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Rajasthan High Court · body

2005 DIGILAW 1579 (RAJ)

Bajrang Alias Brijlal v. State of Rajasthan

2005-05-26

H.R.PANWAR

body2005
Honble PANWAR, J.–This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short, "the Code") has been filed challenging the order dated 30.9.2004 passed by the Additional Sessions Judge (Fast Track) No. 2, Bikaner (for short, "the trial Court" hereinafter) in Sessions Case No. 45/2004, by which the trial Court dismissed the application filed by the petitioner seeking to declare that the petitioner was juvenile as defined in section 2(k) of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act hereinafter) on the date of alleged commission of crime and as such he should be tried by the Juvenile Justice Board. (3). The petitioner, along with his father and younger brother is facing trial for the offences punishable under Sections 341, 323, 325, 307 and 302 I.P.C. for the occurrence which took place on 3.6.2004. He filed an application under Section 49 of the Act for determination of his age and alleged that his date of birth is 12.7.1986 and the alleged occurrence took place on 3.6.2004, as such he has not attained the age of 18 years on the date of the alleged incident. On that application, the trial Court conducted an inquiry under Section 49 of the Act and after considering the evidence produced by the parties, dismissed the application. (4). I have heard learned counsel for the parties and perused the impugned order as also the record of the case. (5). It has been contended by the learned counsel for the petitioner that on the date of the incident, the petitioner was a juvenile being age of 17 years, six months and 23 days. Placing reliance on Rajinder Chandra vs. State of Chhattishgarh and Anr., 2002 SCC (Cri.) 333, it has been contended that it was a border- line case and in view of the law laid down by the Honble Supreme Court, in border-line cases, if two views are possible on the basis of the evidence adduced, the view which is in favour of the juvenile delinquent should be adopted. (6). During inquiry under Section 49 of the Act, petitioner produced the Transfer Certificate Ex.C/1, copy of scholar register Ex.C-2A(1), school admission form Ex.C-3A and the Transfer Certificate Ex.C/4A, wherein his date of birth has been recorded as 12.7.1986. (6). During inquiry under Section 49 of the Act, petitioner produced the Transfer Certificate Ex.C/1, copy of scholar register Ex.C-2A(1), school admission form Ex.C-3A and the Transfer Certificate Ex.C/4A, wherein his date of birth has been recorded as 12.7.1986. On the basis of these documents, it has been contended that on the date of incident, the petitioner was juvenile. These documents have been produced by CW3 Balchand Sunar, the Headmaster of Government Upper Primary School, Luniyabada Bas, Napasar, Bikaner. (7). CW1 Smt. Durga is the mother of the petitioner who has stated that at the time of admission in the school, petitioner was aged about 6-7 years. She has stated that she got the petitioner admitted in the school and got her date of birth recorded. In cross-examination, she has stated that it was she, and not her husband, who got the petitioner admitted in the school by filling-up the admission form and thereafter said that the admission form was filled-up by a teacher as she is illiterate. She has further stated that she does not know in which year the petitioner was born but he was born in the month of "Sawan" and now the petitioner has attained the age of 18 years. She has stated that petitioner was married three years before and is having a daughter aged about 6-7 months. (8). CW2 Bhanwar Lal is the brother-in-law (gainer) of petitioners father Dula Ram. He has stated that at the time of admission in school, petitioner was aged about 7 years. He has stated that the first son to Dula Ram (petitioners father) was born after four years of his marriage. In cross-examination, he has stated that in which month, the petitioner was born, he does not know, but the petitioner was born in Samvat Year 2043 and presently Samvat Year 2061 is running. (9). CW-4 Dula Ram is the father of the petitioner and has stated that at the time of admission in the school, petitioner was aged about 7 years. He has further stated that he had filled up the school admission form of the petitioner. In cross-examination, he has stated that he cannot say whether at the time of admission in school, the petitioner was aged about 6 years or 7 years. He has further stated that in the admission form, the teacher had filled up the date of birth of the petitioner on imagination. In cross-examination, he has stated that he cannot say whether at the time of admission in school, the petitioner was aged about 6 years or 7 years. He has further stated that in the admission form, the teacher had filled up the date of birth of the petitioner on imagination. He has further stated that the name of the petitioner is included in the voter-list and in the last election, petitioner had cast his vote. (10). NCW1 Gopal produced a certified copy of the voter-list Ex.NC 1 wherein the age of petitioner has been shown as 25 years on 6.1.2003. In cross-examination, he has denied the suggestion that in that voter-list Ex.NC 1, Dula Ram is not the name of father of petitioner Brij Lal. (11). NCW2 Rajendra Kumar has stated that since July 2004, he is working as the Gram Sewak cum Secretary in village Luniya Barabas. He has produced Ex. NCW2, which is the original application for preparing the ration card submitted by the father of the petitioner. He has stated that the ration card was issued in the name of petitioners father on 30.8.2002, wherein the age of the petitioner has been shown as 18 years. He has also proved the receipt Ex. NC 3-A regarding deposit of education cess by the father of the petitioner for preparing the ration card. (12). 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 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 or 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." (13). 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. (14). In the instant case, the contention of the learned counsel for the petitioner is that as per the school record, the date of birth of the petitioner is 12.7.1986 and as such on the relevant date of the alleged incident which took place on 5.2.2004, the petitioner was 17 years, 6 months and 23 days old. Placing reliance on Rajinder Chandra vs. State of Chittishgarh and Anr.s case (supra), he has stated that it is a border-line case and as per the decision of the Apex Court in Rajinder Chandras case (supra), the petitioner should be declared juvenile delinquent on the relevant date of the incident. There is no question of different view regarding the law propounded by their Lordships in Rajinder Chandras case (supra), but the facts of the instant case are different from the facts in Rajinder Chandras case. There is no question of different view regarding the law propounded by their Lordships in Rajinder Chandras case (supra), but the facts of the instant case are different from the facts in Rajinder Chandras case. In the instant case, there are contradictions in the statements of parents of the petitioner as to who filled-up the school admission form. CW1 Smt. Durga is the mother of the petitioner who has stated that it was she who got the petitioner admitted in the school and not her husband CW4 Dula Ram, whereas CW4 Dula Ram has stated that it was he who got the petitioner admitted in the school. Secondly, both these parents could not narrate the exact age of the petitioner at the time of his admission in the school and are not sure whether at that time he was aged about 6 years or 7 years. CW-4 Dula Ram, father of petitioner has specifically stated that the date of birth was entered in the school admission form by the teacher on imagination. They could not show the year when the petitioner was born. Thus, in view of the law laid down by the Honble Supreme Court in Birad Mal Singhvi vs. Anand Purohits case (supra), the date of birth recorded in the school record is not the correct proof of age of the petitioner and on the basis of the said date of birth, it cannot be said that at the time of the incident, the petitioner was a juvenile. More so, CW3 Balchand Sunar is not the person before whom school admission form was filled up and signed by either mother or father of the petitioner. The teacher who alleged to have filed admission form as alleged by CW4 Dula Ram entering the age of petitioner on imagination has not been produced. Even signature of the then Headmaster of school Smt. Krishna Khatri on Ex.C/3 i.e. school admission form has not been proved. (15). On the contrary, there is ample evidence on record suggesting that at the time of the incident, the petitioner was of more than 18 years of age and as such not a juvenile. Even signature of the then Headmaster of school Smt. Krishna Khatri on Ex.C/3 i.e. school admission form has not been proved. (15). On the contrary, there is ample evidence on record suggesting that at the time of the incident, the petitioner was of more than 18 years of age and as such not a juvenile. In the voter-list Ex.NC 1, the age of the petitioner has been shown as 25 years and there is an admission of the father of the petitioner that the name of the petitioner is entered in the voter-list and in the last election, the petitioner had cast vote. Likewise, in the ration card Ex.NCW 2-A, which was prepared on 30.8.2002 and proved by NCW 2 Rajendra Kumar, the age of the petitioner has been shown 18 years, which also suggests that on the relevant date of incident i.e. 5.2.2004, the petitioner was more than 20 years in age. Even as per the statement of CW-1 Smt. Durga, the mother of the petitioner, which was recorded on 3.8.2004, the petitioner was married three years before and is having a daughter. Again, CW-1 Smt. Durga has stated that at the time of her marriage, she was aged about 11 years and she gave birth to a daughter when she was 15-16 years and after four years thereof, the petitioner was born. In her statement, petitioner has disclosed her age as 45 years. This suggests that the petitioner was born when CW1 Smt. Durga was aged about 19-20 years and calculating from this angle also, the age of the petitioner comes to 25 years. Thus, the evidentiary probabilities weigh heavily against the contention of the petitioner and by no stretch of imagination, it can be said that the petitioner was below 18 years in age at the time of commission of the crime. In this view of the matter, I do not find any illgality, error or perversity in the impugned order, which may require interference in revisional jurisdiction. (16). Consequently, the revision petition lacks merit and it is dismissed accordingly. The ad interim order dated 1.11.2004 is vacated and the stay petition is dismissed. Let the record of the trial Court be returned forthwith.