Punjab-Haryana High Court
Avtar Singh vs State Of Haryana And Others on 4 April, 2012
Criminal Revision No.578 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Revision No.578 of 2011
Date of Decision: 04.04.2012
Avtar Singh
....Petitioner
Versus
State of Haryana and others
....Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Vikas Chaudhary, Advocate
for the petitioner.
Mr. J.S. Rattu, D.A.G., Haryana
for the respondent-State.
Mr. V.K. Sandhir, Advocate
for respondents No.2 and 3.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
This is a revision against the Order dated 29.01.2011 passed by the Additional Sessions Judge, Kaithal, whereby, the respondent Nos.2 and 3, namely, Raju and Mohinder, both sons of Shankar Sahni, were declared juvenile.
The facts, in short, are that on 10.03.2010, Jaswinder son of Darbara, aged 20 years was murdered by these accused. Accused Raju in Criminal Revision No.578 of 2011 2 his disclosure statement admitted the killing of Jaswinder by thrusting "SUA" (used to break ICE) in the chest. The weapon of offence was later on recovered by the police from Raju accused. On being sought an opinion from M.O.G.H, Kaithal, the Doctor opined that the injury on the person of deceased Jaswinder Singh may be possible with this weapon i.e "SUA". The other accused Mohinder also disclosed and verified about the place of occurrence. As per the Post Mortem Report, the cause of death is due to injury to heart. The charges were ordered to be framed against both accused vide Order dated 10.05.2010. When the case was fixed for prosecution evidence, an application under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2000 was filed. In support of this Shankar Sahni (father) and Rakesh Kumar (teacher) were examined and documents i.e. School Leaving Certificates and Birth Certificates were relied.
While impugning the said judgment, learned counsel for the petitioner submitted that the document i.e Birth Certificates of Raju Sahni and Mohinder Sahni were prepared, registered and issued after the commission of offence under Sections 302/34 IPC. The birth was registered on the same day and the birth certificate was also issued on the same date.
Secondly, the "Transfer Certificate Letter" issued by the Head Master, Government Primary School, Hari Narainpur was issued on 12.05.2005, whereas, Raju had left the School on 31.12.2005. Thus, the School Certificate is prior to the date the respondent-Raju left the school.
Thirdly, at the time of the arrest, Mahender has given his age as 23 years and Raju has given his age as 21 years and the age that was given voluntarily at the first instance, should be given weightage.
Reliance has been placed on various judgments rendered in Criminal Revision No.578 of 2011 3 the cases titled as Pawan vs. State of Haryana, 2009 (1) R.C.R. (Criminal) 419, Ravinder Singh Gorkhi vs. State of U.P., 2006(3) RCR (Criminal) 156, Jabar Singh vs. Dinesh and Anr. 2010(2) RCR (Criminal) 309, Jitendra Ram @ Jitu vs. State of Jharkhand, 2006(3) RCR (Criminal) 165, Ram Deo Chauhan @ Raj Nath vs. State of Assam, 2001 (2) RCR (Criminal) 702, Brij Mohan Singh vs. Priya Brat Narain Sinha, 1965 AIR (SC) 282. He also relied upon Section 13(3) of the "Registration of Births and Deaths Act, 1969.
Learned counsel for the respondents No.2 and 3 on the other hand while relying on the judgment rendered by Hon'ble the Apex Court in the case titled as Hari Ram v. State of Rajasthan reported as 2009(8) JT 47 submitted that as per Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules 2007, the date of birth certificate from the school first attended was one of the basis on which, the age should be determined and only in the absence of such a document, the medical opinion has to be sought. He also submitted that if two views are possible on evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases.
He, thereafter, while relying on the judgment of Hon'ble the Apex Court rendered in the case titled as Sannaila Subba Rao vs. State of A.P. reported as 2008(4) RCR (Criminal) 1, submitted that school certificate issued by Headmaster with regard to age of prosecutrix is a legal document and having evidentiary value and has to be given due weightage.
Reliance was also placed on the judgment of Hon'ble the Apex Court rendered in the case titled as State of Chhattisgarh vs. Lekhram reported as 2006(2) Crimes (SC) 91 to submit that a register maintained in a school is admissible in evidence to prove date of birth, but it is not Criminal Revision No.578 of 2011 4 conclusive proof. Such evidentiary value of a school register is corroborated by oral evidence is to be taken as proof of the age.
Reference was also made to the judgment of this Court rendered in the case titled as Kukan vs. State of Haryana reported as 2005(2) RCR (Criminal) 194 to submit that school record can be relied upon.
Heard.
The Juvenile Justice (Care and Protection of Children) Act, 2000 is a comprehensive guide as to how the provisions of the Juvenile Justice Act, 2000 are to be implemented. Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules 2007 provides for procedure to be followed or to be adopted by the Courts, Boards and the Child Welfare Committee for the determination of age in every case concerning the child or juvenile. The said relevant portion of the Rule 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 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 Criminal Revision No.578 of 2011 5 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;
(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 eviddnce 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.
No doubt, from the perusal of the said Rule, it is evident that at the first instance the matriculation or equivalent certificates and only in the absence of the same, the date of birth certificate from the school and further in the absence of the same, the birth certificate given by the Corporation or the Municipal Authority or a Panchayat and only in the absence of all these three, will the medical opinion be sought to declare the age of the juvenile or a child.
In the present case, reliance was placed on the birth Criminal Revision No.578 of 2011 6 certificates stated to be issued by the Department of Planning and Development, Government of Bihar. The same have been placed on record as Annexures P-1 and P-2 which are exhibited as A-3 and A-4, respectively.
In the case of Raju Sahni, transfer certificate of the Government Primary School, Harinarainpur, Bihar was produced which is placed in this revision petition as Annexure P-3 and was exhibited as A-2 and School Leaving Certificate of Mohinder Sahni was placed on record as Exhibit A-1.
As already submitted earlier, learned counsel for the petitioner had raised doubts qua these certificates. There is force in the argument of the learned counsel for the petitioner. A perusal of these documents give rise to the following doubts ;
Annexure P-1 i.e Exhibit A-3 is the certificate of birth produced on behalf of accsued Raju Sahni. Interestingly, the registrar is registering this birth on 24.06.2010 and issuing the certificate on 03.07.2010. It is necessary to say here that the incidence of murder of Jaswinder took place on 10.03.2010. It means that the document birth certificate is prepared, registered and issued after the commission of offence under Sections 302/34 IPC. Same is the case of the other brother Mahender Sahni, second accused whose certificate is registered and issued on same date. His certificate is annexed as Annexure P-2 i.e Exhibit A-4.
Another document produced is "Transfer Certificate Letter"
(Annexure P-3) which is stated to be Exhibit A-2. A perusal of this certificate shows that it was issued on 12.05.2005 by Head Master, Government Primary School, Hari Narainpur but stating that Raju left the school on 31.12.2005. Thus the certificate was issued before he left the School. It is unable to understood that how a school could gave such a Criminal Revision No.578 of 2011 7 certificate affirming that student would leave the school definitely on a future date.
No doubt, Rakesh Kumar, Teacher in Government Primary School, Hari Narainpur (Bihar) was produced to prove the Transfer Certificate Letters. He brought record/register of admission but in the record, against the name of Raju Sahni, there is no name of the person who admitted him in school. A thumb impression is there but whose thumb it is, is not mentioned anywhere. It is also not mentioned in record that who is the person who prepared the record. There is no official seal on record, confirming admission. Beside Rakesh Kumar admitted that in Raju's certificate, date of leaving of school is 31.12.2005, whereas,it was issued prior to leaving the school i.e on 12.05.2005. He also said that there is no record regarding both the Transfer Certificates. When he was asked about the admission forms filled at admission time by the guardian, he denied it.
The cross-examination of Rakesh Kumar, who appeared as AW-2 to prove these documents reads thus ;
" The record which I have brought today was not prepared in my presence and there is only thumb impression in front of the name of Raju Sahbi at Sr. No.24, but there is no name mentioned that whose thumb impression was affixed there. It is also correct that there is no signature of the person who had prepared the record which I have brought today of Raju Sahni and Mohinder Sahni. Even there is no official seal on the record which I have brought today. (Court observation, there is a seal of the school on opening page of the register but no date is appearing below the seal). It is also correct that the date of leaving of school is mentioned as 31.12.2005, whereas the certificate was issued on 12.05.2005 as per Ex.A2. Similar is the case with Ex.A1. There is no record regarding Ex.A1 and Ex.A2. No admission form is filled at the time of Criminal Revision No.578 of 2011 8 admission of the child by his guardian."
Not only this, the father of respondents No.2 and 3 appeared as AW-1. His examination-in-chief and cross examination is necessary which is reproduced below :-
" I am illiterate. Mohinder Sahni and Raju Sahni accused are my sons. Mohinder Sahni was born in the month of April, 1993 and Raju Sahni was born in the month of May, 1994.
xxxx by learned P.P for the State.
I have four children i.e two daughters and two sons. The elders are the daughters. I was married at the age of 16 years. After five years of my marriage, my elder daughter was born but I cannot tell the actual date of birth of my daughter. Volunteered my second daughter was born after five years of the birth of my daughter. I cannot tell the date, month or year of birth of my daughters."
From the perusal of his evidence, it is apparent that the father seems to know the date of birth of his sons but does not know the date of birth of his daughters.
The above admitted facts raise suspicion qua the certificates so produced. In fact, they are surrounded with suspicion. Section 35 of the Indian Evidence Act, 1872 reads as under :-
"35. Relevancy of entry in public [record or an electronic record] made in performance of duty.- An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made 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 such book, register, or [record or an electronic record] is kept, is itself a relevant fact."
Hon'ble the Apex Court in the case of Brij Mohan Singh Criminal Revision No.578 of 2011 9 (supra), while holding that in view of the circumstances and considering such like documents may not be proper for the Court to base any conclusion about the appellant's age on the entries in such documents and went on to hold in para 18 as under :-
"18. xxx xxx The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act. It is not suggested that the entry is admissible in evidence under any other provision of the Evidence Act. The entry in the hathchitha has therefore to be left out of consideration in coming to a conclusion about the appellant's age."
Moreover in the present case, the Certificates P-1 and P-2 i.e Exhibits A-3 and A-4 which are stated to be the Birth Certificates were admittedly issued on the same day as on which it was registered i.e on 24.06.2010, which is the date after the commission of the offence. Meaning thereby, that the birth entry was registered many years after the date of birth. Such a certificate will not be admissible in evidence as per the requirement of Section 35 of the Indian Evidence Act, 1872, in view of Section 13(3) of the "Registration of Births and Deaths Act, 1969. Section 13(3) of the "Registration of Births and Deaths Act, 1969 reads as under :-
"13. Delayed registration of births and deaths.-Criminal Revision No.578 of 2011 10
(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee."
A perusal of the above makes it clear that no entry shall be made except by an Order of the Magistrate of the first Class.
Learned counsel for respondents No.2 and 3 was not able to dispute the above provisions of law and the fact that the said late entry was without any Order of the Magistrate.
Hon'ble the Apex Court in the case of Ram Deo Chauhan @ Raj Nath (supra) observed in para 19 as under :-
"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 hs also not been examined. The register is not paged at all. Column No.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 the years, months and days. Entry No.1 is dated 25th January, 1988 whereas Entry No.45 is dated 31st March, 1989. Thereafter except for Entry No.45, the page is totally blank and fresh entries are made w.e.f 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 year 1990 are upto the Entry No.64 whereafter entries of 1991 are made again apparently by the same person. Entry No.36 relates to Raj Nath Chauhan, son of Firato Chauhan. In all the entries except Entry No.32, after 5.1.1990, in column No.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 concerned student has been Criminal Revision No.578 of 2011 11 recorded. In column No.12 again in the entries with effect from 9.1.1992, the ages 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 Evidence Act. The entries made in such a register cannot be taken as a proof of age of the accused for any purpose."
Further the judgment in the case titled as Ravinder Singh Gorkhi (supra) would be relevant for the purpose of the present case. Para 16 of the said judgment reads thus ;
" 16. 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."Criminal Revision No.578 of 2011 12
Applying the test laid down by Hon'ble the Apex Court in various judgments in the facts of the present case, it is evident that in the present case, the commission of offence is dated 10.03.2010, whereas, the Registrar is registering the date of birth on 24.06.2010 and issuing the certificate on 03.07.2010, which is contrary and in violation of Section 13(3) of the "Registration of Births and Deaths Act, 1969. There is no material on the basis of which the age was recorded in the School. There is no name of the person who admitted Raju Sahni in School. A thumb impression is there but there is no name written against the thumb impression. There is no mention of the fact that who has prepared the record. Admittedly, the School Leaving Certificate is dated 31.12.2005, whereas, it was issued prior to leaving the school i.e on 12.05.2005. The father of respondents No.2 and 3 is not able to give the date of birth of his other children but conveniently stated the date of birth of the present respondents No.2 and 3.
In view of the above shortcomings, there is no doubt that the material placed on record for arriving at the conclusion as to whether the respondent Nos. 2 and 3 are juvenile or not could not have been relied upon. It was highly improbable for the Court to base the conclusion about the age of the respondent Nos.2 and 3 on these documents surrounded with suspicion. Therefore, the Court had no option but to seek the medical opinion from the duly constituted Medical Board as per Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules 2007, as reproduced above. This was not done.
In view of the above, the Order dated 29.01.2011 passed by the Additional Sessions Judge, Kaithal is set aside and the matter is remanded back to the trial Court to re-determine the age in accordance with Rules by seeking medical opinion from the duly constituted Medical Criminal Revision No.578 of 2011 13 Board set up for the purpose in terms of Rule 12(3)(b) of the Juvenile Justice (Care and Protection of Children) Rules 2007.
Disposed of in the above terms.
(NIRMALJIT KAUR) 04.04.2012 JUDGE gurpreet