Allahabad High Court
Brijesh Kumar Singh vs State Of U.P. And Another on 16 August, 2018
Equivalent citations: AIRONLINE 2018 ALL 3589, AIRONLINE 2018 ALL 3311
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 03.08.2018 Judgment Delivered on 16.08.2018 Court No. - 49 Case :- CRIMINAL REVISION No. - 64 of 2018 Revisionist :- Brijesh Kumar Singh Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- P.K. Singh,Brijesh Sahai,Suraj Kumar Singh Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava,Ashish Kumar Gupta,Sanjay Srivastava Hon'ble Saumitra Dayal Singh,J.
Heard Sri Gajendra Pratap, learned Senior Counsel assisted by Sri P.K. Singh and Sri Sudhisht, learned counsel for the applicant and Sri Amit Kumar Srivastava, Sri Ashish Kumar Gupta and Sri Sanjay Srivastava, learned counsel for the opposite party no. 2 as also Sri Ankit Srivastava, learned AGA for the State.
The present revision has been filed by the applicant who has described himself as Brijesh Kumar Singh, son of late Ravindra Nath Singh @ Ravindra Pratap Singh, against the order dated 12.10.2017 passed by the Additional District and Session Judge, Court no. 1, Varanasi in S.T. No. 55A of 1987 (State Vs. Brijesh Kumar Singh, arising out of Case Crime No. 28 of 1986, under Section 148, 302/149, 307 read with Section 149 I.P.C., and 25(1)B Arms Act, Police Station Balua, District Varanasi (now Chandauli). By that order, learned court below has rejected the claim of juvenility made by the applicant under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Admittedly, the applicant is arraigned as an accused in the Session Trial No. 55A/1987, under Section 148, 302/149, 307 read with Section 149 I.P.C., and 25(1)B Arms Act involving mass murder of seven persons. The incident is of date 9.4.1986. The trial remained pending against the applicant largely in view of the fact that the applicant remained an absconder for more than 15 years after the criminal case had been committed to trial. Later, he was arrested by the Delhi Police, from Orissa, in the year 2008. It was only thereafter the applicant could be put up for trial in the present case and in some other criminal trials as well.
At that stage, the applicant filed the aforesaid application on 6.8.2015 claiming he was a juvenile on the date of the incident. The claim was made on the strength of a duplicate copy of the high-school certificate, the Tabulation Register relevant to the High School Certificate and some other school records. On that basis, it had been claimed that his date of birth was recorded as 1.7.1968. This documentary evidence was sought to be proved by A.P.W.1 Sadanand Pandey, the Principal of Laxmi Shankar Inter College, which school was earlier known as Higher Secondary School Rajwari, Varanasi; A.P.W. 2 Chandra Bhushan, the Senior Administrative Officer, Madhyamik Shiksha Parishad, Allahabad and A.P.W. 3 Moolchand Ram, Principal Primary School, Ghohara Pratham, Cholapur, Varanasi. The applicant had contended that his father Ravindra Nath Singh was also known in his alias Ravindra Pratap Singh. Therefore, it was contended there is no discrepancy in the high-school certificate produced by the applicant (wherein his father's name was found recorded as Ravindra Pratap Singh), and the Tabulation Register where that name was mentioned as Ravindra Nath Singh. It was thus claimed, in face of the age of the applicant having been proven by High School Certificate, there survived no scope for any other or further evidence to be examined thereafter.
The prosecution and the informant vehemently opposed the aforesaid application. They submitted that the high-school certificate produced by the applicant was forged or fabricated or manipulated document and in any case, it did not relate to the present applicant. It was thus submitted that in the first place, the applicant did not produce the original high-school certificate. A clear manipulation and interpolation exists in such certificate inasmuch as admittedly, there exists an unexplained difference in the name description of the applicant's father, as disclosed in the High School Certificate and as disclosed in the Tabulation Register produced by the applicant. On account of such discrepancy, it was submitted, that the High School Certificate was in any case, not proved. Learned counsel for the informant contended, if the applicant's father was also known as Ravindra Pratap Singh and therefore that name came to be recorded in his High School Certificate, the Tabulation Register maintained by the Board for the same student i.e. the applicant would have the same entries and it could not have recorded the name of the applicant's father as Ravindra Nath Singh. Another discrepancy alleged in the aforesaid certificate is of it being allegedly signed by the Additional Secretary, and not the Secretary of the Board, who alone is the signing and certifying authority of that Board.
Then, a plethora of evidence had been led by the prosecution and the informant in the shape of own documents of the applicant, prepared on his self-declarations, wherein (while the applicant was absconding), the applicant not only changed his name and described himself as Arun Kumar Singh, son of Ravindra Nath Singh, but that in all those documents the date of birth of the applicant had been disclosed as 9.11.1964. Such documents are in the nature of annual returns of a company Bindhyachal Real Estate Developers and Sanjana Viniyog Private Ltd.; passport of the applicant issued by the Passport Officer, Bhubaneswar bearing passport no. F4615310; affidavits of the applicant filed before various authorities; copies of the driving license of the applicant bearing no. 1843 issued by the licensing authority, Bhubaneshwar and the Arms licence obtained by the applicant; bank opening form of the applicant; verification by the relevant authority of the income tax authority regarding the PAN card of the applicant, copy of the Arms license of the applicant and also a statement made by the applicant himself under section 313 Cr.P.C. in other Sessions trial nos. S.T. 374A/2004 and S.T. 190/2008 wherein the applicant disclosed his age to be 45 years on 10.8.2009.
The applicant did not dispute the existence or correctness of those documents. He did not explain how and when he acquired the alias Arun Kumar Singh and he further did not disclose the documentary or other basis on which he obtained all his identities in the name of Arun Kumar Singh. He only appears to contend that in the face of his High School Certificate, no other document could be looked into for the purpose of the inquiry into his age for the limited purpose of the Juvenile Justice (Care and Protection of Children) Act, 2000.
Learned counsel for the parties have relied on various judgments of the Supreme Court, in support of their respective stand. Instead of referring to them as part of submissions advanced by either side, for the sake of discovering the operating principle/s to be applied to decide the controversy at hand, they are being dealt with cumulatively, to deduce the applicable principle.
The Supreme Court in the case of Ravinder Singh Gorkhi Vs. State of Uttar Pradesh reported in 2006 (5) SCC 584 had examined the question whether the school leaving certificate purported to have been issued by the authority of a primary school would attract the rule of evidence contained in Section 35 of the Indian Evidence Act, 1872. That question had arisen in the context of the Uttar Pradesh Children Act, 1951 read with Reformatory School Act, 1897. In that statutory context, the issue examined in that case was whether the accused who was the applicant before the Supreme Court could be considered to be a juvenile on the date of the occurrence being 15.5.1979, on the basis of his primary school leaving certificate wherein his date of birth was found recorded as 1.6.1963.
As to the fact and evidence of that case, the following observations were made by the Supreme Court:-
"16. 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 inquiry 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.
17............... 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 the regular course of business was maintained in the school; there was no reason as to why the same had not been produced.
19. The school leaving certificate was not an original one. It was merely a second copy. Although it was said to have been issued in July 1972, the date of issuance of the said certificate has not been mentioned. The copy was said to have been signed by the Head Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge, Bulandshahr on 27.01.1999. The Head Master has also not that the copy given by him was a true copy of the original certificate. He did not produce the admission register.
(emphasis supplied) Then as to the interpretation to be given to Section 35 of the Act, the Supreme Court held as below:-
"23. 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 proceedingicial 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."
(emphasis supplied) 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."
(emphasis supplied) That Court also noted its earlier decision of that Court in the case of Birad Mal Singhvi Vs. Anand Purohit 1988 Supp. SCC 604. It observed as below:-
"26. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
(emphasis supplied) With reference to another decision of the Supreme Court in the case of Ramdeo Chauhan alias Raj Nath Vs. State of Assam (2001) 5 SCC 714, it was then observed as below:-
"29. We, however, notice that in Ramdeo Chauhan alias Raj Nath V. State of Assam (2001) 5 SCC 714], as regard applicability of the provision of Section 35 of the Indian Evidence Act, 1872 vis-`-vis a school register, it was stated :
19. It is not disputed that the register of admission of students relied upon by the defence is not maintained under any statutory requirement. The author of the register has also not been examined. The register is not paged (sic) at all. Column 12 of the register deals with "age at the time of admission". Entries 1 to 45 mention the age of the students in terms of years, months and days. Entry 1 is dated 25-1-1988 whereas Entry 45 is dated 31-3-1989. Thereafter except for Entry 45, the page is totally blank and fresh entries are made w.e.f. 5-1-1990, apparently by one person up to Entry 32. All entries are dated 5-1-1990. The other entries made on various dates appear to have been made by one person though in different inks. Entries for the years 1990 are up to Entry 64 whereafter entries of 1991 are made again apparently by the same person. Entry 36 relates to Rajnath Chauhan, son of Firato Chauhan. In all the entries except Entry 32, after 5-1-1990 in column 12 instead of age some date is mentioned which, according to the defence is the date of birth of the student concerned. In Entry 32 the age of the student concerned has been recorded. In column 12 again in the entries with effect from 9-1-1992, the age of the students are mentioned and not their dates of birth. The manner in which the register has been maintained does not inspire confidence of the Court to put any reliance on it. Learned defence counsel has also not referred to any provision of law for accepting its authenticity in terms of Section 35 of the Evidence Act. The entries made in such a register cannot be taken as a proof of age of the accused for any purpose."
As to its own conclusions (in Ravinder Singh Gorkhi Vs. State of Uttar Pradesh), the Supreme Court observed as under:-
"37.............Entry of a date of birth in the school records is merely a piece of evidence. Having regard to the experience of the court, in Birad Mal Singhvi (supra), it was opined that the same should be authentic in nature.
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 the ceiling laws; and even for the purpose of litigating before a civil forum, e.g....................A court of law for the purpose of determining the age of a party to the lis, having 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.....................
39. 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.................."
(emphasis supplied) However, the rule of evidence thus explained by the Supreme Court stood apparently bent and/or modified upon enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 read with the Model Rules framed thereunder.
In that context in the case of Pratap Singh Vs State of Jharkhand and another (2005) 3 SCC 551, a constitution bench of the Supreme Court had, amongst others, the occasion to deal with the validity and enforceability of the Model Rules framed by the union government under the Juvenile Justice (Care and Protection of Children) Act, 2000. In that regard, the Constitution bench, amongst others ruled against the enforcement of Model Rules framed by the union government, on the ground of lack of legislative competence of the union government.
Then, in the context of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder:- The question arose in the case of Om Prakash Vs. State of Rajasthan & Another reported in 2012 (5) SCC 201, whether the medical evidence and other attending circumstance could be examined to disallow the claim of juvenility made by an accused, on the strength of his school records / certificate.
In that case, the accused had been named in the prosecution case file as Vijay Kumar @ Bhanwar Lal. The investigation had been carried out against the accused in that name (along with alias name), and he had also been charged in that name. However, in the academic record produced and relied upon by the accused he has been described as Vijay Kumar disclosing his date of birth as 30.6.1990. The prosecution disputed the claim and relied on another school certificate wherein the name of the accused was disclosed as Bhanwar Lal. In that certificate, his date of birth was found recorded as 12.6.1988. It was in that context that the question as noted above had arisen. The Supreme Court then held as below:-
"18. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled for this special protection under the Juvenile Justice Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice. Hence, while the courts must be sensitive in dealing with the juvenile who is involved in cases of serious nature like sexual molestation, rape, gang rape, murder and host of other offences, the accused cannot be allowed to abuse the statutory protection by attempting to prove himself as a minor when the documentary evidence to prove his minority gives rise to a reasonable doubt about his assertion of minority. Under such circumstance, the medical evidence based on scientific investigation will have to be given due weight and precedence over the evidence based on school administration records which give rise to hypothesis and speculation about the age of the accused. The matter however would stand on a different footing if the academic certificates and school records are alleged to have been with held deliberately with ulterior motive and authenticity of the medical evidence is under challenge by the prosecution.
23. However, we reiterate that we may not be misunderstood so as to infer that even if an accused is clearly below the age of 18 years on the date of commission of offence, should not be granted protection or treatment available to a juvenile under the Juvenile Justice Act if a dispute regarding his age had been raised but was finally resolved on scrutiny of evidence. What is meant to be emphasized is that where the courts cannot clearly infer in spite of available evidence on record that the accused is a juvenile or the said plea appear to have been raised merely to create a mist or a smokescreen so as to hide his real age in order to shield the accused on the plea of his minority, the attempt cannot be allowed to succeed so as to subvert or dupe the cause of justice. Drawing parallel between the plea of minority and the plea of alibi, it may be worthwhile to state that it is not uncommon to come across criminal cases wherein an accused makes an effort to take shelter under the plea of alibi which has to be raised at the first instance but has to be subjected to strict proof of evidence by the court trying the offence and cannot be allowed lightly in spite of lack of evidence merely with the aid of salutary principle that an innocent man may not have to suffer injustice by recording an order of conviction in spite of his plea of alibi. Similarly, if the conduct of an accused or the method and manner of commission of the offence indicates an evil and a well planned design of the accused committing the offence which indicates more towards the matured skill of an accused than that of an innocent child, then in the absence of reliable documentary evidence in support of the age of the accused, medical evidence indicating that the accused was a major cannot be allowed to be ignored taking shelter of the principle of benevolent legislation like the Juvenile Justice Act, subverting the course of justice as statutory protection of the Juvenile Justice Act is meant for minors who are innocent law breakers and not accused of matured mind who uses the plea of minority as a ploy or shield to protect himself from the sentence of the offence committed by him. The benefit of benevolent legislation under the Juvenile Justice Act obviously will offer protection to a genuine child accused/juvenile who does not put the court into any dilemma as to whether he is a juvenile or not by adducing evidence in support of his plea of minority but in absence of the same, reliance placed merely on shaky evidence like the school admission register which is not proved or oral evidence based on conjectures leading to further ambiguity, cannot be relied upon in preference to the medical evidence for assessing the age of the accused.
24. While considering the relevance and value of the medical evidence, the doctor's estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical test like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused. In the case of Ramdeo Chauhan Vs. State of Assam (supra), the learned judges have added an insight for determination of this issue when it recorded as follows:-
"Of course the doctor's estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the Court gropes in the dark to find out what would possibly have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable material, if such opinion points to a reasonable possibility regarding the range of his age, it has certainly to be considered." The situation, however, would be different if the academic records are alleged to have been withheld deliberately to hide the age of the alleged juvenile and the authenticity of the medical evidence is under challenge at the instance of the prosecution. In that event, whether the medical evidence should be relied upon or not will obviously depend on the value of the evidence led by the contesting parties."
Again in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh reported in (2012) 9 SCC 750, a question had arisen whether in face of attested marksheet of highschool of Board Secondary Education, Madhya Pradesh as well as 8th Standard Board Examination Certificate recording the date of birth of the accused as 24.10.1990, the same could be doubted and other evidence examined. The said question had arisen under the Juvenile Justice (Care and Protection of Children) Act, 2000. In that case, the informant had generally doubted the correctness of the age recorded in the education records and it had been submitted by her that the accused, on his physical appearance appeared to be about 21 years of age. In that factual context, after taking note of the aforesaid statutory provisions, the Supreme Court held as below:-
"26. Rule 12 which has to be read along with Section 7A has also used certain expressions which are also be borne in mind. Rule 12(2) uses the expression "prima facie" and "on the basis of physical appearance" or "documents, if available". Rule 12(3) uses the expression "by seeking evidence by obtaining". These expressions in our view re-emphasize the fact that what is contemplated in Section 7A and Rule 12 is only an inquiry. Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word ''inquiry' has not been defined under the J.J. Act, but Section 2(y) of the J.J. Act says that all words and expressions used and not defined in the J.J. Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.
30. Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person when the claim of juvenility is raised before the court exercising powers under Section 7A of the Act. Many of the cases, we have come across, it is seen that the Criminal Courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the Penal laws forgetting the fact that the specific procedure has been laid down in Section 7A read with Rule 12.
34. Age determination inquiry contemplated under the JJ Act and Rules has nothing to do with an inquiry under other legislation, like an entry in service, retirement, promotion etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a Corporation or a Municipal Authority or a Panchayat may not be correct. But Court, J.J. Board or a Committee functioning under the J.J. Act is not expected to conduct such a roving inquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Committee need to go for medical report for age determination.
35. We have come across several cases in which trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted."
Thus, in that case, the accused was granted the benefit on the basis of the school records, in absence of any fabrication or manipulation being found in those records.
While the decisions discussed above are two-judge decisions of the Supreme Court, thereafter, in Abuzar Hossain @ Gulam Hossain vs State Of West Bengal, 2012 (10) SCC 489, a three-judge bench of the Supreme Court considered questions arising under the Juvenile Justice (Care and Protection of Children) Act, 2000 and the rules framed thereunder. After a detailed consideration of earlier judgments of the Supreme Court on this issue, the larger bench of the Supreme Court, laid down as under:-
"39. Now, we summarise the position which is as under:
(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.
(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.
(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh2 and Pawan8 these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7A and order an enquiry for determination of the age of the delinquent.
(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent.
(v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.
(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised."
Then, in a recent decision in the Supreme Court in the case of Chaddu @ Shailesh Vs. The State of U.P. and another in Criminal Appeal No. 257 of 2018, it has been observed as under:-
"5. Under the provisions of Rule 12 of the Rules, it is the matriculation certificate or school certificate or the birth certificate given by a corporation or a municipal authority or a panchayat, in that order, which has to be relied on for determination of the date of birth of an accused claiming to be a juvenile. As the School Certificate of the accused-appellant, duly verified, shows his date of birth as 1st July 1984, following the mandate of Rule 12 of the Rules we accept the same and hold that on the date of the occurrence i.e. 11th June 2001 the appellant was a juvenile. As the appellant is in custody for a period longer than the maximum period for which a juvenile can be detained under the provisions of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000, we while maintaining the conviction of the accused-appellant under Section 302/34 IPC direct for his immediate release from the custody unless his custody is required in connection with any other case."
Thus, it appears that a common principle of law has been laid down and applied by the Supreme Court in different decision noted above. In so far as the principle is concerned, the same appears to be comprehensively laid down by the three-judge bench of the Supreme Court in the case of Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra). The other decisions that have been relied upon by either side are expressions of the same principle and its application to different sets of facts arising in different cases. In the first place, once the claim of juvenility is made, the burden and therefore the initial onus is cast on the person making the claim (of juvenility), to establish his claim. That onus shifts if that claim is made on the strength of a Matriculation or specified school record. If there is no allegation of fabrication, manipulation or other reasonable doubt as to the certificate relied upon by the accused, certainly, no other evidence is to be examined. If however, a reasonable doubt arises, the inquiry must continue further. As to the criteria to be adopted to test the acceptability of the evidence of the accused, the Supreme Court in Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra) has itself observed, the same cannot be catalogued. However, merely by leading some evidence in support of such school record or certificate, it cannot be urged as a rule of thumb, that no other evidence may be seen, irrespective of all or any other accentuating circumstance to doubt the genuineness or the correctness of facts stated in the document proved by the accused/claimant, such a claim must be necessarily, always, be allowed.
Thus if no other evidence is led, either as to fabrication or manipulation in the school record or to create a reasonable doubt as to the correctness of school record or if there is no other contradictory stand taken by the accused as to the age disclosed on the strength of the school record, or there does not exist any other circumstance as may raise a reasonable doubt as to the genuineness or correctness of the school certificate or the date of birth of the claimant disclosed therein, then obviously the age claim made on the strength of the school certificate must be accepted and in that event, the Court concerned may remain advised to not unnecessarily examine any other evidence.
Therefore, since the claim for juvenility is allowable on a single piece of documentary evidence, the Courts must carefully examine the issue of genuineness and correctness of such certificates, lest juvenility becomes an escape route to avoid justice, that each offender must otherwise be brought to. Thus a claim of juvenility, lacking in credibility or a frivolous claim or plainly absurd or inherently improbable claim has (in the opinion of the Supreme Court), to be rejected by the courts at the threshold, whenever such claim arises.
The judgment in the case of Ravinder Singh Gorkhi Vs. State of Uttar Pradesh (supra) may have has lost his primacy in light of the legislative intervention made upon enactment of the Juvenile Justice (Care and Protection of Children) Act, 2000 and now the Juvenile Justice (Care and Protection of Children) Act, 2015 and the rules framed under those Acts and also in equal measure, on account of the later pronouncement by the three-judge bench of the Supreme Court in the case of Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra).
Looked at from this perspective, it appears, the aforesaid principle, that has pre-existed was applied in the earlier decisions in the case of Om Prakash Vs. State of Rajasthan & Another (supra) and Ashwani Kumar Saxena Vs. State of Madhya Pradesh (supra). Those decisions are not conflicting rather, different conclusions have been drawn on different facts of those cases. In the case of Om Prakash Vs. State of Rajasthan & Another (supra) two school certificates had emerged. First, the claimant relied on a school certificate recording his date of birth as 30.6.1990, in his name Vijay Kumar. The prosecution relied on another school record wherein his date of birth was found recorded 12.12.1988 in the name Bhanwar Lal. While the claimant tried to disown the school certificate relied upon by the prosecution as not his but that of his elder brother Bhanwar Lal, the prosecution objected that Bhanwar Lal was an alias of the accused. It was so recorded in the police case and the accused had never objected to it. The Supreme Court disbelieved the claim on account of a reasonable doubt as to the documentary evidence produced by the accused. On the other hand, in the case of Ashwani Kumar Saxena Vs. State of Madhya Pradesh (supra) there did not exist any reasonable doubt as to the correctness of the date of birth of the accused found recorded in the High School and other school records. Therefore, in that light, the Supreme Court upheld the claim of juvenility. Even then, it added a word caution that the school record may not be accepted if it were found to be fabricated or manipulated.
If ever there remains any doubt as to the correct principle to be applied, then in the case of Parag Bhati (Juvenile) And others Vs. State of U.P. and another (2016) 12 SCC 744, another two-judge bench of the Supreme Court had the occasion to consider a case of apparent conflict in different school certificates of the accused. The claim of juvenility had been rejected up to the High Court. In such an appeal, the Supreme Court then held:-
"25) In Abuzar Hossain (supra), wherein a three-Judge Bench of this Court has already summarized the position regarding what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The credibility and/or acceptability of the documents would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected and if such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the appellant.
28) It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain (supra), an enquiry for determination of the age of the accused is permissible which has been done in the present case."
Thus the earlier decisions of the Supreme Court get completely clarified by the later decision of the Supreme Court in the case of Parag Bhati (Juvenile) And others Vs. State of U.P. and another (supra). The Supreme Court has specifically referred to its earlier decision in the case of Abuzar Hossain @ Gulam Hossain vs State Of West Bengal (supra) and explained and applied the principle laid down in that larger bench decision of that Court. The judgment in the case of Chaddu @ Shailesh Vs. The State of U.P. and another (supra) is only a decision in the facts of that case and has no relevance in determining the governing principle.
Having heard learned counsel for the parties, in the facts of this case, in the first place, there exists a reasonable doubt as to the genuineness of the High School cerificate relied upon by the applicant. Besides the fact it is a duplicate certificate and was not signed by the Secretary but only an Additional Secretary, still, in view of the unexplained difference in the name of the father of the student, as recorded in the High School Certificate and the Tabulation Register, produced in support thereof, such a High School Certificate may not be accepted in proof of the date of birth. It is common knowledge that the Board registers the particulars of a student once. The details of a student once registered, get reflected in all records and certificates of that student, prepared and issued by the Board. It cannot be therefore accepted that the Board could have issued a High School Certificate to the applicant with different particulars than those found recorded in the Tabulation Register. Second, considering the fact that the applicant had admittedly remained absconding for a long duration during which he had admittedly changed his name (for unexplained circumstance and on undisclosed basis), and has thereafter obtained a driving as well as an arms license as also has made self-declaration in the shape of returns both under the Company Act as also the Income Tax Act and in his statement recorded under section 313 Cr.P.C., in his changed name, disclosing his date of birth as 9.11.1964, in view of the law laid down by the Supreme Court, those admitted documents all taken cumulatively, clearly give rise to a much more than a reasonable doubt as to the genuineness and correctness of High School Certificate relied upon by the applicant to claim juvenility. Third, even, otherwise, the facts of the present case stand on a completely different footing than those that exist in a usual case. In the presence of a plethora of evidence emanating from the applicant's own disclosures made before different authorities while he was absconding, it clearly indicates that his date of birth is 9.11.1964, as was also indirectly proved by him in his statement recorded under section 313 Cr.P.C in ST Nos. 374A/ 2004 and S.T. 190/2008, on 10.8.2009, when he disclosed his age to be 45 years.
The learned Court below has committed no error in disbelieving evidence relied upon by the applicant in support of his claim of age and in concluding that inquiry on the basis of other, undisputed documentary evidence.
The present revision lacks merit and is accordingly dismissed.
Order date: 16.08.2018 Prakhar