Ravinder Singh Gorkhi Vs. State of
U.P  Insc
314 (12 May 2006)
& P.P. Naolekar
SINHA, J :
a school leaving certificate purported to have been issued by the authorities
of a primary school would attract the provision of Section 35 of the Indian
Evidence Act, 1872 is in question in this appeal which arises out of a judgment
and order dated 23.09.1997 passed by the High Court of Allahabad in Criminal
Appeal No.3368 of whereby and whereunder the appeal preferred by the appellant from
an order dated 29.11.1979 passed by the Additional Sessions Judge, Bulandshahr
in Sessions Trial No. 293 of 1979 was dismissed.
appellant herein was said to have been born on 01.06.1963. He was involved in a
criminal case relating to the murder of one Chhattrapal which took place on
15.05.1979. The allegation against the appellant was that he along with his
father Surendra, Satish Chandra, Narendra and Ramji Lal attacked him with a
country-made pistol and knife. The appellant is said to have been armed with a
said deceased while traveling on a cycle was fired at, whereupon he threw his
cycle on the road and rushed towards the shop of one Chhitariya and entered
therein to save his life. The accused persons chased him, entered into the said
shop and killed him by firing from the country- made pistols and knife. At the
trial all the accused persons were convicted of commission of the said offence
and were sentenced to undergo rigorous imprisonment for life. An appeal preferred
by the accused persons including the appellant herein was dismissed by the High
Court by reason of the impugned judgment.
the trial judge in his statement under Section 313 of the Code of Criminal
Procedure a purported statement was made by the appellant herein that he was
aged 16 years whereas the court assessed his age to be 18 years. He
indisputably did not claim any benefit of the provisions of the Uttar Pradesh
Children Act, 1951 (for short, 'the Act'), which was applicable in the case.
this Court for the first time, a contention was raised that as the appellant
was a minor on the date of commission of the offence, he was entitled to the
benefit thereof in terms of the provision of Section 2 (4) of the Act. Whereas
special leave petition filed by the other accused persons was dismissed, notice
was directed to be issued in the special leave petition filed by the appellant
herein. On the aforementioned question, parties exchanged their affidavits. A
Division Bench of this Court by an order dated 11.12.1998 through it
appropriate to refer the question in regard to his age to the Sessions Judge, Bulandshahr
before whom the parties were directed to appear on 04.01.1999 to lead both oral
and documentary evidences. The learned Sessions Judge was asked to return his
findings to this Court.
learned Sessions Judge, Bulandshahr pursuant to or in furtherance of the said
direction allowed the parties to adduce evidence. Relying upon or on the basis
of the school leaving certificate wherein the date of birth of the appellant
was recorded to be 01.06.1963, he was held to be a minor on the date of
occurrence i.e. 15.05.1979. The appellant in his statement recorded on
26.09.1979 disclosed his age to be 16 years; but the learned Sessions Judge
opined that he appeared to be 18 years of age.
learned Sessions Judge, however, did not rely upon the other evidences produced
on behalf of the appellant, namely, horoscope and extract of 'Parivar
Register'. He further did not put any reliance on the testimony of the mother
of the appellant.
P.S. Mishra, the learned Senior Counsel appearing on behalf of the appellant,
submitted that in view of the findings arrived at by the learned Sessions
Judge, Bulandshahr, the appellant was entitled to the benefit of the provisions
of the Act and in that view of the matter no sentence of life imprisonment
could have been imposed upon him.
Uttar Pradesh Children Act, 1951 was enacted to provide for the custody,
protection, treatment and rehabilitation of children and for the custody,
trial, punishment of youthful offenders, and for the amendment of the
Reformatory Schools Act. 1897 in its application to the State of Uttar Pradesh. Sub-section (4) of Section 2
defines a "child" to mean a person under the age of sixteen years.
Section 63 of the Act, however, provides that where a child is charged with an
offence together with any other person not being a child then notwithstanding
anything contained in the said Act the child may be tried together with the
adult in accordance with the provisions of the Code of Criminal Procedure and
nothing in the said Act shall require the child to be tried by a Juvenile Court
but the sentence, if any, awarded to the child shall be in accordance with the
provisions of the Act.
a Juvenile Court was required to be established in terms of the provisions of
the said Act as envisaged under Section 60 thereof. In this case, admittedly,
apart from the appellant herein all other accused persons were adults. A joint
trial was held in terms of the provisions of the Code of Criminal Procedure. At
no point of time any exception thereto was taken by or on behalf of the
appellant. Before us no contention has been raised that the trial was illegal.
only question which has been raised and arises for consideration is as to
whether having regard to the provision of Section 27 of the Act, the sentence
awarded against the appellant herein was illegal.
the purpose of determining the aforementioned question, we may notice a few
provisions of the said Act.
27 of the Act reads as under :
that may not be passed on child.- Notwithstanding anything to the contrary
contained in any law, no Court shall sentence a child to death or
transportation or imprisonment for any term or commit him to prison in default
of payment of fine :
that a child who is twelve years of age or upwards may be committed to prison
when the Court certifies that he is of so unruly, or of so depraved a character
that he is not fit to be sent to an approved school and that none of the other
methods in which the case may legally be dealt with is suitable." Section
30 of the Act, however, empowers the Court to discharge youthful offender or to
commit him to suitable custody. Section 31 provides for payment of fine by the
parents of the child. Section 32 provides for detention in case of certain
crimes by children, which reads as under :
in case of certain crimes by children.-(1) When a child is found to have
committed an offence of so serious a nature that the Court is of opinion that
no punishment which under the provisions of this Act it is authorized to
inflict is sufficient, the Court shall order the offender to be kept in safe
custody in such place or manner as it thinks fit and shall report the case for
the orders of the State Government.
Notwithstanding the provisions of Section 13 the State Government may order any
such child to be detained in such place and on such conditions as it thinks fit,
and while so detained the child shall be deemed to be in legal custody :
that no period of detention so ordered shall exceed the maximum period of
imprisonment to which the child could have been sentenced for the offence
committed." We have noticed hereinbefore that the learned Sessions Judge, Bulandshahr
in his report dated 17.02.1999 did not rely upon any evidence other than the
school leaving certificate. He not only disbelieved the statement of the mother
of the appellant but also did not place any reliance upon the other documentary
evidences adduced on behalf of the appellant, namely, the horoscope and the 'Parivar
Register'. No exception having been taken to by the parties we accept the said
part of the report. We are, thus, required only to consider as to whether the
School Leaving Certificate is reliable.
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.
enquiry 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.
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;
was no reason as to why the same had not been produced.
counter affidavit filed on behalf of the State, it has categorically been
stated that the appellant had been a history sheeter; as many as 34 cases for
commission of heinous crimes have been filed against him, which included cases
under Sections 302, 392, 395 and 364 of the Indian Penal Code; a large number
of cases under the U.P. Goonda Act; and Section 25 and 27 of the Arms Act. One
case was filed against him under Section 302 as early as in 1973 and the last
case which had been filed against him was in 1996 under Section 395/364-A of
the Indian Penal Code. It is, therefore, unlikely that the appellant was not
aware of his legal right.
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.
cannot, however, be any doubt whatsoever that the certificate was issued for
the purpose of the case. The father of the appellant was also an accused. He
was described as 'Surender Pal Singh'. The appellant had also been described as
'Ravinder Pal Singh S/o Surender Pal Singh'. Before us, the father's name has
been described as 'Surender Singh', the appellant's name has been shown as 'Ravinder
Singh Gorkhi'; whereas the name of the student in the school leaving
certificate has been shown as 'Ravinder Pal Singh'.
of the date of birth of a person before a court of law, whether in a civil
proceeding or a criminal proceeding, would depend upon the facts and
circumstances of each case. Such a date of birth has to be determined on the
basis of the materials on records. It will be a matter of appreciation of evidence
adduced by the parties. Different standards having regard to the provision of
Section 35 of the Evidence Act cannot be applied in a civil case or a criminal
however, would urge that while in a civil dispute a strict proof may be necessary,
in a criminal case and particularly in the case of a juvenile, the court may
consider any evidence which may be brought on records by the parties. We do not
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 :
should be in the nature of the entry in any public or official register;;
state a fact in issue or relevant fact;
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
persons concerned indisputably must have an access thereto.
question was raised as to whether the determination of the age of a child
should be made on the basis of the date on which the occurrence took place or
when, he was produced before the court. The said question came up for
consideration in the context of the provisions of the Juvenile Justice Act, 2000
before a Constitution Bench in Pratap Singh v. State of Jharkahand and Anr
[(2005) 3 SCC 551]. It was held that the date of commission of the offence
would be the relevant date.
terms of the aforementioned decision of the Constitution Bench such determination
is required to be made even if at the relevant time, the juvenile crossed the
age of eighteen years. In absence of any other statute operating in the field,
Section 35 will have application and the court, while determining such age
would depend upon the materials brought on records by the parties which would
be admissible in evidence in terms of Section 35 of the Act.
Mal Singhvi v. Anand Purohit [(1988 Supp. SCC 604], this Court held:
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;
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) In Sushil Kumar v. Rakesh Kumar [(2003) 8
SCC 673], this Court as regards determination of age of a candidate in terms of
Section 36(2) of the Representation of the People Act, 1951 observed :
The age of a person in an election petition has to be determined not only on
the basis of the materials placed on record but also upon taking into
consideration the circumstances attending thereto. The initial burden to prove
the allegations made in the election petition although was upon the election
petitioner but for proving the facts which were within the special knowledge of
the respondent, the burden was upon him in terms of Section 106 of the Evidence
Act. It is also trite that when both parties have adduced evidence, the
question of the onus of proof becomes academic [see Union of India v.
Sugar Works (P) Ltd. and Cox and Kings (Agents) Ltd.
Workmen. Furthermore, an admission on the part of a party to the lis shall be
binding on him and in any event a presumption must be made that the same is
taken to be established." This Court therein followed, inter alia, Birad
Mal Singhvi (supra) and several other decisions.
Kumar and Others v. Prithvi Singh and Others [(2001) 2 SCC 524], this Court
having regard to the overwhelming evidence came to the opinion that the
Respondent No. 1 had attained the age of 21 years as on the date of his
application for the allotment of the retail outlet. In that case also reliance
was placed on the matriculation certificate holding that the correction of the
date of the birth in the certificate was an official act and the must be presumed
to have been done in accordance with law.
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 :
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." We are, however, not oblivious of a decision of this Court in Bhola
Bhagat v. State of Bihar [(1997) 8 SCC 720], wherein an
obligation has been cast on the court that where such a plea is raised having
regard to the beneficial nature of the socially-oriented legislation, such a
plea should be examined with great care. We are, however, of the opinion that
the same would not mean that a person who is not entitled to the said benefit
would be dealt with leniently only because such a plea is raised. Each plea
must be judged on its own merit. Each case has to be considered on the basis of
the materials brought on records.
aforementioned decisions have been noticed by this Court in Zakarius Lakra and
Others v. Union of India and Another [(2005) 3 SCC 161], wherein a Bench of
this Court while entertaining an application under Article 32 of the
Constitution of India opined that although the same was not maintainable, but
having regard to the decision of this Court in Rupa Ashok Hurra v. Ashok Hurra
[(2002) 4 SCC 388], the review petition should be allowed to be converted into
curative petition. [See also Raj Singh v. State of Haryana (2000) 6 SCC 759].
are, however, not concerned in this case with such a situation.
deposition of the Head Master of the school in this case did not satisfy the
requirements of the law laid down in the aforementioned decisions.
however, relied upon Umesh Chandra v. State of Rajasthan [(1982) 2 SCC 202]. Therein a register maintained by a
public school of repute had been produced. This Court relied thereupon, opining
that Section 35 cannot be read with Sections 73 and 74 of the Evidence Act.
public school maintains a register in ordinary course of business, the same
would be admissible in evidence.
have not been shown as to whether any register was required to be maintained
under any statute. We have further not been shown as to whether any register
was maintained in the school at all. The original register has not been
produced. The authenticity of the said register, if produced, could have been
looked into. No person had been examined to prove as to who had made entries in
the register. The school leaving certificate which was not issued by a person
who was in the school at the time when the appellant was admitted therein,
cannot be relied upon.
has also been placed by Mr, Mishra on Bhoop Ram v. State of U.P. [(1989) 3 SCC
1], wherein the appellant was treated to be a child within the meaning of
Section 2(4) of the Act; upon taking into consideration three factors : (i)
that the appellant had produced a school certificate and correctness whereof
was not questioned; (ii) the learned trial Judge thought it fit to award the
lesser sentence of imprisonment for life instead of capital punishment when he
pronounced the judgment on 19.09.1977 on the ground that the appellant was 17
years of age which gave credence to the appellant's case that he was less than
16 years of age on 03.10.1975 when the offences were committed; and (iii)
although he was medically examined, for determination of age, the doctor based
his opinion only on an estimate and possibility of an error of creeping into
the said opinion could not be ruled out. This Court, therefore, took into
consideration more than one factors in accepting the plea of the appellant
therein that he was minor on the date of commission of the offence.
have noticed hereinbefore that in this case the learned Sessions Judge had
discarded all other evidences which have been adduced on behalf of the
appellant in support of his contention that he was minor on the date of
commission of the offence. 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.
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;
a separate unit under the ceiling laws; and even for the purpose of litigating
before a civil forum, e.g. necessity of being represented in a court of law by
a guardian or where a suit is filed on the ground that the plaintiff being a
minor he was not appropriately represented therein or any transaction made on
his behalf was void as he was minor. 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 as in a case of
abduction or rape, or similar offence where the victim or the prosecutrix
although might have consented with the accused, if on the basis of the entries
made in the register maintained by the school, a judgment of conviction is
recorded, the accused would be deprived of his constitutional right under
Article 21 of the Constitution, as in that case the accused may unjustly be
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. It is no doubt true that the court must strike a
balance. In case of a dispute, the court may appreciate the evidence having
regard to the facts and circumstance of the case. It would be a duty of the
court of law to accord the benefit to a juvenile, provided he is one. To give
the same benefit to a person who in fact is not a juvenile may cause injustice
to the victim. In this case, the appellant had never been serious in projecting
his plea that he on the date of commission of offence was a minor. He made such
statement for the first time while he was examined under Section 313 of the
Code of Criminal Procedure.
family background of the appellant is also a relevant fact. His father was a 'Pradhan'
of the village. He was found to be in possession of an unlicensed firearm. He
was all along represented by a lawyer. The court estimated his age to be 18
years. He was tried jointly with the other accused.
been treated alike with the other accused. On merit of the matter also the
appellant stands on the same footing as other accused.. The prosecution has
proved its case. In fact no such plea could be raised as the special leave
petition of the persons similarly situated was dismissed when the court issued
notice having regard to the contention raised by him for the first time that he
was minor on the date of occurrence.
regard to the peculiar facts and circumstances of this case, we do not accept
the report of the learned Sessions Judge.
the reasons aforementioned, we do not find any merit in this appeal which is