The burden of proving the age of a child as required by the Child Labour (Prohibition and Regulation) Act, 1986 rests with the prosecution, and the accused cannot be compelled to fill up the lacuna of the prosecution.

As per Hon'ble Shri U.S. Tripathi, J. :

1. This revision has been directed against the judgment and order dated 16-11-2000 passed by Additional Sessions Judge, Varanasi, Court No. 14 in Criminal Appeal No. 297 of 2000 dismissing the appeal and confirming the conviction of the applicant under Section 14(1) of Child Labour (prohibition and Regulation) Act, 1986 and sentence of three months R.I. recorded by Nth Additional Chief Judicial Magistrate, Varanasi in Criminal Case No. 722 of2000, vide order dated 16-11-2000.

2. The prosecution story, briefly stated, was that on 26-3-1995 at about 4.45 A.M. Sri O.P. Gupta, Labour Enforcement Officer, Varanasi, along with Sri S.K. Srivastava inspected the Carpet loom of applicant situated at Dhaurpur, P.S. Rohania, district Varanasi and found that a boy named Chaturi S/o Bachau aged about 11 years was working at the said establishment. The Enforcement Officer prepared spot note and filed complaint against the applicant for the offence punishable under Section 14(1), of Child Labour (Prohibition and Regulation) Act, 1986, hereinafter called the Act. During trial the prosecution examined Hira Lal Sharma (P.W.1), S.K. Srivastava (P.W.2) and Sri O.P. Gupta (P.W.3). The applicant examined Shiv Nath (D.W.1), Bachau(D.W.2) and Chaturi (D.W.3) and also filed extract of kutumb register, pass book of U.P. Electricity Board and age certificate of the child. Learned Magistrate on considering the evidence of the parties held that applicant had employed Chaturi a boy aged about 11 years and had committed an offence punishable under Section 14(1) of the Act.

3. With these findings he convicted him in said section and sentenced to undergo R.I. for a period of three months.

4. Aggrieved with his above conviction and sentence, the applicant "filed Criminal Appeal No. 297 of 2000. The Appellate Court concurred with the findings of the trial Court, dismissed the appeal and confirmed the conviction and sentence of the applicant under said section.

5. The above order has been challenged in this revision.

6. Heard the learned counsel for the applicant and the learned A.G.A. and perused the record.

7. The first point raised by learned counsel for the applicant was that it was not proved that applicant was running a power loom. But on this point there is specific finding of the Magistrate as well as the Appellate Court that when the Enforcement Officer inspected the power loom of the applicant, he found it in operation. Both the Courts have also discussed the certificate given by Pardhan and the Block Development Officer and have recorded a finding of fact that the applicant was running a power loom as such there is no ground to interfere with the above finding of fact in this revision.

8. The next point raised by learned counsel for the applicant was that there was no evidence that Chaturi Prajapati, who was allegedly found working on the power loom was a child as defined in the Act.

9. Section 14 (1) of the Act, which provides penalty for taking work from child says that whoever employs any child or permits any child to work in contravention of the provisions of Section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees, but which may extend to twenty thousand rupees "or with both.

"Child" as defined in Section 2(ii) means a person, who has not completed his 14 years of age.

10. In this case, the case of the prosecution was that Chaturi, who was found working at the establishment of the applicant was aged about 11 years Contrary to it, the applicant contended that age of Chaturi was about 18 years.

He had also filed certain documents regarding his age, such as extract of kutumb register attested by Pardhan of the village as well as medical certificate based on extract of kutumb register and certificate of the Pradhan. The learned Magistrate has observed that the medical certifica