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2004 DIGILAW 809 (PNJ)

Surender v. State of Haryana

2004-08-02

JASBIR SINGH

body2004
JUDGMENT Jasbir Singh, J. - This revision petition has been filed against order dated 6.5.2004, vide which application of the petitioner, to declare him a juvenile, was dismissed. 2. Petitioner, alongwith other co-accused is facing prosecution for commission of offences under Sections 148, 149, 323, 326, 307 Indian Penal Code and under Sections 25/54/59 of Arms Act. 3. As per allegations, occurrence had taken place on 13.10.2001. After faming of charge, petitioner moved one application, showing his date of birth as 10.4.1987. He claimed that he was a juvenile on the date of alleged occurrence and prayed that he be declared as such and his trial be separate from his co-accused. Record reveals that his application was dismissed vide order dated 3.10.2002. He came to this Court in revision and vide order dated 21.10.2003, his revision petition was allowed, order dated 3.10.2002 was set aside and the trial Court was directed to re-consider his applications dated 3.9.2002 and 24.9.2002. Matter was again taken up by trial Court and vide order dated 6.5.2004, his application was dismissed. Hence, this revision petition. 4. Mr. J.S. Bedi, Advocate appearing for the petitioner has vehemently contended that order under challenge is perverse, having been passed contrary to evidence on record. By referring to transfer/school living certificates (Annexure P/3 and P/4), counsel contended that date of birth of the petitioner is 10.4.1987. To support his contention, he has also referred to affidavit (Annexure P/5), executed by father of the petitioner at the time when he took admission in class 5 in Harbai Devi Government Primary School, Siwani Mandi. Counsel has also referred to certificates, Annexure P/6 (colly), wherein age of other family members of the petitioner has been shown, to say that even their age had wrongly been shown in the voter list and ration card. By stating this, he has argued that no reliance can be placed upon voters list etc., as had been done by the trial Court. 5. Counsel further argued that even if it is presumed that with a view to get some benefit, petitioner had wrongly shown his age in register of village Cooperative Society and in ration card, that may be an offence but for the purpose of determination of his age, to declare him a juvenile, those documents are not relevant. 5. Counsel further argued that even if it is presumed that with a view to get some benefit, petitioner had wrongly shown his age in register of village Cooperative Society and in ration card, that may be an offence but for the purpose of determination of his age, to declare him a juvenile, those documents are not relevant. Counsel has also contended that in such like cases, where two views are possible, the Court is required to adopt a view favourable to the juvenile. 6. To support his contention, he has cited judgments in Ram Janam v. State of U.P. and another, 2003(4) RCR(Crl.) 592 (Allahabad), Jugraj S/o Hathichand Kopa Ahir v. State of M.P., 2003(4) RCR(Crl.) 727 (M.P.), Richpal alias Malia v. State of Rajasthan, 2004(1) RCR(Crl.) 608 (Rajasthan) and Naresh Kumar v. State of Punjab, 1995(2) Recent Criminal Reports 450 (P&H). He prays that revision petition be accepted, order under challenge be set aside, applications of the petitioner be allowed, he be declared a juvenile and his trial be separated from his co-accused. 7. Arguments raised by counsel for the petitioner have vehemently been opposed by counsel for the respondents. He, by referring to the statement of Secretary of Village Cooperative Society and RW2, Inspector, Food and Supply Department, Siwani has stated that petitioner of his own and his father had shown age of the petitioner as 20 years. He has further stated that the entry in the School Register is not reliable, as that entry regarding age was made at the instance of father of the petitioner. It seems tha with a view to get admission in school, wrong age was shown at that time. He has also stated that petitioner was not a regular student. he got admission only for the purpose of appearing in class 5th examinations. He further contended that order under challenge is perfectly justified and is based upon proper appreciation of evidence and prayed that revision petition, having no substance, be dismissed. Counsel for the parties heard. 8. Record shows that occurrence had taken place on 13.10.2001. At the time of his arrest, petitioner had given his age as 20 years. Charge was framed by the trial Court on 1.5.2002. Petitioner in Court again had given his age as 20 years. Counsel for the parties heard. 8. Record shows that occurrence had taken place on 13.10.2001. At the time of his arrest, petitioner had given his age as 20 years. Charge was framed by the trial Court on 1.5.2002. Petitioner in Court again had given his age as 20 years. RW1 Bhoop Singh, Secretary of village Cooperative Society had stepped into witness box and stated that petitioner was enrolled as a member of the society on 8.8.1998 at serial No. 2185. In Societys register, his age was mentioned as 20 years. It was recorded at the instance of petitioner. Signatures of the petitioner appeared in the register at point A, copy of which was placed on record as Ex. R1. It has further been stated that on 14.2.2001, as per Ex. R2, petitioner raised loan to the rune of Rs. 1,27,000/-. No doubt, in his cross-examination, this witness had stated that at the time of registration of a member, verification of his age was not done but still it is a very strong circumstance against the petitioner. RW2 Sube Singh, Inspector Food and Supply Department had stated that ration card, showing members of the family and the age was prepared on the basis of application moved by Sher Singh, father of the petitioner. In that application, Ex. D1, age of the petitioner is shown as 20 years. By believing evidence, referred to above, trial Court had dismissed his application and this Court feels that right approach was adopted by the trial Court. So far as entries in the Societys register and ration card are concerned, these are the admissions made by the petitioner and his father, which are relevant piece of evidence and can be relied upon. Petitioner had failed to shatter authenticity of these documents. Primary reliance has been placed by his counsel upon school leaving/transfer certificates, Annexures P/3 and P/4. In both these certificates, date of birth of the petitioner was shown as 10.4.1987. Document Annexure P/5, an affidavit of father of the petitioner clearly indicated that the petitioner was not a regular student. He had got no formal education upto 4th class. As per evidence of AW3, he got admission in school only on 10.8.1996 in 5th standard and left that school on 31.3.1997. Document Annexure P/5, an affidavit of father of the petitioner clearly indicated that the petitioner was not a regular student. He had got no formal education upto 4th class. As per evidence of AW3, he got admission in school only on 10.8.1996 in 5th standard and left that school on 31.3.1997. It appears that with a view to get admission in school, his father had given his wrong date of birth, in affidavit, Annexure P/5, on the basis of which, as per evidence on record, entry was made in the school register. 9. This fact is further apparent from birth certificates of other family members/brothers of the petitioner, Annexure P/6 (colly). Mahavir was born on 15.4.1966, date of birth of Gulshan was shown as 10.2.1968, Rajinder Kumar was born on 10.11.1974 and Suresh Kumar was born on 28.10.1975. These certificates clearly indicate a regular gap in the date of birth of other family members of petitioner, as against this, there exists a gap of 12 years so far as age of the petitioner and his brother Suresh is concerned. This fact causes a doubt in the mind of the Court. In Societys register, petitioner had shown his age as 20 years. It is also shown as such in ration card and voters list. When we count 20 years backward from the date of petitioners enrolment in Cooperative Society on 8.8.1997, it relates back to 8.8.1978. Keeping in view date of birth of other family members, this seems to be probable date of birth of the petitioner. Above - mentioned facts and circumstances clearly demonstrate that date of birth, as shown in the school leaving certificate, which was recorded at the instance of father of the petitioner, was not correct. 10. Ratio of judgments, referred to above, only lays down that entries in the school register i.e. entry made by a public servant in the discharge of his duty can be a relevant piece of evidence. However, judgments referred to above, also indicate that mere entry is not a proof of correctness. It is also an established law that where two views are possible, a view favourable to the juvenile, is required to be adopted. But in view of facts and circumstances of this case, since entry in school register does not seem to be correct, no benefit can be given to the petitioner. 11. It is also an established law that where two views are possible, a view favourable to the juvenile, is required to be adopted. But in view of facts and circumstances of this case, since entry in school register does not seem to be correct, no benefit can be given to the petitioner. 11. Judgment in Ram Janams case (supra) is not applicable to the facts of this case. In that case, it was laid down that for determination of age, entry made in voters list cannot be made basis because there was no proof as to whether entry regarding age in voters list was made on proper enquiry and was based on some authentic document. In the case in hand, Court had determined age of the petitioner not only on the basis of voters list but had also taken note of various admissions made by the petitioner and his father, admitting age of the petitioner more than 20 years. Similarly, judgment in Jugrajs case (supra) is also not applicable to the facts of this case. In preceding paras of this judgment, this Court has held that school leaving certificate was doubtful. Accordingly, no benefit of the ratio of this judgment can be extended to the petitioner. For the same reasons, judgment in Richpals case (supra) is also not applicable to the facts of this case. Rather this judgment supports case of the respondent because in this judgment, it was laid down as a principle that the school register alone by itself is not a sufficient proof of age, unless it is corroborated by other evidence on record. In this case, entry in the school register was made only on the basis of some affidavit executed by father of the petitioner. On what basis father of the petitioner had mentioned date of birth of the petitioner, was not disclosed at the time when application was heard by the trial Court. No attempt was made by the petitioner/his father to bring on record any certificate issue by the competent authority i.e. Registrar, Births and Deaths of the area. No elderly person of the village had stepped into the witness box to depose regarding date of birth of the petitioner. There is no dispute regarding legal proposition as laid down in Naresh Kumars case (supra), that the entry regarding date of birth in school register is admissible in evidence. No elderly person of the village had stepped into the witness box to depose regarding date of birth of the petitioner. There is no dispute regarding legal proposition as laid down in Naresh Kumars case (supra), that the entry regarding date of birth in school register is admissible in evidence. However, in view of facts and circumstances of this case, ratio of this judgment is also not applicable, as such, no benefit can be extended to the petitioner of the same. This Court has found it, as a matter of fact, that when admission was got by the petitioner in school, his father had made an attempt to show wrong date of birth only with a view to get the petitioner admitted in school. 12. Trial Court, keeping in view age of the petitioner, as was given at the time of his arrest, framing of charge, while getting him enrolled as a member of Cooperative Society, in voters list and also by his father at the time when ration card was prepared, had rightly come to the conclusion that petitioner was not a juvenile. Order is based on proper appreciation of evidence. No case is made out to interfere. Dismissed. Revision dismissed.