Point of Law: Section 102 of Indian Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability depends on existence of facts which he asserts, must prove that those facts exist. Thus, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Thus, the burden of proof would ordinarily be on the party who asserts the affirmative of the issue.

JUDGMENT :

KARUNESH SINGH PAWAR, J.

1. These two revisions arise out of same crime number and the offences in which both the private respondents have been implicated are the same, they are taken up together and are being decided by the present common order.

2. Both the Criminal Revisions have been preferred challenging orders dated 29.7.2020 passed by Juvenile Justice Board, Gonda in Misc. Case No. 15 of 2020 State versus Uday Pratap Singh and others and the judgment and order dated 21.11.2020 passed by Addl. Sessions Judge/Special Judge, POCSO Act, Gonda in Criminal Appeal Nos. 29 Ajay Kumar Singh vs. State of U.P. and Pushpendra Singh and 30 of 2020 Ajay Kumar Singh alias Babloo Singh vs. State and Uday Pratap Singh, arising out of Case Crime No. 66 of 2020, under sections 147, 148, 149, 307, 302, 504, 506 I.P.C. and 7 Criminal Law Amendment Act, P.S. Umari Begum Ganj, district Gonda.

3. By orders dated 29.7.2020 (supra), the Juvenile Justice Board has declared both the private respondents, i.e. Uday Pratap Singh and Pushpendra Singh as juvenile on the basis of High School Mark Sheet and by appellate order dated 21.11.2020, learned Addl. Sessions Judge/Special Judge, POCSO Act, Gonda while upholding the order dated 29.7.2020 has dismissed the appeal preferred by the informant/revisionist Ajay Kumar Singh alias Babloo Singh.

4. Heard learned counsel for the revisionist as well as learned counsel appearing for private respondents and learned Addl. Government Advocate for the State.

5. The private respondents, i.e. respondent No. 2 in both the criminal revisions moved an application for declarating them juvenile. The said applications were decided on the basis of evidence adduced by the private respondents by the Juvenile Justice Board vide order under challenge. The date of birth of Pushpendra Singh in High School mark sheet has been mentioned as 10.7.2002. The incident took place on 3.4.2020. On the basis of this date of birth as recorded in the High School mark sheet, it has been held by Juvenile Justice Board that Pushpendra Singh was 17 years 8 months and 24 days on the date of incident and thus, he has been declared as juvenile.

The date of birth of other accused/respondent No. 2 Uday Pratap Singh as recorded in the High School Mark Sheet is 5.7.2002 and on the date of incident, he has been declared as juvenile being his age as 17 years 8 months and 29 days. For determination of age, the learned court below has also considered the evidence given by CW-1 mothers of private respondents and CW-2 Maan Singh, Incharge Principal of Shri Parashar Rishi Uchchtar Madhyamik Vidyalaya, Paras Gonda and other educational certificates. As said above, the appeals preferred against the order passed by the Juvenile Justice Board have been rejected.

6. Learned counsel for the revisionist submits that on the date of incident, i.e. on 3.4.2020, the respondents No. 2 were major. The real grandfather of Pushpendra Singh was Head Master in Primary School and he has got recorded the date of birth of Pushpendra Singh. He received initial education from Primary to Tenth class in Raghukul Vidya Peeth, Gonda and since he was not successful in Tenth Class, hence he took his admission in Parashar Rishi High School, Paras Patti and cleared the High School examination in 2018. It is submitted by learned counsel for the revisionist that although he has submitted before the Board to summon the transfer certificate from the Primary School, however, the Board did not accede the prayer made by the revisionist.

Learned counsel for the revisionist further submits that both the Courts below also did not consider the objection raised by the revisionist that the both the accused/respondents No. 2 are major. To substantiate his argument, the revisionist’s counsel has submitted before the Courts below that it is necessary that the private respondents be sent to undergo medical examination to be conducted by Medical Board so as to assess their correct age. However, during th