The Birth Certificate is the best evidence for age determination, and the conditions for admissibility of documents under Section 35 of the Evidence Act are crucial in determining the admissibility of evidence.

Ajai Lamba, J

1. This petition has been filed under Section 482, Code of Criminal Procedure, for setting aside order dated 18.3.2008 (Annexure P4), passed by the Additional Sessions Judge, Panipat, vide which the application for sending the case of the petitioner to Juvenile Justice Board, has been declined.

I have gone through the impugned order.

The trial Court has come to the conclusion that the petitioner is more than 19 years of age, for detailed reasons given in the impugned order.

2. Learned counsel for the petitioner wants this Court to re-appreciate the evidence to come to a different conclusion while exercising jurisdiction under Section 482, Code of Criminal Procedure.

3. Having considered the reasons given by the trial court , I find that no illegality can be traced therein. The trial court has taken notice of the fact that at the time of his arrest on 4.6.2007, the petitioner had disclosed his age as 19 years. The other circumstance that has been taken into account is that the Birth Certificate had not been placed on the record. Only the school certificate has been placed on the record to say that the petitioner was a juvenile on the date of the commission of the offence. Baldev Raj, father of the accused, appeared as AW-3 and stated that Ration Card had been issued, however, the Ration Card has not been placed on the record for consideration of the Court.

4. The parents of the accused could not tell the date of birth of any of other children. This assumes relevance and importance because the petitioner and others are 7 brothers and sisters. In case, the age of other brothers/sisters of the petitioner was given, the court could have considered the veracity of the statement. Even the birth certificates of other brothers and sisters had not been placed on the record.

5. Another factor that has been considered is the statement of Smt.Murti, mother of the petitioner, who was examined as AW-2. The cross-examination of Smt.Murti is reproduced hereunder:-

“My marriage with Baldev Raj had taken place 27 years ago. My eldest child is daughter named Kamlesh. She was born after three years of the marriage. Younger of Kamlesh is another daughter Suman. She was born after 2-2-1/2 years of the birth of Kamlesh. Pawan accused was born after 2/2-1/2 years of the birth of Suman. Pawan accused was born in village Assan Kalan. My all the children were born there. I cannot tell the date of birth of any of my children. It is incorrect that at the time of occurrence my son Pawan accused was about 19 years of age.”

6. The statement would clearly reflect that the petitioner was 19 years of age at the time of his arrest. This is the precise age which the petitioner had disclosed at the time of his arrest. In the impugned order, this is another circumstance that has been considered and no fault can be traced in this reasoning.

7. Learned counsel for the petitioner has relied on Ravinder Singh Gorkhi v. State of U.P., 2006(3) RCR (Criminal) 156, Balkar Singh v. State of Punjab, 2005(1) ILR 356, Manoj Kumar v. The State, NCT Delhi, 2007(1) RCR (Criminal) 687 (Delhi High Court) and Manjeet v. State, 2007(1) RCR (Criminal) 370 (Delhi High Court).

8. In Ravinder Singh Gorkhi's case (supra), the following needs to be noticed in the context of the issue :-

“21. 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