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CASE NO.:

Appeal (crl.) 362 of 1999

PETITIONER:

Ravinder Singh Gorkhi

RESPONDENT:

State of U.P.

DATE OF JUDGMENT: 12/05/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

S.B. SINHA, J :

Whether a school leaving certificate purported to have been issued by

the authorities of a primary school would attract the provision of Section 35

of the Indian Evidence Act, 1872 is in question in this appeal which arises

out of a judgment and order dated 23.09.1997 passed by the High Court of

Allahabad in Criminal Appeal No.3368 of whereby and whereunder the

appeal preferred by the appellant from an order dated 29.11.1979 passed by

the Additional Sessions Judge, Bulandshahr in Sessions Trial No. 293 of

1979 was dismissed.

The appellant herein was said to have been born on 01.06.1963. He

was involved in a criminal case relating to the murder of one Chhattrapal

which took place on 15.05.1979. The allegation against the appellant was

that he along with his father Surendra, Satish Chandra, Narendra and Ramji

Lal attacked him with a country-made pistol and knife. The appellant is said

to have been armed with a country-made pistol.

The said deceased while traveling on a cycle was fired at, whereupon

he threw his cycle on the road and rushed towards the shop of one

Chhitariya and entered therein to save his life. The accused persons chased

him, entered into the said shop and killed him by firing from the country-

made pistols and knife. At the trial all the accused persons were convicted of

commission of the said offence and were sentenced to undergo rigorous

imprisonment for life. An appeal preferred by the accused persons including

the appellant herein was dismissed by the High Court by reason of the

impugned judgment.

Before the trial judge in his statement under Section 313 of the Code

of Criminal Procedure a purported statement was made by the appellant

herein that he was aged 16 years whereas the court assessed his age to be 18

years. He indisputably did not claim any benefit of the provisions of the

Uttar Pradesh Children Act, 1951 (for short, 'the Act'), which was

applicable in the case.

Before this Court for the first time, a contention was raised that as the

appellant was a minor on the date of commission of the offence, he was

entitled to the benefit thereof in terms of the provision of Section 2 (4) of the

Act. Whereas special leave petition filed by the other accused persons was

dismissed, notice was directed to be issued in the special leave petition filed

by the appellant herein. On the aforementioned question, parties exchanged

their affidavits. A Division Bench of this Court by an order dated

11.12.1998 through it appropriate to refer the question in regard to his age to

the Sessions Judge, Bulandshahr before whom the parties were directed to

appear on 04.01.1999 to lead both oral and documentary evidences. The

learned Sessions Judge was asked to return his findings to this Court.

The learned Sessions Judge, Bulandshahr pursuant to or in furtherance

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of the said direction allowed the parties to adduce evidence. Relying upon

or on the basis of the school leaving certificate wherein the date of birth of

the appellant was recorded to be 01.06.1963, he was held to be a minor on

the date of occurrence i.e. 15.05.1979. The appellant in his statement

recorded on 26.09.1979 disclosed his age to be 16 years; but the learned

Sessions Judge opined that he appeared to be 18 years of age.

The learned Sessions Judge, however, did not rely upon the other

evidences produced on behalf of the appellant, namely, horoscope and

extract of 'Parivar Register'. He further did not put any reliance on the

testimony of the mother of the appellant.

Mr. P.S. Mishra, the learned Senior Counsel appearing on behalf of

the appellant, submitted that in view of the findings arrived at by the learned

Sessions Judge, Bulandshahr, the appellant was entitled to the benefit of the

provisions of the Act and in that view of the matter no sentence of life

imprisonment could have been imposed upon him.

The Uttar Pradesh Children Act, 1951 was enacted to provide for the

custody, protection, treatment and rehabilitation of children and for the

custody, trial, punishment of youthful offenders, and for the amendment of

the Reformatory Schools Act. 1897 in its application to the State of Uttar

Pradesh. Sub-section (4) of Section 2 defines a "child" to mean a person

under the age of sixteen years. Section 63 of the Act, however, provides that

where a child is charged with an offence together with any other person not

being a child then notwithstanding anything contained in the said Act the

child may be tried together with the adult in accordance with the provisions

of the Code of Criminal Procedure and nothing in the said Act shall require

the child to be tried by a Juvenile Court but the sentence, if any, awarded to

the child shall be in accordance with the provisions of the Act.

Ordinarily a Juvenile Court was required to be established in terms of

the provisions of the said Act as envisaged under Section 60 thereof. In this

case, admittedly, apart from the appellant herein all other accused persons

were adults. A joint trial was held in terms of the provisions of the Code of

Criminal Procedure. At no point of time any exception thereto was taken by

or on behalf of the appellant. Before us no contention has been raised that

the trial was illegal.

The only question which has been raised and arises for consideration

is as to whether having regard to the provision of Section 27 of the Act, the

sentence awarded against the appellant herein was illegal.

For the purpose of determining the aforementioned question, we may

notice a few provisions of the said Act.

Section 27 of the Act reads as under :

"Sentence that may not be passed on child.- Notwithstanding

anything to the contrary contained in any law, no Court shall

sentence a child to death or transportation or imprisonment for

any term or commit him to prison in default of payment of fine

:

Provided that a child who is twelve years of age or

upwards may be committed to prison when the Court certifies

that he is of so unruly, or of so depraved a character that he is

not fit to be sent to an approved school and that none of the

other methods in which the case may legally be dealt with is

suitable."

Section 30 of the Act, however, empowers the Court to discharge

youthful offender or to commit him to suitable custody. Section 31 provides

for payment of fine by the parents of the child. Section 32 provides for

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detention in case of certain crimes by children, which reads as under :

"Detention in case of certain crimes by children.-(1) When a

child is found to have committed an offence of so serious a

nature that the Court is of opinion that no punishment which

under the provisions of this Act it is authorized to inflict is

sufficient, the Court shall order the offender to be kept in safe

custody in such place or manner as it thinks fit and shall report

the case for the orders of the State Government.

(2) Notwithstanding the provisions of Section 13 the

State Government may order any such child to be detained in

such place and on such conditions as it thinks fit, and while so

detained the child shall be deemed to be in legal custody :

Provided that no period of detention so ordered shall

exceed the maximum period of imprisonment to which the child

could have been sentenced for the offence committed."

We have noticed hereinbefore that the learned Sessions Judge,

Bulandshahr in his report dated 17.02.1999 did not rely upon any evidence

other than the school leaving certificate. He not only disbelieved the

statement of the mother of the appellant but also did not place any reliance

upon the other documentary evidences adduced on behalf of the appellant,

namely, the horoscope and the 'Parivar Register'. No exception having

been taken to by the parties we accept the said part of the report. We are,

thus, required only to consider as to whether the School Leaving Certificate

is reliable.

The purported school leaving certificate was sought to be proved by

Chandra Pal Singh, Head Master of the Primary Pathshala, Hajratpur. In

his cross-examination, he categorically stated that the date of birth of the

appellant might have been disclosed by the appellant at the time of

admission. He did not have any personal knowledge with regard thereto.

No enquiry was made as regards the age of the appellant while he was

admitted in the institution. He accepted that it was quite possible that the

age disclosed by the guardian may be more or less.

The school leaving certificate was said to have been issued in the year

1998. A bare perusal of the said certificate would show that the appellant

was said to have been admitted on 01.08.1967 and his name was struck off

from the roll of the institution on 06.05.1972. The said school leaving

certificate was not issued in ordinary course of business of the school There

is nothing on record to show that the said date of birth was recorded in a

register maintained by the school in terms of the requirements of law as

contained in Section 35 of the Indian Evidence Act. No statement has

further been made by the said Head Master that either of the parents of the

appellant who accompanied him to the school at the time of his admission

therein made any statement or submitted any proof in regard thereto. The

entries made in the school leaving certificate, evidently had been prepared

for the purpose of the case. All the necessary columns were filled up

including the character of the appellant. It was not the case of the said Head

Master that before he had made entries in the register, age was verified. If

any register in regular course of business was maintained in the school;

there was no reason as to why the same had not been produced.

In the counter affidavit filed on behalf of the State, it has categorically

been stated that the appellant had been a history sheeter; as many as 34 cases

for commission of heinous crimes have been filed against him, which

included cases under Sections 302, 392, 395 and 364 of the Indian Penal

Code; a large number of cases under the U.P. Goonda Act; and Section 25

and 27 of the Arms Act. One case was filed against him under Section 302

as early as in 1973 and the last case which had been filed against him was in

1996 under Section 395/364-A of the Indian Penal Code. It is, therefore,

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unlikely that the appellant was not aware of his legal right.

The school leaving certificate was not an original one. It was merely

a second copy. Although it was said to have been issued in July 1972, the

date of issuance of the said certificate has not been mentioned. The copy

was said to have been signed by the Head Master on 30.04.1998. It was

accepted before the learned Additional Sessions Judge, Bulandshahr on

27.01.1999. The Head Master has also not that the copy given by him was a

true copy of the original certificate. He did not produce the admission

register.

There cannot, however, be any doubt whatsoever that the certificate

was issued for the purpose of the case. The father of the appellant was also

an accused. He was described as 'Surender Pal Singh'. The appellant had

also been described as 'Ravinder Pal Singh S/o Surender Pal Singh'. Before

us, the father's name has been described as 'Surender Singh', the

appellant's name has been shown as 'Ravinder Singh Gorkhi'; whereas the

name of the student in the school leaving certificate has been shown as

'Ravinder Pal Singh'.

Determination of the date of birth of a person before a court of law,

whether in a civil proceeding or a criminal proceeding, would depend upon

the facts and circumstances of each case. Such a date of birth has to be

determined on the basis of the materials on records. It will be a matter of

appreciation of evidence adduced by the parties. Different standards having

regard to the provision of Section 35 of the Evidence Act cannot be applied

in a civil case or a criminal case.

Mr. Mishra, however, would urge that while in a civil dispute a strict

proof may be necessary, in a criminal case and particularly in the case of a

juvenile, the court may consider any evidence which may be brought on

records by the parties. We do not agree.

Section 35 of the Evidence Act would be attracted both in civil and

criminal proceedings. The Evidence Act does not make any distinction

between a civil proceeding and a criminal proceeding. Unless specifically

provided for, in terms of Section 35 of the Evidence Act, the register

maintained in ordinary course of business by a public servant in the

discharge of his official duty, or by any other person in performance of a

duty specially enjoined by the law of the country in which, inter alia, such

register is kept would be a relevant fact. Section 35, thus, requires the

following conditions to be fulfilled before a document is held to be

admissible thereunder : (i) it should be in the nature of the entry in any

public or official register;; (ii) it must state a fact in issue or relevant fact;

(iii) entry must be made either by a public servant in the discharge of his

official duty, or by any person in performance of a duty specially enjoined

by the law of the country; and (iv) all persons concerned indisputably must

have an access thereto.

A question was raised as to whether the determination of the age of a

child should be made on the basis of the date on which the occurrence took

place or when, he was produced before the court. The said question came up

for consideration in the context of the provisions of the Juvenile Justice Act,

2000 before a Constitution Bench in Pratap Singh v. State of Jharkahand and

Anr [(2005) 3 SCC 551]. It was held that the date of commission of the

offence would be the relevant date.

In terms of the aforementioned decision of the Constitution Bench

such determination is required to be made even if at the relevant time, the

juvenile crossed the age of eighteen years. In absence of any other statute

operating in the field, Section 35 will have application and the court, while

determining such age would depend upon the materials brought on records

by the parties which would be admissible in evidence in terms of Section 35

of the Act.

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In Birad Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this

Court held:

"To render a document admissible under Section 35, three

conditions must be satisfied, firstly, entry that is relied on must

be one in a public or other official book, register or record;

secondly, it must be an entry stating a fact in issue or relevant

fact; and thirdly, it must be made by a public servant in

discharge of his official duty, or any other person in

performance of a duty specially enjoined by law. An entry

relating to date of birth made in the school register is relevant

and admissible under Section 35 of the Act but the entry

regarding the age of a person in a school register is of not much

evidentiary value to prove the age of the person in the absence

of the material on which the age was recorded."

(emphasis supplied)

In Sushil Kumar v. Rakesh Kumar [(2003) 8 SCC 673], this Court as

regards determination of age of a candidate in terms of Section 36(2) of the

Representation of the People Act, 1951 observed :

"32. The age of a person in an election petition has to be

determined not only on the basis of the materials placed on

record but also upon taking into consideration the

circumstances attending thereto. The initial burden to prove the

allegations made in the election petition although was upon the

election petitioner but for proving the facts which were within

the special knowledge of the respondent, the burden was upon

him in terms of Section 106 of the Evidence Act. It is also trite

that when both parties have adduced evidence, the question of

the onus of proof becomes academic [see Union of India v.

Sugauli Sugar Works (P) Ltd. and Cox and Kings (Agents) Ltd.

v. Workmen. Furthermore, an admission on the part of a party

to the lis shall be binding on him and in any event a

presumption must be made that the same is taken to be

established."

This Court therein followed, inter alia, Birad Mal Singhvi (supra) and

several other decisions.

In Updesh Kumar and Others v. Prithvi Singh and Others [(2001) 2

SCC 524], this Court having regard to the overwhelming evidence came to

the opinion that the Respondent No. 1 had attained the age of 21 years as on

the date of his application for the allotment of the retail outlet. In that case

also reliance was placed on the matriculation certificate holding that the

correction of the date of the birth in the certificate was an official act and the

must be presumed to have been done in accordance with law.

We, however, notice that in Ramdeo Chauhan alias Raj Nath v. State

of Assam [(2001) 5 SCC 714], as regard applicability of the provision of

Section 35 of the Indian Evidence Act, 1872 vis-`-vis a school register, it

was stated :

"19. It is not disputed that the register of admission of

students relied upon by the defence is not maintained under any

statutory requirement. The author of the register has also not

been examined. The register is not paged (sic) at all. Column 12

of the register deals with "age at the time of admission". Entries

1 to 45 mention the age of the students in terms of years,

months and days. Entry 1 is dated 25-1-1988 whereas Entry 45

is dated 31-3-1989. Thereafter except for Entry 45, the page is

totally blank and fresh entries are made w.e.f. 5-1-1990,

apparently by one person up to Entry 32. All entries are dated

5-1-1990. The other entries made on various dates appear to

have been made by one person though in different inks. Entries

for the years 1990 are up to Entry 64 whereafter entries of 1991

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are made again apparently by the same person. Entry 36 relates

to Rajnath Chauhan, son of Firato Chauhan. In all the entries

except Entry 32, after 5-1-1990 in column 12 instead of age

some date is mentioned which, according to the defence is the

date of birth of the student concerned. In Entry 32 the age of the

student concerned has been recorded. In column 12 again in the

entries with effect from 9-1-1992, the age of the students are

mentioned and not their dates of birth. The manner in which the

register has been maintained does not inspire confidence of the

Court to put any reliance on it. Learned defence counsel has

also not referred to any provision of law for accepting its

authenticity in terms of Section 35 of the Evidence Act. The

entries made in such a register cannot be taken as a proof of age

of the accused for any purpose."

We are, however, not oblivious of a decision of this Court in Bhola

Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an obligation has been

cast on the court that where such a plea is raised having regard to the

beneficial nature of the socially-oriented legislation, such a plea should be

examined with great care. We are, however, of the opinion that the same

would not mean that a person who is not entitled to the said benefit would be

dealt with leniently only because such a plea is raised. Each plea must be

judged on its own merit. Each case has to be considered on the basis of the

materials brought on records.

The aforementioned decisions have been noticed by this Court in

Zakarius Lakra and Others v. Union of India and Another [(2005) 3 SCC

161], wherein a Bench of this Court while entertaining an application under

Article 32 of the Constitution of India opined that although the same was not

maintainable, but having regard to the decision of this Court in Rupa Ashok

Hurra v. Ashok Hurra [(2002) 4 SCC 388], the review petition should be

allowed to be converted into curative petition. [See also Raj Singh v. State

of Haryana \026 (2000) 6 SCC 759].

We are, however, not concerned in this case with such a situation.

The deposition of the Head Master of the school in this case did not

satisfy the requirements of the law laid down in the aforementioned

decisions.

Mr. Mishra, however, relied upon Umesh Chandra v. State of

Rajasthan [(1982) 2 SCC 202]. Therein a register maintained by a public

school of repute had been produced. This Court relied thereupon, opining

that Section 35 cannot be read with Sections 73 and 74 of the Evidence Act.

If a public school maintains a register in ordinary course of business, the

same would be admissible in evidence.

We have not been shown as to whether any register was required to

be maintained under any statute. We have further not been shown as to

whether any register was maintained in the school at all. The original

register has not been produced. The authenticity of the said register, if

produced, could have been looked into. No person had been examined to

prove as to who had made entries in the register. The school leaving

certificate which was not issued by a person who was in the school at the

time when the appellant was admitted therein, cannot be relied upon.

Reliance has also been placed by Mr, Mishra on Bhoop Ram v. State

of U.P. [(1989) 3 SCC 1], wherein the appellant was treated to be a child

within the meaning of Section 2(4) of the Act; upon taking into

consideration three factors : (i) that the appellant had produced a school

certificate and correctness whereof was not questioned; (ii) the learned trial

Judge thought it fit to award the lesser sentence of imprisonment for life

instead of capital punishment when he pronounced the judgment on

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19.09.1977 on the ground that the appellant was 17 years of age which gave

credence to the appellant's case that he was less than 16 years of age on

03.10.1975 when the offences were committed; and (iii) although he was

medically examined, for determination of age, the doctor based his opinion

only on an estimate and possibility of an error of creeping into the said

opinion could not be ruled out. This Court, therefore, took into consideration

more than one factors in accepting the plea of the appellant therein that he

was minor on the date of commission of the offence.

We have noticed hereinbefore that in this case the learned Sessions

Judge had discarded all other evidences which have been adduced on behalf

of the appellant in support of his contention that he was minor on the date of

commission of the offence. Entry of a date of birth in the school records is

merely a piece of evidence. Having regard to the experience of the court, in

Birad Mal Singhvi (supra), it was opined that the same should be authentic

in nature.

The age of a person as recorded in the school register or otherwise

may be used for various purposes; namely, for obtaining admission; for

obtaining an appointment; for contesting election; registration of marriage;

obtaining a separate unit under the ceiling laws; and even for the purpose of

litigating before a civil forum, e.g. necessity of being represented in a court

of law by a guardian or where a suit is filed on the ground that the plaintiff

being a minor he was not appropriately represented therein or any

transaction made on his behalf was void as he was minor. A court of law for

the purpose of determining the age of a party to the lis, having regard to the

provisions of Section 35 of the Evidence Act will have to apply the same

standard. No different standard can be applied in case of an accused as in a

case of abduction or rape, or similar offence where the victim or the

prosecutrix although might have consented with the accused, if on the basis

of the entries made in the register maintained by the school, a judgment of

conviction is recorded, the accused would be deprived of his constitutional

right under Article 21 of the Constitution, as in that case the accused may

unjustly be convicted.

We are, therefore, of the opinion that that until the age of a person is

required to be determined in a manner laid down under a statute, different

standard of proof should not be adopted. It is no doubt true that the court

must strike a balance. In case of a dispute, the court may appreciate the

evidence having regard to the facts and circumstance of the case. It would

be a duty of the court of law to accord the benefit to a juvenile, provided he

is one. To give the same benefit to a person who in fact is not a juvenile

may cause injustice to the victim. In this case, the appellant had never been

serious in projecting his plea that he on the date of commission of offence

was a minor. He made such statement for the first time while he was

examined under Section 313 of the Code of Criminal Procedure.

The family background of the appellant is also a relevant fact. His

father was a 'Pradhan' of the village. He was found to be in possession of

an unlicensed firearm. He was all along represented by a lawyer. The court

estimated his age to be 18 years. He was tried jointly with the other accused.

He had been treated alike with the other accused. On merit of the matter

also the appellant stands on the same footing as other accused.. The

prosecution has proved its case. In fact no such plea could be raised as the

special leave petition of the persons similarly situated was dismissed when

the court issued notice having regard to the contention raised by him for the

first time that he was minor on the date of occurrence.

Having regard to the peculiar facts and circumstances of this case, we

do not accept the report of the learned Sessions Judge.

For the reasons aforementioned, we do not find any merit in this

appeal which is dismissed accordingly.