DINESH KUMAR SINGH-I,J. - (1.) Heard Sri Surya Pratap Singh Parmar, learned counsel for opposite party no. 2 and Sri G. P. Singh, learned A.G.A. for the State. None has appeared from the side of revisionist.
(2.) This criminal revision has been filed with a prayer to set aside the order dated 16.05.2019 passed by the court of A.S.J. Court No. 1/Special Judge P.O.C.S.O. Act, Bhadohi at Gyanpur in Juvenile Appeal No. 07/2019 (Nitesh Singh Vs. State), under Section 363 , 366 , 376 I.P.C. and under Section 3/4 P.O.C.S.O. Act, P.S. Koirana, District Bhadohi.
(3.) This criminal revision has been preferred by the victim through her mother against the judgment and order of the appellate court dated 16.05.2019, the appeal has been allowed and the order passed by the Juvenile Justice Board has been set aside and the revisionist has been declared to be juvenile in conflict with law. The Juvenile Justice Board on the other hand by the order dated 26.04.2019 had rejected the application of the revisionist seeking to be declared a juvenile on the basis of the medical examination report dated 18.03.2019 and had held age of the revisionist to be 19 years. The ground taken in the revision is that there were variations in the statements given by CW1, father of the revisionist and CW2 Principal of the Indraprasth Children School, who had not filed the application for admission in the Class-1 on 01.08.2009 and therefore, it was not justified to rely upon the statements of these witnesses and to ignore the age determined by the medical board which had given opinion that the opposite party no. 2/accused stood 19 years of age. Further, it is submitted in the grounds of revision that entry of the date of birth 15.04.2004 recorded in the Transfer Certificate was not admissible under Section 35 of Indian Evidence Act unless the same has been got proved. The Appellate Court has failed to appreciate the provision under Section 94 of the Juvenile Justice (Care and Protection of Children), Act and has erroneously relied upon the oral testimony of the CW1 and CW2, without summoning the application for admission in Class-1 and examining the person and source of fixation of the date of birth as 15.04.2004 and has given wrong finding about the age of the accused/opposite party no. 2 which is against the provisions of law and which needs to be set aside. The accused has committed serious offence under Sections 363 , 366 and 376 I.P.C. and 3/4 of P.O.C.S.O. Act, hence, the impugned order of the Appellate Court should be set-aside.;