Medical Jurisprudence and
Toxicology, 5th Edn., Mumbai Medico-
Legal Centre Colaba: 1990; 44-45];

*** Variations in the appearance
of centre of ossification at wrist joint shows
influence of race, climate, diet and regional
factors. Ossification centres for the distal
ends of radius and ulna consistent with
present study vide article "A study of wrist
ossification for age estimation in paediatric
group in Central Rajasthan " by Dr.
160 INDIAN LAW REPORTS ALLAHABAD SERIES
Ashutosh Srivastav, Senior Demonstrator
and a team of other doctors, Journal of
Indian Academy of Forensic Medicine
(JIAFM), 2004; 26(4). ISSN 0971-0973].

29. In the present case, their
physical,
dental
and
radiological
examinations
were
carried
out.
Radiological examination of skull (AP and
lateral view), sternum (AP and lateral
view) and sacrum (lateral view) was
advised and performed. As per the medical
report, there was no indication for dental xrays since both the accused were much
beyond 25 years of age. Therefore, the age
determination based on ossification test
though may be useful is not conclusive. An
x-ray ossification test can by no means be
so infallible and accurate a test as to
indicate the correct number of years and
days of a person's life."

13..................

14. We find that the procedure
prescribed in Rule 12 is not materially
different than the provisions of Section 94
of the Act to determine the age of the
person. There are minor variations as the
Rule 12(3) (a)(i) and (ii) have been
clubbed together with slight change in the
language. Section 94 of the Act does not
contain the provisions regarding benefit of
margin of age to be given to the child or
juvenile as was provided in Rule 12(3)(b)
of
the
Rules.
The
importance
of
ossification test has not undergone change
with the enactment of Section 94 of the
Act. The reliability of the ossification test
remains vulnerable as was under Rule 12
of the Rules."

11. In Mukarrab Vs. State of U.P.
2017 2SCC 2010, the Supreme Court gave
an opinion that the radiological age may
not be treated as conclusive proof of age.
The Supreme Court observed as below:-

"22. It is well-accepted fact that
age determination using ossification test
does not yield accurate and precise
conclusions after the examinee crosses the
age of 30 years, which is true in the present
case.

After referring to Bhola Bhagat's
case and other decisions, in Babloo Pasi's
case, this Court held as under:-

"18. Nevertheless, in Jitendra
Ram v. State of Jharkhand (2006) 9 SCC
428 the Court sounded a note of caution
that the aforestated observations in Bhola
Bhagat (1997) 8 SCC 720 would not mean
that a person who is not entitled to the
benefit of the said Act would be dealt with
leniently only because such a plea is
raised. Each plea must be judged on its
own merit and each case has to be
considered on the basis of the materials
brought on record.

22. It is well settled that it is
neither feasible nor desirable to lay down
an abstract formula to determine the age
of a person. The date of birth is to be
determined on the basis of material on
record and on appreciation of evidence
adduced by the parties. 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."

12. In Arnit Das vs. State of Bihar;
(200) 5 SCC 428, after considering the
judicial opinions in many other precedents,
the Supreme Court observed as below:-

"while dealing with a question of
determination of the age of an accused, for
the purpose of finding out whether he is a
juvenile or not, a hyper-technical approach
should not be adopted while appreciating
the evidence adduced on behalf of the
accused in support of the plea that he was a
3 All. (Juvenile) X Vs. State of U.P. & Anr.
161
juvenile and if two views may be possible
on the same evidence, the court should lean
in favour of holding the accused to be a
juvenile in borderline cases. We are also
not oblivious of the fact that being a
welfare legislation, the courts should be
zealous to see that a juvenile derives full
benefits of the provisions of the Act but at
the same time it is also imperative for the
courts to ensure that the protection and
privileges under the Act are not misused by
unscrupulous
persons
to
escape
punishments for having committed serious
offences."

13. It may be noted that where two
views were possible, the Court, though is
permitted to lean in favour of the accused,
however this is not to be done, where there
are definite indicators that benefit of
provisions of the Juvenile Justice Act is
being claimed to escape from punishment
in cases involving heinous offence. The
Supreme Court warned against misuse of
law by unscrupulous litigant. In line with
the above observations in Arnit Das case
(supra), the Supreme Court in Parag Bhati
vs. State of U.P.; (2016) 12 SCC 744
observed in para nos. 26 and 27 as below:-

"26. 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 below the age of 18 years on the date
of the incident and the documentary
evidence at least prima facie proves the
same, he would be entitled to the special
protection under the JJ Act. But when an
accused commits a grave and heinous
offence and thereafter attempts to take
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
common
man
in
the
institution
entrusted
with
the
administration of justice.

27. The benefit of the principle of
benevolent legislation attached to the JJ
Actwould thus apply to only such cases
wherein the accused is held to be a juvenile
on the basis of at least prima facie evidence
regarding his 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
committed and gave effect to it in a wellplanned 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 added] From the above
decision, it is clear that the purpose of
Juvenile Justice Act, 2000 is not to give
shelter to the accused of grave and heinous
offences."

14. The Apex Court in Rashipal
Singh Solanki vs. State of U.P. and
Others; 2021 (11) ADJ 489 decided on
18.11.2021,
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 and in
essence held that each case may be dealt
with 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.
162 INDIAN LAW REPORTS ALLAHABAD SERIES

In para no. 29 the Apex Court in
Rishipal Singh Solanki (supra) held as
below:-

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

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

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

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

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

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

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

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

(v) That the procedure of an
inquiry by a Court is not the same thing as
declaring the age of the person as a
juvenile sought before the JJ Board when
the case is pending for trial before the
concerned criminal court. In case of an
inquiry, the Court records a prima facie
conclusion
but
when
there
is
a
determination of age as per sub-section (2)
of section 94of 2015 Act, a declaration is
made on the basis of evidence. Also the age
recorded by the JJ Board shall be deemed
to be the true age of the person brought
before it. Thus, the standard of proof in an
inquiry is different from that required in a
proceeding where the determination and
declaration of the age of a person has to be
made on the basis of evidence scrutinised
3 All. (Juvenile) X Vs. State of U.P. & Anr.
163
and accepted only if worthy of such
acceptance.

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

(vii) This Court has observed that
a hyper-

technical approach should not be
adopted when evidence is adduced on
behalf of the accused in support of the plea
that he was a juvenile.

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

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

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

(xi) Ossification Test cannot be
the sole criterion for age determination
and a mechanical view regarding the age
of a person cannot be adopted solely on
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."

15. In Sanjeev Kumar Gupta vs.
State of U.P. and Another; (2019) 12
SCC 370, the credibility and authenticity of
the
matriculation
certificate
was
questioned. In the said case, the Juvenile
Justice Board had rejected the claim of the
juvenility but the High Court reversed the
findings of the Juvenile Justice Board,
however the Apex Court restored the order
of the Juvenile Justice Board. The Apex
Court observed that the records maintained
by the C.B.S.C. were not dependable
because
there
was
no
underlying
documents to support the date of birth
recorded therein. The Apex Court found
that there was clear and unimpeachable
evidence of date of birth which had been
recorded in the records of another school,
in which the second respondent therein had
attended till Class 4th. The Apex Court held
that the date of birth reflected in the
matriculation certificate could not be
accepted as authentic or credible.

16. In the instant matter, an
implausible story has been set by the
revisionist, which goes like that the parents
gave same name to the younger son, who
was born 6 years after the birth of the elder
one. Name of the elder son i.e. 'X' was
given to younger son as well because elder
son had died. The revisionist could not
even prima facie satisfy the courts below
on this story. As observed earlier, no
particular date of death of elder son has
been given. No documentary evidence as
regard his death has been furnished. On the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
other hand, if the story given by the
revisionist
is
believed,
the
admitted
document indicates that he was alive till at least
2006 i.e., the year in which the younger son was
born. Coupled with this fact are the
circumstances that no credible has been
furnished to show where did the juvenile (the
younger son) studied before be took admission
in Subedar Pandey Inter College directly in
Class-9th. The story is too imaginative to be a
reality. A strong probability appears that the
actual date of birth of the juvenile was
05.07.2000, as is shown by the date of birth
registered in a school where he had studied
initially. Notably the age calculated on the basis
of date of birth being 5.7.2000 matches with the
radiological age and therefore a whimsical and
mechanical approach to deduct two straight
years from radiological opinion is nothing but
uncalled for. All the evidence dissuade the
Court from considering probable age on lower
side. This is definitely not a case where age
could be or ought to have been considered by
lowering it by a margin of 2 years. No two
views seem possible, therefore no question
arises of leaning in favour of accused. The
Juvenile Justice Board clearly committed an
error which was corrected by the Appellate
Court.

17. On the basis of above discussion,
I do not find any good reason to interfere in
the order passed by the appellate court. The
revision
lacks
merit
and
is
hereby
dismissed.
----------
(2024) 3 ILRA 164
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2024
BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Revision No. 5924 of 2023

Arunendra @ Dabbu ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Nipun Singh, Sri Vivek Chaturvedi, Sri
V.P. Srivastava (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Kunjesh Kumar Dubey

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Sections 319, 379 &
401 - Indian Penal Code, 1860 - Sections
307/419, 436/149 & 323/149 - Application
under Section 319 Cr.P.C. - Summoning
Additional Accused - Degree of Satisfaction for
Summoning - Maintainability of Application -
The revisionist, Arunendra @ Dabbu Yadav,
challenged the order dated 31.10.2023 by the
Additional
Sessions
Judge/Special
Judge
(MP/MLA
Court),
Prayagraj,
allowing
an
application under Section 319 Cr.P.C. to
summon him as an additional accused in
Complaint Case No. 2390 of 2010 under
Sections 307/419, 436/149, and 323/149 IPC.
The complainant alleged that on 30.06.2005,
the revisionist, along with others, fired rifles,
broke into her house, assaulted her family, and
set fire to property, following an earlier incident
on 29.06.2005. Despite his name appearing in
the complaint, the revisionist was not initially
summoned. The trial court, based on consistent
St.ments of PW-1, PW-2, and PW-3 implicating
him, allowed the Section 319 application before
judgment delivery. Held: The court, relying on
Sukhpal Singh Khaira Vs St. of Punj. ((2023) 1
SCC 289), Hardeep Singh Vs St. of Punj. ((2014)
3 SCC 92), Vikas Vs St. of Rajasthan ((2014) 3
SCC 321), and Brijendra Singh Vs St. of
Rajasthan ((2017) 7 SCC 706), upheld the trial
court's order. The application was maintainable
as it was filed before judgment, and the
evidence against the revisionist was sufficient to
frame
charges,
meeting
the
degree
of
satisfaction required under Section 319 Cr.P.C.

Revision was dismissed .

Case Law Cited: