The main legal point established in the judgment is the significance of the date of birth recorded in the first attending school for determining the age of a child under the Juvenile Justice Act.

JUDGMENT :

(Subhash Chandra Sharma, J.)

1. Heard Sri Rajeev Kumar learned counsel for the revisionist, Sri Firoz Ahmad Khan learned counsel for the opposite party as well as learned A.G.A. and perused the record.

2. The present criminal revision has been preferred by the revisionist with a prayer to allow this revision and set aside the judgment and order dated 15.04.2023 passed by learned Additional District and Sessions Judge Agra in Criminal Appeal No. 137 of 2022 as well as order dated 20.10.2022 passed by Juvenile Justice Board, Agra in Case Crime No. 58 of 2022 under Sections 363, 366, 376-D, 328 I.P.C. and 3/4 of POCSO Act, Police Station Kheragarh, District Agra by which opposite party No. 2 was declared to be juvenile.

3. It is submitted by learned counsel for the revisionist that this criminal revision has been preferred on the part of complainant/informant against the order passed by the learned J.J. Board as well as Children's Court by which the opposite party has been declared to be juvenile on the basis of date of birth as recorded in matriculation certificate while ignoring the date of birth which was recorded in primary school record that is from Class First to Class Fifth.

4. It is further submitted that the opposite party first studied in Primary School Kukandai, Kheragarh, Agra run by government in Class First and continued his studies up to Class Fifth where his date of birth was got recorded as 17.07.2003 by father of the opposite party then in Class Fifth he discontinued his studies that was the reason his name was discontinued from the record but no any transfer certificate was obtained by him from that school and he came in some other school that is Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra and took admission in Class Third at the instance of his uncle Kedar Singh and continued his further studies up to Class Tenth where his date of birth was recorded as 17.09.2006 while concealing the date of birth and the previous education record in aforesaid primary school. No any other proof of date of birth was provided by the opposite party to the subsequent school. In this way he changed his date of birth and after adding three years in his age he got the date of birth registered as 17.09.2006 on the place of 17.07.2003. Before the learned J.J. Board both the records were produced and this fact was brought on record on the part of the revisionist and the documents were also proved by C.W. 3 the Head Master of Primary School Kukandai, Kheragarh, Agra Sri Jag Mohan Singh and certified copy of S.R. Register was also filed. C.W. 4 Keshav Dev Saraswat, Head Master of Shanti Devi Saraswati Shishu Mandir Kheragarh, Agra was also examined and he also filed copy of S.R. Register showing the date of birth as 17.09.2006 and also the admission form which was signed by the uncle of the opposite party and also stated before the learned Board that no proof of date of birth of opposite party was provided to him by either the opposite party or his uncle and his admission was taken in Class Third on the basis of test. This fact was not disclosed by the revisionist before the subsequent school that he already studied in Primary School Kukandai, Kheragarh, Agra. In this way he made addition in his date of birth by concealing the previous record and passed matriculation. All these facts were also on record but not taken into consideration by the learned J.J. Board while passing the order but on the basis of date of birth as recorded in matriculation certificate he held him to be juvenile whereas on the basis of previous academic record he was major. This fact was also not considered by the learned appellate court but appeal was dismissed which cannot be said to be lawful and based on material on record, therefore request to set aside the orders passed by the learned Board as well as learned appellate court and to allow the appeal.

5. Sri Firoz Ahmad Khan learned counsel for the opposite party as well as learned A.G.A. oppos