Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.________ OF 2009
(Arising out of SLP (Crl.) No.4601 of 2006)
Ram Suresh Singh … Appellant
Versus
Prabhat Singh @ Chhotu Singh & Anr. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Respondent no.1 is facing trial in Nava Nagar P.S. Case No.102 of
2003 on the charge of committing murder of one Tribhuvan Singh.
Appellant before us is the uncle of the deceased.
3. Before the learned trial Judge, a plea was raised by him that he was a
juvenile. In support of the said plea, entries in the admission
register/certificate in the Government Secondary School, Navanagar, Buxar,
2
nd st
in which he took admission on 22 January 1996 and studied up to 31
rd
December 1999, were produced. The said certificate was issued on 23
February 2000, the relevant portion whereof reads as under :
“1. Name of Student : Prabhat Ranjan
2. Father’s/Guardian’s Name: Shri Rajkishor Singh
3. Permanent Address : Vill-Amir Pur, Post
Navanagar Distt-Buxar
(Bihar)
4. Date of first admission
in the school : 22.01.1996
XXX XXX XXX
7. Date of Birth in Admission
Register (in number and : 10.02.1987
Words) : Tenth February Eighty
Seven
8. Date of Leaving the School: 31.12.1999
9. At the time of leaving
School studying in which
Class : 8th”
4. The said admission register/certificate, thus, shows that the date of
birth of the accused is 10.02.1987.
5. A xerox copy of another certificate dated 12.11.2003 was also brought
on record which was issued by the Principal, Ram Lakhan Singh Yadav
High School. The said certificate also shows the date of birth of the first
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respondent to be 10.02.1987. It was proved by a teacher of the said school,
Shri Raj Kumar who examined himself as PW -2 as also by the father of the
accused, namely, Raj Kishore Singh.
6. The learned Magistrate, however, appointed a Medical Board. The
th
Medical Board, in its report dated 10 February 2005, inter alia, upon taking
ossification test, estimated his age to be within 20 to 22 years.
rd
By an order dated 03 August 2005, the Principal Magistrate, Juvenile
th
Justice Board, Patna held that on the date of occurrence, i.e., 10 September
2003, the age of the respondent no.1 was more than 20 years stating :
“Considering the evidence on record, there
is only evidence which is the Report of the
Medical Board. The statement of the father of the
accused and the teacher of the school supported
with the certificate which are not conclusive and
sufficient under rules of Juvenile Justice (Care &
Protection) Rules, 2001. Accordingly, on the basis
of the report of the Medical Board and on physical
appearance of the accused and conclusion arrived
at that this accused is not Juvenile at this stage nor
at the time of alleged commission of offence.
Accordingly, this case record is remitted back to
the court concerned for disposal in accordance
with law.”
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7. Respondent no.1 filed a revision application thereagainst before the
th
High Court of Patna which, by reason of the impugned order dated 17 May
2006, was allowd by a learned Single Judge, holding :
“Considering the submission made by the parties
and the decision relied on by them, find that the
evidence which was produced by the petitioner
before the Juvenile Justice Court were sufficient
for determination of his age. The certificate
granted by the Headmaster by Ram Lakhan Singh
High School stating the date of birth of the
petitioner as 10.02.1987 was issued on 23.02.2000
and the date of occurrence is 10.09.2003, much
after issuance of certificate by the headmaster of
Ram Lakhan Singh High School where the date of
birth of the petitioner has been mentioned as
10.02.1987. In support of the age, the admission
register of the school was also produced wherein
the petitioner’s name has been mentioned in
Sl.No.134. There also the date of birth of the
petitioner has been mentioned as 10.02.1987 and
the date of issuance of school leaving certificate is
mentioned as 23.02.2000. There is no reason for
doubting or suspecting the genuineness of these
two documents. In the impugned order also no
reason has been assigned for disbelieving the
transfer certificate and the photo copy of the
certificate issued from Ram Lakhan Singh Yadav
High School, Nava Nagar. Rule 22(5) of the
Juvenile Justice (Care and Protection of Children)
Act, 2000, order of priority has been given to the
certificate of birth issued by the school in
preference to the opinion of the duly constituted
medical board. Only in case of some dispute
regarding genuineness of these documents, the
Juvenile Justice Board can seek opinion of duly
constituted medical board for ascertaining the age
of an accused for declaring him Juvenine.
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Considering the fact that there is nothing on
record to disbelieve these documents the evidence
of the father as well as teacher, the Juvenile Justice
Board should have decided in favour of the
petitioner and declared him Juvenile. The Apex
Court also in similar matters have decided that the
liberal view should be taken by Juvenile Justice
Board as well as courts while ascertaining the age
of accused for the purpose of declaring him
Juvenile. Relying upon the certificate produced
before the Juvenile Justice Board and the evidence
of father and teacher, certainly the petitioner was a
Juvenile on the date of occurrence.
Accordingly the order dated 03.08.2005
passed by the Juvenile Justice Board Patna City in
J.J.B.o.492 of 2005 is set aside and this application
is allowed.”
8. Mr. Praneet Ranjan, learned counsel appearing on behalf of the
appellant would contend :-
(i) Having regard to the provisions of Section 35 of the Indian
Evidence Act, 1872 the High Court committed a serious error in
relying upon the entries made in the School register in
preference to the opinion of the Medical Board.
(ii) An entry in regard to date of birth of a student recorded in
admission register, being not a public document, must be
proved to have been recorded at the instance of a person who
was the guardian of the student.
Strong reliance was placed on a decision of this Court in case of Birad
Mal Singhvi v. Anand Purohit [1988 (Supp.) SCC 604] and a decision
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of the Calcutta High Court in the case of Raja Janaki Nath Roy v.
Jyotish Chandra Acharya Chowdhury [AIR 1941 Cal. 41].
(iii) As the age of a person required to be determined by a person having
regard to the provisions contained in Section 35 of the Evidence Act
both in civil as also in criminal proceeding involve the same legal
principle, the High Court failed to consider the depositions of the
witnesses examined in the enquiry, namely, Raj Kumar and Raj
Kishore Singh, in their proper perspective.
9. Mr. Shishir Pinaki, learned counsel appearing on behalf of respondent
no.1, on the other hand, urged :
(a) as the admission register of the school in respect of the respondent
no.1 showing his date of birth has been proved, the impugned order is
unassailable.
(b) It was, however, submitted that in the event the medical report is
taken into consideration [which otherwise may not be necessary in
view of Rule 22(5) of the Juvenile Justice (Care & Protection of
Children) Rules, 2001], the respondent’s age would be 18 years
having regard to the fact that an error of two years or either side is
possible.
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(c) Bihar Education Code having a statutory status, as Article 242
whereof provides for maintenance of a school register, presumption of
correctness in respect thereof should be raised.
10. 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.
Section 6 of the Juvenile Justice (Care & Protection of Children) Act,
2000 deals with the power of the Juvenile Justice Board which is extracted
below :
“ 6. Powers of Juvenile Justice Board. -(1)
Where a Board has been constituted for any district
or a group of districts, such Board shall,
notwithstanding anything contained in any other
law for the time being in force but save as
otherwise expressly provided in this Act, have
power to deal exclusively with all proceedings
under this Act relating to juvenile in conflict with
law.
(2) The powers conferred on the Board by or under
this Act may also be exercised by the High Court
and the Court of Session, when the proceeding
comes before them in appeal, revision or
otherwise.”
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11. Respondent no.1 claims himself to be a juvenile. An enquiry was
directed to be conducted. In the said enquiry, evidently, the original register
maintained by the Government Secondary School, Nava Nagar was
produced. Date of birth of the said respondent was stated to be 10.02.1987.
Before us, a contention was raised as to whether column no.5 thereof was
filled up or not. An affidavit was filed to show that column no.5 is statement
on the declaration of the father. We would, therefore, proceed on the said
basis.
12. Respondent no.1 was admitted in the Govt. Secondary School, Nava
nd st
Nagar on 22 January 1996. He left the school on 31 December 1999.
rd
Certificate was issued on 23 February 2000 so as to enable him to take
admission in another school, namely, Ram Lakhan Singh Yadav High
School. We may not consider the certificate granted by the Principal of the
latter school as only a xerox copy thereof was filed inasmuch as the original
having been not produced, the same was inadmissible in evidence.
13. Before the courts below, Shri Raj Kumar, a teacher of Ram Lakhan
Singh Yadav School examined himself. Although he was not present when
the respondent no.1 was admitted in the school, but he proved the contents
of the admission register. It is, therefore, not correct to contend that the
contents of the admission register were not proved. Raj Kishore Singh,
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father of the respondent no.1 also examined himself. He also proved the
date of birth of the respondent no.1.
14. In terms of the provisions of Section 68 of the Juvenile Justice (Care
& Protection of Children) Act, 2000, the Central Government has framed
Juvenile Justice (Care & Protection of Children) Rules, 2001. Rule 22 of the
said Rules provides for the procedure to be followed in respect of
determination of the age of a person. It indicates that the opinion of the
Medical Board is to be preferred only when a date of birth certificate from
the school first attended is not available.
15. 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.
16. 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.
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17. Even if we had to consider the medical report, it is now well known
that an error of two years in determining the age is possible.
In the case of Jaya Mala v. Home Secretary, Government of Jammu
and Kashmir & Ors. [AIR 1982 SC 1297 = (1982) 2 SCC 202], this Court
held :
“However, it is notorious and one can take judicial
notice that the margin of error in age ascertained
by radiological examination is two years on either
side.”
18. There cannot furthermore be any doubt whatsoever that same standard
is required to be applied for the purpose of Section 35 of the Evidence Act
both in civil as also criminal proceedings, as was held by this Court in the
case of Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, stating :
“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 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
11
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.”
However, the medical opinion rendered in this case corroborates the
entry made in the register. Admission register of the school having been
proved in accordance with law, we do not see any reason as to why the same
should not be taken into consideration.
19. We are not oblivious of the fact that it is difficult to lay down a law as
to whether in a case of this nature, the lower or the upper age or the average
age should be taken into consideration. Each case depends on its own facts.
In the case of Jyoti Prakash Rai @ Jyoti Prakash v. State of Bihar 2008(3)
SCALE 348 this Court, upon consideration of large number of decisions,
opined :
“19. Appellant herein had produced a large
number of documents to prove his age purported to
be as on the date of commission of the crime. The
genuineness of the school certificate and the
horoscope had been questioned. The school
12
certificate produced by the appellant was found to
be forged and fabricated and as a matter of fact a
criminal case was directed to be instituted against
the Head of the Institution.
20. The court, therefore, had no other
option but to determine the age on the basis of the
Medical Reports. Both the medical reports dated
24.04.2001 and 29.06.2001 opined the age of the
appellant between 18 and 19 years. In terms of
first medical report, the age of the appellant came
to be 18 years 5 months 8 days and in terms of the
second medical report, it came to be between 18
and 19 years. The High Court opined that the
appellant on 1.04.2001 was definitely above 18
years of age and not below 18 years of age.
21. The courts have considered this aspect
of the matter on earlier occasions also. If, thus, on
the basis of several factors including the fact that
school leaving certificate and the horoscope
produced by the appellant were found to be forged
and fabricated and having regard to two medical
reports the courts below have found the age of the
appellant as on 1.04.2001 to be above 18 years, we
are of the opinion that no exception thereto can be
taken.”
In this case, however, the documents produced by the respondent no.1
were not found to be forged, fabricated or otherwise inadmissible in law. If
a document is proved to be genuine and satisfies the requirements of law, it
should be, subject to just exceptions, relied upon.
20. However, in the case of Vimal Chadha v. Vikas Choudhary & Anr.
2008(8) SCALE 608, this Court remitted the matter back for consideration
13
of the age in terms of the rules keeping in view of the provisions contained
in Section 472 of the Code of Criminal Procedure.
21. Mr. Praneet Ranjan, learned counsel appearing for the appellant has
relied upon certain observations made by one of us in the case of Pratap
Singh v. State of Jharkhand & Anr. (2005) 3 SCC 551 to contend that model
rules have no application, but as the statutory rules have come into force in
the procedure laid down therein should be followed.
22. As in this case, the date of birth entered into the school register has
been proved, we are of the opinion that there is no reason as to why the same
should not be given effect to.
23. We, therefore, find no legal infirmity in the order passed by the High
Court. This appeal is dismissed.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi.
May 5, 2009