2006 Supreme(SC) 502

2006(4) Supreme 337
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Ravinder Singh Gorkhi—Appellant
versus
State of U.P.—Respondent
Criminal Appeal No. 362 of 1999
Decided on 12-5-2006
Counsel for the Parties :
For the Appellant : P.S. Mishra, Sr. Advocate, Manoj Swarup, Ms. Lalita Kohli, Ms. Mona Rajvanshi, Anubhav Kumar, Mrs. Happy Saxena, Advocate for M/s. Manoj Swarup & Co. Advocates.
For the Respondent : R.K. Singh, Prashant Chaudhary for Mr. Praveen Swarup Advocate.

IMPORTANT POINT
School leaving certificate, on the question of age of accused, purported to have been issued by authorities of primary school would attract the provisions of Section 35 of Evidence Act.

Headnote:(i) Evidence Act, 1872—Section 35 —Uttar Pradesh Children Act, 1951—Section 27—Age of Accused—School Leaving Certificate—Evidentiary Value —Appellant convicted with other accused for offence of murder—Conviction was upheld by High Court—Appeal—For the first time contention raised that appellant was a minor—Question in regard to age of appellant was referred to Sessions Judge and to return finding after holding enquiry—Relying upon or on basis of school leaving certificate wherein date of birth of appellant was recorded as 1-6-1963, Sessions Judge held appellant to be a minor on date of occurrence i.e. 15-5-1979—Provisions of U.P. Children Act provided that where a child was charged with offence together with other persons not being a child, such a juvenile could be tried with adult in accordance with Cr.P.C. but sentence, if any, awarded to child would be in accordance with provisions of the Act—Question whether sentence awarded against appellant was illegal—Nothing on record to show that date of birth recorded in school leaving certificate was recorded in a register maintained by school in terms of requirement of Section 35 of Evidence Act—Entries made in school leaving certificate were made for purpose of the case—Section 35 of Evidence Act would be attracted both in civil and criminal proceedings and different standard could not be applied in a civil or criminal case—Deposition of Head Master, relied upon by Sessions Judge on the question did not satisfy requirement of law—Appellant had never been serious in projecting his plea that on the date of offence he was a minor—Family background of appellant was a relevant fact—Report of Sessions Judge was not acceptable.

       Held : 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.(Paras 14 to 16)

       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.(Para 20)

       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.(Para 22)

       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.(Para 32)

       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.(Paras 38 to 40)

       (ii) U.P. Children Act, 1951—Section 2(4)—Determination of age of a child—Whether should be on the basis of date on which occurrence took place or when he was produced before Court—Date of Commission of offence would be the relevant date. (Para 23)