RESERVED ON 27.8.2025 DELIVERED ON 16.9.2025 HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL REVISION No. - 3951 of 2025 Court No. - 47 HON'BLE SIDDHARTH, J. 1.Heard Shri Ram Krishna Mishra, learned counsel for the revisionist, Shri Sanjay Kumar Yadav, learned counsel for the opposite party no.2 and perused the record. 2.This criminal revision has been filed against the judgement and order dated 12.2.2024 passed by Special Judge POCSO Act in Criminal Appeal No. 41 of 2023 and order dated 17.4.2023 passed by Juvenile Justice Board, Azamgarh in case crime no. 115 of 2021 under sections 376,452 I.P.C. and section 3/4 POCSO Act P.S. Mubarakpur District Azamgarh. 3.Finding the date of birth of the juvenile doubtful his ossification test was ordered by the J.J. Board, Azamgrh, wherein his age was found to be above 18 years and below 19 years on 15.3.2023.The Board found that case of the revisionist of border line and relying upon number of the judgements of this court and Apex Court granted him relaxation of one year in his age on lower side and declared him as juvenile aged about 15 years, 2 months and 12 days on the date of incident.The board resorted to the reasoning that on the date of ossification test dated 15.3.2023 he was above 18 years of age and Versus Counsel for Revisionist(s) : Ram Krishna Mishra, Ramesh Chandra Yadav Counsel for Opposite Party(s) : G.A., Sanjay Kumar Yadav Guddu Paswan .....Revisionist(s) State of U.P. and Another .....Opposite Party(s) below 19 years. Because incident took place on 25.5.2021. Considering his age of 18 years and granting him remission of one year, his age comes to 17 years and after subtracting period of one year 9 months and 18 days, which was period between the date of incident and date of ossification test, his age comes to 15 years 2 months and 12 days. 4.Learned counsel for the revisionist has submitted that appellate court has committed patent legal error by affirming the order of the J.J. Board, Azamgarh. He has submitted that before the J.J. Board the mother of the accused was examined as C.W.-1 wherein she claimed that the date of birth of her accused son is 3.3.2005 and on the date of incident 25.5.2021,he was aged about 16 years 2 months and 22 days. He studied in Ambedcar Prathmic Vidayalay Bind, Mathiya from class I to class V.He was admitted in school by herself. During her cross examination she stated that her accused son has studied upto class Vth .He cannot read letter and cannot write her and her husband’s name. She had gone to get him admitted in primary school on the basis of his birth certificate but same is not traceable. His certificate of birth was made by Pandit Ram Janam , who has died now. Her elder son is 23 years; second son is aged about 20 years; third son is aged about 18 years; and accused is her fourth son, who is aged about 17 years. Thereafter other children were born to herShe denied that her son has studied upto class Xth. 5.The principal of the Ambedcar Prathmic Vidayalay Bind, Mathiya was produced as C.W.2 before the Board wherein she claimed that she was appointed as Headmistress of the school in the year 2010. At the time of admission , the date of birth of the accused was mentioned 3.3.2005 as informed by his guardian. The accused was admitted in her school after passing class II in class III and he left the school in the same year.His name is recorded in admission register which was duly verified by Block Education Officer on 25.2.2022 .She produced the counter signed register, , transfer certificate and admission register. The manager of the institution was also summoned before the Board and he proved that his college is functioning since 1997 and he is CRLR No. 3951 of 2025 2 manager of the school since then.He stated that no application is taken for issuing transfer certificate and when some one comes and demand the same, same was issued .The counter signed transfer certificate which has been filed does not contains the date of child leaving the school by mistake He admitted that date of leaving school by the accused is wrongly mentioned as 30.6.2016. 6.Learned counsel for the revisionist has submitted that once the evidence regrading the study of the accused in school was produced before the Board and it was disbelieved by the board there was no reason for directing the ossification test of accused .He has submitted that only in the absence of document required as per section 94(2)(i)(ii) of Juvenile Justice (Care and Protection of Children) Act, 2015 ossification test of an accused can be ordered as per sub- section (iii) of the aforesaid Act. In the present case the claim of juvenility made by mother of the accused was not found to be proved. It is settled law that burden of proof of juvenility is always on the accused and section 94 (2) of the Act does not provides that where document regarding studies in school was not found to be reliable, the ossification test report should be ordered. The appellate court has relied upon the judgement of the Apex Court in case of Parag Bhati Vs. State of U.P.(2016) 12 SCC 744 and held where educational certificate are not reliable , the ossification test report of the accused can be considered. This court finds that judgement of the Apex Court in Parag Bhati(supra) was passed considering Juvenile Justice (Care and Protection of Children) Rules 2007, particularly Rule 12 thereof. In the present case the relevance of Rule 2007 was not there and court below was required to proceed as per section 94(2) Juvenile Justice (Care and Protection of Children) Act 2015. In section 94(2) of the Act, it is clearly mentioned that in the absence of certificate from the school or matriculation certificate as per sub-section (i) or date of birth certificate issued by corporation or municipality as per sub- section(ii), medical opinion can be sought from the medical board as per sub-section (iii) 7.In view of above consideration orders of courts below declaring accused below age of 16 years as juvenile are not in accordance with CRLR No. 3951 of 2025 3 law and are hereby set aside. 8.The revision is allowed. September 16, 2025 Atul kr. sri. CRLR No. 3951 of 2025 4 (Siddharth,J.) Digitally signed by :- ATUL KUMAR SRIVASTAVA High Court of Judicature at Allahabad