Narayan S/O. Supadsing Mandawat vs The State Of Maharashtra
2023 Latest Caselaw 1210 Bom

                                                                   Revn-320-2018 judg.odt
                                        (1)


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

             CRIMINAL REVISION APPLICATION NO.320 OF 2018

  Narayan s/o. Supadsing Mandawat,
  Age : 19 years, Occ. Agriculture,
  R/o : Bhogalwadi, Tal. & District Aurangabad.             ...Applicant

          Versus

  1.      The State of Maharashtra,
          through Police Inspector Karmad Police Station,
          Aurangabad.

  2.      X.Y.Z.,
          through her guardian.                    ...Respondents
                                 ...
  Mr. Satish A. Gaikwad, Advocate for Applicant.
  Mr. D.V. More, Advocate for Respondent No.2.
  Mr. S.P. Sonpawale, APP for the Respondent/State.
                                 ...
                                     CORAM : S.G. MEHARE, J.

RESERVED ON : 20th JANUARY , 2023 PRONOUNCED ON : 06th FEBRUARY, 2023

JUDGMENT :-

1. Rule. Rule made returnable forthwith. With the consent

of the parties, the petition is finally heard.

2. The applicant who had attained the majority at the time

of filing of this petition has impugned the order of the Adhoc District

Judge-2 and Additional Sessions Judge, Aurangabad, passed below

Exhibit-22 in S.C. (POCSO) No.305/2014 dated 30.11.2018.

3. The brief facts relevant to the facts in issue have been

summarized as follows.

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4. The applicant was arraigned as an accused of the

offences under Section 376(2)(f)(i) and 342 of the Indian Penal Code

read with Sections 3, 6 and 5(i)(m) of the Protection of Children

From Sexual Offences Act, 2012 ('POCSO Act' for short). The charges

were framed. The witnesses were also examined. The accused did not

cross-examine the witnesses, as the counsel representing the accused

did not attend the case. Subsequently, the lawyer changed. He sought

permission to cross-examine the witnesses. The leave was granted;

however, instead of cross-examining the witnesses, the

applicant/accused raised a plea of juvenility. He claimed that on the

date of the alleged incident, he was below 18 years. Therefore, the

inquiry may be conducted in that regard, and he may be dealt with

accordingly.

5. The investigating officer has collected the proof of the

date of birth of the applicant from the school where the applicant was

admitted to level first. The certificate issued by the school was

attached to the charge sheet. As per the said entry of the school

admission, his date of birth was 01.06.1994. The incident occurred

on 28.05.2014. The learned Adhoc District Judge and Additional

Sessions Judge, Aurangabad, considered these facts and held that at

the time of the alleged incident, the applicant was 19 years, 11

months and 27 days old.

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6. The learned Additional Sessions Judge granted the leave

to examine the witnesses. The applicant examined the headmistress

of the school where he was admitted to level first. She produced the

extract of the Pravesh Patrak and Nirgam Utara (the extract of the

information about the student recorded at the time of his/her

admission). He also produced the birth certificate issued by the

Village Sarpanch dated 04.07.2001, Ladsawangi wherein his date of

birth was recorded as 01.06.1994. He also supplied the certificate of

the Village Development Officer, and the office of the Village

Sarpanch Ladsawangi dated 06.08.2019, wherein he certified that in

the birth register, there was no entry of the birth of the applicant. He

would also rely on the ossification test dated 04.07.2014. On the

report of ossification test the opinion was expressed that the

approximate age of the applicant was between 17 to 18 years.

Therefore, if the benefit of a margin of two years is given, he was

below 18 years at the time of the alleged incident.

7. Learned counsel for the applicant further argued that the

entry in the school admission register has no probative value. Either

the parents are examined, or the person on whose information the

entry was made has to be examined. To bolster his arguments, he

relied on the case of Muskan w/o Shaikh Rashid @ Rafiq Vs. The

State of Maharashtra, 2017 ALL MR (Cri) 2722. He further relied on

the case of Madan Mohan Singh and Ors Vs. Rajni Kant and Ors, Civil

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Appeal No.6466 of 2004, decided on 13.08.2010 (Supreme Court). In

the said judgment in para 17, it has been observed that "For

determining the age of a person, the best evidence is of his/her

parents, if it is supported by unimpeachable documents. In case the

date of birth depicted in the school register/certificate stands belied

by the unimpeachable evidence of reliable persons and

contemporaneous documents like the date of birth register of the

Municipal Corporation, Government Hospital/Nursing Home etc, the

entry in the school register is to be discarded.

8. He also relied on the case of Alamelu and Ors Vs. State

represented by Inspector of Police, Criminal Appeal No.1053 of 2009

decided on 18.01.2011 (Supreme Court). In the said case, the

observations recorded in the case of Birad Mal Singhvi Vs. Anand

Purohit MANU/SC/0052/1988: 1988 (Supp) SCC 604 were

reiterated. It has been observed in the said case that merely proving

the documents does not mean that the contents of the documents

were also proved.

9. He also relied on the case of Vinod Katara Vs. State of

Uttar Pradesh, 2022 LiveLaw (SC) 757. On evaluating the facts of the

case, the Hon'ble Supreme Court held that when two probabilities

arise, the benefit of doubt goes in favour of the accused. He also

relied on the case of Shah Nawaz Vs. State of U.P. and Anr., Criminal

Appeal No.1531 of 2011 (Arising out of S.L.P. (Cri.) No.3361 of

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2011) and argued that the mark sheet is one of the proofs for

determining the age of the accused. It was reiterated in the said case

that the entry relating to the date of birth entered in the mark sheet

is one of the valid proof of evidence for the determination of the age

of an accused. The School Leaving Certificate is also valid proof in

determining the age of the accused person.

10. He also relied on the case of Ravinder Singh Gorkhi Vs.

State of U.P., (2006) 5 SCC 584. In the said case, the requirement of

Section 35 of the Indian Evidence Act was discussed. It was observed

that 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 the performance of a duty specially enjoined by the law

of the country, and (iv) all persons concerned indisputably must have

access thereto. It has also been held that in the absence of any other

statute operating in the field, Section 35 of the Indian Evidence Act

will apply. It has been finally expressed that until the age of a person

is required to be determined in a manner laid down under a statute, a

different standard of proof should not be adopted. He also relied on

the case of Arnit Das Vs. State of Bihar, (2000) 5 SCC 488. The facts

of that case are altogether different. In the case of Hari Ram Vs. State

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of Rajasthan and Another, (2009) 13 SCC 211 , it has been held that

once after the accused had crossed the age of 18 years on or before

the commencement of the Juvenile Justice (Care and Protection of

Children) Act, 2015 ('The J.J. Act' for short) or was undergoing

sentence after conviction, the claim of the juvenility is tenable. It has

also been held in the said case that the age of the person claiming

juvenility has to be determined in the manner prescribed in Rule 12

of Juvenile Justice (Care and Protection of Children) Rules, 2007

('The J.J. Rules' for short). In Rule 12 of the said Rules, the procedure

to determine the age was laid down. It was observed that the Court

or the Board or as the case may be, the Committee or board shall

decide the juvenility of the person in conflict with law, for

determining the age, the Court or the Board or as the case may be,

the Committee was to seek evidence by obtaining the matriculation

or equivalent certificates, if available; and in the absence whereof;

the date of birth certificate from the school (other than a play school)

first attended; and in the absence whereof; the birth certificate given

by a corporation or a municipal authority or a panchayat; and only in

the absence of either, the medical opinion was to be sought from a

duly constituted Medical Board.

11. On the basis of the above arguments, learned counsel for

the applicant claimed that the evidence produced by the prosecution

as regards the age of the applicant was inadmissible. The entry in the

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school cannot be taken on the basis of the certificate issued by the

Sarpanch, who has no authority. Registration of Births and Deaths

Act, 1969 confers the power on the public servant. Therefore, the

entry in the school admission register is invalid and inadmissible. He

argued that for these reasons, the impugned order is liable to be

quashed and set aside.

12. Per contra, learned APP for the State would submit that

the applicant failed to produce the evidence that may impeach the

entry in the school register. The applicant himself has brought the

fact on record that there was no entry in the birth register maintained

by the Village Panchayat. The entry taken in the school admission

register was taken by a public servant in discharge of his official duty

on the instructions and information supplied to him by the parents.

Therefore, in the absence of any evidence that may impeach the entry

into the school, the entry recorded in the admission register long

back by a public servant has probative value. Therefore, the

impugned order is legal, correct and proper.

13. As per the school entry, the date of birth of the

applicant/accused was 01.06.1994. To rebut the probative value of

the said entry, the accused examined the headmistress of the primary

school where the applicant was admitted to the first level. She had

produced the admission extract register and admission form bearing

a thumb impression of the mother of the applicant. But there was no

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column in the admission register, about the person who gave the

information about the date of birth of the pupil. She proved the said

documents. The accused re-examined the said witness, and it was

brought in her cross-examination that she was not serving as

headmistress on the date of the admission of the accused to the

school. She did not know who the headmaster was at the time of the

applicant's admission.

14. The application claiming the juvenility was filed on

13.07.2017. Earlier, the J.J. Rules, 2007, were available to determine

the age of the accused. On the date of the application, the J.J. Act

2015 was in force; hence, the procedure prescribed under Section 94

of the said act for determining the age would apply. Sub-section 2 of

Section 94 of the J.J. Act, which is relevant, reads thus:

"(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest

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medical age determination test conducted on the orders of the Committee or the Board:"

15. The ratio laid down in the case of Birad Mal Singhvi

(cited supra) is squarely applicable to the case at hand. In rebuttal,

the headmistress of the primary school the successor in office had

produced the record maintained by the school through the public

servant in the discharge of her/his official duty. Therefore, her

evidence is cogent and reliable. She has also produced the admission

form, which bears the thumb impression of the mother of the

applicant. It is correct that the Village Sarpanch has no power to issue

the birth certificate. For Village Panchayats, the State employees are

the Registrars of death and birth registration. They must maintain the

registers prescribed under the Registration of Death and Birth Act

1969. However, the fact remains that the applicant was admitted to

the school, and his date of birth was recorded on the instructions of

her mother. This is the material on the basis of which the age was

recorded, and it was the entry stating the fact in issue and made by a

public servant in the discharge of his official duty. In the case of

Muskan Shaikh (cited supra), it has been held that the secondary

school certificate has no probative value. Either the parents are

examined, or the person on whose information the entry must have

been made is examined. The facts of this case are altogether

different. The applicant or his parents never complained about the

entry in the school admission record about his date of birth. For

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changing his date of birth, the procedure has been laid down in

Secondary School Code. That apart, the applicant has no

unimpeachable evidence of a reliable person or contemporaneous

documents like the date of birth register of the Municipal

Corporation, Government Hospital/Nursing Home etc., to discard the

entry in the school register. In the absence of such evidence, the entry

in the school admission register cannot be discarded.

16. Sub-section 2 of Section 94 is very specific that the first

evidence of the date of birth certificate from the school, or the

matriculation or equivalent certificate from the concerned

examination Board should be preferred, the birth certificate given by

a corporation or a municipal authority or a panchayat. In view

thereof, the birth certificate from primary school has a probative

value.

17. Learned counsel for the applicant argued that the entry

in the school record is inadmissible. Therefore, the ossification test

report would prevail. However, in Sub-section 2 sub-clause (iii), it

has been specifically provided that in the absence of the documents

required in clause (i) and (ii), the ossification test be conducted on

the orders of the Committee or Board to determine the age. In simple

words, it is clear that the ossification test to determine the age is the

last remedy available in the absence of documents mentioned in

clauses (i) and (ii) of said sub-section. The school record is

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admissible. In view thereof, the ossification test report cannot be

considered.

18. The applicant failed to establish the juvenility on the

date of the alleged incident. He does not deserve the benefit of

juvenility. The impugned order is well reasoned and free from

infirmity. The Court did not find any substantial grounds to interfere

with the impugned order. Hence, the revision application stands

dismissed.

19. Rule is discharged.

(S.G. MEHARE, J.)

Mujaheed//