Anand Singh vs State Of U.P. & Another
2014 Latest Caselaw 4057 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 25
 
Case :- CRIMINAL REVISION No. - 146 of 2014
 
Revisionist :- Anand Singh
 
Opposite Party :- State Of U.P. & another
 
Counsel for Revisionist :- Pradeep Kumar Singh
 
Counsel for Opposite Party :- Govt. Advocate, Kunwar Mukul Rakesh,Kunwar Shushant Prakash,Sunil Kumar Singh
 
                                                    
 
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Hon'ble Aditya Nath Mittal,J.

1. Heard learned counsel for the revisionist, learned Additional Government Advocate, learned counsel appearing for the opposite party no.2 and perused the record.

2. This criminal revision has been filed against the judgment and order dated 03.04.2014, passed by the learned Sessions Judge, Lucknow, by which the order of the Juvenile Justice Board, Lucknow dated 14.02.2014 has been set-aside and the opposite party no.2 has been declared as juvenile.

3. Learned counsel for the revisionist has submitted that there is difference of only six months and one day in the age of the proposed juvenile and his brother, which is not practically possible. It has also been submitted that the Juvenile Justice Board has rightly held that opposite party no.2 was not juvenile on the date of incident, but learned Sessions Judge without any ground has set-aside the said judgment of Juvenile Justice Board.  It has also been submitted that the first school attended was not a recognized school, therefore, the age mentioned in that school cannot be taken into consideration.

4. On the other hand, learned counsel appearing for the opposite party no.2 has submitted that in view of the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 the date recorded in the first school attended and the date mentioned in the High School Certificate is to be taken into consideration and the said Kutumb Register cannot be taken into consideration.   It has also been submitted that if there is a difference of only six months and one day in the age of two children, then it cannot be said that the opposite party no.2 was not juvenile on the date of incident.

5. In support of his submission, learned counsel for the revisionist has relied upon the judgment of Hon'ble Single Judge of this Court at Allahabad pronounced in Criminal Revision No.5506 of 2004; Amit Kumar vs. State of U.P. Learned counsel for the revisionist has also placed reliance upon the cases of Mohammad @ Noor Mohammad (Minor) vs. State of U.P. and another reported in [2011 (72) ACC 144], Om Prakash vs. State of Rajasthan and another reported in [2012 920 JIC 904 (SC)], Ravinder Singh Gorkhi vs. State of U.P. reported in [2006 (3) JIC 742 (SC)] and Jabar Singh vs. Dinesh and another reported in [2010 (2) JIC 431 (SC)]

6. In the case of Om Prakash vs.State of Rajasthan (supra) the Hon'ble Apex Court has held that where there is contradictions in school records, the medical evidence becomes relevant and strong evidence.

7. In the case of Ravindra Singh vs. State of U.P. (Supra), the Hon'ble Apex Court has held that the alleged juvenile was never serious in projecting his plea that he was minor on the date of commission of offence and such statement was made for the first time while at the statement under Section 313 Cr.P.C. The Hon'ble Apex Court has further held that appellant was not serious in projecting his plea of minor hence such plea cannot be entertained at this stage.

8. In the case of Jabar Singh vs. Dinesh and another (Supra) the Hon'ble Apex Court has held that the trial court has jurisdiction to decide the issue of juvenility and the contention that only the competent authority had jurisdiction to decide the juvenility has no merit. The Hon'ble Apex Court has further held that the trial court has given good reasons for discarding the evidence adduced and in these circumstances, the High Court should not have substituted his own findings.

9. As the position of law has already been settled by the Hon'ble Apex Court, therefore, I do not propose to discuss the Hon'le Single Judge judgments of this Court.

10. It is not disputed that age of the proposed juvenile has to be determined in accordance with rules. In this regard, the State of U.P. has also prescribed the rules.

11. Rule 22 (5) of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 provides as under:-

"22. ...........

(5) In every case concerning a juvenile or child, the Board shall either obtain:-

(i) a birth certificate given by a corporation or a municipal authority; or

(ii) a date of birth certificate from the school first attended; or

(iii) matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age."

12. There are Central Rules of 2007 in this regard also and Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 provides as under:-

"12. ...........

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

	(a)  (i) the matriculation or equivalent certificates, if available; and in 	            the absence whereof;
 
(ii) the date of birth certificate from the school (other than a play   school)   first attended; and in the absence whereof;
 
(iii) the birth certificate given by a corporation or a municipal authority or a  panchayat;
 

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

13. Section 68(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 provides as under:-

"(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

[Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the state government may make rules under this section, and where any such model rules have been framed in respect of that any such matter, they shall apply to the state until the rules in respect of that matter is made by the state government and while making any such rules, so far as is practicable, they confirm to such model rules.]"

14. The aforesaid proviso to Section 68(1) specifically provides that the model Rules framed by Central Government shall apply to the State until the Rules in respect of the matter is made by the State Government. The State of U.P. has framed the Rules in the year 2004 which have came into force on 1.5.2004. Accordingly, the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 will apply in the present matter.

15. In Jyoti Prakash Rai @ Jyoti Prakash Vs. State of Bihar, (2008) 15 SCC 223, the Hon'ble Apex Court has held as under:-

"The 2000 Act is indisputably a beneficial legislation. Principles of beneficial legislation, however, are to be applied only for the purpose of interpretation of the statute and not for arriving at a conclusion as to whether a person is juvenile or not. Whether an offender was a 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 records by the parties. In absence of any evidence which is relevant for the said purpose as envisaged under Section 35 of the Indian Evidence Act, the same must be determined keeping in view the factual matrix involved in each case. For the said purpose, not only relevant materials are required to be considered, the orders passed by the court on earlier occasions would also be relevant.

The court has to determine the age keeping in view a large number of factors. It is in that context it was opined in Birad Mal Singhvi Vs. Anand Purohit, 1988 Supp SCC 604,:

"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."

In Ravinder Singh Gorkhi Vs. State of U.P., (2006) 5 SCC 584, it was held :-

"21. 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." It was furthermore held :-

"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 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 a 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."

16. In Babloo Pasi Vs. State of Jharkhand and another, (2008) 13 SCC 133, the Hon'ble Apex Court has held as under:-

"Insofar as the Board is concerned, it is evident that it has mechanically accepted the entry in Voters List as conclusive without appreciating its probative value in terms of the provisions of Section 35 of the Indian Evidence Act, 1872. Section 35 of the said Act lays down that an entry in any public or other official book, register, record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact.

It is trite that to render a document admissible under Section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially 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. (See: Birad Mal Singhvi Vs. Anand Purohit)

Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore-noted conclusion, which again may not be a decisive factor to determine the age of a delinquent."

17. In Jabar Singh Vs. Dinesh and another, (2010) 3 SCC 757, the Hon'ble Apex Court has held as under:-

"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 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 the High Court in exercise of its revisional powers."

18. In Ram Suresh Singh Vs. Prabhat Singh @ Chhotu Singh and another, (2009) 6 SCC 681, the Hon'ble Apex Court has held as under:-

"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.

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. 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."

19. In Om Prakash Vs. State of Rajasthan & another, (2012) 5 SCC 201, the Hon'ble Apex Court has held as under:-

"We are unable to appreciate and accept the aforesaid contention of learned counsel for the respondent since the age of the accused could not be proved merely on the basis of the school record as the courts below in spite of its scrutiny could not record a finding of fact that the accused, in fact, was a minor on the date of the incident. Hence, in a situation when the school record itself is not free from ambiguity and conclusively prove the minority of the accused, medical opinion cannot be allowed to be overlooked or treated to be of no consequence.

It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.

The benefit of the principle of benevolent legislation attached to Juvenile Justice Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue. Hence if the plea of juvenility or the fact that he had not attained the age of discretion so as to understand the consequence of his heinous act is not free from ambiguity or doubt, the said plea cannot be allowed to be raised merely on doubtful school admission record and in the event it is doubtful, the medical evidence will have to be given due weightage while determining the age of the accused.

Adverting to the facts of this case we have noticed that the trial court in spite of the evidence led on behalf of the accused, was itself not satisfied that the accused was a juvenile as none of the school records relied upon by the respondent-accused could be held to be free from doubt so as to form a logical and legal basis for the purpose of deciding the correct date of birth of the accused indicating that the accused was a minor/juvenile on the date of the incident.

Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him.

20. Section 35 of Indian Evidence Act lays down the following three conditions regarding the entry in any public or other official book, register or record;

(i) Entries i.e. relied upon must be recorded in a public or other official book, register or record.

(ii) It must be in an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and

(iii) It must be 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.

21. In the present case, learned Juvenile Justice Board relying upon the Kutumb Register has held that opposite party no.2 was not juvenile. In view of the provisions of Section 35 of the Evidence Act, the entries of Kutumb Register cannot be a conclusive prove regarding the age of the person. The Kutumb Register denotes only the number of family members and their relationship with the head of the family. The entries of the Pariwar Register cannot be authentic prove of the age. Admittedly, in the present case, there is no birth certificate given by the Corporation or the Municipal Authority. It has been alleged that the opposite party no.2 has at the first instance taken admission in Class-III in Navyug Convent Secondary School, Sainik Enclave Part-II, near C.R.P.F. Camp, New Delh on 10.07.2004 and at that time, his date of birth was recorded as 02.07.1996. I do not find any substance in the submission of learned counsel for the revisionist that the said school is not a government approved school, therefore, the record of the school cannot be relied upon. Rule 22, Sub-Rule-5 of U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004 nowhere provides that the school first attended should be recognized by the government.

22. In this school the opposite party no.2 had received admission upto Class-VII and thereafter he took admission in Central School, C.R.P.F., Bijnore, Lucknow and in that school his date of birth was mentioned as 02.07.1996. Thereafter, the juvenile took admission in Awadhesh Smriti Uchchtar Madhyamik Vidyalaya, Raisamau, Ballia wherein his date of birth has also been recorded as 02.07.1996. The Juvenile Justice (Care and Protection of Children) Rules, 2004 is the benevolent legislation and if there is any ambiguity, that has to be construed in favour of the juvenile. The date of birth recorded in the school first attended and upto the High School does not create any doubt.

23. Accordingly, the date of birth of juvenile Sanjeev Rai appears to be 02.07.1996, which is subsisting since 10.07.2004 when he first took admission in the school. If father of the juvenile has got recorded the lesser age, then appropriate action may be taken against the father, but for that, the juvenile should not suffer.

24. Learned Sessions Judge, Lucknow has considered all aspects of the matter in detail and I do not find any error of law or perversity in the impugned order.

25. In view of the above, the revision lacks merits and deserves to be dismissed.

26. The revision is dismissed.

Order Date :- 6.8.2014

Suresh/