JUDGMENT Subhash Chandra Sharma, J. Heard Sri. Amit Kumar Dixit, learned counsel for revisionist, Sri. Sanjeev Kumar Saxena, learned counsel for opposite party no. 2 as well as learned A.G.A. and perused the record. 2. The present criminal revision has been preferred by the revisionist through her father under Section 102 of the Juvenile Justice (Care and Protection) Act-2015 (hereinafter referred to as "J.J. Act, 2015) to allow the present revision and set aside the judgment and order dated 24.11.2022 passed by learned Additional Session Judge/Special Judge (POCSO Act), Banda in Criminal Appeal No. 29 of 2022 as well as order dated 28.09.2022 passed by Juvenile Justice Board, Banda in Case Crime No. 161 of 2022 under Sections 376, 504, 506 IPC. and Section 4 Protection of Child From Sexual Offence Act, Police Station Girvan, District Banda. 3. Fact in brief are that the revisionist is victim and rape was committed with her by the opposite party no.2. The accused was declared to be juvenile by the learned J.J. Board vide order dated 28.09.2022 on the basis of academic record from class 1st to class 10th. During the course of inquiry the revisionist/victim filed previous academic record of the opposite party no. 2 from Primary School where his admission was taken in class 1st and his date of birth was different from that of the school record produced by the opposite party no. 2. Learned Board decided the age of the opposite party no. 2 in accordance with the date of birth as mentioned in the academic record produced by him but discarded the date of birth which was shown in the previous academic record of class 1st in the Primary School and also the voter list entry, showing him to be major on the date of occurrence. Being aggrieved with the order passed by learned Board, an appeal was preferred before the learned court of Sessions which was also dismissed vide order dated 24.11.2022 on the ground that the academic record filed by the opposite party no. 2 was not said to be manipulated. 4. It is submitted by learned counsel for the revisionist that the opposite party no. 2 was not said to be manipulated. 4. It is submitted by learned counsel for the revisionist that the opposite party no. 2 first attended Primary School Devrar, Circle Mahua, District Banda on 08.07.2010 where his date of birth was entered as 10.07.2003 in scholar register at Serial No. 1888 and after passing class 1st his admission was made in class 2nd in the same school on 01.07.2011 but without taking school leaving certificate, he took admission in the private school namely, Brahmand Gyan Ashram, Vasi by showing his date admission on the same date i.e. 08.07.2010 in class 1st at Serial No. 1828 of the scholar register of the school. Later on, he took admission in class 6th in Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and then in class 9th in Pt. Jawaharlal Nehru Inter College, Girwa, District Banda from where he passed matriculation. In this way, the date of birth as mentioned in the first attending school was reliable and the age of opposite party no. 2 was to be determined on that basis but the learned Board as well as learned appellate court did not consider this fact and discarded the date of birth as mentioned in first attending school and accepted the date of birth which was entered in the subsequent school by adding two years more i.e. 02.04.2005 which cannot be said to be lawful. Further submitted that request to the learned Board was made that the age of the opposite party no. 2 be determined either on the basis of date of birth entered in first attending school or getting it determined on the basis of ossification test by medical board but this request was also not considered either by the learned Board or the learned appellate court. In this way, the order passed by the learned J.J. Board as well as learned Appellate Court cannot be said to be in conformity with law and material on record, therefore, request to set aside the orders in question and allow the revision and to direct the learned J.J. Board to determine the age of the opposite party on the basis of age as determined by the Medical Board. 5. Learned counsel for opposite party no. 2 as well as learned A.G.A. opposed the prayer as aforesaid and contended that in this case, the opposite party no. 5. Learned counsel for opposite party no. 2 as well as learned A.G.A. opposed the prayer as aforesaid and contended that in this case, the opposite party no. 2 took admission in Brahmand Gyan Ashram, Vasi, District Banda where he completed his studies from class 1st to 5th and then class 6th to 8th . In class 9th he took admission in Pt. Jawaharlal Nehru Inter College, Girwa from where he passed 10th slandered examination. In the record of the schools, his date of birth was recorded as 02.04.2005 which was proved by examining teachers of the concerned school and genuineness of these papers was not disputed by the revisionist either before the learned Board or the appellate court, therefore, the date of birth as mentioned in the academic record from class 1st to 10th cannot be discarded and no recourse to the medical opinion in relation to determination of age of the juvenility be taken as per provisions as contained under Section 94 of the Act. Further contended that the revisionist manipulated birth certificate from Primary School, Devrar where at Serial No. 1888 of the admission register, date of birth of the opposite party no.2 was got entered as 10.07.2003 and his entry in class 1st and 2nd was shown by the teacher of the school concerned. In this way, the learned Board as well as the Appellate Court did not rely on the date as entered in Primary School, Devrar but acted upon the date of birth which was entered into the record from where he passed class 1st to class 8th i.e. Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and subsequent school record related to class 9th and 10th where his date of birth was entered as 02.04.2005. In this way, learned Board as well as learned Appellate Court did not commit any illegality or impropriety in determining the claim of junenility of opposite party no. 2. On the basis of academic record and not seeking the opinion of the medical board regarding determination of his age. The orders passed by learned courts below are sound and based on material on record. There is no any illegality but present revision being devoid of merit is liable to be dismissed. 6. 2. On the basis of academic record and not seeking the opinion of the medical board regarding determination of his age. The orders passed by learned courts below are sound and based on material on record. There is no any illegality but present revision being devoid of merit is liable to be dismissed. 6. Section 94 of the Act provides that: (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. 7. From the language used in Section 94 (2) (iii), it is clear that in absence of (i) and (ii), the age shall be determined by an ossification test or any other medical age determination test conducted on the orders of the Committee or Board. 7. From the language used in Section 94 (2) (iii), it is clear that in absence of (i) and (ii), the age shall be determined by an ossification test or any other medical age determination test conducted on the orders of the Committee or Board. Thus where birth certificates are available as indicated in sub-section (i) and (ii), the medical age determination test cannot be preferred. 8. From the perusal of record, it appears that in this case there are two first attending school, one in which the opposite party no. 2 took admission in class 1st i.e. Brahmand Gyan Asharm and got his date of birth entered as 02.04.2005 and later on, he continued his studies in Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and also in Pt. Jawaharlal Neharu Inter College, Girwa from where he passed his high school examination. In this school he took admission on 08.07.2010 in class 1st as per entry in scholar register and also as per statement made by P.W. 5 Awadh Bihari, Head Master Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda. On the other hand, birth certificate was produced on the part of the revisionist before the learned J.J. Board which was issued by the head master, Primary School, Devrar Circle Mahua, Banda where his date of birth was recorded as 10.07.2003 at Serial No. 1888 of the scholar register and admission was made on 08.07.2010 in class 1st . This entry was proved by the P.W. 6, Head Master of the aforesaid primary school on the basis of record kept in office of the Government Primary School and also certificate of the admission register was filed by the revisionist before the learned J.J. Board during the course of inquiry. 9. On the basis of record, it cannot be said that the entry made in the scholar register of Government Primary School i.e. Primary School, Devrar regarding admission and date of birth was managed or manipulated by the revisionist for contradicting the claim of juvenility as made on the part of the opposite party no. 2 before the learned Board and also Head Master of the aforesaid school deposed before the learned J.J. Board falsely. 2 before the learned Board and also Head Master of the aforesaid school deposed before the learned J.J. Board falsely. There is nothing on record to show that this entry was made subsequently by the head master or any other teacher in the school record and his admission was shown fraudulently to give unfair advantage to the revisionist because entry made by a public servant in the discharge of his official duty in the ordinary course of business cannot be said to be irrelevant in view of Provisions of Section 35 of the Evidence Act unless it is proved otherwise. In this way, the entry regarding date of birth of opposite party no. 2 i.e. 10.07.2003 cannot be said to manipulated and it can also not be said that the admission of opposite party no. 2 was not taken in that school on 08.07.2010 in class 1st and he passed, then his admission was made in class 2nd on 1.7.2011 and he continued his studies in that school. 10. On the other hand, he took admission in Brahmand Gyan Ashram, Vasi Circle Girwa, District Banda in class 1st where his date of birth was entered as 02.04.2005 after completing studies up to class 5th he was admitted in Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda from where he completed his education from class 6th to 8th and then class 9th to 10th from Pt. Jawaharlal Nehru Inter College where his date of birth was entered on the basis of previous academic record i.e. from Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda. The entries regarding admission and date of birth were proved by head master of the school Awadh Bihari as P.W. 5 during the course of inquiry before the learned Board and certified copy of the record were also filed. This entry was also not said to be manipulated or got entered subsequent for giving unfair advantage to the opposite party no. 2. In this way, the entries made in the academic record from the school i.e. Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and Pt. Jawaharlal Neharu Inter College can also not be said to be irrelevant in view of provisions as contained under section 35 of the Evidence Act. 2. In this way, the entries made in the academic record from the school i.e. Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and Pt. Jawaharlal Neharu Inter College can also not be said to be irrelevant in view of provisions as contained under section 35 of the Evidence Act. It is also to note in this regard that admission in Brahmand Gyan Ashram, Vasi Circle Girwa, District Banda was also shown to be taken on 08.07.2010 in class 1 that is the same date on which his admission was shown to be taken in Government Primary School Devarar, Circle Mahua, District Banda 11. It shows that first admission of the opposite party no. 2 was made on 08.07.2010 in Government Primary School Devrar where his date of birth was entered as 10.07.2003 and after passing class 1st examination, he was admitted in class 2nd on 1.07.2011 and then without taking school leaving certificate from aforesaid Government Primary School, he again took admission in Brahmand Gyan Ashram, Vasi Circle Girwa, District Banda in class 1st showing the same date of admission i.e. 08.07.2010 and changing his date of birth from 10.07.2003 to 02.04.2005. Accordingly he continued his subsequent studies in Brahmand Gyan Ashram, Purva Madhyamik Vidhyalaya, Vasi Circle Girwa, District Banda and Pt. Jawaharlal Nehru Inter College, Girwa. It is clear from the above that first attending school of the opposite party no. 2 was Government Primary School Devrar, Circle Mahua but this fact was concealed by him while taking admission in Brahmand Gyan Ashram, Vasi Circle Girwa, District Banda and showing the admission on the same date got the date of birth entered as 02.04.2005. In such a situation this Court is of the considered view that the first attending school of opposite party no. 2 was Government Primary School Devrar where he took admission on 08.07.2010 in class 1st and date of birth was mentioned as 10.07.2003, on the basis of which his age comes on the date of occurrence i.e. 23.06.2022, 19 years, 3 months and 19 days i.e. more than 18 years and he was major. 12. Learned J.J. Board as well as learned Appellate Court did not consider all these facts while deciding the claim of juvenility of the opposite party no. 12. Learned J.J. Board as well as learned Appellate Court did not consider all these facts while deciding the claim of juvenility of the opposite party no. 2 but based its order on subsequent academic record which cannot be said to be based on material on record and in conformity with law, therefore, it warrants interference by this Court. 13. Accordingly, this criminal revision has force and is hereby allowed. The orders passed by learned J.J. Board dated 28.09.2022 and learned Appellate Court dated 24.11.2022 are set aside. 14. Copy of this order be transmitted to the Court concerned for necessary compliance.