Punjab-Haryana High Court
Amit @ Nanha vs State Of Haryana on 27 November, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRR No. 779 of 2012 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRR No. 779 of 2012 (O&M)
Date of Decision: November 27, 2012
Amit @ Nanha
.....Petitioner
Vs.
State of Haryana
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Ms. Monu Rana, Advocate
for the petitioner.
Ms. Shalini Attri, DAG, Haryana.
-.-
M.M.S. BEDI, J. (ORAL)
The short question which is required to be determined in the present petition is whether in view of birth certificate being available as a proof of age of a juvenile, the school certificate indicating another date of birth could be ignored if the date of birth as per the Committee record is corroborated by other evidence.
Legality and propriety of the order dated September 15, 2011 passed by Additional Sessions Judge, Sonepat, holding that the petitioner CRR No. 779 of 2012 (O&M) [2] Amit @ Nanna, an accused in FIR No. 340 dated December 6, 2010 under Sections 302/34 IPC, Police Station Sadar, Sonipat was not a juvenile on November 29, 2010, the date of commission of offence, is required to be determined. The petitioner is facing trial on the allegation of having murdered Jit Ram alongwith his father on November 29, 2010. Petitioner had filed an application claiming that on November 29, 2010 he being juvenile was required to be tried by Juvenile Justice Board. He relied upon certificate Ex.A-1 issued by Principal of Oasis Modern High School, Bhatgaon, where he was admitted on April 1, 2006 and his date of birth was disclosed as June 16, 1993. In order to prove that as per the school record his date of birth is June 16, 1993, he has examined Principal of the school as AW2 who proved the admission and withdrawal Register showing that the petitioner was admitted in 9th class in the Oasis Modern High School on April 1, 2006 vide certificate Ex.A3. Another certificate Ex.PW3/A was produced which is issued by Principal of Sharda Siksha Sadan Senior Secondary School, Garhi Brahmanan, Sonepat showing that he was admitted in said school on August 2, 2005 in 8th standard showing the date of birth as June 16, 1993. Certificate of Board of School Education, Haryana was also produced to prove that the date of birth of the petitioner is June 16, 1993.
In order to rebut the evidence produced by the petitioner, the respondent examined Raghbir Singh, Senior Assistant from Civil Surgeon Office, Sonepat, as RW1 who proved the birth certificate of Jasbir son of CRR No. 779 of 2012 (O&M) [3] Dharamvir and Smt.Darshana Devi as R1. Ex.R2 was produced as birth certificate of Anil son of Dharamvir Singh and Smt.Darshana Devi, Exs.R.3 and R.4 indicated the registration of birth of sons of Dharamvir Singh and Darshana Devi.
The learned Trial Court on appreciation of evidence arrived at a conclusion that Smt.Sushila Dahiya, Principal of Oasis Modern High School, Bhatgaon, admitted that it was the father of the petitioner who had disclosed the date of birth as June 16, 1993 in Ex.A3 and it was he who had filled in the form. Record of 8th standard in Sharda Siksha Sadan Senior Secondary School, Garhi Brahmanan, Mehlana Road, Sonepat was summoned. Pardeep Clerk, AW3 of Sharda Shiksha Sadan Senior Secondary School, in his cross-examination has admitted that there was no record with him on the basis of which the birth of Amit Dahiya was entered in the Register Ex.AW3/B. He proved that Amit Dahiya was admitted in the school directly in 8th class and it was admitted by him that the school leaving certificate on which the petitioner was admitted in 8th class was not available in their school. School leaving certificate was disbelieved by the trial Court on the ground that no certificate was produced to prove the date of birth of the petitioner in his school record from 1st standard to 7th standard. The trial Court has also taken into consideration the fact that the petitioner has got another brother Anil. The birth certificate of Anil is Ex.R2 showing that he was born on May 19, 1991. His brother Jasbir was born on June 16, 1992 as per Ex.R1. Birth certificate Ex.R-1 and R-2 were CRR No. 779 of 2012 (O&M) [4] issued on the basis of the entries Exs. R3 and R4 recorded in the Register maintained by the Municipal Committee. The marriage of parents of the petitioners is of June 1989. The elder son Anil was born on November 30, 1991, petitioner Amit was born on June 16, 1993 and Nitika daughter was born after 4/5 years of the birth of Amit. The trial Court attached more importance to the birth certificate which has been proved from the public record and rejected the school record.
Learned counsel for the petitioner has vehemently contended that according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as 'the Rules') the date of birth of juvenile in conflict with law may be determined on the basis of matriculation certificate and in absence of such certificate on the basis of date of birth from the school first attended and in the absence whereof the date of birth given by Corporation or Municipal authority or Panchayat. It is only in absence of above record that medical opinion should be sought from medical Board. The provisions of Rule 12 of the Rules came up for consideration before the Apex court in Shah Nawaz Vs. State of U.P. and another, AIR 2011 SC 3107.
Learned counsel for the petitioner has referred to Rule 12 of the Rules to contend that the procedure to be followed in determination of age has been prescribed therein and that preference has to be given to the matriculation or equivalent certificates, if any and in case these are not available, the date of birth certificate from School first attended should be CRR No. 779 of 2012 (O&M) [5] relied upon, and in the absence thereof the birth certificate given by Corporation or Municipal Authority or a Panchayat should be obtained.
I have carefully considered the contention of learned counsel for the petitioner. A perusal of Rule 12 (3) (a) (i); a(ii) and a (iii) indicates that during age determining inquiry by the Court, Board or the Committee, the evidence can be obtained from the Matriculation or equivalent certificate, Date of Birth Certificate from the school first attended and birth certificate given by the Corporation or Municipal Authority or Panchayat. The sequence of the evidence in Rule 12 (a) (i), (ii) and (iii) does not mean that matriculation certificate is to be preferred to the birth certificate given by the Corporation or Municipal Authority. The evidence which can be obtained regarding the determination of age of alleged juvenile, the matriculation certificate, birth certificate from the first school attended and the birth certificate from Corporation have to be placed at same pedestal. Even in Shah Nawaz's case (supra) the Apex Court while considering Rule 12 has not laid down that the matriculation Certificate would be considered as more authenticated than the birth certificate of the school first attended or the birth certificate issued by the Corporation or Municipal Authority. Rule 12 of the Rules is reproduced hereunder:-
"12. Procedure to be followed in determination of Age.
(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules CRR No. 779 of 2012 (O&M) [6] shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;CRR No. 779 of 2012 (O&M) [7]
(b) and only in the absence of either (i), (ii) or (iii) of clause
(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii),
(iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in CRR No. 779 of 2012 (O&M) [8] writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
A perusal of Rule 12 (3) (b) shows that the evidence under Rule 12 (3) (a) (i), (ii) and (iii) has been kept at same level and that only in absence of any evidence under Rule 12 (3) (a) (i), (ii) or (iii), medical opinion will be sought from duly constituted Medical Board which will declare age of Juvenile or child.
CRR No. 779 of 2012 (O&M) [9]
A perusal of Rule 12 (3) (b) clearly shows that the evidence specified in any of the clauses a (i), a (ii) and a (iii), has been considered to be a conclusive proof of the age and in absence thereof, the medical evidence under clause (b) has been held to be conclusive proof of the age as regards juvenile in conflict with law. It would be misinterpretation of Rule 12 of the Rules to classify the nature of the evidence which is admissible for determination of age, as mentioned in Rule 12 (3) (a) (i), (ii) and (iii) of the Rules. If Rule 12 (3) (a) is read with clause (b), it makes it clear that the Court can give a finding in respect of age on the basis of either of the evidence specified in any of the clauses i.e. a (i), a (ii) or a (iii).
I have also gone through the judgment in Hari Ram Vs. State of Rajasthan and another, AIR 2011 SC (Crl.) 2053, wherein Rule 12 of the Rules mentioned hereinabove was considered. Even the said judgment does not lay down that evidence under Rule 12 (3) (a) (i) is more authenticated than evidence available under Rule 12 (3) (a) (ii) or that evidence available under Rule 12 (3) (a) (ii) is more authenticated than the evidence available under Rule 12 (3) (a) (iii). The evidence produced in each case is to be appreciated on individual merits to the satisfaction of the Court. It will not be out of place to observe here that the date of birth as recorded in the School records has not been considered to be conclusive evidence as per few of the judgments laid down by Supreme Court. Reference can be made to the following judgments wherein the Apex Court on different occasions has held that the school record is not generally CRR No. 779 of 2012 (O&M) [10] accurate and it is improper for Court to base conclusion regarding date of birth of a person on the same:-
1. AIR 1965 SC 282, Brij Mohan Vs. Priya Brat Narain Sinha
2. 1989 (1) RCR 307 Brij Mohan Vs. State.
3. 1991 CAR 127 (SC) Daya Chand Vs. Saheb Singh and another.
4. 1983 (2) RCR 432 Gulab Singh Vs. State of Punjab.
5. 1983 (2) RCR 545.
6. 1974 CLR (Short Notes) 6 Jai Narain Vs. State of Haryana.
It is not out of place to refer to the judgments in Bhagwan Dass Singh Vs. Harchand Singh, 1990 Crl.L.J. 2671, Bhoop Ram Vs. State of U.P., 1989 (1) RCR (Crl.) 573, wherein the School registers and School certificates have been held to be relevant. The objective of reference to the abovesaid judgments is only to express an opinion that the school record cannot be said to be an authenticated and certain evidence to establish the age of a person in preference to the established birth certificate of a particular person.
In view of the above discussion, I am of the considered opinion that the sequence of evidence under Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules 2007, the evidence regarding date of birth from the school first attended and the matriculation or equivalent CRR No. 779 of 2012 (O&M) [11] certificate cannot be said to be a superior evidence than birth certificate issued by Corporation or Municipal authority or Panchayat, in age determination inquiry by a Court, Board or Committee. The evidence specified in any of the clauses under Rule 12 (3) a (i), a(ii) or a(iii) or in the absence whereof clause (b), shall be the conclusive proof of the age as regards the age of juvenile in conflict with law. The evidence regarding the age of a person as per the school record is not authenticated proof and it cannot be said to be a superior form of evidence than the evidence of birth certificate given by Corporation or Municipal Authority or Panchayat or the Matriculation or equivalent certificate.
In view of the above discussion, I do not find any infirmity in the order passed by the Court below in relying upon the birth certificate issued by the Corporation.
Dismissed.
November 27 , 2012 (M.M.S.BEDI) sanjay JUDGE