IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.   487        of 2010  (Arising out of SLP (Crl.) No. 6629 of 2006)

Jabar Singh                   …… Appellant

Versus

Dinesh & Anr.                                              …… Respondents

O R D E R

A.K. PATNAIK, J.

Leave granted.

2. The  appellant  is  the  father  of  Prahalad  Singh,  who  is  

alleged to have been murdered by the Respondent No.1, and  

he has filed this appeal against the order dated 18.08.2006 of  

the High Court of Rajasthan in S.B. Criminal Revision Petition  

No. 166 of 2006 in which the High Court has held that the  

Respondent No.1 was a juvenile on the date of commission of  

the offence and has directed that the matter will be remitted  

for trial under the provisions of the Juvenile Justice (Care and  

Protection of Children) Act, 2000 (for short, “the Act”).

3. The relevant facts very briefly are that on 11.07.2004 one  

Bhomaram lodged a complaint in Pratap Nagar Police Station,  

Jodhpur, against the Respondent No.1 and others alleging the  

offence under Section 302 of the Indian Penal Code (for short,  

“the IPC”) along with other offences under the IPC.  A criminal  

case  was  registered  and  after  investigation,  the  police  filed  

chargesheet against  inter  alia the Respondent  No.1 and the  

case  was  transferred  by  the  Sessions  Judge  to  the  Special  

Judge,  SC/ST (Prevention of  Atrocities)  Cases,  Jodhpur,  for  

trial.   Before  the  charges  could  be  framed  in  the  case,  an  

application  was  filed  on  behalf  of  Respondent  No.1  under  

Section 49 of the Act, stating therein that the date of birth of  

Respondent  No.1  was  05.10.1988  and,  therefore,  on  

11.07.2004,  when  the  offence  is  alleged  to  have  been  

committed, the Respondent No.1 was less than 18 years of age  

and he was, thus, a juvenile and has to be tried separately  

from the other accused under the Act.  The State of Rajasthan,  

in its reply, stated inter alia that the Respondent No. 1 did not  

disclose  that  he  was  a  juvenile  at  any  time  during  the  

investigation of the case or during the trial of other criminal  

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cases for which he was being tried and that he has taken this  

plea for the first time to avoid the trial for the heinous crime  

and  that  the  application  of  Respondent  No.1  should  be  

rejected.  The  Respondent  No.1  examined  witnesses  and  

produced documents in support of  his claim that he was a  

juvenile.   The  State  of  Rajasthan  did  not  produce  any  

evidence.   The  trial  court,  after  hearing  the  parties  and  

considering  the  evidence,  rejected  the  application  of  the  

Respondent No.1 by order dated 14.02.2006.  Aggrieved, the  

Respondent No.1 filed S.B. Criminal Revision Petition No. 166  

of  2006 before  the  High Court  and by  the  impugned order  

dated  18.08.2006,  the  High  Court  allowed  the  Revision  

Petition, set aside the order dated 14.02.2006 passed by the  

trial court and remitted the matter to the trial court for trial of  

the Respondent No.1 treating him to be a juvenile on the date  

of commission of the alleged offence in accordance with the  

provisions of the Act.   

4. Mr.  M.R.  Calla,  Senior  Counsel  appearing  for  the  

appellant,  submitted  that  this  Court  has  held  in  Jyoti  

Prakash Rai @ Jyoti Prakash  v. State of Bihar [(2008) 15  

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SCC 223] that the beneficial  provisions of the Act are to be  

applied only for the purpose of the interpretation of the Act  

and  not  for  arriving  at  a  conclusion  whether  a  person  is  

juvenile  or  not  and  the  question  whether  an  offender  was  

juvenile  on the  date  of  commission of  the  offence or  not  is  

essentially  a  question  of  fact  which  is  required  to  be  

determined on the basis of the materials brought on record by  

the parties.  He submitted that in Ravinder Singh Gorkhi v.  

State of U.P. [(2006) 5 SCC 584] this Court has further held  

that Section 35 of the Evidence Act, which provides that an  

entry  in  a  register  maintained  in  the  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 such register is  

kept, would be a relevant fact, will only apply if the conditions  

mentioned in Section 35 are fulfilled.  He submitted relying on  

the aforesaid decisions of  this Court  that Section 35 of  the  

Evidence Act could not be applied to the entry of date of birth  

of Respondent No.1 in the school records produced on behalf  

of Respondent No.1 before the trial court and on the evidence  

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as produced, the trial court rightly held that the date of birth  

of the Respondent No.1 cannot be believed to be 05.10.1988.  

He  submitted  that  the  trial  court  after  scrutinizing  the  

evidence, oral and documentary, produced by the Respondent  

No.1 has held that the evidence produced by Respondent No.1  

have  been  created  by  the  Respondent  No.  1  for  escaping  

conviction for  a grave offence such as murder and was not  

believable and by physical appearance, Respondent No.1 looks  

to be over 18 years of age and on 11.07.2004 he was an adult  

and not a juvenile.  He submitted that this finding of the trial  

court  on  a  question  of  fact  with  regard  to  the  age  of  

Respondent No.1 could not be disturbed by the High Court in  

a  Revision  because  it  is  well-settled  that  the  High  Court  

cannot re-appreciate evidence produced before the trial court  

and arrive at a conclusion different from that of the trial court.  

In support  of  this  proposition,  he  relied on  Chandavarkar  

Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] in  

which  this  Court  has  held  that  the  High  Court,  while  

exercising  its  jurisdiction  under  Articles  226/227  of  the  

Constitution, should not interfere with a finding of fact of the  

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inferior  court  or  tribunal,  except  where  the  finding  was  

perverse  and  not  based  on  any  material  evidence  or  has  

resulted  in  manifest  injustice.   He  submitted  that  in  this  

decision, this Court has further taken the view that if the trial  

court  came  to  a  conclusion  which  was  possible  on  the  

evidence,  the  High  Court  will  not  disturb  the  conclusion  

arrived at by the trial court merely because the High Court is  

of the view that a different conclusion is also possible on the  

same evidence.  He vehemently argued that the High Court  

has lost sight of these limitations of its jurisdiction and on the  

basis of its own appraisal of the evidence taken a view that the  

Respondent No.1 was a juvenile on the date of the commission  

of the offence and has set aside the order of the trial court.   

5. Dr.  Manish Singhvi,  learned counsel  appearing for  the  

State of Rajasthan, submitted that the Juvenile Justice (Care  

and Protection of Children) Rules 2007 (for short, “the Rules”),  

which have come into force on 26.10.2007, provide in Rule 12  

the procedure to be followed in determination of age and Sub-

Rule (3) of Rule 12 provides that the age determination inquiry  

shall be conducted by the Court or the Juvenile Justice Board  

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or,  as  the  case  may  be,  the  Child  Welfare  Committee  by  

seeking evidence by obtaining the matriculation or equivalent  

certificate, if available, and in the absence of such certificate,  

the date of birth certificate from the school first attended, and  

in the absence of such certificate, the birth certificate given by  

a corporation or a municipal authority or a panchayat, and  

only  in  the  absence  of  these  three  kinds  of  certificates  the  

medical  opinion  could  be  sought  from  a  duly  constituted  

Medical  Board which will  declare  the  age of  the  juvenile  or  

child.  He, however, submitted that these rules had not come  

into  force  when the  trial  court  considered  and rejected  the  

application of Respondent No.1 claiming juvenility by its order  

dated 18.08.2006.  He submitted that the reasons given by the  

trial court in the order dated 18.08.2006 were very sound and  

the High Court ought not to have set aside the findings of the  

trial court merely on the basis of entries in the school records  

relating to the date of birth of Respondent No. 1, particularly  

when there was over-writing on these entries.  He cited Birad  

Mal Singhvi v.  Anand Purohit [1988 (Supp) SCC 604 = AIR  

1988  SC 1796]  in  which  this  Court,  referring  to  its  earlier  

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decisions,  has  held  that  the  date  of  birth  mentioned  in  a  

school register or a school certificate has no probative value  

unless either the parents are examined or the persons who  

have special knowledge of the date of birth of the person and  

on  whose  information  the  entry  has  been  made  have  been  

examined.  

6. Mr.  Kumar  Karthikey,  learned  counsel  appearing  for  

Respondent No.1, on the other hand, supported the impugned  

order passed by the High Court and submitted that the High  

Court  has  considered  the  evidence  adduced  by  Respondent  

No. 1, both oral and documentary, and has rightly come to a  

finding  that  the  date  of  birth  of  Respondent  No.1  was  

05.10.1988.  He submitted that the proviso to sub-section (1)  

of Section 7A of the Act is clear that a claim of juvenility may  

be raised before any court and it shall be recognised at any  

stage,  even after  final  disposal  of  the case,  and such claim  

shall be determined in terms of the provisions of the Act and  

the Rules even if the juvenile has ceased to be so on or before  

the  date  of  commencement  of  the  Act  and,  therefore,  the  

argument on behalf of the State of Rajasthan that at the stage  

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of investigation Respondent No.1 did not take a plea that he  

was a juvenile at the time of commission of the alleged offence  

has no merit.  He further submitted that under Section 49 of  

the  Act  it  is  only  the  competent  authority  which  has  the  

jurisdiction to make due enquiry as to the age of  a  person  

brought before it and the competent authority in the present  

case is the Juvenile Justice Board and it is for the Juvenile  

Justice  Board  and  not  the  court  to  determine  the  age  of  

Respondent No.1.

7. Section 49(1) of the Act is quoted herein below:

“Presumption  and  determination  of  age.—(1)  Where  it  appears  to  a  competent  authority  that  person brought before it under any of the provisions  of this Act (otherwise than for the purpose of giving  evidence) is a juvenile or the child, the competent  authority shall make due inquiry so as to the age of  that person and for  that purpose shall  take such  evidence as may be necessary (but not an affidavit)  and shall record a finding whether the person is a  juvenile or the child or not, stating his age as nearly  as may be.”

The opening words of  sub-section (1)  of  Section 49,  quoted  

above, shows that only when a person is “brought before the  

competent authority” under any of the provisions of the Act,  

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the competent authority is required to make due enquiry as to  

the age of that person and for that purpose take such evidence  

as may be necessary and record a finding whether the person  

is a juvenile or not.  Section 49 is, therefore, attracted when a  

person  is  brought  before  the  competent  authority  and  not  

otherwise.  In the present case, the Respondent No. 1 was not  

brought before the competent authority, namely, the Juvenile  

Justice Board.  Hence, Section 49 was not attracted and the  

competent authority had no jurisdiction to make enquiry as to  

the age of Respondent No. 1 as provided under sub-section (1)  

of Section 49.  

8. In fact, Respondent No.1 was before the trial court when  

he filed an application claiming juvenility and it was, therefore,  

for the trial court to make an enquiry and take such evidence  

as may be necessary to determine the age of Respondent No.1  

and decide upon his claim of juvenility.  Section 49 of the Act  

contains  no  provision  prohibiting  the  court  before  which  a  

claim of juvenility is raised, to determine the age of the person  

before  the  court.   The  trial  court,  therefore,  had  the  

jurisdiction to inquire into the age of Respondent No.1 and for  

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that  purpose  take  such evidence  as  may be  necessary  and  

record a finding whether Respondent No.1 was a juvenile or  

not at the time of commission of the offence.  As a matter of  

fact, after the trial court in the present case determined the  

age of Respondent No.1 and rejected his claim to juvenility by  

the order dated 14.02.2006, Section 7A has been introduced  

in  the  Act  with  effect  from  22.08.2006  laying  down  the  

procedure  to  be  followed  when  claim of  juvenility  is  raised  

before  any  court.  This  insertion  of  Section  7A  in  the  Act  

indicates  that  Parliament  never  intended  to  oust  the  

jurisdiction of the court to decide a claim of juvenility raised  

before it, and that the court always had the power to decide a  

claim  of  juvenility  raised  before  it.   Hence,  the  contention  

raised  on  behalf  of  Respondent  No.1  that  it  was  only  the  

competent  authority  which  had  the  jurisdiction  to  decide  

whether  Respondent  No.1  was  a  juvenile  at  the  time  of  

commission of the alleged offence or not, has no merit.  

9. The trial court passed the order on 14.02.2006 rejecting  

the claim of Respondent No.1 that he was a juvenile at the  

time of commission of the offence and Section 7A of the Act  

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laying  down  the  procedure  to  be  followed  when  claim  of  

juvenility is raised before any court had not come into force by  

14.02.2006.  When the trial court passed the order rejecting  

the claim of Respondent No.1 of juvenility on 14.02.2006, the  

Rules,  including  Rule  12  laying  down  the  procedure  to  be  

followed in determination of age of a juvenile in conflict with  

law, had also not come into force.  The trial court, thus, was  

not required to follow the procedure laid down in Section 7A of  

the  Act  or  Rule  12  of  the  Rules.   In  the  absence  of  any  

statutory provision laying down the procedure to be followed in  

determining a claim of juvenility raised before it, the court had  

to decide the claim of  juvenility  of  Respondent  No.1 on the  

materials  or evidence brought on record by the parties  and  

Section  35  of  the  Evidence  Act.   This  Court  has  held  in  

Ravinder Singh Gorkhi (supra) that in case of a dispute with  

regard  to  the  age  of  the  person  who  is  alleged  to  have  

committed  the  offence,  the  Court  has  to  appreciate  the  

evidence having regard to the facts and circumstances of the  

case and it will be the duty of the court to accord the benefit to  

a juvenile, provided he is found to be a juvenile and not to give  

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the same benefit to a person who, in fact, is not a juvenile and  

cause injustice to the victim.  Again in Jyoti Prakash (supra)  

this Court has held that in the absence of any evidence which  

is relevant under Section 35 of the Indian Evidence Act, the  

age  of  a  person  who  has  committed  the  offence  must  be  

determined keeping in view the factual matrix involved in each  

case.  

10. On a reading of the order dated 14.02.2006 of the trial  

court, we find that the trial court has found that AW1 Shivraj  

examined on behalf of Respondent No.1 stated before the court  

that  he  looks  after  the  administrative  work  of  Jesus  Mary  

Public School and this work was being previously looked after  

by his son Anand, who had expired.  AW1 has further stated  

that  Exhibit-1  was  the  admission  form  in  relation  to  

Respondent  No.1  in  which  the  date  of  birth  of  Respondent  

No.1 was mentioned as 05.10.1988 and in this admission form  

the uncle of Respondent No.1 had put his signatures marked  

by  the  court  as  Exhibit-1E to  1F  and on  the  basis  of  this  

information in the admission form an entry was made in the  

scholar’s  register  (Exhibit-2)  that  the  date  of  birth  of  

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Respondent No.1 was 05.10.1988.  The trial court, however,  

has taken note of the fact that AW1 in his cross-examination  

could not say who had filled up the admission form and on  

what basis the date of birth of Respondent No.1 was written as  

05.10.1988.  The trial  court has further observed that AW1  

has admitted that the scholar’s register (Exhibit-2) was not in  

his handwriting and that he had never seen the boy whose  

name was mentioned in Exhibit-2.  The trial court has held  

that there was over-writing in the date of birth of Respondent  

No.1 in Exhibit-1 and from a perusal of the document it was  

not clear on what basis the date of birth of the Respondent  

No.1 was written and for this reason the date of birth of the  

Respondent  No.1  cannot  be  believed to  be  05.10.1988.  The  

trial  court  has  also  held  that  the  father  of  Respondent  

No.1 Sukhram was also examined before  the  court  as AW4  

and that he had stated that he got prepared the horoscope of  

his son (Exhibit-12) from Pandit Jagdish Prasad Sharma who  

had  expired  and  that  Respondent  No.1  was  born  on  

05.10.1988  in  village  Surpura,  District  Jodhpur.  The  trial  

court has, however, held that according to the evidence of AW4  

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the horoscope (Exhibit-12) was approximately 17-18 years old  

but by merely looking at the document it was clear that the  

document  was  not  so  old  and  on  the  basis  of  Exhibit-12,  

therefore, the date of birth of Respondent No. 1 cannot be said  

to be proved as 05.10.1988.  The trial court has further held  

in its order that the uncle of Respondent No. 1 Pancharam  

was examined as AW5 who is said to have furnished the date  

of birth of Respondent No.1 in the admission form (Exhibit-1)  

as  05.10.1988,  but  in  his  examination-in-chief  AW5  has  

clarified that he had mentioned the date of birth on the saying  

of his brother Sukhram.  The trial court has further held that  

since  the  basis  of  the  date  of  birth  was not  written  in  the  

admission form (Exhibit-1), and no independent witness had  

been produced before the court such as the mid-wife or nurse  

who had participated in the birth of Respondent No.1 which is  

said to have taken place on 05.10.1988 in village Surpura, the  

court cannot believe that the date of birth of Respondent No.1  

was  05.10.1988  particularly  when  in  eight  other  criminal  

cases pending in various courts  relating to incidents of  the  

years 2002, 2003 and 2004, Respondent No.1 had not taken  

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the plea that on the date of the incident he was a juvenile and  

cannot  be  tried  by  the  ordinary  courts  but  by  the  juvenile  

courts in accordance with the Act.  The trial court has also  

held that the evidence,  documentary and oral,  produced on  

behalf  of  Respondent  No.1  in  connection  with  his  age,  

appeared to have been created for escaping the punishment  

for the alleged offence of murder and that from the appearance  

of Respondent No.1, it looked that the Respondent No. 1 was  

above 18 years of age on 11.07.2004 when the alleged offence  

under Section 302 of the IPC was committed.  

11. In the impugned order passed in revision, the High Court  

reversed the findings of the trial court and held that even if  

Respondent No.1 had not raised a plea that he was a juvenile  

in other criminal cases or during the course of investigation of  

the present criminal case, such a plea could be raised by him  

at  any  stage  during  the  course  of  trial  and  even  at  the  

appellate stage.  The High Court further held that the date of  

birth  of  Respondent  No.1  in  the  admission  forms,  school  

records, and transfer certificates were good proof in relation to  

the age of Respondent No.1 and simply because by physical  

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appearance the Respondent No.1 did not look like a juvenile,  

the court cannot hold that Respondent No.1 was not juvenile  

at the time of commission of the alleged offence.  The High  

Court concluded that the trial  court has miserably failed to  

appreciate  the  evidence  in  its  correct  perspective  and  the  

findings recorded by the trial court in relation to the age of  

Respondent No.1 were contrary to the established principles of  

law in relation to appreciation of evidence and deserved to be  

set aside.  

12. We are of the considered opinion that the High Court was  

not at all right in reversing the findings of the trial court in  

exercise of its revisional jurisdiction.  The entry of date of birth  

of Respondent No.1 in the admission form, the school records  

and  transfer  certificates  did  not  satisfy  the  conditions  laid  

down in Section 35 of the Evidence Act inasmuch as the entry  

was not in any public or official register and was not 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, therefore,  the entry was not  

relevant under Section 35 of the Evidence Act for the purpose  

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of  determining  the  age  of  Respondent  No.1  at  the  time  of  

commission of the alleged offence.  As has been held by this  

Court in Ravinder Singh Gorkhi and Jyoti Prakash (supra)  

the age of Respondent No.1 was a question of fact, which was  

to be decided on the evidence brought on record before the  

court and it was for the trial court to appreciate the evidence  

and  determine  the  age  of  Respondent  No.1  at  the  time  of  

commission of the alleged offence and in this case, the trial  

court has arrived at the finding that the claim of Respondent  

No.1 that he was less than 18 years at the time of commission  

of the alleged offence, was not believable.   While arriving at  

this finding of fact, the trial court had not only considered the  

evidence  produced by  Respondent  No.1 but  also  considered  

the  fact  that  either  in  the  earlier  cases  or  during  the  

investigation of the present case, the Respondent No. 1 had  

not raised this plea.  While arriving at this finding of fact, the  

trial  court  had  also  considered  the  physical  appearance  of  

Respondent No.1.  Such determination on a question of fact  

made by the trial court on the basis of the evidence or material  

before it and other relevant factors could not be disturbed by  

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the High Court in exercise of its revisional powers.

13. A plain reading of Section 52 of the Act shows that no  

statutory appeal is available against any finding of the court  

that a person was not a juvenile at the time of commission of  

the offence. Section 53 of the Act which is titled “Revision”,  

however, provides that the High Court may at any time, either  

of its own motion or on an application received on that behalf,  

call for the record of any proceeding in which any competent  

authority  or  court  of  session  has  passed  an  order  for  the  

purpose of satisfying itself as to the legality or propriety of any  

such order, and may pass such order in relation thereto as it  

thinks fit. While exercising such revisional powers, the High  

Court cannot convert itself to an appellate court and reverse  

the findings of fact arrived at by the trial court on the basis of  

evidence or material on record, except where the High Court is  

not satisfied as to the legality or propriety of the order passed  

by the trial court.  The trial court, as we have discussed, has  

given good reasons for discarding the evidence adduced by the  

Respondent No.1 in support of his claim that he was a juvenile  

at the time of commission of the alleged offence and there was  

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no scope to hold that the order of the trial court was either  

illegal  or  improper  and  the  High  Court  should  not  have  

substituted its own finding for that of the trial court on the age  

of Respondent No.1 at the time of commission of the alleged  

offence by re-appreciating the evidence.

14. In  the  result,  we  allow  this  appeal  and  set  aside  the  

impugned order dated 18.08.2006 of the High Court in S.B.  

Criminal  Revision  Petition  No.  166  of  2006  and  remit  the  

matter  to  the  trial  court  for  trial  of  Respondent  No.1  in  

accordance with law treating him not to be a juvenile at the  

time of the commission of the alleged offence.  

……………………..J.                                                                   (Harjit Singh Bedi)

……………………..J.                                                                   (A. K. Patnaik) New Delhi, March 12, 2010.    

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