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2005 DIGILAW 1367 (RAJ)

Chetan Ram v. State of Rajasthan

2005-05-09

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code"), the petitioners have challenged the order dated 17.02.2005 passed by the Additional Sessions Judge (Fast Track) No. 2, Pali (for short, "the trial Court" hereinafter), by which the trial Court dismissed the application dated 27.08.2004 filed by the petitioners seeking to declare that they were juvenile on the date of the alleged incident which took place on 210.2001 and as such they should be tried by the Juvenile Justice Board. 2. The petitioners are facing trial before the trial Court for the offences punishable under Sections 147, 148, 149, 323 and 307, IPC. An application was filed by the petitioners on 27.08.2004 stating therein that on the date of the alleged incident, i.e. 210.2001, they were juvenile and, therefore, they should be tried by the Juvenile Justice Board. The learned trial Court, vide order dated 08.09.2004, directed the parties to lead evidence regarding the age of the petitioners. On behalf of the petitioners, AW. 1 Ganga Singh (Ganga Shankar), AW. 2 Ranveer Singh and AW. 3 Bhanwar Lal have been examined. On behalf of the prosecution, NAW. 1 Jagdish Prasad has been examined. 3. I have heard learned Counsel for the petitioners and the Public Prosecutor assisted by the Counsel for the complainant. 4. Learned Counsel for the petitioners has contended that from the school record, which is a public documents and dismissible under Section 35 of the Evidence Act, it is established that the date of birth of petitioner No. 1 Chetan Ram is 10.07.1984 and the incident took place on 01.04.2001 and as such petitioner Chetan Ram was juvenile at the time of alleged commission of the crime. In support of his contention, he has placed reliance on a decision of Honble Supreme Court in Umesh Chandra vs. State of Rajasthan, AIR 1982 SC 1057 . His further contention is that as per the ration card produced on record, the age of petitioner No. 2 Mamta was 14 years and from the oral evidence also, it is established that she is two years younger than petitioner No. 1 Chetan Ram. He has further contended that the trial Court has erred in law and on facts in over-looking the school record and ration card while dismissing the application. He has further contended that the trial Court has erred in law and on facts in over-looking the school record and ration card while dismissing the application. Per contra, learned Public Prosecutor and the Counsel for the complainant have supported the impugned order. 5. AW. 1 Ganga Singh (Ganga Shankar), the Acting Principal of Government Upper Primary School, Kherwa, produced before the trial Court the Scholars Register, School Admission Form, Transfer Certificate, marks-sheet of Class V and the Progress Report pertaining to accused-petitioner No. 1 Chetan Ram. As per the school record produced by AW. 1 Ganga Singh (Ganga Shankar), the date of birth of petitioner Chetan Ram is 10.07.1984. However, in cross-examination by the Additional Public Prosecutor, he has admitted that the school admission form of petitioner Chetan Ram was not filled-up in his presence. AW. 2 Ranveer Singh, Gram Sewak-cum-Secretary, Gram Panchayat, Bomadara, has stated that as per the Ration Card No. 700 dated 211.2001, which is in the name of Babu Lal S/o Ghisaji Gurjar R/o Balelao, the age of petitioner No. 2 Mamta, who is sister of Babu Lal, is 14 years. However, in cross-examination, he has admitted that he was appointed as the Gram Sewak-cum-Secretary in Gram Panchayat, Bomadara on 14.09.2002, i.e. after the date of issuance of the ration card as also after the date of occurrence. 6. AW. 3 Bhanwar Lal, who claims to be the real brother of the petitioners, has stated that he is the eldest son of his father and his age is 36 years. He has stated that it was he who had filled up the school admission form Exhibit D-5 of petitioner No. 1 Chetan Ram in the year 1996 after obtaining the thumb impression of his father. He has stated that the date of birth of petitioner No. 1 Chetan Ram is 10.07.1984 and further stated that at the time of admission, the age of petitioner No. 1 Chetan Ram was 12 years. He has stated that petitioner Mamta is two years younger than petitioner Chetan Ram. In cross-examination, he failed to disclose his date of birth and date of his marriage, he also failed to disclose the date of birth of his other brothers and sisters. Before the trial Court, AW. 3 Bhanwar Lal stated his fathers name as "Mishri Lal" whereas the fathers name of the petitioners is Ghisa Ram. 7. In cross-examination, he failed to disclose his date of birth and date of his marriage, he also failed to disclose the date of birth of his other brothers and sisters. Before the trial Court, AW. 3 Bhanwar Lal stated his fathers name as "Mishri Lal" whereas the fathers name of the petitioners is Ghisa Ram. 7. NAW 1 Jagdish Prasad, ASI Police, has stated that at the time of arrest, the age of petitioner Chetan Ram was disclosed to be of 20 years by the petitioner himself and his brothers on the date of arrest, i.e. 210.2001. In cross-examination, he has expressly denied the suggestion that at the time of arrest, the brother of petitioner Chetan Ram told him that the date of birth of petitioner Chetan Ram is 10.07.1984. 8. In Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 , the Honble Supreme Court observed that to render a document admissible under Section 35 of the Evidence Act, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant facts, 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. The Apex Court further observed that 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 to 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. The Apex Court further held as under:- "If the entry in the scholars register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents such as extract of School Register, mark list of certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Merely because the documents such as extract of School Register, mark list of certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents." 9. In Richpal alias Malia vs. State of Rajasthan, 2003 WLC (Raj.) UC 388, it has been held that an entry made in a school register by public servant in discharge of his duty is, no doubt, a relevant fact under Section 35 of the Indian Evidence Act but this does not mean that such entry would be sufficient proof regarding the correctness of such entry. In that case, the admission form was not submitted by the parents of the juvenile and in such a factual-matrix, the Court held that there was no basis for making the entry regarding the age of the petitioner in the admission form as well as in school register and as such these documents by itself were not sufficient to prove that the petitioner was below 18 years of age. 10. In Umesh Chandras case (Supra), the High Court did not rely on the admission form as also the scholar register, both of which were, according to the evidence, maintained in due course of business, on the ground that these documents were not kept or made by any public officer. The Honble Apex Court held that all that is necessary is that the documents should be maintained regularly by a person whose duty it is to maintain the document and there is no requirement that the document should be maintained by a public officer only. Thus, in order to make a document admissible in evidence under Section 35 of the Evidence Act, what is necessary is that there should be evidence that the document is maintained in due course of business. In the instant case, AW. 1 Ganga Singh (Ganga Shankar) in whole of his statement no where whispered that the document Exhibit D.1-A has been maintained in regular course of business by a person whose duty it is to maintain the same. In the instant case, AW. 1 Ganga Singh (Ganga Shankar) in whole of his statement no where whispered that the document Exhibit D.1-A has been maintained in regular course of business by a person whose duty it is to maintain the same. What has been stated by this witness is that he had brought a scholar register of the Government Middle School, Kherwal, wherein at Serial No. 145, entry No. 2644, the name of student Chetan Ram S/o Ghisa Ram R/o Balelal is shown and his date of birth is shown as 10.07.1984. So far as the application form Exhibit D/5 is concerned, this witness has stated that it bears the seal of the Headmaster, however, he made it clear that he does not know whose signature is thereon. So also is with regard to Exhibit D-6 and Exhibit D-7. Thus, on close scrutiny of the statement of this witness, it no where appears that these documents were maintained regularly in due course of business by a person whose duty it is to maintain the same. In the instant case, according to AW. 3 Bhanwar Lal, in admission form Exhibit D-5, the age of petitioner No. 1 Chetan Ram has been mentioned on the saying of his father. Admittedly, the father of petitioner No. 1 Chetan Ram has not come in the witness-box and proved this fact. More so, it has not been established that AW. 3 Bhanwar Lal is the person, who is the real brother of petitioner No. 1 Chetan Ram and filled up the admission form Exhibit D-5. From the statement made by this witness before the trial Court, his parentage does not tally with that of what he stated. Thus, from the facts noticed hereinabove, it is clear that there is absolutely no evidence that the document Exhibit D-5 was regularly maintained in due course of business by a person whose duty it is to maintain and, therefore, the Judgment in Umesh Chandras case (Supra) turn on its own facts and it is of no help to the petitioners. .11. From the discussion of the aforesaid evidence, it is clear that AW. 1 Ganga Singh (Ganga Shankar) is not the person, before whom the admission form of petitioner Chetan Ram was filled-up. Again the said admission form was filled up by petitioners brother AW. .11. From the discussion of the aforesaid evidence, it is clear that AW. 1 Ganga Singh (Ganga Shankar) is not the person, before whom the admission form of petitioner Chetan Ram was filled-up. Again the said admission form was filled up by petitioners brother AW. 3 Bhanwar Lal, who could not disclose the date of birth of his other brothers and sisters. Again, so far as age of petitioner No. 2 Mamta is concerned, AW. 3 Ranveer Singh has stated that the name of Mamta is shown in the ration card of her brother Babu Lal and that ration card was prepared on 211.2001 whereas he was posted as Gram Sewak in that area w.e.f. 14.09.2002, i.e. after the incident. AW. 3 Bhanwar Lal, the brother of the petitioners, has admitted that his parents are alive. In the instant case, the parents of the petitioners, who could have better and special means of knowledge about the age of their children, have not been produced in evidence to prove the age of the petitioners. Thus, on the basis of the school record produced by AW. 1 Ganga Singh (Ganga Shankar), the contents of those documents regarding the date of birth cannot be said to have been proved, particularly when the school admission form was not filled up in his presence and again when it was admittedly filled up by AW. 3 Bhanwar .Lal could not narrate the age of his other brothers and sisters. AW. 3 Bhanwar Lal has stated the name of his father as "Mishri Lal" whereas petitioners fathers name is Ghisa Ram and, therefore, there is no reliable and convincing evidence that it was AW. 3 Bhanwar Lal who filled-up the admission form of petitioner No. 1 Chetan Ram, particularly when the Headmaster, before whom said admission form was filled-up, has not been examined. Even the father of petitioner No. 1 Chetan Ram, who, according to AW. 3 Bhanwar Lal, affixed his thumb impression on the admission form, has not been examined. Thus, the parents of the petitioners have not come forward to show the correct age of the petitioners. There is statement of NAW 1 Jagdish Prasad, the investigating officer to the effect that at the time of arrest of petitioner Chetan Ram, the age of Chetan Ram told to be of 20 years by petitioner Cehtan Ram himself as also by his brothers. There is statement of NAW 1 Jagdish Prasad, the investigating officer to the effect that at the time of arrest of petitioner Chetan Ram, the age of Chetan Ram told to be of 20 years by petitioner Cehtan Ram himself as also by his brothers. Since, the date of birth of petitioner Chetan Ram was not entered by his parents and his brother AW. 3 Bhanwar Lal could not have better and special knowledge about the age of petitioner No. 1 Chetan Ram, as such mere production of the school record would not tantamount to proof of all the contents or the correctness of his date of birth. In his statement recorded under Section 313 of the Code on 27.04.2004, petitioner No. 1 Chetan Ram has disclosed his age as 22 years. The incident took place on 210.2001 and as such, on the date of the incident, as per his own statement under Section 313 of the Code, petitioner No. 1 Chetan Ram, on the date of the incident, was about 19 years and 6 months in age. .12. In Raisul vs. State of U.P., AIR 1977 SC 1822 , the Honble Apex Court held that the Courts should not substitute their own estimate in regard to age of accused rejecting the statement of accused under Section 342, CrPC (Corresponding to Section 313, CrPC) as to his age. The Apex Court further held as under:- ."The offence was committed on 13th August, 1070, and on 1st July, 1971, when the appellant was examined under Section 342 of the Code of Criminal Procedure he stated that his age was 18 years. The appellant must, therefore, clearly have been below the age of 18 years on the date when he committed the offence. It is true that the learned Sessions Judge on looking at the appellant thought that he must not be less than 24 years of age, and the High Court also, on seeing the appellant personally, took the view that the estimate of age given by the Sessions Judge was correct, but we do not think that the learned Sessions Judge as well as the H igh Court were right in substituting their own estimate in regard to the age of the appellant and on the basis of such estimate, rejecting the statement as to his age made by the appellant. Appearance can often be deceptive. Appearance can often be deceptive. We must, therefore, proceed on the basis that the appellant was below 18 years of age when he committed the offence." 13. In Shravan Dashrath Datrange vs. State of Maharashtra, 1998 CriLJ 1196, the Bombay High Court held that the estimate of age given in the statement recorded under Section 313, CrPC should be accepted as correct and the Court would not be justified in substituting it by its own estimate. 14. In Simitra Devi & Anr. vs. Girdhari Lal & Anr., 1987 (2) Crimes 657, the Punjab & Haryana High Court observed that when the age given in the statement of the accused recorded under Section 313 of the Criminal Procedure Code was not challenged from the other side, then this age is to be accepted. The Court further held as under:- "So far as the question of age is concerned, the same having been given in the statement of the accused under Section 313, Criminal Procedure Code, 1973 (No. 2 of 1974) is sufficient for purpose of considering whether the offender is under the age of 21 years or not. At the time of granting probation, the age given in the said statement by the respondent was not challenged form the other side and in view of the D.B. Judgment of this Court in Mai Ditta Singh vs. State of Punjab, 1981 Chandigarh Law Report 147, and Delhi High Court Judgment in Municipal Corporation of Delhi vs. Raj Kumar, 1980 (1) FAC 352, the age given in such statement is to be accepted while considering the applicability of the Probation of Offenders Act in case of his conviction." 15. In this view of the matter and in view of the settled proposition of law, I am of considered view that the trial Court has committed no error in holding petitioner No. 1 Chetan Ram above 18 years of age on the relevant date of occurrence. 16. So far as petitioner No. 2 Mamta is concerned, the evidence on record is that she is living with her brother Babu Lal and in the ration card, her age has been shown as 14 years. The said ration card bears the date of its issuance as 211.2001 whereas the incident took place on 210.2001 and as such it is of a post-incident. AW. The said ration card bears the date of its issuance as 211.2001 whereas the incident took place on 210.2001 and as such it is of a post-incident. AW. 2 Ranveer Singh, Gram Sewak-cum-Secretary, Gram Panchayat, Bomadara, has stated that as per the Ration Card No. 700 dated 211.2001, which is in the name of Babu Lal s/o Ghisaji Gurjar R/o Balelao, the age of petitioner No. 2 Mamta, who is sister of Babu Lal, is 14 years. However, in cross-examination, he has admitted that he was appointed as the Gram Sewak-cum-Secretary in Gram Panchayat, Bomadara on 14.09.2002, i.e. after the date of issuance of the ration card as also after the date of the occurrence, therefore, he had no personal knowledge about the contents of the ration card and the correctness of the document. More so, no record, on the basis of which the said ration card was prepared and issued, has been produced and, therefore, the contents of the ration card are not admissible in evidence. However, PW. 3 Bhanwar Lal has stated that petitioner No. 2 Mamta is two years younger than petitioner No. 1 Chetan Ram. PW. 1 Chetan Ram, in his statement under Section 313 of the Code recorded on 27.04.2004, has given his age as 22 years and as per his statement under Section 313 of the Code, at the time of incident, he was aged about 19 years and 6 months. Thus, there is evidence that petitioner Mamta is two years younger than petitioner Chetan Ram. As the approximate age of petitioner Chetan Ram comes to 19 years and 6 months, being two years than petitioner No. 1 Chetan Ram, the age of Mamta at the time of alleged incident, prima facie, comes below 18 years and as such at the time of commission of alleged crime, she was a juveniel as defined under Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Reckoning the date for determination of age of a juvenile is the date of offence and not the date when he is produced before the Authority or the Court, as has been held by a Constitution Bench of the Honble Supreme Court in Pratap Singh vs. State of Jharkhand & Anr., JT 2005 (2) SC 271. Therefore, the impugned order, to the extent holding petitioner No. 2 Mamta not juvenile cannot be sustained. 16. Therefore, the impugned order, to the extent holding petitioner No. 2 Mamta not juvenile cannot be sustained. 16. Consequently, the revision petition is partly allowed. The impugned order, so far it relates to petitioner No. 1 Chetan Ram, is up-held. However, the impugned order qua petitioner No. 2 Mamta is set-aside and it is held that petitioner No. 2 Mamta was a juvenile on the date of the incident. The stay petition stands disposed of .