PANKAJ KUMAR TRIPATHI v. STATE OF U P — 1997 DIGILAW 1458 (ALL)

S. K PHAUJDAR, J. The present petitioner had been an accused alongwith others for an offence under Sections 302/120-B, IPC, in Case Crime No, 434 of 1993 relating to police station Pipri, Dis trict Sonbhadra. He took up a plea before the C. J. M. that on the date of the alleged offence (18-9-93) he was aged less than 16 years as he was born on 25-6-78. It was his plea that being a juvenile on the date of alleged commission of the offence he was entitled to be tried before a Juvenile Court. This plea was rejected by the C. J. M. Sonbhadra. An application under Section 482 Cr. P. C. was then moved before this Court and the order of the C. J. M on the point of determination of age was set aside and the Sessions Judge, Sonbhadra, was directed to make an enquiry into the as sertions of the petitioner that he was a Juvenile on the relevant date. 2. The Sessions Judge allowed evi dence to be adduced on behalf of the peti tioner. He also received the opinion of the doctor regarding the age of the petitioner after his radiological examination and in the opinion of the Sessions Judge founded on the basis of the evidence before him the petitioner was not a juvenile on the concerned date. This order of the Sessions Judge was challenged in the present criminal revision by Pankaj Kumar Tripa-thi and Honble G. S. N. Tripathi, J. of this High Court, by his order dated 1- 4-96, had set aside the order of the Sessions Judge dated 23-11-95. The Honble Judge found that the petitioner was a Juvenile on the date of the alleged offence and, accord ingly, he directed that his case was to be taken up by the Juvenile Court and his application for bail was also to be considered by the Juvenile Court. 3. This order of Honble G. S. N. Tripa thi, J. in this very revision application, was challenged before the Supreme Court in Criminal Appeal No. 1887 of 1996 by Deoki Nandan Dayma, the complainant of the case and the order of the Supreme Court dated 1-11-96 was communicated to this Court and office note dated 9-5-97 was put up. 3. This order of Honble G. S. N. Tripa thi, J. in this very revision application, was challenged before the Supreme Court in Criminal Appeal No. 1887 of 1996 by Deoki Nandan Dayma, the complainant of the case and the order of the Supreme Court dated 1-11-96 was communicated to this Court and office note dated 9-5-97 was put up. In the meantime there had also been an application on behalf of the com plainant before this Court itself to recall the order dated 1-8-96. But that applica tion became infructuous in view of the order of the Supreme Court dated 1-11-96 whereby the order of Honble G. S. N. Tri pathi, J. was set aside. The Supreme Court directed the High Court to hear the matter and dispose of the revision petition of Pankaj Kumar Tripathi in accordance with law and the Supreme Court desired that the matter should be taken up as expeditiously as possible. The Supreme Court observed in its order that "from the order of the Sessions Judge we find that the re spondent No, 2 examined, amongst others, his father to prove his age but the learned Judge did not find his evidence acceptable. Curiously enough the High Court did not at all advert to this aspect of the matter. Coming now to the above quoted reason of the High Court for setting aside the im pugned order, there cannot be any dispute with its observation that an entry in the school register as to the date of birth of a student is admissible in evidence but the High Court was required to decide, keep ing in view the judgment of this Court in Dayachand v. Sahib Singh, AIR 1991 SC 930 , (on which reliance was placed by the Sessions Judge) whether the assessment of the Sessions Judge regarding its probative value in the instant case was proper or not. " 4. It appears that in the enquiry con cerning age, the Sessions Judge had al lowed evidence to be led by the petitioner. Three witnesses were examined and an affidavit of the mother of the petitioner was filed. The High School certificate was also filed. " 4. It appears that in the enquiry con cerning age, the Sessions Judge had al lowed evidence to be led by the petitioner. Three witnesses were examined and an affidavit of the mother of the petitioner was filed. The High School certificate was also filed. The admission register of a Primary School, where the petitioner was admitted in 1986, was brought on record through the present Headmaster of that school and a Kutumb register was also brought on record through an officer of the Panchayat. The medical opinion was on record based on radiological examination. At the initial stage, before the C. J. M. a certificate from the Maternity Home was produced, A horoscope, prepared by the Astrologer, after the birth of the petitioner was also placed before the C. J. M. but these two papers were not placed, proved or ten dered before the Sessions Judge. 5. It was contended by Sri K. R. Singh on behalf of the petitioner that there was consistent oral evidence of the father cor roborated by contemporaneous documen tary evidence concerning the date of birth which stood confirmed by the High School certificate and the effect of this evidence could not be nullified by an opinion evi dence of the doctor as that evidence could at best be an estimation and cannot replace or overweigh the direct evidence of the father. As regards Dayachands case, it was submitted that the documentary evi dence in that case were conflicting and under that light only the opinion evidence was preferred and the analogy may not be applied to the present set of facts. It was contended that it was impossible to think that a father would manipulate the date of birth of his son long before the present offence with a view to give a benefit to him. 6. In response to the submissions made by the petitioner Sri G. S. Chaturvedi appearing for the respondent submitted that as a revisional court, this Court could not interfere with a finding of fact if there was no perverse approach to the apprecia tion of the evidence. It was also contended that under the rules of evidence when a plea was taken by the petitioner concern ing his age the burden of proof lay on him and he was to discharge this onus by ac ceptable and legal evidence. It was also contended that under the rules of evidence when a plea was taken by the petitioner concern ing his age the burden of proof lay on him and he was to discharge this onus by ac ceptable and legal evidence. Sri Chaturv edi contended that the Headmaster who came forward to prove the recorded date of birth had in fact did not prove anything and, concerning the Kutumb register, the petitoners witness No. 2 had given a gloomy picture of the state of affairs as to how shabbily an official record was main tained. On the statement of the father concerning age, it was contended that his evi dence made it clear that for his first son there was definitely a suggestion of under-aging him and the father loses credibility on the point of age of his second son. It was contended that with this conflicting evidence the opinion of the doctor attains importance and the Sessions Judge had rightly opined that the petitioner was not a juvenile on the date of the alleged offence. 7. The order of the Session Judge in dicates that he had considered the affidavit of Sunita Devi and the statement of her age therein and he found a contradiction between that statement of her own age and the statement of age of Sunita Devi by her husband in the Court. It further appears that the Sessions Judge had considered the certificate from Khoshal Nursing Home (Maternity Home) and discarded it. The horoscope was also taken into considera tion although it was not produced before the Sessions Judge. He had considered the decision of the Supreme Court in the case of Bhoop Ram v. State of U. P. , 1989 JIC 630 (SC), as also certain other cases to gether with that of Dayachand v. Sahib Singh and another, as decided by the Su preme Court. The Sessions Judge was not called upon to look to the affidavit of Sunita Devi as her affidavit on the main question of age of her son could not be deemed to be a formal matter and she should have been produced before the court. The Sessions Judge should not have referred to the horoscope and the certifi cate from the Maternity Home as the same were not proved before him. The Sessions Judge should not have referred to the horoscope and the certifi cate from the Maternity Home as the same were not proved before him. However, this Court is to see if on the materials before it and on the basis of the case laws the Sessions Judge had arrived at the right deci sion on the factum of age of the petitioner. 8. In the case of Bhoop Ram there was a plea that the accused was a child. In proof of age a school certificate was pro duced. The medical certificate was at vari ance with the school certificate. On facts there were no materials throwing a doubt on the entries in the school certificate and the Supreme Court observed that the said certificate could not be rejected on a sur mise that it was not unusual for the parents to understate the age of their children at the time of school admission. It was observed that medical certificate was based on estimate and possibility of error could not be ruled out (Bhoop Ram v. State of U. P. 1989 JIC 530 (SC ). In the case of Dayachand v. Sahib Singh and another, AIR 1991 SC 930 , also there was a ques tion of age of the accused at the time of the incident. The medical evidence suggested that he was not below 18 years. Two school certificates were produced which were in conflict with each other. On the basis of these matters there was a concur rent finding of the court below that the accused was above 16 years. The High Court was held not justified in interfering with the finding. 9. As regards the Kutumb register, it was contended with reference to a finding of the Supreme Court in the case of Har pal Singh and another v. State of Himachal Pradesh, 1981 (18) ACC 57 (Sum) AIR 1981 SC 361 , that the entry in the Kutumb register was admissible under Section 35 of the Evidence Act. This view was proposed to be reinforced relying on another decision of the Supreme Court in the case of Umesh Chandra v. State of Rajasthan, 1982 (19) ACC 145 (SC), where two documents of two different public schools showing the same age of the child were accepted as admissible. 10. This view was proposed to be reinforced relying on another decision of the Supreme Court in the case of Umesh Chandra v. State of Rajasthan, 1982 (19) ACC 145 (SC), where two documents of two different public schools showing the same age of the child were accepted as admissible. 10. The High School certificate no doubt bears the date of birth of the peti tioner as 25-6-78 but this age would nor mally be presumed to have been entered on the basis of entry in the date of birth in the school register and the latter mentioned documents would, therefore, be of more importance. The school certificate has come on record through AW-1 Sri Narendra Dhar. His examination indicates, that Pankaj Kumar Tripathi was admitted in the school on 22-7-86 and he left the school on 30-4-87. In the admission regis ter his date of birth was shown as 25-6-78. He had produced the original register and had placed a photo copy thereof on record. At the relevant time the Headmistress was Smt. Shanti Gaur, but the witness has stated that he did not know or identify the handwriting of Smt. Shanti Gaur. The witness had accepted that he could not say under what circumstances and on whose information the date of birth was recorded in the school register. AW-3 father of Pankaj Kumar Tripathi stated that he had admitted Pankaj in the school and he got the date of birth entered as 25-6-78. Thus we are back only to the statement of the father of Pankaj on the point of his date of birth and all others evidence, the entry register or the High School certificate are based on his statement only. 11. AW-2 is Sri S. Shukla, the Gram Panchayat Adhikari, had produced the Kutumb register, the entries therein have been produced by him. The name of Pankaj Kumar Tripathi find place in the family of Sajan Ram in the concerned vil lage and his year of birth was shown 1978. Cross-examination is there to show that certain pages in the register, including relevant pages were stitched in a different manner than the other portion of the regis ter. It could nol be indicated even during arguments as to how the register is main tained. It had come in the evidence of AW-2 that the register was opened in 1972. Cross-examination is there to show that certain pages in the register, including relevant pages were stitched in a different manner than the other portion of the regis ter. It could nol be indicated even during arguments as to how the register is main tained. It had come in the evidence of AW-2 that the register was opened in 1972. If that be so then persons born prior to 1972 should have been initially entered and any addition in the family should have been noted according to the dates of addi tion. No evidence is there to show if any particular page is allowed to a particular family and blank lines are left for future addition or if the register is revised every year. Even if it is accepted that the entries were there, there should have been some remarks as to the entries made after 1972 and on whose information. In the absence of these materials, the mere fact that the register is admissible under Section 35 of the Evidence Act may not give a stamp of authenticity to it, Admissibility is one thing and acceptability of the evidence is certainly another. 12. We are to fall back on the state ment of the father and on him alone con cerning the age. His cross- examination indicates that he had another son elder to Pankaj whose name was Praveen. This Praveen, according to his statement, was born on 24-2-76 and the father claims that he passed out High School examination in 1988 itself. This suggests that he took the High School examination at a tender age of 12 years. This could happen with an extraordinary meritorious boy. But the subsequent claim of the father is also worth note Sri Sanjan Ram Tripathi came out with a claim that his children started education at the age of three only and he entered them to school directly in Class III. If Praveen passed out High School examination in 1988 and if he entered the school in Class III then he must have been admitted in Class III at the tender age of three or four which sound improbable. This improbability is reinforced as the father has stated that he could tell the age of his son at the time of entry to the school only after looking to the school register. This improbability is reinforced as the father has stated that he could tell the age of his son at the time of entry to the school only after looking to the school register. It is true that there could not be a surmise that a parents understate the age of their children while admitting them in school, but, in the instant case it is not a surmise. The evidence prima facie suggested that the elder brother of the petitioner was admitted by his father in school in Class III at a tender age of three or four and it was a different case of understating his age. If the father could do it for one son, it couid be repeated for the second son as well and the father loses his credibility atleast on the point of stating the date of birth of his son. We are then left with the medical opinion only which is from an unbiased disinterested Scientific personnel who bases his opinion on scientific data only. In any view of the matter, it was for the petitioner to prove that he was a ju venile at be relevant date and evidence on his behalf not being acceptable it may not be stated that he was aged less then 16 years on the date of the alleged offence. 13. Seen in this light the findings of the Sessions Judge may not be interfered with. It must, therefore, be confirmed that the petitioner was not a juvenile on the date of the alleged offence and he may not, therefore, get any benefit as a juvenile. The revision application stands dismissed. The record of S. T. No. 17 of 1994 be des patched to the court below immediately along with a copy of the instant order. Revision dismissed .