JUDGMENT : (Suresh Kumar Gupta, J.) 1. On 11.5.2023, following order was passed by this Court: "1. Heard learned counsel for the parties. 2. This criminal revision U/s 102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 has been against the order dated 31.7.2019 passed by the Special Judge (POCSO Act)/8th Additional District & Sessions Judge, Bahraich in Criminal Appeal No. 08/2019, U/s 101 of the Juvenile Justice (Care & Protection of Children) Act, 2015, Police Station-Dargah Sareef, District-Bahraich whereby the appeal filed by the respondent no.2 has been allowed and order dated 6.3.2019 passed by Juvenile Justice Board has been quashed in case no. 70/12/2018 vide case crime no. 48/2018, U/s 363,366,376,328,506,120B IPC and Section 3/4 of the Protection of Children from Sexual Offence Act, Police Station-Dargah Sareef, District- Bahraich. 3. Learned counsel for the revisionist submitted that the revisionist conflict with law is juvenile. In this matter, the alleged date of mentioned in the FIR as 26.2.2018. The Juvenile Justice Board arrived at a conclusion that as per the educational certificate of Class V marks sheet, scholar register and transfer certificate form, the date of birth of the revisionist is 6.3.2003. Thus the age of the revisionist on the alleged date of incident was 14 years 11 months and 20 days. 4. It is further submitted that the Juvenile Justice Board during inquiry CW-1 Amita Rana who is the sister of the revisionist was examined and CW-2 Sushila Rani who is the Head Master of Nehru Shishu Mandir Vidyalaya Gulam Alipura, Bahraich and she clearly stated that on the basis of scholar register the date of birth of the revisionist is 6.3.2003. 5. Learned counsel for the revisionist further submitted that on behalf of the first informant, PW-1 Laxman Prasad Gupta was examined who clearly stated that as per scholar register date of birth of the revisionist was mentioned as 16.7.2000. He further stated that this student has got admission in class III. At the time of admission, the father of the revisionist furnished the T.C. of Gaytri Shishu Mandir, Bahraich. On the basis of said T.C., date of birth of the revisionist was registered in the scholar register of Class IV passed by the student in his school. 6. He further stated that this student has got admission in class III. At the time of admission, the father of the revisionist furnished the T.C. of Gaytri Shishu Mandir, Bahraich. On the basis of said T.C., date of birth of the revisionist was registered in the scholar register of Class IV passed by the student in his school. 6. On perusal of the judgement of the trial court as well as the revisional court, it reveals that PW-2 Usha Patak, Principal of Gaytri Shishu Mandir, Bahraich was also examined before the Juvenile Justice Board, but the statement of PW-2 Usha Patahk has not been annexed by the revisionist's counsel. However, the conclusion of the trial court as well as revisional court is totally based on the statement of PW-2 Usha Pathak but the same is not annexed with this file. Therefore, without the statement of PW-2 Usha Pathak, the instant revision could not be decided. During course of dictation, this fact came into light. 7. Since for just decision of the case, statement of PW-2 Usha Pathak is inevitable, consequently, the learned counsel for the revisionist is directed to file statement of PW-2 Usha Pathak. 8. List on 16.5.2023 for further hearing." 2. In pursuance of earlier order dated 11.5.2023, the learned counsel for the revisionist filed the statement of the PW-2 Usha Pathak by way of supplementary affidavit which is taken on record. 3. In the statement of PW-2, Usha Pathak who is the Principal of the Gaytri Shishu Mandir, Bahraich, she clearly stated that Aman Gautam (revisionist) is never the student of her school. In her cross examination, she clearly stated that although there are two branches of the school. Another branch is looked after by the Assistant Principal. She further stated that the S.R. register of both the branches is same but attendance register is separate. She further stated that all the documents are kept in main branch. 4. On the basis of above statement of PW-2, Usha Pathak, the learned counsel for the revisionist submitted that learned Juvenile Justice Board has rightly arrived at a conclusion that the revisionist conflict with law is never the student of Gaytri Shishu Mandir. So, the statement of PW-1, Laxman Prasad Gupta is factually incorrect and thus, the revisionist is never the student of his school. 5. So, the statement of PW-1, Laxman Prasad Gupta is factually incorrect and thus, the revisionist is never the student of his school. 5. The main grievance of the learned counsel for the revisionist is that the appellate court quashed the order passed by the trial court on 6.3.2019 and arrived at a conclusion that since the birth certificate of the revisionist was issued on 4.7.2018 i.e. after 15 years of birth. So the appellate court doubted the date of birth of the revisionist i.e. 6.3.2003 and on this basis, the learned appellate court arrived at a conclusion that date of birth which is fixed by the Juvenile Justice Board is doubtful. The appellate court directed to get medical examination of the revisionist and determining the age by way of radiological age as per provision of section 94 of the Juvenile Justice (Care & Protection of Children) Act, 2015 (hereinafter referred to as "the Act"). 6. In support of his submissions, the learned counsel for the revisionist has relied on the judgement of the Apex Court in the case of Ashwani Kumar Saxena vs. State of Madhya Pradesh (2012) 9 SCC 750 . The relevant paragraphs of which are being reproduced hereunder: "34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination. 35. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination. 35. We have come across several cases in which the trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted. 43. We are of the view that admission register in the school in which the candidate first attended is a relevant piece of evidence of the date of birth. The reasoning that the parents could have entered a wrong date of birth in the admission register hence not a correct date of birth is equal to thinking that parents would do so in anticipation that child would commit a crime in future and, in that situation, they could successfully raise a claim of juvenility." 7. I have heard Shri Rakesh Kumar Tripathi, learned counsel for the revisionist, learned AGA for the State and perused the record. 8. Section 94 of the Act reads as under: "94. Presumption and determination of age.-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining— (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person." 9. Considering the entire facts and circumstances of the case and the law laid down by the apex court, I am of the view that the learned appellate court arrived at a conclusion that there is dispute in regard to date of birth of the revisionist. The conclusion of the Juvenile Justice Board is based on the family register which is annexed as Annexure-4 as well as the statement of PW-2 Usha Pathak in which she clearly denied stating that the revisionist never got admission in Gaytri Shishu Mandir. The statement of PW-1 Laxman Prasad Gupta is totally based on the basis of the T.C. of Gaytri Shishu Mandir, but this fact is established that the revisionist never studied in the Gaytri Shishu Mandir School. So the findings arrived by the learned appellate court that there is dispute in respect of date of birth of the revisionist. In the statement of CW-1 and CW-2 Sushila Rani, Head Master of Nehru Shishu Mandir Gulam Alipura, Bahraich, it is clearly established that the date of birth of the revisionist is 6.3.2003. Submission of the CW-1 and CW-2 is also supported with family register in which date of birth of the revisionist is mentioned as 6.3.2003. 10. In the statement of CW-1 and CW-2 Sushila Rani, Head Master of Nehru Shishu Mandir Gulam Alipura, Bahraich, it is clearly established that the date of birth of the revisionist is 6.3.2003. Submission of the CW-1 and CW-2 is also supported with family register in which date of birth of the revisionist is mentioned as 6.3.2003. 10. Though no any mechanism developed to determine the radiological age of the juvenile at this stage. The juvenility as per radiological age is determinable only when the revisionist at the verge of majority. As per birth certificate and family register of the revisionist and statement of CW-1 and CW-2, presently revisionist conflict with law has already attained the majority i.e aged about 1920 years. The radiological age could be determined on the basis of fusion of epiphysis generally which is started from age of 16 years and almost completed in age of 18 years. Further, if the finding of the appellate court is accepted as true, when any conflict arises regarding the age of the juvenile or child and on the basis of oral statement it could not be possible to determine the correct date of birth and age of the juvenile, then the medical opinion will be sought from the duly constituted medical board which will declare the age of the juvenile or child. In this case, the appellate court categorically arrived at a conclusion that there is conflict in the date of birth of the revisionist and directed the revisionist for readiological age. 11. Now the moot question arises in this matter whether after attaining majority the exact age could be determined or not. In this context, the Apex Court in the case of Mukarrab Etc vs State Of U.P [decided on 30 November, 2016 in Criminal Appeal Nos. 1119-1120 of 2016], has held as under: "17. As already noted, by an order dated 18.02.2016, this Court had directed the concerned District and Sessions Judge to conduct an inquiry and submit a report as to the age of the appellants (Mukarrab and Arshad). As per the report submitted by the VIIIth Additional District and Sessions Judge, Moradabad both the appellants (Mukarrab and Arshad) were major on the date of the incident. As per the report submitted by the VIIIth Additional District and Sessions Judge, Moradabad both the appellants (Mukarrab and Arshad) were major on the date of the incident. After perusing the report of the District Judge, by order dated 06.04.2016, this Court has directed medical examination of the appellants (Mukarrab and Arshad) to be conducted by a duly constituted Medical Board of the AIIMS, New Delhi. Accordingly, the doctors of AIIMS have examined the appellants (Mukarrab and Arshad) and given their opinion as under:- “Alleged history in Brief: On perusal of the documents submitted to AIIMS, it was revealed that the year of commission of crime was 1994 i.e. 22 years before today i.e. 02.05.2016. The said accused Mukarrab alleged his date of birth to be 1st July, 1978. The said accused Arshad has submitted the documentary proof of his age stating date of Birth as 5th February, 1979. Examination Proceedings: Both the accused were examined after taking due informed consent along with signature and left thumb impression. ..... Their physical, dental and radiological examinations were carried out. X- ray examination of Skull (AP and lateral view), Sternum (AP and lateral view) and Sacrum (lateral view) were advised and performed. There was no indication for Dental X-rays since both accused were much beyond 25 years of age in any case. Physical and Dental Examination: In both cases, general physical examination findings are consistent with findings of normal adult male. Dental examination shows presence of complete 8 sets of permanent teeth in all 4 quadrants. Report of Radiological Examination- Mukarrab Medical end of clavicle fused-age>more than 22 years Xiphoid process not fused with sternal body-age<40 years Manubrium not fused with sternal body-age<50 years Complete fusion of sacral bodies-age>32 years Saggital suture obliterated in posterior 1/3rd and coronal suture obliterated in lower ½-age<40 years. Arshad Medical end of clavicle fused-age>more than 22 years Xiphoid process not fused with sternal body-age<40 years Manubrium not fused with sternal body-age<50 years Complete fusion of sacral bodies-age>32 years Saggital suture obliterated in posterior 1/3rd and coronal suture intact- age<40 years. Opinion: Both accused have been brought for examination at AIIMS on 02.05.2016, 22 years after the alleged date of incidence. After going through the various findings of physical, dental and radiological examinations; medical board is of considered opinion that the age of accused viz. Mukarrab s/o Mr. Opinion: Both accused have been brought for examination at AIIMS on 02.05.2016, 22 years after the alleged date of incidence. After going through the various findings of physical, dental and radiological examinations; medical board is of considered opinion that the age of accused viz. Mukarrab s/o Mr. Mulla Zafar as well as Arshad s/o Rashid is between 35-40 years on the date of examination i.e. 02.05.2016. 18. The question falling for consideration is whether the opinion of the Medical Board of AIIMS determining the age of the appellants between 3540 years, can be accepted or not. 19. Learned Senior Counsel for the appellants contended that the general rule about age determination is that the age determined by the Medical Board vary plus or minus two years but the Medical Board in this case had fixed the age of the appellants at 35-40 years and going by the general rule, the age of the appellants is to be estimated as 38 years on the date of medical examination and giving additional benefit of one year in lowering the age in terms of Rule 12(3)(b), age of the appellants is to be determined as 37 years as on the date of medical examination on 02.05.2016. It was, therefore, submitted that taking the age of the appellants as 37 years as on 02.05.2016 which means that at the time of commission of the offence in 1994, the appellants would have been only aged about 15 years and, therefore, the benefit of Juvenile Justice Act to be extended to the appellants. Contending that the benefit of benevolent provisions of Juvenile Justice Act and the Rules must be extended to the appellants herein, learned Senior Counsel for the appellant relied upon Darga Ram alias Gunga v. State of Rajasthan (2015) 2 SCC 775 wherein it has been held as under:- “16. The medical opinion given by the duly constituted Board comprising Professors of Anatomy, Radio diagnosis and Forensic Medicine has determined his age to be “about” 33 years on the date of the examination. The Board has not been able to give the exact age of the appellant on medical examination, no matter the advances made in that field. The medical opinion given by the duly constituted Board comprising Professors of Anatomy, Radio diagnosis and Forensic Medicine has determined his age to be “about” 33 years on the date of the examination. The Board has not been able to give the exact age of the appellant on medical examination, no matter the advances made in that field. That being so, in terms of Rule 12(3)(b) the appellant may even be entitled to the benefit of fixing his age on the lower side within a margin of one year in case the Court considers it necessary to do so in the facts and circumstances of the case. The need for any such statutory concession may not however arise because even if the estimated age as determined by the Medical Board is taken as the correct/true age of the appellant he was just about 17 years and 2 months old on the date of the occurrence and thus a juvenile within the meaning of that expression as used in the Act aforementioned. Having said that we cannot help observing that we have not felt very comfortable with the Medical Board estimating the age of the appellant in a range of 30 to 36 years as on the date of the medical examination. 17. The general rule about age determination is that the age as determined can vary plus minus two years but the Board has in the case at hand spread over a period of six years and taken a mean to fix the age of the appellant at 33 years. We are not sure whether that is the correct way of estimating the age of the appellant. What reassures us about the estimate of age is the fact that the same is determined by a Medical Board comprising Professors of Anatomy, Radiodiagnosis and Forensic Medicine whose opinion must get the respect it deserves. That apart, even if the age of the appellant was determined by the upper extremity limit i.e. 36 years the same would have been subject to variation of plus minus 2 years meaning thereby that he could as well be 34 years on the date of the examination. That apart, even if the age of the appellant was determined by the upper extremity limit i.e. 36 years the same would have been subject to variation of plus minus 2 years meaning thereby that he could as well be 34 years on the date of the examination. Taking his age as 34 years on the date of the examination he would have been 18 years, 2 months and 7 days on the date of the occurrence but such an estimate would be only an estimate and the appellant may be entitled to additional benefit of one year in terms of lowering his age by one year in terms of Rule 12(3) (b) (supra) which would then bring him to be 17 years and 2 months old, therefore, a juvenile.” 22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties. The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence. 27. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue.” [Emphasis added] From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences." 12. Since in this matter the proper inquiry has been done by the Juvenile Justice Board and the Juvenile Justice Board has rightly concluded that the date of birth of the revisionist is 6.3.2003. Since in this matter the proper inquiry has been done by the Juvenile Justice Board and the Juvenile Justice Board has rightly concluded that the date of birth of the revisionist is 6.3.2003. Presently as per conclusion of the Juvenile Justice Board, age of the revisionist is more than 20 years. If the statement of PW-1 is accepted as true, then the age of the revisionist is 23 years. 13. Keeping in view the above ruling of the Apex Court in Mukarrab Etc (supra) that when the revisionist has attained majority, then at this stage exact age could not be determined. So the learned Juvenile Justice Board determined the age considering the material facts and circumstances. Even at this stage, the medical board could not determine the exact age of the revisionist conflict with law. So in this matter, there is no reason to disbelieve the conclusion arrived by the Juvenile Justice Board. Thus, the conclusion arrived by the appellate court is erroneous. 14. Consequently, the present revision is hereby allowed and the impugned order dated 31.7.2019 passed by the appellate court is hereby set aside.