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PETITIONER: UMESH CHANDRA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT02/04/1982

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA DESAI, D.A. VARADARAJAN, A. (J)

CITATION:  1982 AIR 1057            1982 SCR  (3) 583  1982 SCC  (2) 202        1982 SCALE  (1)335  CITATOR INFO :  RF         1987 SC1501  (2,9)  RF         1991 SC1494  (7)

ACT:      Rajasthan  Children   Act,,  1970-Material   date   for determining age  of delinquent-Is  it date  of commission of offence or date of trial ?      Indian Evidence  Act 1872-S.  35-Relevance of  entry in school record  for proof of age-Should the record be kept by public officer ?

HEADNOTE:      The Rajasthan  Children Act,  1970, provides  that  any person below  the age of 16 years should be presumed to be a child and  that a  delinquent child  should be  tried  by  a Children’s court  in accordance with the procedure laid down therein.      The appellant  was  charged  under  ss.  364  and  302, I.P.C., in  connection with an occurrence that took place in Tonk district  on March  12, 1973.  A preliminary  objection that the Sessions Judge was not competent to try the case of The appellant  as he was a child under the provisions of the Children Act was overruled by the trial court.      The  revision   filed  by  the  appellant  against  the decision of  the trial court was dismissed by the High Court which held  that the  Children Act was not applicable to the appellant as that Act had not been enforced in Tonk district on the  date of  the occurrence. The High Court further held that the appellant had failed to prove that he was below the age of 16 years.      On being directed by this Court to ascertain the actual date of birth, the High Court held that the date of birth of the appellant was September 22, 1956; and, therefore, he was over 16  years on the date of the occurrence. The High Court rejected the  documents produced  from the first two schools attended by  the appellant which showed his date of birth to be June  22, 1957,  for the  reason that those documents had not been  kept or  made by a public officer; it relied on an affidavit furnished  by the  father of  tho appellant  while admitting him to the third school in which the date of birth had been  changed to  September 22, 1956. The explanation of

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the appellant’s  father that  the date  of  birth  had  been changed to fulfil the requirement of age under the Rajasthan Board of  Secondary Regulations  to enable  the appellant to appear  in   the  Higher   Secondary  Examination   at   the appropriate time was not accepted.      Allowing the appeal, 584 ^      HELD: 1. (a) The relevant date for applicability of the Rajasthan Children  Act, 1970  so far  as  the  age  of  the accused, who claims to be a child, is concerned, is the date of the  occurrence and not the date of the trial as is clear from the provisions of ss. 3 and 26 of the Act. [594 C]      (b) At  the time  of the  occurrence, the appellant was undoubtedly a  child within  the provisions of the Act. [592 H]      (c) The  question whether  the appellant could be tried as a  child if  he had become more than 16 years by the time the case  went up  to the court, does not survive as the Act has now  been enforced  in  the  entire  State.  A  combined reading of ss. 3 and 26 clearly shows that the statute takes care of  contingencies where  proceedings in  respect  of  a child were pending in any court on the date on which the Act came into  force. Section  26 in  terms lays  down that  the court should  proceed with  the case  but after having found that the child has committed the offence it is debarred from passing any  sentence but is obliged to forward the child to the Children’s  court for  passing orders in accordance with the Act. [592 H; 593 A; 593 F-G]      (d) The  judgment of  the Sessions Judge as affirmed by the High  Court be  set aside  and the  Additional  Sessions Judge, Jaipur, be directed to try the accused and if he gave a finding  that the accused was guilty, he shall forward the accused to  the Children’s  court for  receiving sentence in accordance with the provisions of the Act. [594 E]      2. There  is no  legal requirement  under s.  35 of the Evidence Act  that the  public or other official book should be kept  only by  a public officer; all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document. [588 G; 589 C]      Mohd. Ikram  Hussain v.  State of U.P., [1964] 5 S.C.R. 86, 100  & Abdul  Majid v.  Bhargavam, A.I.R.  1963 Ker.  18 referred to.      The Rajasthan  Children Act  being a  piece  of  social legislation is  meant for  the  protection  of  infants  who commit criminal  offences  and,  therefore,  its  provisions should be  liberally and  meaningfully construed  so  as  to advance the  object of the Act. The Children Act was enacted to protect  young children  from the  consequences of  their criminal acts  on the  footing that  their mind  at that age could not  be said  to be mature for imputing mens rea as in the case of an adult. [524 D; 593 H; 594 A]      In the  instant case  there are  two documents  of  two different schools showing the date of birth of the appellant as June  22, 1957  and both these documents have been signed by his father and were in existence ante litem motam. Hence, there could  be no  ground to doubt the genuineness of these documents. At  the time  when the  age of  the appellant was first mentioned  in the admission form, there was absolutely no dispute  about the date of birth and there could Dot have been any  motive on  the part of the parents to give a false date of birth because it was his first admission to a school at a  very early  age. The school to which the appellant was admitted enjoyed good reputation of authenticity. 585

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there had  been any  element  of  suspicion,  the  admission register  and   the  scholar’s   register  would  have  been corrected by  the headmistress of the school. [591 D; 590 D; 590 H]      M/s. Gannon  Dunkerlay &  Co. Ltd.  v.  Their  Workmen, [1972] 3 S.C.C. 443 referred to.      3. The appellant’s father has given a cogent reason for changing the  date of  birth and  there is no reason for not accepting his  explanation particularly  because the offence was committed  seven years after changing the date of birth. [592 C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 439 of 1976.      Appeal by  special leave  from the  judgment and  order dated the  23rd April,  1976 of  the Rajasthan High Court in Criminal Revision No. 300 of 1974.      K.K. Venugopal,  S.S. Khanduja, and G.C. Mishra for the Appellant.      B.D. Sharma for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by special leave is directed against a judgment dated June 29, 1974 of the Rajasthan High Court  overruling  a  preliminary  objection  taken  by  the accused before  the Sessions  Judge to  the effect  that the Sessions Judge,  Tonk was  not competent  to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of  the Rajasthan Children Act, 1970 (hereinafter referred to  as the  ’Act’)  on  the  date  of  the  alleged occurrence. This  Act appears  to have  been passed  by  the Rajasthan Legislature,  but after  receiving assent  of  the President was  enforced in  various districts  from time  to time. Under  the provisions  of the Act any person below the age of  16 (sixteen) would be presumed to be a child and the trial  of   a  delinquent  child  was  to  be  conducted  in accordance  with   the  procedure  laid  down  therein.  The objection taken  by the  appellant was  that as he was below the age of 16 at the time of the occurrence on 12.3.1973, he could not be tried by the Additional Sessions Judge, Tonk or the Additional Sessions Judge, Jaipur city, to whom the case was transferred or 17.10.73 586      The Sessions Judge overruled the objection taken by the accused and  therefore he  filed a revision to the Rajasthan High  Court   against  the   order.  The  High  Court  after considering the  oral and  documentary evidence  came to the conclusion that  the Act was not applicable to the appellant for two  reasons-(1) that  it was  not brought into force in Tonk at  the time  of the  offence, and  (2) that it was not proved by  the accused  that he  was below  the age of 16 on 12.3.1973, the  date of  the  occurrence.  The  accused  was charged for  offences punishable  under sections 364 and 302 of the Indian Penal Code. Aggrieved by the order of the High Court, the  appellant moved  this Court in special leave and at the  time of  granting special leave, this Court directed the High  Court to  return a  finding of  fact on the actual date of  birth  of  the  accused  so  that  this  Court  may determine the  applicability of  the Act to the facts of the present case.      The High  Court after reappraising the entire evidence- oral and  documentary-by its  Order dated 18.11.76 came to a clear finding that the age of Umesh Chandra at the time when

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the offence  was committed was 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be  22.9.1956. After  the finding of fact called for from the High Court was sent to this Court, the appeal was placed for hearing before us.      In support  of the  appeal, the learned counsel for the appellant has  assailed the  finding of  the High Court-that the age  of the  appellant was  above 16  years-and  it  was contended that  the High  Court has  based its  decision  on wholly irrelevant  material and has also committed errors of law in appreciating important documentary evidence.      Another point  that was  argued before us was as to the application of  the Act  to  Tonk,  where  the  offence  was committed. As, however, the Act has now been enforced in the entire State, this question no longer survives because where a situation  contemplated by  s. 26  of the  Act arises,  an accused, who  is found to be a child, has to be forwarded by the Sessions  Court to  the Children’s  court which can pass appropriate sentence.  Where however  proceedings against  a child are  pending before  Sessions Judge,  s. 26 of the Act enjoins a  duty on  the Court  in which  the  proceeding  in respect of the child is pending on the date on which the Act is extended  to the  area  to  act  in  the  manner  therein prescribed. In  this eventuality,  the  Court  is  under  an obligation to proceed With the trial and record 587 a finding as if the Act does not apply. But after concluding the trial  and  recording  a  finding  that  the  child  had committed an offence, the Court cannot pass any sentence but the Court  is under  a statutory  obligation to  forward the child to  the Children’s  court which  shall pass  orders in respect of  that child  in accordance with the provisions of the Act,  as if  it has  been satisfied on inquiry under the Act that  the child  bas committed  the offence.  In view of this provision,  s. 21 would be attracted and the Children’s court will have to deal with the child under s. 21.      Thus, the  main point for consideration in this case is as to  what is  the exact  date of  birth of  the appellant, Umesh Chandra.  The High Court appears to have brushed aside the documentary evidence produced by the appellant mainly on the ground that subsequent documents clearly proved that the father of  the accused  had not correctly mentioned the date of birth  in the  previous schools attended by him (accused) and later  corrected his date of birth by an affidavit which was accepted  by the  High Court to be the correct date. The High Court  also rejected  the oral  evidence adduced by the appellant as also the horoscope produced by his father.      We agree  with the High Court that in cases like these, ordinarily  the  oral  evidence  can  hardly  be  useful  to determine the  correct age  of a  person, and  the question, therefore, would  largely depend  on the  documents and  the nature of their authenticity. Oral evidence may have utility if  no   documentary  evidence   is  forthcoming.  Even  the horoscope cannot  be reliable  because it can be prepared at any time  to suit  the needs  of a  particular situation. To this extent,  we agree  with the  approach made  by the High Court.      Coming now  to the  facts on  the basis  of  which  the appellant sought  protection to be tried only under the Act; according to the testimony of the father of the appellant he was. born  on 22.6.57  and was  aged 15  years 9  months  on 12.3.1973-the date of the occurrence.      It is,  however, not disputed that at the time when the appellant was born, his father was posted in a small village (Dausa) where  the maternal grandfather of the appellant had

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lived and perhaps he was not meticulous enough to report the birth of his children. There is nothing to show the birth of the appellant  nor any  evidence has  been produced  on this aspect of the matter. There is also nothing to show that the dates of birth of the other children of 588 Gopal (the father) were registered in any Municipal register or in  chowkidar’s register.  We have  mentioned  this  fact because the High Court seems to have laid special stress and great emphasis  on the non-production of any reliable record to prove  that the  birth of  the appellant had been entered therein. It  is common knowledge that in villages people are not very  vigilant in reporting either births or deaths and, therefore, an  omission of this type cannot be taken to be a most damaging  circumstance to  demolish  the  case  of  the appellant regarding his actual date of birth.      The first document wherein the age of the appellant was clearly entered  is Ext.  D-1 which  is the  admission  form under which  he was  admitted to  class III in St. Teressa’s Primary School,  Ajmer. In  the admission  form, the date of birth of  the appellant  has been  show a  as 22.6.1957. The form is  signed by  Sister Stella  who was the Headmistress. The form  also contains  the seal of the school, DW, Ratilal Mehta, who  proved the  admission form,  has clearly  stated that the  form was  maintained in  the  ordinary  course  of business and was signed only by the parents. The evidence of Ratilal Mehta  (DW 1)  is corroborated  by the  evidence  of Sister Stella  (DW 3) herself who has also endorsed the fact of the  date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in  regular course  and that  they were signed by her. She has also stated that at the time when the appellant was first  admitted she  was the headmistress of St. Teressa Primary School, Ajmer. The High Court seems to have rejected this  document  by  adopting  a  very  peculiar  process  of reasoning which  apart from  being  unintelligible  is  also legally erroneous.  The High  Court seems  to think that the admission forms  as also  the School’s  register (Ext.  D-3) both of which were, according to the evidence, maintained in due course  of business,  were not  admissible  in  evidence because they  were not  kept or  made by any public officer. Under s.  35 of  the Evidence  Act, all that is necessary is that the document should be maintained regularly by a person whose duty  it is  to maintain  the document and there is no legal requirement  that the document should be maintained by a public officer only. The High Court seems to have confused the provisions of sections 35, 73 and 74 of the Evidence Act in interpreting  the documents  which were admissible not as public documents  or documents maintained by public servants under sections 34, 73 589 or 74  but which were admissible under s. 35 of the Evidence Act which may be extracted as follows:           "35. Relevancy  of entry  in public record made in      performance of duty           An entry  in any  public or  other official  book,      register or record, stating a fact in issue or relevant      fact, and  made 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 books, register or record is      kept, is itself a relevant fact."                               (Emphasis ours)      A perusal  of the  provisions of  s. 35  would  clearly reveal that there is no legal requirement that the public or

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other official  book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge  of her  official  duty.  This  fact  has  been clearly proved  by two  independent witnesses,  viz., DW  1, Ratilal Mehta and DW 3, Sister Stella. The question does not present any  difficulty or  complexity as in our opinion the section which  would assist  in this  behalf is s. 35 of the Evidence Act  which provides  for relevancy  of entry in the public record. In this connection we may refer to a decision of this Court in Mohd. Ikram Hussain v. State of U.P., where Hidayatullah, J. speaking for the Court, observed as under:           "In the present case Kaniz Fatima was stated to be      under the  age of  18. There  were two certified copies      from school  register which show that on June 20, 1960,      she was  under 17  years of  age. There  was  also  the      affidavit of the father (here evidence on oath) stating      the date of her birth and the statement of Kaniz Fatima      to the  police  with  regard  to  her  own  age.  These      amounted to  evidence under the Indian Evidence Act and      the entries  in the  school registers  were  made  ante      litem motam."      This topic has been elaborately dealt with particularly in  regard  to  the  entries  in  School  Register  and  the admission forms  in the case of-Abdul Majid v. Bhargavam. In these circumstances, 590 the view  of the  High Court with regard to s. 35 is plainly untenable and ss. 73 and 74 are utterly irrelevant.      Further, the  High Court  was of  the view  that as the documents produced  by the  Teressa Primary School were kept in loose  sheets, no  reliance can  be placed  on them. This fact is admitted but the headmistress has explained that the admission forms  were bound much after the date of birth was recorded and  hence it cannot be presumed that the documents were not kept in the regular course of business.      Moreover,  the   School  where   the   documents   were maintained was  an English  public  school  and  the  record maintained by it was undoubtedly unimpeachable and authentic and could  not be suspected or presumed to be tampered with. At the  time  when  the  age  of  the  appellant  was  first mentioned in  the admission  form, there  was absolutely  no dispute about the date of birth or for that matter the exact date on  which he was born and there could not have been any motive on  the part  of the parents of the accused to give a false date  of birth because it was his first admission to a school at a very early age. Further, the school to which the appellant was  admitted being  a Public  School enjoyed good reputation of authenticity.      In M/s.  Gannon Dunkerlay  & Co.  Ltd. v. Their Workmen this Court made the following observations:           "In fact, if the register had been prepared at one      sitting for  purposes of these cases, the Company would      have taken  care that  no suspicious circumstance comes      into existence  and,  if,  by  chance,  any  error  was      committed, it  could have’ prepared another register in      lieu of Ext. C-1. The fact that this was not done shows      that this  register is  the register kept in the course      of business and, hence, there is no reason to doubt the      entries made in it."      These observations  fully apply  to the  facts  of  the present case  because if  there  had  been  any  element  of suspicion  in  giving  the  date  of  birth,  the  admission register  and   the  Scholar’s   register  would  have  been corrected by the headmistress of the school. 591

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    Exts. D-1 and D-2, mentioned above, are corroborated by subsequent documentary  evidence. It appears that an 1.7.65, the boy  was admitted  to 3rd  standard (equivalent  to  5th class) in  St. Paul’s  school, Jaipur  after the appellant’s father was  transferred from  Ajmer to Jaipur. Here also the document shows  that the  date of  birth given was the same, namely, 22.6.1957.      Thus, consistently on two occasions, starting from 1963 and ending  in 1965,  the date of birth was mentioned in the relevant documents  as 22.6.1957.  This Court in Mohd. Ikram Hussain v. State of U.P. & Ors. (Supra) has held that copies of school  certificates  or  the  affidavit  of  the  father constitute good  proof of  age, vide  observations extracted herein-before.      In the instant case also there are two documents of two different schools  showing the  age of the accused-appellant as 22.6.57  and both these documents have been signed by his father and  were in existence ante litem motam. Hence, there could be  no  ground  to  doubt  the  genuineness  of  these documents and  the High  Court committed  a serious error of law in brushing aside these important documents.      Another circumstance  which weighed with the High Court was that  when the boy was admitted in St. Paul’s school, no transfer certificate  appears to  have been  taken. This  by itself is  not  sufficient  to  dislodge  the  case  of  the appellant unless a transfer certificate was taken and it had shown that  the date of birth given there did not tally with the documents (Exts. D-1 to D-4).      It appears  that as  the father  of the  appellant  was subsequently transferred  from Jaipur  sometime in June 1966 to Dhausa  and he  was admitted to the Sanskrit Pathshala in Dhausa, for  the first time in this school the date of birth of the  appellant was  changed from  22.6.57 to 22.9.56. The explanation given  by his father is that as by this time the boy had  become almost  10 years  of age and as clause 10 of Chapter XVIII  of the Rajasthan Board of Secondary Education Regulations required that no candidate could take the Higher Secondary Examination  until he  had attained  the age of 15 years on  the 1st  of October  of  the  year  in  which  the Examination was  held, he had to give an affidavit to change this fact  in order  to enable his son (appellant) to appear in the  Higher Secondary  Examination. This position was not disputed by  the State.  The High  Court seems  to have made much of this lacuna and has gone 592 to the extent of labelling Gopal Sharma, appellant’s father, as a  liar having  gone to  the extent  of  making  a  false affidavit. Here  also, we  think the  High Court has taken a most artificial  and technical  view of  the matter.  In our country, it  is not uncommon for parents sometimes to change the age  of their  children in  order to  get some  material benefit either  for appearing in examination or for entering a particular  service which  would be  denied to  a child as under the  original date  of birth he would be either under- aged or ineligible.      Thus, the  appellant’s father has given a cogent reason for changing the date of birth and there is no reason not to accept his  explanation particularly because the offence was committed seven years after changing the date of birth, and, therefore, there  could be  no other reason why Gopal Sharma should have  gone to  the extent  of filing  an affidavit to change the date, except for the reason that he has given.      It was  also argued  that in  the insurance policy, the appellant’s mother  had shown  his age  as 10  years without giving the exact date of birth. The age of the appellant was

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given as a rough estimate in the insurance policy but as the policy was  not in  the name of the appellant, nothing turns upon this  fact particularly  because by  and  large  giving allowance for  a few months this way or that way the boy was about 10  years old  when the  policy was  taken.  The  High Court, therefore,  was  wrong  in  attaching  too  great  an importance to this somewhat insignificant fact.      For  these   reasons  we   are  satisfied   that  these circumstances also  do not put the case of the appellant out of court.      These are  the main reasons given by the High Court for distrusting what,  in our opinion, seems to be unimpeachable documentary evidence  produced by the appellant to show that his exact  date of  birth was  22.6.57 and  not  22.9.56  as altered by his father later.      Another question  argued at  the Bar  was as to what is the material  date which  is to  be seen  for the purpose of application of  the Act.  In view of our finding that at the time of the occurrence the appellant was undoubtedly a child within the provisions of the Act, the further question if he could be  tried as  a child  if he  had become  more than 16 years by the time the case went up to the 593 court, does not survive because the Act itself takes care of such a  contingency. In this connection sections 3 and 26 of the Act may be extracted thus:           "3. Continuation  of inquiry  in respect  of child      who has ceased to be child.           Where an  inquiry has  been  initiated  against  a      child and  during the  course of such inquiry the child      ceases  to  be  such,  then,  notwithstanding  anything      contained in  this Act or in any other law for the time      being in force, the inquiry may be continued and orders      may be made in respect of such person as if such person      had continued to be a child.           xx                  xx                  xx           26. Special provision in respect of pending cases.           Notwithstanding anything  contained in  this  Act,      all proceedings  in respect  of a  child pending in any      court in  any area  on the date on which this Act comes      into force  in that  area, shall  be continued  in that      court as  if this  Act had  not been  passed and if the      court finds that the child has committed an offence, it      shall record  such finding  and, instead of passing any      sentence in  respect of the child, forward the child to      the children’s court which shall pass orders in respect      of that  child in accordance with the provision of this      Act as  if it  has been satisfied on inquiry under this      Act that the child has committed the offence."      A combined  reading of these two sections would clearly show that  the statute  takes care  of  contingencies  where proceedings in  respect of a child were pending in any court in any  area on  the date  on which the Act came into force. Section 26  in terms lays down that the court should proceed with the  case but  after having  found that  the child  has committed the  offence  it  is  debarred  from  passing  any sentence but would forward the child to the children’s court for passing orders in accordance with the Act.      As regards the general applicability of the Act, we are clearly  of   the  view  that  the  relevant  date  for  the applicability of  the Act  is the  date on which the offence takes place.  Children Act  was  enacted  to  protect  young children from the consequences of their 594 criminal acts  on the  footing that  their mind  at that age

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could not  be said  to be mature for imputing mens rea as in the case  of an adult. This being the intendment of the Act, a clear  finding has  to be  recorded that the relevant date for applicability  of the  Act is  the  date  on  which  the offence takes  place. It  is quite possible that by the time the case  comes up  for  trial,  growing  in  age  being  an involuntary factor, the child may have ceased to be a child. Therefore, ss.  3 and 26 became necessary. Both the sections clearly point  in the direction of the relevant date for the applicability of  the Act  as the date of occurrence. We are clearly of the view that the relevant date for applicability of the  Act so far as age of the accused, who claims to be a child, is  concerned, is  the date of the occurrence and not the date of the trial.      The High  Court has  failed to take notice that the Act being a  piece  of  social  legislation  is  meant  for  the protection of  infants who  commit  criminal  offences  and, therefore,  its   provisions   should   be   liberally   and meaningfully construed  so as  to advance  the object of the Act. Bearing this in mind we have construed the documents in the instant case.      We, therefore,  allow the  appeal to  the  extent  that while setting  aside the  judgment of the Sessions Judge, as affirmed  by  the  High  Court,  we  direct  the  Additional Sessions Judge, Jaipur, to try the accused and if he gives a finding that  the accused  is guilty,  he shall  forward the accused to  the Children’s  court for  receiving sentence in accordance with the provisions of s. 26 of the Act. H.L.C.    Appeal allowed. 595