Neutral Citation No. - 2025:AHC:43484 Court No. - 78 Case :- CRIMINAL REVISION No. - 5530 of 2023 Revisionist :- Juvenile X Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Ananya Upadhyay,Rakesh Chandra Upadhyay,Rudra Pratap Singh Counsel for Opposite Party :- Dinesh Kumar Singh,G.A. Hon'ble Sanjay Kumar Singh,J. 1. The present criminal revision under Section 102 of Juvenile Justice (Care and Protection of Children) Act, 2015 has been preferred by the accused-revisionist against the judgment and order dated 22.09.2023 passed by learned Children Court /Additional Sessions Judge/Special Judge (POCSO Act), Sonbhadra in Criminal Appeal No. 41 of 2023 (Brijesh alias Vijay Kumar versus State of U.P. and another) whereby the appellate court while allowing the appeal of the complainant and declaring accused- revisionist as major on the date of incident dated 24.06.2022 has set-aside the order dated 25.05.2023 passed by Juvenile Justice Board, Sonbhadra declaring the accused (revisionist in the present case) as juvenile in Misc. Case No. 71/2022 (State vs. Bhanu Yadav) arising out of Case Crime No. 116 of 2022, under Sections 302, 201, 363, 366 I.P.C. and Section 3(2)(v) of SC/ST Act, police station Duddhi, district Sonbhadra. 2. Heard learned counsel for the revisionist, learned Additional Government Advocate representing the State of U.P. / opposite party No. 1 and learned counsel for the complainant / opposite party No.2. 3. Brief facts of the case, which are required to be stated for deciding the issue involved in the present case are as under:- 3.1. Opposite party No. 2, who is complainant of this case had lodged a first information report on 27.06.2022 for the offence under Section 363 I.P.C. at Case Crime No. 116 of 2022 at police station Duddhi, district Sonbhadra against the revisionist stating inter-alia that on 24.06.2022, his minor daughter aged about 16 years was enticed away by the revisionist. During the investigation, decomposed dead body of the victim was found and as per inquest report, deceased was murdered by assaulting her with scissors around her neck. The accused-revisionist confessed his guilt and his statement under Section 164 of Cr.P.C. was also recorded. In post mortem report of the deceased, apart from multiple injuries, a stab wound (deep) up to liver was also found on her body. Accordingly, after the investigation, charge-sheet dated 29.07.2022 was submitted against accused- revisionist treating him as juvenile for the offence under Sections 363, 366, 302, 201 I.P.C. and Section 3(2)(v) SC/ST Act. 3.2. Revisionist moved an application through his father claiming to be a juvenile on the date of the incident dated 24.06.2022 alleging inter alia that his date of birth is 01.01.2005, which is also recorded in his High School Certificate of the year 2022, therefore, on the day of incident, he was aged about 17 years, 05 months and 23 days. 3.3. Juvenile Justice Board, Sonbhadra vide order dated 25.05.2023 allowed the aforesaid application of the revisionist declaring him as juvenile on the basis of date of birth mentioned in his High School Certificate. The complainant being dissatisfied with the order dated 25.05.2023 preferred an appeal before the children court, which has been allowed and said order has been set-aside by the appellate court vide impugned order dated 22.09.2023. 4. Learned counsel for the revisionist submits that as per High School Certificate of the revisionist, his date of birth is 01.01.2005, hence on the date of incident i.e. 01.01.2005, revisionist was juvenile aged 17 years, 05 months and 23 days. Though in the ossification test report dated 16.05.2023, age of the revisionist was found about 18-20 years but High School Certificate of the revisionist shall prevail over the medical/ ossification test report. The learned counsel for the revisionist in support of his submissions, relied upon the following documents:- a). Statement of father of the revisionist recorded as CW-1. b). Statement of Lal Bihari Yadav, Senior Assistant Teacher (In-charge Principal), Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra recorded as CW-2, who has proved the attested copy of Admission Register of Class IXth (Exhibit-Ka-01). c). Admission form of the revisionist for taking admission in Class IXth in Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra (Exhibit-Ka-02). d). Transfer Certificate dated 09.09.2020 of the revisionist, issued by Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra (Exhibit-Ka-03) after the revisionist passed Class VIIIth. e). Statement of Sohar Lal, Principal, Maa Sharada Shishu Vidya Mandir, Lilasi, Myurpur, Sonbhadra recorded as CW-3, who has proved the attested photocopy of admission register of his school (Exhibit-Ka-04). 5. Learned Additional Government Advocate for the State and learned counsel for the complainant vehemently opposed by contending that complainant has appeared before the Juvenile Justice Board and made objection against the claim of juvenility of the revisionist on the ground that correct date of birth of the revisionist is 11.09.2002, which is mentioned in the record of Primary School, Gharantola (Murta) Duddhi, Sonbhadra. Mr. Indresh Kumar Srivastava (In-charge Principal), Primary School, Gharantola (Murta) Duddhi, Sonbhadra in his statement recorded as CW-4, has clearly stated that as per Admission Register of his school, date of birth of the revisionist is mentioned as 11.09.2002, he has also proved the attested photocopy of Admission Register of (Exhibit- Ka-05). In the Aadhar Card of the revisionist, his date of birth is mentioned as 11.09.2002. Much emphasis has been given by contending that same date of birth is fixed in higher classes on the basis of the record of Class Vth, but in the present case date of birth of the revisionist-Bhanu Yadav was 11.09.2002, which was later deliberately shown as 01.01.2005 after manipulation. It is also pointed out that before the appellate court, the complainant had also filed the certificate of Principal of Primary School, Gharantola (Murta) Duddhi, Sonbhadra (Paper No.12 Kha), according to which Accused-Bhanu Yadav (revisionist) received scholarship in Academic Session 2009-10 in Class Ist, in Academic Session 2010-11 in Class IInd, in academic session 2011-12 in Class IIIrd, in Academic Session 2012-13 in Class IVth. The date of birth of the revisionist as mentioned in his High School Certificate is wholly false on the face of record itself. The Juvenile Justice Board ignoring the said basic documents passed illegal order dated 25.05.2023 giving perverse finding while declaring the revisionist as juvenile, which has been rightly and legally set-aside by the appellate Court. 6. It is not in dispute that in the instant case, incident took place on 24.06.2022, therefore, claim of juvenility shall be determined as per the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short "Act, 2015") which came into force on 31.12.2015. Section 94 of Act, 2015 reads thus:- Section 94. Presumption and determination of age:- (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. Looking to the controversy involved in this case, here it would be relevant to mentioned about the settled principles of law laid down by the Hon'ble Apex Court. 7.1. The Apex Court in case of Parag Bhati versus State of U.P., (2016) 12 SCC 744, considering the case of Ashwani Kumar Saxena (supra) and Abuzar Hossain Vs. State of W.B., (2012) 10 SCC 489 has observed as under:- "36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain, an enquiry for determination of the age of the accused is permissible which has been done in the present case." 7.2. In the case of Sanjeev Kumar Gupta Vs. State of U.P. and another, (2019) 12 SCC 370, the accused had claimed juvenility on the basis of matriculation certificate reflecting his date of birth as 17.12.1998, whereas he had also filed an application for obtaining a driving license and Aadhaar Card, in which he had declared his date of birth as 17.12.1995. The accused was declared juvenile on the basis of his age mentioned in Matriculation Certificate by the High Court, but the judgment and order of the High Court has been set-aside by the Apex Court observing that the date of birth of the accused as reflected in matriculation certificate cannot be accepted as authentic or credible. 7.3. In the case of Vinod Katara Vs. State of Uttar Pradesh, 2022 SCC OnLine 1204, the Hon'ble Apex Court in the order dated 12 September, 2022 has observed inter alia that the first attempt to determine the age is by assessing the physical appearance of the person brought before the board or committee. It is only in the case of doubt, the process of age determination by seeking evidence becomes necessary. At that stage, when a person is around 18 years of age, the ossification test can be said to be relevant for determining the approximate age of a person in conflict with law. In the final judgment dated 05.03.2024 reported in (2024) 4 SCC 150, the Hon'ble Apex Court has further made following observation in paragraph No. 22:- "22. Section 94(2) of the JJ Act provides for the mode of determination of age. In the order of priorities, the date of birth certificate from the school stands at the highest pedestal whereas ossification test has been kept at the last rung to be considered, only in the absence of the criteria Nos. 1 and 2, i.e. in absence of both certificate from school and birth certificate issued by a Corporation/ Municipal Authority/ Panchayat." 8. It is also well settled that each case has to be decided on the basis of its own facts and circumstances, because every case turns on its own facts and a close similarity between one case and another is not enough. Even one additional or different fact may make a big difference between the conclusion in two cases and a single significant detail may alter the entire aspect. 9. Having considered the arguments so advanced by learned counsel for the parties and perusing the record, I find that:- a). It is not in dispute that revisionist-Bhanu Yadav had studied in Primary School, Gharantola (Murta) Duddhi, Sonbhadra from Class 1st to Class IVth and in the said school record, his date of birth is mentioned as 11.09.2002. Thereafter, he got his name cancelled, but Transfer Certificate was not issued to him. Mr. Indresh Kumar Srivastava, (In-charge Principal), Primary School, Gharantola (Murta) Duddhi, Sonbhadra, in his statement recorded as CW-4, has also clearly stated that as per Admission Register of his school, date of birth of the revisionist is 11.09.2002. He has also proved the attested photocopy of Admission Register of (Exhibit-Ka-05). b). No educational documents of Class Vth and Class VIth of the revisionist are available on record. c). Principal, Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra has given an information under the Right to Information Act, which is available on record as paper No. 13 kha. According to which revisionist-Bhanu Yadav had taken admission in Class VIIIth on the basis of Transfer Certificate of Class VIIth issued by Shiksha Niketan Higher Secondary School, Banvasi Seva Ashram, Govindpur, in which date of birth of the revisionist is mentioned as 01.01.2005, but when report was called for from Shiksha Niketan Higher Secondary School, Banvasi Seva Ashram, Govindpur, a report (paper No. 19 kha) was submitted and according to said report, revisionist- Bhanu Yadav had not studied in any class in Shiksha Niketan Higher Secondary School Banvasi Seva Ashram Govindpur. In the report it is also mentioned that no Transfer Certificate of Class VIIth was issued from the said school and if there is any Transfer Certificate of Class VIIth of Shiksha Niketan Higher Secondary School Banvasi Seva Ashram Govindpur, on which revisionist is placing reliance, should be considered a fake / forged document. d). It is the case of the revisionist that he had taken admission in Class IXth in Nepuri Devi Shishu Sansathan Inter College Baghmandawa, Sonbhadra on the basis of Transfer Certificate dated 09.09.2020 of the revisionist, issued by Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra (Exhibit- Ka-03) after the revisionist passed Class VIIIth. e). As such, basis of date of birth (01.01.2005) of the revisionist as mentioned in his High School Certificate is the Transfer Certificate date of the revisionist, issued by Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra but Principal of Kaimur Adiwasi Intermediate College, Myurpur, Sonbhadra was not examined by the Juvenile Justice Board. f). Initially, in the Aadhar Card of the revisionist also, his date of birth was mentioned as 11.09.2002. g). As per ossification test report dated 16.05.2003, age of the revisionist was found about 18-20 years. 10. After giving my thoughtful consideration, in the light of above discussion, I am of the view that since date of birth of the revisionist mentioned in his High School Certificate is different from the date of birth of the revisionist mentioned in his school record from Class Ist to Class IVth and the Transfer Certificate alleged to have been issued by Shiksha Niketan Higher Secondary School, Banvasi Seva Ashram, Govindpur, on the basis of which revisionist took admission in Class VIIIth is a suspicious document, therefore, date of birth of the revisionist as mentioned in his High School Certificate cannot be considered as a document free from all ambiguity. Hence, the date of birth of the accused as reflected in his High School Certificate cannot be accepted as authentic or credible. Under the facts and evidence on record, the documentary evidence relied upon by the complainant cannot be said to be irrelevant for the purpose of determination of age of accused. 11. As a fallout and consequence of above discussion, I do not find any illegality in the impugned order dated 22.09.2023, which is wholly flawless. 12. Hence instant criminal revision lacks merit and is accordingly dismissed. 13. Office is directed to transmit the original record of this case to the concerned Court below forthwith. Order Date :- 20.3.2025 Kashifa Digitally signed by :- KASHIFA High Court of Judicature at Allahabad