# 'X'- Victim, Banda Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-20
- **Case number:** Criminal Revision No. 3028 of 2023
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/x-victim-banda-revisionist-v-state-of-u-p-ors-50832
- **Pages:** 6

## Headnote

(A) Criminal Law - The Juvenile Justice
(Care and Protection) Act-2015 - Section
102 - Revision , Indian Penal Code, 1860 -
Sections 376, 504 & 506 - The Protection
of Children From Sexual Offences Act,
2012 - Section 4 - Punishment for
penetrative sexual assault, the Evidence
Act , 1872 - Section 35 - Relevancy of
entry in public [record or an electronic
record ]made in performance of duty
(Para - )
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - The Juvenile Justice
(Care and Protection) Act-2015 - Section
94 - Presumption and determination of
age - Section 94 (2) (iii) - in absence of (i)
and (ii), the age shall be determined by an
ossification test or any other medical age
determination test conducted on the
orders of the Committee or Board - where
birth certificates are available as indicated
in sub-section (i) and (ii), the medical age
determination test cannot be preferred.
(Para - 7)
Opposite party's first admission made on
08.07.2010 in Government Primary School -
birth date as 10.07.2003 - passed first
examination - admitted in class 2nd on
1.07.2011
-
changing his birth date to
02.04.2005 - Revisionist was a victim of rape by
opposite party - declared juvenile - based on his
academic record from class 1st to 10th - filed
different academic record from opposite party -
discarded by board - appeal - dismissed by court
- academic record not manipulated - hence
revision. (Para - 3,11)

HELD:-First attending school of opposite party no.
2 was Government Primary School where he took
admission on 08.07.2010 in class 1st and date of
birth was mentioned as 10.07.2003, on the basis
of which his age comes on the date of occurrence
i.e. 23.06.2022, 19 years, 3 months and 19 days
i.e. more than 18 years and he was major . J.J.
Board and Appellate Court's Juvenility Decision
based on subsequent academic record. Not based
on material on record and law conformity.
Requires
Court's
interference.
Order
set
aside.(Para - 11,12,13)

Revision allowed. (E-7)

## Text

1 All. 'X'- Victim, Banda Vs. State of U.P. & Ors.
1109
when it is proved beyond the reasonable
doubt that an unnatural death within two
years of marriage had taken place and when
the initial burden had already been
discharged by the prosecution and the
presumption under Section 113B of the
Evidence Act could not be removed by the
defence and when there is also burden upon
the defence to explain the circumstances
under Section 106 of the Evidence Act,
there was no occasion to record the finding
of acquittal by the trial court. Section 106
costs duty to discharge the burden and
explain the facts especially within the
knowledge of the in-laws as to how the
bride died. If the accused does not throw
light on a fact which is within his
knowledge
his
failure
to
offer
any
explanation
would
become
a
strong
militating circumstance against him.

46. In Balram Prasad Agrawal Vs.
State of Bihar, (1997) 9 SCC 338 a
housewife was drowned to death in the
well, in the court-yard of the house of her
in-laws who were the only people present
in the house at that time. Cruelty by the inlaws for over years was also an established
fact. The Supreme Court held that the
burden lies upon the accused in-laws to
show what happened during the night
which brought about her death.

47. On the basis of the above
discussion, this Court is of the view that the
revision deserves to be allowed and a fresh
judgment and order should be passed after
affording the opportunity of hearing to both
the parties.

48. The revision is, accordingly,
allowed.

49. The impugned judgment and
order of acquittal dated 12.06.1998
passed by the Additional Sessions JudgeIV, Meerut is hereby set aside. The
Additional Sessions Judge-IV, Meerut, is
directed to hear both the parties and again
pass appropriate orders in accordance
with law within three months on the basis
of evidence available on the record and in
light of the observations made in this
judgment.

45. Let a copy of this judgment
alongwith the original record be sent back
to the court concerned forthwith for
necessary compliance.
----------
(2024) 1 ILRA 1109
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2023

BEFORE

THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Revision No. 3028 of 2023

'X'- Victim, Banda ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Amit Kumar Dixit

Counsel for the Opposite Parties:
Govt. Advocate, Sri Raj Narayan, Sri
Sanjeev Kuamr Saxena

(A) Criminal Law - The Juvenile Justice
(Care and Protection) Act-2015 - Section
102 - Revision , Indian Penal Code, 1860 -
Sections 376, 504 & 506 - The Protection
of Children From Sexual Offences Act,
2012 - Section 4 - Punishment for
penetrative sexual assault, the Evidence
Act , 1872 - Section 35 - Relevancy of
entry in public [record or an electronic
record ]made in performance of duty
(Para - )
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - The Juvenile Justice
(Care and Protection) Act-2015 - Section
94 - Presumption and determination of
age - Section 94 (2) (iii) - in absence of (i)
and (ii), the age shall be determined by an
ossification test or any other medical age
determination test conducted on the
orders of the Committee or Board - where
birth certificates are available as indicated
in sub-section (i) and (ii), the medical age
determination test cannot be preferred.
(Para - 7)
Opposite party's first admission made on
08.07.2010 in Government Primary School -
birth date as 10.07.2003 - passed first
examination - admitted in class 2nd on
1.07.2011
-
changing his birth date to
02.04.2005 - Revisionist was a victim of rape by
opposite party - declared juvenile - based on his
academic record from class 1st to 10th - filed
different academic record from opposite party -
discarded by board - appeal - dismissed by court
- academic record not manipulated - hence
revision. (Para - 3,11)

HELD:-First attending school of opposite party no.
2 was Government Primary School where he took
admission on 08.07.2010 in class 1st and date of
birth was mentioned as 10.07.2003, on the basis
of which his age comes on the date of occurrence
i.e. 23.06.2022, 19 years, 3 months and 19 days
i.e. more than 18 years and he was major . J.J.
Board and Appellate Court's Juvenility Decision
based on subsequent academic record. Not based
on material on record and law conformity.
Requires
Court's
interference.
Order
set
aside.(Para - 11,12,13)

Revision allowed. (E-7)

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri Amit Kumar Dixit,
learned counsel for revisionist, Sri Sanjeev
Kumar
Saxena,
learned
counsel
for
opposite party no. 2 as well as learned
A.G.A. and perused the record.

2. The present criminal revision has
been preferred by the revisionist through her
father under Section 102 of the Juvenile
Justice (Care and Protection) Act-2015
(hereinafter referred to as "J.J. Act, 2015) to
allow the present revision and set aside the
judgment and order dated 24.11.2022 passed
by learned Additional Session Judge/Special
Judge (POCSO Act), Banda in Criminal
Appeal No. 29 of 2022 as well as order dated
28.09.2022 passed by Juvenile Justice Board,
Banda in Case Crime No. 161 of 2022 under
Sections 376, 504, 506 I.P.C. and Section 4
Protection of Child From Sexual Offence Act,
Police Station Girvan, District Banda.

3. Fact in brief are that the revisionist
is victim and rape was committed with her
by the opposite party no.2. The accused was
declared to be juvenile by the learned J.J.
Board vide order dated 28.09.2022 on the
basis of academic record from class 1st to
class 10th. During the course of inquiry the
revisionist/victim filed previous academic
record of the opposite party no. 2 from
Primary School where his admission was
taken in class 1st and his date of birth was
different from that of the school record
produced by the opposite party no. 2.
Learned Board decided the age of the
opposite party no. 2 in accordance with the
date of birth as mentioned in the academic
record produced by him but discarded the
date of birth which was shown in the
previous academic record of class 1st in the
Primary School and also the voter list entry,
showing him to be major on the date of
occurrence. Being aggrieved with the order
passed by learned Board, an appeal was
preferred before the learned court of
Sessions which was also dismissed vide
order dated 24.11.2022 on the ground that
the academic record filed by the opposite
party no. 2 was not said to be manipulated.

4. It is submitted by learned counsel
for the revisionist that the opposite party
1 All. 'X'- Victim, Banda Vs. State of U.P. & Ors.
1111
no. 2 first attended Primary School Devrar,
Circle
Mahua,
District
Banda
on
08.07.2010 where his date of birth was
entered as 10.07.2003 in scholar register at
Serial No. 1888 and after passing class 1st
his admission was made in class 2nd in the
same school on 01.07.2011 but without
taking school leaving certificate, he took
admission in the private school namely,
Brahmand Gyan Ashram, Vasi by showing
his date admission on the same date i.e.
08.07.2010 in class 1st at Serial No. 1828
of the scholar register of the school. Later
on, he took admission in class 6th in
Brahmand
Gyan
Ashram,
Purva
Madhyamik Vidhyalaya, Vasi Circle Girwa,
District Banda and then in class 9th in Pt.
Jawaharlal Nehru Inter College, Girwa,
District Banda from where he passed
matriculation. In this way, the date of birth
as mentioned in the first attending school
was reliable and the age of opposite party
no. 2 was to be determined on that basis but
the learned Board as well as learned
appellate court did not consider this fact
and discarded the date of birth as
mentioned in first attending school and
accepted the date of birth which was
entered in the subsequent school by adding
two years more i.e. 02.04.2005 which
cannot be said to be lawful. Further
submitted that request to the learned Board
was made that the age of the opposite party
no. 2 be determined either on the basis of
date of birth entered in first attending
school or getting it determined on the basis
of ossification test by medical board but
this request was also not considered either
by the learned Board or the learned
appellate court. In this way, the order
passed by the learned J.J. Board as well as
learned Appellate Court cannot be said to
be in conformity with law and material on
record, therefore, request to set aside the
orders in question and allow the revision
and to direct the learned J.J. Board to
determine the age of the opposite party on
the basis of age as determined by the
Medical Board.

5. Learned counsel for opposite party
no. 2 as well as learned A.G.A. opposed the
prayer as aforesaid and contended that in
this case, the opposite party no. 2 took
admission in Brahmand Gyan Ashram,
Vasi, District Banda where he completed
his studies from class 1st to 5th and then
class 6th to 8th. In class 9th he took
admission in Pt. Jawaharlal Nehru Inter
College, Girwa from where he passed 10th
slandered examination. In the record of the
schools, his date of birth was recorded as
02.04.2005
which
was
proved
by
examining teachers of the concerned school
and genuineness of these papers was not
disputed by the revisionist either before the
learned Board or the appellate court,
therefore, the date of birth as mentioned in
the academic record from class 1st to 10th
cannot be discarded and no recourse to the
medical
opinion
in
relation
to
determination of age of the juvenility be
taken as per provisions as contained under
Section 94 of the Act. Further contended
that the revisionist manipulated birth
certificate from Primary School, Devrar
where at Serial No. 1888 of the admission
register, date of birth of the opposite party
no.2 was got entered as 10.07.2003 and his
entry in class 1st and 2nd was shown by the
teacher of the school concerned. In this
way, the learned Board as well as the
Appellate Court did not rely on the date as
entered in Primary School, Devrar but
acted upon the date of birth which was
entered into the record from where he
passed class 1st to class 8th i.e. Brahmand
Gyan
Ashram,
Purva
Madhyamik
Vidhyalaya, Vasi Circle Girwa, District
Banda and subsequent school record related
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
to class 9th and 10th where his date of birth
was entered as 02.04.2005. In this way,
learned
Board
as
well
as
learned
Appellate Court did not commit any
illegality or impropriety in determining
the claim of junenility of opposite party
no. 2. On the basis of academic record
and not seeking the opinion of the
medical board regarding determination of
his age. The orders passed by learned
courts below are sound and based on
material on record. There is no any
illegality but present revision being
devoid of merit is liable to be dismissed.

6. Section 94 of the Act provides
that:

(1) Where, it is obvious to the
Committee or the Board, based on the
appearance of the person brought before
it under any of the provisions of this Act
(other than for the purpose of giving
evidence) that the said person is a child,
the Committee or the Board shall record
such observation stating the age of the
child as nearly as may be and proceed
with the inquiry under section 14 or
section 36, as the case may be, without
waiting for further confirmation of the
age.

(2) In case, the Committee or
the Board has reasonable grounds for
doubt regarding whether the person
brought before it is a child or not, the
Committee or the Board, as the case may
be, shall undertake the process of age
determination, by seeking evidence by
obtaining --

(i) the date of birth certificate
from the school, or the matriculation or
equivalent certificate from the concerned
examination Board, if available; and in the
absence thereof;

(ii) the birth certificate given by a
corporation or a municipal authority or a
panchayat;

(iii) and only in the absence of (i)
and (ii) above, age shall be determined by
an ossification test or any other latest
medical age determination test conducted
on the orders of the Committee or the
Board:

Provided such age determination
test conducted on the order of the
Committee or the Board shall be completed
within fifteen days from the date of such
order.

(3) The age recorded by the
Committee or the Board to be the age of
person so brought before it shall, for the
purpose of this Act, be deemed to be the
true age of that person.

7. From the language used in Section
94 (2) (iii), it is clear that in absence of (i)
and (ii), the age shall be determined by an
ossification test or any other medical age
determination test conducted on the orders
of the Committee or Board. Thus where
birth certificates are available as indicated
in sub-section (i) and (ii), the medical age
determination test cannot be preferred.

8. From the perusal of record, it
appears that in this case there are two first
attending school, one in which the opposite
party no. 2 took admission in class 1st i.e.
Brahmand Gyan Asharm and got his date of
birth entered as 02.04.2005 and later on, he
continued his studies in Brahmand Gyan
Ashram, Purva Madhyamik Vidhyalaya,
1 All. 'X'- Victim, Banda Vs. State of U.P. & Ors.
1113
Vasi Circle Girwa, District Banda and also
in Pt. Jawaharlal Neharu Inter College,
Girwa from where he passed his high
school examination. In this school he took
admission on 08.07.2010 in class 1st as per
entry in scholar register and also as per
statement made by P.W. 5 Awadh Bihari,
Head Master Brahmand Gyan Ashram,
Purva Madhyamik Vidhyalaya, Vasi Circle
Girwa, District Banda. On the other hand,
birth certificate was produced on the part of
the revisionist before the learned J.J. Board
which was issued by the head master,
Primary School, Devrar Circle Mahua,
Banda where his date of birth was recorded
as 10.07.2003 at Serial No. 1888 of the
scholar register and admission was made
on 08.07.2010 in class 1st . This entry was
proved by the P.W. 6, Head Master of the
aforesaid primary school on the basis of
record kept in office of the Government
Primary School and also certificate of the
admission register was filed by the
revisionist before the learned J.J. Board
during the course of inquiry.

9. On the basis of record, it cannot be
said that the entry made in the scholar
register of Government Primary School i.e.
Primary
School,
Devrar
regarding
admission and date of birth was managed
or manipulated by the revisionist for
contradicting the claim of juvenility as
made on the part of the opposite party no. 2
before the learned Board and also Head
Master of the aforesaid school deposed
before the learned J.J. Board falsely. There
is nothing on record to show that this entry
was made subsequently by the head master
or any other teacher in the school record
and his admission was shown fraudulently
to give unfair advantage to the revisionist
because entry made by a public servant in
the discharge of his official duty in the
ordinary course of business cannot be said
to be irrelevant in view of Provisions of
Section 35 of the Evidence Act unless it is
proved otherwise. In this way, the entry
regarding date of birth of opposite party no.
2 i.e. 10.07.2003 cannot be said to
manipulated and it can also not be said that
the admission of opposite party no. 2 was
not taken in that school on 08.07.2010 in
class 1st and he passed, then his admission
was made in class 2nd on 1.7.2011 and he
continued his studies in that school.

10. On the other hand, he took
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda in class 1st
where his date of birth was entered as
02.04.2005 after completing studies up to
class 5th he was admitted in Brahmand
Gyan
Ashram,
Purva
Madhyamik
Vidhyalaya, Vasi Circle Girwa, District
Banda from where he completed his
education from class 6th to 8th and then
class 9th to 10th from Pt. Jawaharlal Nehru
Inter College where his date of birth was
entered on the basis of previous academic
record i.e. from Brahmand Gyan Ashram,
Purva Madhyamik Vidhyalaya, Vasi Circle
Girwa,
District
Banda.
The
entries
regarding admission and date of birth were
proved by head master of the school Awadh
Bihari as P.W. 5 during the course of
inquiry before the learned Board and
certified copy of the record were also filed.
This entry was also not said to be
manipulated or got entered subsequent for
giving unfair advantage to the opposite
party no. 2. In this way, the entries made in
the academic record from the school i.e.
Brahmand
Gyan
Ashram,
Purva
Madhyamik Vidhyalaya, Vasi Circle Girwa,
District Banda and Pt. Jawaharlal Neharu
Inter College can also not be said to be
irrelevant
in
view
of provisions
as
contained under section 35 of the Evidence
Act. It is also to note in this regard that
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda was also
shown to be taken on 08.07.2010 in class 1
that is the same date on which his
admission was shown to be taken in
Government
Primary
School
Devarar,
Circle Mahua, District Banda

11. It shows that first admission of the
opposite party no. 2 was made on
08.07.2010 in Government Primary School
Devrar where his date of birth was entered
as 10.07.2003 and after passing class 1st
examination, he was admitted in class 2nd
on 1.07.2011 and then without taking
school leaving certificate from aforesaid
Government Primary School, he again took
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda in class 1st
showing the same date of admission i.e.
08.07.2010 and changing his date of birth
from
10.07.2003
to
02.04.2005.
Accordingly he continued his subsequent
studies in Brahmand Gyan Ashram, Purva
Madhyamik Vidhyalaya, Vasi Circle Girwa,
District Banda and Pt. Jawaharlal Nehru
Inter College, Girwa. It is clear from the
above that first attending school of the
opposite party no. 2 was Government
Primary School Devrar, Circle Mahua but
this fact was concealed by him while taking
admission in Brahmand Gyan Ashram, Vasi
Circle Girwa, District Banda and showing
the admission on the same date got the date
of birth entered as 02.04.2005. In such a
situation this Court is of the considered
view that the first attending school of
opposite party no. 2 was Government
Primary School Devrar where he took
admission on 08.07.2010 in class 1st and
date of birth was mentioned as 10.07.2003,
on the basis of which his age comes on the
date of occurrence i.e. 23.06.2022, 19
years, 3 months and 19 days i.e. more than
18 years and he was major.

12. Learned J.J. Board as well as
learned Appellate Court did not consider all
these facts while deciding the claim of
juvenility of the opposite party no. 2 but
based its order on subsequent academic
record which cannot be said to be based on
material on record and in conformity with
law, therefore, it warrants interference by
this Court.

13. Accordingly, this criminal revision
has force and is hereby allowed. The orders
passed by learned J.J. Board dated
28.09.2022 and learned Appellate Court
dated 24.11.2022 are set aside.

14. Copy of this order be transmitted
to the Court concerned for necessary
compliance.
----------
(2024) 1 ILRA 1114
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

First Appeal No. 922 of 2023

Anil Yadav & Anr. ...Appellants
Versus
Smt. Puttul Devi @ Dulari Devi & Ors.
 ...Respondents

Counsel for the Appellants:
Sri Arvind Kumar Kushwaha, Ms. Pooja

Counsel for the Respondents:

A. Civil Law - Civil Procedure Code,1908Section
96-
The
Indian
Succession
Act,1925-Section
299-rejectionapplication for deletion of the issue no. 2
which had been framed earlier-whether
said order made by District Judge during