REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.________ OF 2009 (Arising out of SLP (Crl.) No.4601 of 2006)

Ram Suresh Singh … Appellant

Versus

Prabhat Singh @ Chhotu Singh & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Respondent no.1 is facing trial in Nava Nagar P.S. Case No.102 of  

2003  on  the  charge  of  committing  murder  of  one  Tribhuvan  Singh.  

Appellant before us is the uncle of the deceased.

3. Before the learned trial Judge, a plea was raised by him that he was a  

juvenile.   In  support  of  the  said  plea,  entries  in  the  admission  

register/certificate in the Government Secondary School, Navanagar, Buxar,

in which he took admission on 22nd January 1996 and studied up to 31st  

December 1999, were  produced.   The said certificate  was  issued on 23rd  

February 2000, the relevant portion whereof reads as under :

“1. Name of Student : Prabhat Ranjan

2. Father’s/Guardian’s Name: Shri Rajkishor Singh

3. Permanent Address : Vill-Amir Pur, Post Navanagar Distt-Buxar (Bihar)

4. Date of first admission in the school : 22.01.1996

XXX XXX XXX

7. Date of Birth in Admission Register (in number and : 10.02.1987 Words) : Tenth February Eighty  

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8. Date of Leaving the School: 31.12.1999

9. At the time of leaving  School studying in which Class : 8th”

4. The said admission register/certificate,  thus,  shows that  the date of  

birth of the accused is 10.02.1987.

5. A xerox copy of another certificate dated 12.11.2003 was also brought  

on record which was issued by the Principal,  Ram Lakhan Singh Yadav  

High School.  The said certificate also shows the date of birth of the first  

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respondent to be 10.02.1987.  It was proved by a teacher of the said school,  

Shri Raj Kumar who examined himself as PW -2 as also by the father of the  

accused, namely, Raj Kishore Singh.

6. The learned Magistrate, however, appointed a Medical Board.  The  

Medical Board, in its report dated 10th February 2005, inter alia, upon taking  

ossification test, estimated his age to be within 20 to 22 years.   

By an order dated 03rd August 2005, the Principal Magistrate, Juvenile  

Justice Board, Patna held that on the date of occurrence, i.e., 10th September  

2003, the age of the respondent no.1 was more than 20 years stating :

“Considering the evidence on record, there  is  only  evidence  which  is  the  Report  of  the  Medical Board.  The statement of the father of the  accused  and the teacher  of  the  school  supported  with the certificate which are not conclusive and  sufficient under rules of Juvenile Justice (Care &  Protection) Rules, 2001.  Accordingly, on the basis  of the report of the Medical Board and on physical  appearance of the accused and conclusion arrived  at that this accused is not Juvenile at this stage nor  at  the  time  of  alleged  commission  of  offence.  Accordingly, this case record is remitted back to  the  court  concerned  for  disposal  in  accordance  with law.”

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7. Respondent no.1 filed a revision application thereagainst  before the  

High Court of Patna which, by reason of the impugned order dated 17th May  

2006, was allowd by a learned Single Judge, holding :

“Considering the submission made by the parties  and the decision relied on by them, find that the  evidence  which  was  produced  by  the  petitioner  before  the  Juvenile  Justice  Court  were  sufficient  for  determination  of  his  age.   The  certificate  granted by the Headmaster by Ram Lakhan Singh  High  School  stating  the  date  of  birth  of  the  petitioner as 10.02.1987 was issued on 23.02.2000  and  the  date  of  occurrence  is  10.09.2003,  much  after issuance of certificate by the headmaster  of  Ram Lakhan Singh High School where the date of  birth  of  the  petitioner  has  been  mentioned  as  10.02.1987.  In support of the age, the admission  register of the school was also produced wherein  the  petitioner’s  name  has  been  mentioned  in  Sl.No.134.   There  also  the  date  of  birth  of  the  petitioner has been mentioned as 10.02.1987 and  the date of issuance of school leaving certificate is  mentioned as 23.02.2000.  There is no reason for  doubting  or  suspecting  the  genuineness  of  these  two documents.   In  the  impugned order  also  no  reason  has  been  assigned  for  disbelieving  the  transfer  certificate  and  the  photo  copy  of  the  certificate issued from Ram Lakhan Singh Yadav  High  School,  Nava  Nagar.   Rule  22(5)  of  the  Juvenile Justice (Care and Protection of Children)  Act, 2000, order of priority has been given to the  certificate  of  birth  issued  by  the  school  in  preference to the opinion of the duly constituted  medical  board.   Only  in  case  of  some  dispute  regarding  genuineness  of  these  documents,  the  Juvenile  Justice  Board  can  seek opinion of  duly  constituted medical board for ascertaining the age  of an accused for declaring him Juvenine.

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Considering the fact that there is nothing on  record to disbelieve these documents the evidence  of the father as well as teacher, the Juvenile Justice  Board  should  have  decided  in  favour  of  the  petitioner  and declared him Juvenile.   The Apex  Court also in similar matters have decided that the  liberal  view should  be  taken by Juvenile  Justice  Board as well as courts while ascertaining the age  of  accused  for  the  purpose  of  declaring  him  Juvenile.   Relying  upon  the  certificate  produced  before the Juvenile Justice Board and the evidence  of father and teacher, certainly the petitioner was a  Juvenile on the date of occurrence.

Accordingly  the  order  dated  03.08.2005  passed by the Juvenile Justice Board Patna City in  J.J.B.o.492 of 2005 is set aside and this application  is allowed.”

8. Mr.  Praneet  Ranjan,  learned  counsel  appearing  on  behalf  of  the  

appellant would contend :-

(i) Having regard  to  the  provisions  of  Section 35  of  the  Indian  

Evidence Act, 1872 the High Court committed a serious error in  

relying  upon  the  entries  made  in  the  School  register  in  

preference to the opinion of the Medical Board.    

(ii) An entry  in  regard  to  date  of  birth  of  a  student  recorded  in  

admission  register,  being  not  a  public  document,  must  be  

proved to have been recorded at the instance of a person who  

was the guardian of the student.   

Strong reliance was placed on a decision of this Court in case of Birad  

Mal Singhvi v. Anand Purohit [1988 (Supp.) SCC 604] and a decision  

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of the Calcutta High Court in the case of  Raja Janaki Nath Roy v.  

Jyotish Chandra Acharya Chowdhury [AIR 1941 Cal. 41].

(iii) As the age of a person required to be determined by a person having  

regard to the provisions contained in Section 35 of the Evidence Act  

both in civil  as also in criminal  proceeding involve the same legal  

principle,  the  High Court  failed  to  consider  the  depositions  of  the  

witnesses  examined  in  the  enquiry,  namely,  Raj  Kumar  and  Raj  

Kishore Singh, in their proper perspective.

9. Mr. Shishir Pinaki, learned counsel appearing on behalf of respondent  

no.1, on the other hand, urged :

(a) as the admission register of the school in respect of the respondent  

no.1 showing his date of birth has been proved, the impugned order is  

unassailable.   

(b) It  was,  however,  submitted  that  in  the  event  the  medical  report  is  

taken into consideration [which otherwise may not be necessary in  

view  of  Rule  22(5)  of  the  Juvenile  Justice  (Care  & Protection  of  

Children)  Rules,  2001],  the  respondent’s  age  would  be  18  years  

having regard to the fact that an error of two years or either side is  

possible.   

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(c) Bihar  Education  Code  having  a  statutory  status,  as  Article  242  

whereof provides for maintenance of a school register, presumption of  

correctness in respect thereof should be raised.

10. Determination of age of a person sometimes poses a difficult question.  

In  the  absence  of  any  statutory  rule  having  been  framed,  no  doubt,  the  

provisions of Section 35 of the Evidence Act were required to be strictly  

complied with.   

Section 6 of the Juvenile Justice (Care & Protection of Children) Act,  

2000 deals with the power of the Juvenile Justice Board which is extracted  

below :

“6. Powers of Juvenile Justice Board.-(1)  Where a Board has been constituted for any district  or  a  group  of  districts,  such  Board  shall,  notwithstanding  anything  contained  in  any  other  law  for  the  time  being  in  force  but  save  as  otherwise  expressly  provided  in  this  Act,  have  power  to  deal  exclusively  with  all  proceedings  under this Act relating to juvenile in conflict with  law.  

(2) The powers conferred on the Board by or under  this Act may also be exercised by the High Court  and  the  Court  of  Session,  when  the  proceeding  comes  before  them  in  appeal,  revision  or  otherwise.”

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11. Respondent  no.1 claims himself  to be a juvenile.   An enquiry was  

directed to be conducted.  In the said enquiry, evidently, the original register  

maintained  by  the  Government  Secondary  School,  Nava  Nagar  was  

produced.  Date of birth of the said respondent was stated to be 10.02.1987.  

Before us, a contention was raised as to whether column no.5 thereof was  

filled up or not. An affidavit was filed to show that column no.5 is statement  

on the declaration of the father.  We would, therefore, proceed on the said  

basis.   

12. Respondent no.1 was admitted in the Govt. Secondary School, Nava  

Nagar on 22nd January 1996.  He left the school on 31st December 1999.  

Certificate was issued on 23rd February 2000 so as to enable him to take  

admission  in  another  school,  namely,  Ram  Lakhan  Singh  Yadav  High  

School.  We may not consider the certificate granted by the Principal of the  

latter school as only a xerox copy thereof was filed inasmuch as the original  

having been not produced, the same was inadmissible in evidence.   

13. Before the courts below, Shri Raj Kumar, a teacher of Ram Lakhan  

Singh Yadav School examined himself.  Although he was not present when  

the respondent no.1 was admitted in the school, but he proved the contents  

of the admission register.   It  is,  therefore, not correct  to contend that the  

contents  of  the  admission  register  were  not  proved.   Raj  Kishore Singh,  

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father of the respondent no.1 also examined himself.   He also proved the  

date of birth of the respondent no.1.

14. In terms of the provisions of Section 68 of the Juvenile Justice (Care  

& Protection of Children) Act, 2000, the Central Government has framed  

Juvenile Justice (Care & Protection of Children) Rules, 2001.  Rule 22 of the  

said  Rules  provides  for  the  procedure  to  be  followed  in  respect  of  

determination of the age of a person.  It indicates that the opinion of the  

Medical Board is to be preferred only when a date of birth certificate from  

the school first attended is not available.   

15. The  condition  laid  down  in  Section  35  of  the  Evidence  Act  for  

proving an entry pertaining to the age of a student in a school admission  

register  is  to be considered for the purpose of determining the relevance  

thereof.   But  in  this  case,  the  said condition must  be held to  have been  

satisfied.

16. An entry in a school register may not be a public document and, thus,  

must be proved in accordance with law, as has been held by this Court in the  

case of  Birad Mal Singhvi (supra), but, in this case the said entry has been  

proved.  

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17. Even if we had to consider the medical report, it is now well known  

that an error of two years in determining the age is possible.   

In the case of  Jaya Mala v.  Home Secretary, Government of Jammu  

and Kashmir & Ors. [AIR 1982 SC 1297 = (1982) 2 SCC 202], this Court  

held :

“However, it is notorious and one can take judicial  notice that the margin of error in age ascertained  by radiological examination is two years on either  side.”

18. There cannot furthermore be any doubt whatsoever that same standard  

is required to be applied for the purpose of Section 35 of the Evidence Act  

both in civil as also criminal proceedings, as was held by this Court in the  

case of Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, stating :

“38. 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 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  a  minor.   A  court  of  law  for  the  purpose  of  determining the age of a party to the lis,  having  

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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.”

However, the medical opinion rendered in this case corroborates the  

entry made in the register.  Admission register of the school having been  

proved in accordance with law, we do not see any reason as to why the same  

should not be taken into consideration.

19. We are not oblivious of the fact that it is difficult to lay down a law as  

to whether in a case of this nature, the lower or the upper age or the average  

age should be taken into consideration.  Each case depends on its own facts.  

In the case of  Jyoti Prakash Rai @ Jyoti Prakash v.  State of Bihar 2008(3)  

SCALE 348 this Court, upon consideration of large number of decisions,  

opined :

“19. Appellant herein had produced a large  number of documents to prove his age purported to  be as on the date of commission of the crime.  The  genuineness  of  the  school  certificate  and  the  horoscope  had  been  questioned.   The  school  

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certificate produced by the appellant was found to  be forged and fabricated and as a matter of fact a  criminal case was directed to be instituted against  the Head of the Institution.

20. The  court,  therefore,  had  no  other  option but to determine the age on the basis of the  Medical Reports.  Both the medical reports dated  24.04.2001 and 29.06.2001 opined the age of the  appellant  between 18 and 19 years.   In terms of  first medical report, the age of the appellant came  to be 18 years 5 months 8 days and in terms of the  second medical report,  it  came to be between 18  and  19  years.   The  High  Court  opined  that  the  appellant  on  1.04.2001  was  definitely  above  18  years of age and not below 18 years of age.  

21. The courts have considered this aspect  of the matter on earlier occasions also.  If, thus, on  the basis of several factors including the fact that  school  leaving  certificate  and  the  horoscope  produced by the appellant were found to be forged  and fabricated and having regard to two medical  reports the courts below have found the age of the  appellant as on 1.04.2001 to be above 18 years, we  are of the opinion that no exception thereto can be  taken.”

In this case, however, the documents produced by the respondent no.1  

were not found to be forged, fabricated or otherwise inadmissible in law.  If  

a document is proved to be genuine and satisfies the requirements of law, it  

should be, subject to just exceptions, relied upon.

20. However, in the case of  Vimal Chadha v.  Vikas Choudhary & Anr.  

2008(8) SCALE 608, this Court remitted the matter back for consideration  

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of the age in terms of the rules keeping in view of the provisions contained  

in Section 472 of the Code of Criminal Procedure.   

21. Mr. Praneet Ranjan, learned counsel appearing for the appellant has  

relied upon certain observations made by one of us in the case of  Pratap  

Singh v. State of Jharkhand & Anr. (2005) 3 SCC 551 to contend that model  

rules have no application, but as the statutory rules have come into force in  

the procedure laid down therein should be followed.

22. As in this case, the date of birth entered into the school register has  

been proved, we are of the opinion that there is no reason as to why the same  

should not be given effect to.

23. We, therefore, find no legal infirmity in the order passed by the High  

Court.  This appeal is dismissed.

……………………………….J. [S.B. Sinha]

..…………………………..…J.  [Cyriac Joseph]

New Delhi. May 5, 2009

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