JUDGMENT :

1. Heard Sri Upendra Upadhyay, learned counsel for the revisionist and Sri O.P. Mishra, learned AGA for the State of U.P. None responds for the respondent no. 2.

2. This criminal revision has been filed under Section 102 of the Juvenile Justice Act, 2015 challenging the order dated 10.02.2022 passed by the Sessions Judge, Etah in Criminal Appeal No. 44/2021 setting aside the order dated 29.09.2021 passed by the Juvenile Justice Board, Etah in Case No. 48 of 2020 by which the revisionist was declared juvenile. The appellate Court allowed the appeal and declared the accused a major.

3. Relevant facts leading to this criminal revision, are as below.

A FIR Case Crime No. 172 of 2020 under Sections 376D, 302, 506, 452 IPC was registered under Police Station Jalesar, District-Etah with the allegations that the complainant's daughter was raped by one Anil and the juvenile; his son aged about 11 years, who was witness to the occurrence was murdered by them by strangulation and the victim was also threatened not to tell anything about the incident. Finding accused a juvenile, the matter came before the Juvenile Justice Board, where age determination inquiry was conducted and he was declared aged 17 years 1 month and 22 days on the date of the incident by an order dated 29.09.2021. Challenging the above order of the Juvenile Justice Board, an Appeal No. 44 of 2021 was preferred by the informant. The learned appellate Court declared the juvenile a major and set aside the order of the Juvenile Justice Board. At the same time, it was ordered that the case of the juvenile shall be sent to the Special Judge, POCSO Act for disposal in accordance with law. The order of the appellate Court has been challenged on behalf of the revisionist through his natural guardian before this Court.

4. It is contended on behalf of the revisionist that the date of birth as mentioned in the high school certificate should have been given preference over other evidence instead the appellate Court relied on primary school record. And that the impugned order has been passed against the settled principles of law and against the provisions of Section 94 of the Juvenile Justice Act and therefore, the impugned order is not sustainable in law.

5. Before the Juvenile Justice Board, the father of the juvenile as CW1and an official from SMS Jain Inter College, Hathras as CW2 and Headmaster of primary school, Bhyau as CW3 were examined. It may be noticed that the Juvenile Justice Board before proceeding to decide his age, passed an order dated 06.07.2021 for constitution of a Medical Board for medical examination of the juvenile in the background of divergence in his age in educational documents. The Juvenile Justice Board noticed that in the high school certificate, his date of birth was shown as 15.03.2003 making him aged about 17 years 1 month and 22 days on the date of occurrence and the medical examination, which was conducted after a gap of one year, did show him between 18-19 years. Reconciling both the things, the Juvenile Justice Board concluded that his age was about 17 years 1 month and 22 days on the date of occurrence.

6. I went through the impugned order passed in Criminal Appeal whereby the order of the Juvenile Justice Board was set aside and the accused was held to be a major. The learned appellate Court referred to the statement of juvenile's father wherein he stated as CW1, that his son, first studied from Class 1st to 5th in a primary school at Bhyau and from Class 6th to 10th in Shri Mahveer Swami, Jain Inter College, Jalesar. The appellate Court referred to the oral evidence of CW2, an official from the S.M.S. Jain Inter College who mentioned that the juvenile studied in his institution from Class 7th to Class 12th. Contrary to what, CW1 said , he never said that the juvenile took admission in Class 6th. He further stated that a transfer and conduct certificate of G.S. Primary School, Jalesar was produced and that no document pertaining to his prim