2010 Supreme(SC) 225

2010 (2) Supreme 326
SUPREME COURT OF INDIA
Harjit Singh Bedi and A. K. Patnaik, JJ.
Jabar Singh — Appellant
versus
Dinesh & Anr. — Respondents
Criminal Appeal No. 487 of 2010
(Arising out of SLP (Crl.) No. 6629 of 2006)
Decided on : 12-03-2010

IMPORTANT POINT
In case of a dispute with regard to the age of the person who is alleged to have committed the offence, the Court has to appreciate the evidence having regard to the facts and circumstances of the case and it will be the duty of the court to accord the benefit to a juvenile, provided he is found to be a juvenile and not to give the same benefit to a person who, in fact, is not a juvenile and cause injustice to the victim.

Headnote:Juvenile Justice (Care and Protection of Children) Act, 2000- Appeal against order of High Court in Revision Petition in which High Court held that Respondent No.1 was a juvenile on the date of commission of offence-Held High Court was not at all right in reversing findings of trial court in exercise of its revisional jurisdiction- The entry of date of birth of Respondent No.1 in admission form, school records and transfer certificates not satisfied 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- Hence 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-Age of Respondent No.1 was a question of fact, which was to be decided on the evidence brought on record before 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 –Instantly trial court had arrived at finding that 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, trial court had not only considered evidence produced by Respondent No.1 but also considered the fact that either in the earlier cases or during investigation of the present case, Respondent No. 1 had not raised this plea-While arriving at this finding of fact, trial court had also considered the physical appearance of Respondent No.1- Such determination on a question of fact made by trial court on the basis of the evidence or material before it and other relevant factors could not be disturbed by High Court in exercise of its revisional powers- Impugned order of High Court set aside and matter remitted to trial court for trial of Respondent No.1 in accordance with law treating him not to be a juvenile at time of the commission of the alleged offence-Appeal allowed. (Paras 10 to 12, 14)

        Juvenile Justice (Care and Protection of Children) Act, 2000-Sections 52,53-Juvenile Delinquent-Determination of Age-Appeal against –Availability of-A plain reading of Section 52 of the Act shows that no statutory appeal is available against any finding of the court that a person was not a juvenile at the time of commission of offence- Section 53 of the Act which is titled “Revision”,however, provides that the High Court may at any time, either of its own motion or on an application received on that behalf,call for the record of any proceeding in which any competent authority or court of session has passed an order for purpose of satisfying itself as to the legality or propriety of any such order, and may pass such order in relation thereto as it thinks fit- While exercising such revisional powers, High Court cannot convert itself to an appellate court and reverse findings of fact arrived at by the trial court on the basis of evidence or material on record, except where the High Court is not satisfied as to the legality or propriety of the order passed by the trial court-In the instant case, trial court had given good reasons for discarding evidence adduced by Respondent No.1 in support of his claim that he was a juvenile at the time of commission of the alleged offence and there was no scope to hold that order of trial court was either illegal or improper and High Court should not have substituted its own finding for that of the trial court on the age of Respondent No.1 at the time of commission of the alleged offence by re-appreciating the evidence. (Para 13)

       Facts of the Case :

        Present Appeal has been filed against order of High Court in Revision Petition in which High Court held that Respondent No.1 was a juvenile on the date of commission of offence.

       Findings of the Court :

        Held High Court was not at all right in reversing findings of trial court in exercise of its revisional jurisdiction. The entry of date of birth of Respondent No.1 in admission form, school records and transfer certificates not satisfied 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. Hence 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. Age of Respondent No.1 was a question of fact, which was to be decided on the evidence brought on record before 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 .Instantly trial court had arrived at finding that 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, trial court had not only considered evidence produced by Respondent No.1 but also considered the fact that either in the earlier cases or during investigation of the present case, Respondent No. 1 had not raised this plea.While arriving at this finding of fact, trial court had also considered the physical appearance of Respondent No.1. Such determination on a question of fact made by trial court on the basis of the evidence or material before it and other relevant factors could not be disturbed by High Court in exercise of its revisional powers. Impugned order of High Court was set aside And matter was remitted to trial court for trial of Respondent No.1 in accordance with law treating him not to be a juvenile at time of the commission of the alleged offence. Appeal was allowed.

       Result : Appeal allowed.