Ram Suresh Singh Vs.
Prabhat Singh @ Chhotu Singh & ANR.  INSC 902 (5 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.________ OF 2009
(Arising out of SLP (Crl.) No.4601 of 2006) Ram Suresh Singh ... Appellant
Versus Prabhat Singh @ Chhotu Singh & Anr. ... Respondents
S.B. Sinha, J.
no.1 is facing trial in Nava Nagar P.S. Case No.102 of 2003 on the charge of
committing murder of one Tribhuvan Singh.
Appellant before us
is the uncle of the deceased.
the learned trial Judge, a plea was raised by him that he was a juvenile. In
support of the said plea, entries in the admission register/certificate in the
Government Secondary School, Navanagar, Buxar, in which he took admission on
22nd January 1996 and studied up to 31st December 1999, were produced. The said
certificate was issued on 23rd February 2000, the relevant portion whereof
reads as under :
"1. Name of
Student : Prabhat Ranjan
Father's/Guardian's Name: Shri Rajkishor Singh
3. Permanent Address
: Vill-Amir Pur, Post Navanagar Distt-Buxar (Bihar)
4. Date of first
admission in the school : 22.01.1996 XXX XXX XXX
7. Date of Birth in
Admission Register (in number and : 10.02.1987 Words) : Tenth February Eighty
8. Date of Leaving
the School: 31.12.1999
9. At the time of
leaving School studying in which Class : 8th"
said admission register/certificate, thus, shows that the date of birth of the
accused is 10.02.1987.
xerox copy of another certificate dated 12.11.2003 was also brought on record
which was issued by the Principal, Ram Lakhan Singh Yadav High School. The said
certificate also shows the date of birth of the first respondent to be
10.02.1987. It was proved by a teacher of the said school, Shri Raj Kumar who
examined himself as PW -2 as also by the father of the accused, namely, Raj
learned Magistrate, however, appointed a Medical Board. The Medical Board, in
its report dated 10th February 2005, inter alia, upon taking ossification test,
estimated his age to be within 20 to 22 years.
By an order dated
03rd August 2005, the Principal Magistrate, Juvenile Justice Board, Patna held
that on the date of occurrence, i.e., 10th September 2003, the age of the
respondent no.1 was more than 20 years stating :
evidence on record, there is only evidence which is the Report of the Medical
Board. The statement of the father of the accused and the teacher of the school
supported with the certificate which are not conclusive and sufficient under
rules of Juvenile Justice (Care & Protection) Rules, 2001. Accordingly, on
the basis of the report of the Medical Board and on physical appearance of the
accused and conclusion arrived at that this accused is not Juvenile at this
stage nor at the time of alleged commission of offence.
case record is remitted back to the court concerned for disposal in accordance
no.1 filed a revision application there against before the High Court of Patna
which, by reason of the impugned order dated 17th May 2006, was allowd by a
learned Single Judge, holding :
submission made by the parties and the decision relied on by them, find that
the evidence which was produced by the petitioner before the Juvenile Justice
Court were sufficient for determination of his age. The certificate granted by
the Headmaster by Ram Lakhan Singh High School stating the date of birth of the
petitioner as 10.02.1987 was issued on 23.02.2000 and the date of occurrence is
10.09.2003, much after issuance of certificate by the headmaster of Ram Lakhan
Singh High School where the date of birth of the petitioner has been mentioned
as 10.02.1987. In support of the age, the admission register of the school was
also produced wherein the petitioner's name has been mentioned in Sl.No.134.
There also the date of birth of the petitioner has been mentioned as 10.02.1987
and the date of issuance of school leaving certificate is mentioned as
23.02.2000. There is no reason for doubting or suspecting the genuineness of
these two documents. In the impugned order also no reason has been assigned for
disbelieving the transfer certificate and the photo copy of the certificate
issued from Ram Lakhan Singh Yadav High School, Nava Nagar. Rule 22(5) of the
Juvenile Justice (Care and Protection of Children) Act, 2000, order of priority
has been given to the certificate of birth issued by the school in preference
to the opinion of the duly constituted medical board. Only in case of some
dispute regarding genuineness of these documents, the Juvenile Justice Board
can seek opinion of duly constituted medical board for ascertaining the age of
an accused for declaring him Juvenine.
5 Considering the
fact that there is nothing on record to disbelieve these documents the evidence
of the father as well as teacher, the Juvenile Justice Board should have
decided in favour of the petitioner and declared him Juvenile. The Apex Court
also in similar matters have decided that the liberal view should be taken by
Juvenile Justice Board as well as courts while ascertaining the age of accused
for the purpose of declaring him Juvenile. Relying upon the certificate
produced before the Juvenile Justice Board and the evidence of father and
teacher, certainly the petitioner was a Juvenile on the date of occurrence.
Accordingly the order
dated 03.08.2005 passed by the Juvenile Justice Board Patna City in J.J.B.o.492
of 2005 is set aside and this application is allowed."
Praneet Ranjan, learned counsel appearing on behalf of the appellant would
contend :- (i) Having regard to the provisions of Section 35 of the Indian
Evidence Act, 1872 the High Court committed a serious error in relying upon the
entries made in the School register in preference to the opinion of the Medical
(ii) An entry in
regard to date of birth of a student recorded in admission register, being not
a public document, must be proved to have been recorded at the instance of a
person who was the guardian of the student.
Strong reliance was
placed on a decision of this Court in case of Birad Mal Singhvi v. Anand
Purohit [1988 (Supp.) SCC 604] and a decision 6 of the Calcutta High Court in
the case of Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury [AIR 1941
(iii) As the age of a
person required to be determined by a person having regard to the provisions
contained in Section 35 of the Evidence Act both in civil as also in criminal
proceeding involve the same legal principle, the High Court failed to consider
the depositions of the witnesses examined in the enquiry, namely, Raj Kumar and
Raj Kishore Singh, in their proper perspective.
Shishir Pinaki, learned counsel appearing on behalf of respondent no.1, on the
other hand, urged :
(a) as the admission
register of the school in respect of the respondent no.1 showing his date of
birth has been proved, the impugned order is unassailable.
(b) It was, however,
submitted that in the event the medical report is taken into consideration
[which otherwise may not be necessary in view of Rule 22(5) of the Juvenile
Justice (Care & Protection of Children) Rules, 2001], the respondent's age
would be 18 years having regard to the fact that an error of two years or
either side is possible.
(c) Bihar Education
Code having a statutory status, as Article 242 whereof provides for maintenance
of a school register, presumption of correctness in respect thereof should be
of age of a person sometimes poses a difficult question.
In the absence of any
statutory rule having been framed, no doubt, the provisions of Section 35 of
the Evidence Act were required to be strictly complied with.
Section 6 of the
Juvenile Justice (Care & Protection of Children) Act, 2000 deals with the
power of the Juvenile Justice Board which is extracted below :
"6. Powers of
Juvenile Justice Board.-(1) Where a Board has been constituted for any district
or a group of districts, such Board shall, notwithstanding anything contained
in any other law for the time being in force but save as otherwise expressly
provided in this Act, have power to deal exclusively with all proceedings under
this Act relating to juvenile in conflict with law.
(2) The powers
conferred on the Board by or under this Act may also be exercised by the High
Court and the Court of Session, when the proceeding comes before them in
appeal, revision or otherwise."
no.1 claims himself to be a juvenile. An enquiry was directed to be conducted.
In the said enquiry, evidently, the original register maintained by the
Government Secondary School, Nava Nagar was produced. Date of birth of the said
respondent was stated to be 10.02.1987.
Before us, a
contention was raised as to whether column no.5 thereof was filled up or not.
An affidavit was filed to show that column no.5 is statement on the declaration
of the father. We would, therefore, proceed on the said basis.
no.1 was admitted in the Govt. Secondary School, Nava Nagar on 22nd January
1996. He left the school on 31st December 1999.
issued on 23rd February 2000 so as to enable him to take admission in another
school, namely, Ram Lakhan Singh Yadav High School. We may not consider the
certificate granted by the Principal of the latter school as only a xerox copy
thereof was filed inasmuch as the original having been not produced, the same
was inadmissible in evidence.
the courts below, Shri Raj Kumar, a teacher of Ram Lakhan Singh Yadav School
examined himself. Although he was not present when the respondent no.1 was
admitted in the school, but he proved the contents of the admission register.
It is, therefore, not correct to contend that the contents of the admission
register were not proved. Raj Kishore Singh, father of the respondent no.1 also
examined himself. He also proved the date of birth of the respondent no.1.
terms of the provisions of Section 68 of the Juvenile Justice (Care &
Protection of Children) Act, 2000, the Central Government has framed Juvenile
Justice (Care & Protection of Children) Rules, 2001. Rule 22 of the said
Rules provides for the procedure to be followed in respect of determination of
the age of a person. It indicates that the opinion of the Medical Board is to
be preferred only when a date of birth certificate from the school first
attended is not available.
condition laid down in Section 35 of the Evidence Act for proving an entry
pertaining to the age of a student in a school admission register is to be
considered for the purpose of determining the relevance thereof. But in this
case, the said condition must be held to have been satisfied.
entry in a school register may not be a public document and, thus, must be
proved in accordance with law, as has been held by this Court in the case of
Birad Mal Singhvi (supra), but, in this case the said entry has been proved.
if we had to consider the medical report, it is now well known that an error of
two years in determining the age is possible.
In the case of Jaya
Mala v. Home Secretary, Government of Jammu and Kashmir & Ors. [AIR 1982 SC
1297 = (1982) 2 SCC 202], this Court held :
"However, it is
notorious and one can take judicial notice that the margin of error in age
ascertained by radiological examination is two years on either side."
cannot furthermore be any doubt whatsoever that same standard is required to be
applied for the purpose of Section 35 of the Evidence Act both in civil as also
criminal proceedings, as was held by this Court in the case of Ravinder Singh
Gorkhi v. State of U.P. (2006) 5 SCC 584, stating :
"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 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 a 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 convicted."
However, the medical
opinion rendered in this case corroborates the entry made in the register. Admission
register of the school having been proved in accordance with law, we do not see
any reason as to why the same should not be taken into consideration.
are not oblivious of the fact that it is difficult to lay down a law as to
whether in a case of this nature, the lower or the upper age or the average age
should be taken into consideration. Each case depends on its own facts.
In the case of Jyoti
Prakash Rai @ Jyoti Prakash v. State of Bihar 2008(3) SCALE 348 this Court,
upon consideration of large number of decisions, opined :
herein had produced a large number of documents to prove his age purported to
be as on the date of commission of the crime. The genuineness of the school
certificate and the horoscope had been questioned. The school certificate
produced by the appellant was found to be forged and fabricated and as a matter
of fact a criminal case was directed to be instituted against the Head of the
court, therefore, had no other option but to determine the age on the basis of
the Medical Reports. Both the medical reports dated 24.04.2001 and 29.06.2001
opined the age of the appellant between 18 and 19 years. In terms of first
medical report, the age of the appellant came to be 18 years 5 months 8 days
and in terms of the second medical report, it came to be between 18 and 19
years. The High Court opined that the appellant on 1.04.2001 was definitely
above 18 years of age and not below 18 years of age.
courts have considered this aspect of the matter on earlier occasions also. If,
thus, on the basis of several factors including the fact that school leaving
certificate and the horoscope produced by the appellant were found to be forged
and fabricated and having regard to two medical reports the courts below have
found the age of the appellant as on 1.04.2001 to be above 18 years, we are of
the opinion that no exception thereto can be taken."
In this case,
however, the documents produced by the respondent no.1 were not found to be
forged, fabricated or otherwise inadmissible in law. If a document is proved to
be genuine and satisfies the requirements of law, it should be, subject to just
exceptions, relied upon.
However, in the case
of Vimal Chadha v. Vikas Choudhary & Anr. 2008(8) SCALE 608, this Court
remitted the matter back for consideration 13 of the age in terms of the rules
keeping in view of the provisions contained in Section 472 of the Code of
Mr. Praneet Ranjan,
learned counsel appearing for the appellant has relied upon certain
observations made by one of us in the case of Pratap Singh v. State of
Jharkhand & Anr. (2005) 3 SCC 551 to contend that model rules have no
application, but as the statutory rules have come into force in the procedure
laid down therein should be followed.
in this case, the date of birth entered into the school register has been
proved, we are of the opinion that there is no reason as to why the same should
not be given effect to.
therefore, find no legal infirmity in the order passed by the High Court. This
appeal is dismissed.