Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Sri Atul Kumar Shahi, learned counsel for the revisionist and Sri L.D. Rajbhr, learned A.G.A. for the State. 2. This criminal revision has been filed with a prayer to quash the order dated 06.09.2023 passed by Special Judge, POCSO Act in Criminal Appeal No. 8 of 2023 arising out of case crime no. 183 of 2021 under sections 363, 366 and 376(3) I.P.C. and 3/4(2) of POCSO Act, P.S. Bewar, District- Mainpuri, whereby the order passed by J.J. Board dated

13.01.2023, by which accused was declared a juvenile, has been set aside and appeal has been allowed.

3. The relevant facts are as below:

In the enquiry no. 34 of 2021 conducted for determination of age by the J.J. Board in crime no.183 of 2021, under sections 363, 366 and 376(3) I.P.C. and under section 3/4(2) of POCSO Act, on behalf of the accused, oral and documentary evidence was produced. The J.J. Board did not rely upon the statement given by father of the juvenile and also did not rely on the certificate as regard date of birth showing name of Kuldeep Kumar son of Harish Chandra, issued by Subedar Pandey Inter College, Pandey Nagar Kusumra, District Mainpuri. The J.J. Board instead relied upon the medical examination done by a panel of doctors constituted by C.M.O.

Farrukhabad. It may be noted that the accused was medically examined on 30.09.2022 and as per doctors' opinion, he was between 20 to 21 years of age. The learned J.J. Board calculated the age of juvenile, taking him as minimum 20 years on the date of medical examination and therefore, 18 years 6 months and 9 days on the date of incident (i.e on 09.04.2021).

The J.J. Board took a view that the age can be considered on the lower side by giving a margin of maximum one year therefore, declared him as 17 years 6 months and 9 days on the date of incident.

4. This may be noted that the said order by the J.J. Board was passed after the matter of age determination was remanded for adjudication afresh, by the appellate court to the J.J. Board. Notably the J.J. Board had passed a fresh order in compliance of earlier direction by the appellate court in Criminal Appeal No. 5 of 2023. The freshly passed order dated 13.01.2023 declaring him about 17 and half years, was challenged in Criminal Appeal No. 8 of 2023 and appeal stood allowed. Now, the revisionist is before this Court, challenging the order dated 06.09.2023, passed in appeal.

5. The contentions of the revisionist in nutshell are that the appellate court did not consider that his date of birth was recorded as 15.05.2006 in the certificate issued by Subedar Pandey Inter College. The appellate court committed gross illegality in not considering the aforesaid document.

Further that medical age was found 20-21 years and as per settled law, a variation of two years is possible on both the sides. Therefore the benefit ought to have been given to the accused by lowering the same by a margin of two years and not by margin of one year. Hence, he was about 17 years even by medical standards. The appellate court has ignored provisions of law and has passed an order which is illegal and improper.

6. Learned A.G.A. has vehemently opposed the contentions drawing the attention of this Court towards oral and documentary evidence in which date of birth of the revisionist has been mentioned as 05.07.2000.

7. I heard both the sides and perused the material on record. On behalf of juvenile, a High School certificate has been produced, which showed name of Juvenile ‘X’ son of Harish Chandra and Surajmukhi Devi and date of birth as 15.05.2006 . This paper was admittedly produced before the appellate court for the first time. Another certificate dated 19.05.2021, issued by the Principal, Subedar Pandey Inter College, has been produced which mentioned his date of birth as 15.05.2006. Admittedly this certificate bears a date of issue as 19.052021 and it said that ‘X’ s/o Harish Chandra took admissio