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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.