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Rajasthan High Court · body

2005 DIGILAW 3246 (RAJ)

Hema Ram v. State of Raj.

2005-12-07

H.R.PANWAR

body2005
Honble PANWAR, J.–S.B. Criminal Revision Petition No. 165/2000 under Section 397/401 of the Code of Criminal Procedure, 1973 is directed against the Order dated 3.4.2000 passed by the Additional Sessions Judge, Deedwana (for short, ``the trial Court hereinafter) in Sessions Case No. 54/99, whereby the trial Court determined the age of accused Hari Ram (for short, ``the accused-petitioner hereinafter) below 16 years on the date of alleged commission of the offence, i.e. on 30.10.1998 and declared him as juvenile and directed to be tried by the Juvenile Justice Board, Ajmer. S.B. Criminal Revision Petition No. 199/2005 has been filed by the accused against the order dated 1.2.2005 passed by the trial Court, whereby the trial Court framed the charges against the accused for the offences under Sections 148, 302, 149, 325 read with Section 149 and 323/149 IPC. Aggrieved by the order holding the accused as juvenile, complainant Hema Ram (for short, ``the complainant hereinafter) has filed S.B. Criminal Revision Petition No. 165/2000 and aggrieved by the order framing the charge, accused has filed S.B. Criminal Revision Petition No. 199/2005. (2). I have heard learned counsel for the parties. Perused the impugned order dated 3.4.2000 by which the accused was held to be a juvenile, as also the impugned order dated 1.2.2005 by which the trial Court framed charges against the accused. (3). So far as the impugned order dated 1.2.2005 framing charges against the accused is concerned, the brief facts giving rise to the instant case are that the complainant lodged a report on 30.10.98 with the Police Station, Ladnu, district Nagaur, alleging therein that about twenty persons, including the accused-petitioner, started pelting stones, came armed with Lathis and Barchhis and surrounded the house of the complainant situated in Mauja Khokhari in order to commit the murder of complainants father Poosa Ram. They assaulted Poosa Ram and thereafter he was kidnapped and taken to the house of co-accused Narain Ram and there also, Poosa Ram was given beatings by the accused persions, which resulted in his death. It was also alleged that the complainant and his cousin Vikash and Smt. Santosh W/o Vikas were also given beatings by the accused persons. The police registered Crime Report No. 209/98 for the offences under Sections 147, 148, 452, 323, 325, 336 and 302 IPC. After usual investigation, the police filed the Challan against the accused persons, including the present accused-petitioner. The police registered Crime Report No. 209/98 for the offences under Sections 147, 148, 452, 323, 325, 336 and 302 IPC. After usual investigation, the police filed the Challan against the accused persons, including the present accused-petitioner. On the case having been committed to the Court of the Additional Sessions Judge, during pendency of the case, an application dated 22.10.99 was moved by the accused-petitioner seeking to declare him as a juvenile, i.e. below 16 years of age on the relevant date of the occurrence. The trial Court recorded the evidence of the parties and by the impugned order dated 3.4.2000, declared the accused-petitioner as juvenile. (4). From the perusal of the Challan papers, there are sufficients grounds to presume that the accused-petitioner, along with other co-accused, committed the murder of Poosa Ram and caused injuries to the complainant, his cousin Vikas and Smt. Santosh W/o Vikas. Thus, prima facie, on close scrutiny of the material placed on record by the police in the form of Challan, I am of the view that the trial Court committed no error or illegality in framing the charge against the accused-petitioner, therefore, the revision petition No. 199/2005 filed by the accused-petitioner seeking quashing of the charges is devoid of any merit and deserves to be dismissed. (5). So far as determination of the age of accused-petitioner is concerned, his father AW 1 Narain Ram appears as a witness and stated that his son, i.e. the accused-petitioner, was born on Kartik Sudi 1, Samvat Year 2039. He was sent to school for perusing the study. The certificate issued by the Board of Secondary Education, Ajmer Ex.P/1, the Certificate of date of birth Ex. P/2 and the Ration Card Ex.P/3, were tendered in evidence. The accused-petitioners another witness AW 2 Shankar Lal, who has stated that the accused-petitioner was born on Kartik Sudi 1, Samvat Year 2039. He has stated that the date of birth of the accused-petitioner was disclosed to him by the grant-mother of the accused-petitioner. The prosecution produced NAW 1 Ram Narain, the investigating officer, who arrested the accused-petitioner on 31.5.1999 and on the disclosure of the accused-petitioner, his age was shown as 19 years in the arrest memo Ex. D/1. (6). He has stated that the date of birth of the accused-petitioner was disclosed to him by the grant-mother of the accused-petitioner. The prosecution produced NAW 1 Ram Narain, the investigating officer, who arrested the accused-petitioner on 31.5.1999 and on the disclosure of the accused-petitioner, his age was shown as 19 years in the arrest memo Ex. D/1. (6). It is contended by the learned counsel for the complainant that Kartik Sudi 1, Samvat Year 2039 corresponds to 17.10.1982, whereas the date of birth mentioned in the school certificate Ex.P/2, the certificate issued by the Board of Secondary Education, Rajasthan, Ajmer Ex.P/1 is 16.11.1982 and, therefore, even according to the version given by the father of the accused- petitioner as also AW 2 Shankar Lal, the date of birth of the accused-petitioner is 17.10.1982 and even taking the evidence of AW 1 and AW 2 on its face value, on the date of the occurrence, i.e. 30.10.1998, the accused-petitioner had already completed 16 years of age and as such, in view of the juvenile Justice Act, 1986 which was applicable at the relevant time, the accused- petitioner was not a juvenile. (7). As per the statements of AW 1 Narain Ram and AW 2 Shankar Lal, the accused-petitioner was born on Kartik Sudi 1, Samvat Year 2039, which corresponds to 17.10.1982, and not 16.11.1982 as mentioned in the academic records Ex.P/1 and Ex.P/2. The occurrence took place on 30.10.1998 and, therefore, on the date of commission of the crime, the accused-petitioner was 16 years and 13 days old. Section 2(h) of the Juvenile Justice Act, 1986, which was applicable at the relevant time, ``Juvenile means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. (8). So far as statement of AW 1 Narain Ram recorded on 10.11.99 is concerned, in the cross examination, he has admitted that the age of his daughter Manchhi is 23 years and as such, even if his statement is believed that after Manchhi, one son Ram Chandra was born after 3 1/2 years and after Ram Chandra, accused-petitioner was born after 3 years, the age of the accused-petitioner, on the relevant date occurrence was above 16 years. He has further admitted in the cross examination that whenever the persons preparing the voter-list come, he used to narrate the age of his children and in the electoral roll of 1998 prepared on 1.1.98, the age of accused-petitioner was mentioned as 18 years. He has stated that if the accused-petitioner narrated his age as 19 years to the persons who prepared the voters-list, he cannot have any say because it is known to those persons. He has even stated that he does not know whether the accused-petitioner is 10th fail or not. (9). So far as statement of AW 2 Shankar Lal is concerned, he has stated that the date of birth of the accused-petitioner was told to him by the grand-mother of the accused-petitioner. However, the grand-mother of the accused-petitioner has not been produced in evidence to substantiate this fact. It is beyond reasonable human-prudence that this witness could have kept in memory the date of birth of the accused-petitioner without having been reduced to writing in some document like ``Bahi etc. (10). So far as the ration card Ex. 3 is concerned, it was prepared on 2.6.1995 wherein the age of the accused-petitioner has been shown to be 12 years and that of his elder brother Ram Chandra has been shown to be 15 years. According to the statement of AW 1 Narain Ram recorded on 10.11.99, the age of his daughter Manchhi was 23 years and Ramchandra born 3-1/2 years after the birth of Manchhi and thereafter the accused-petitioner was born after three years. Therefore, on 2.6.95, the age of Ram Chandra comes to above 16 years and that of accused-petitioner comes to above 13 years. Thus, on the relevant date of the occurrence which took place on 30.10.1998, the accused-petitioner was above 16 years in age. (11). So far as the school record Ex.1 and Ex. 2 are concerned, they have not been proved by producing the scholar register, school admission form and producing the person before whom the admission form was submitted at the time of petitioners admission to the school to prove the same. AW 1 Narain Ram has not stated that he filled-up the School Admission Form. Even on perusal of the school admission form, it is clear that one Poora Ram has made his signatures at the place meant for signatures of father/guardian. AW 1 Narain Ram has not stated that he filled-up the School Admission Form. Even on perusal of the school admission form, it is clear that one Poora Ram has made his signatures at the place meant for signatures of father/guardian. The said Poora Ram has not been produced in evidence. (12). Learned counsel for the accused-petitioner has placed reliance on the decision in Santenu Mitra vs. State of West Bengal ( AIR 1999 Sc 1587 ); and Umesh Chandra vs. State of Rajasthan ( AIR 1982 SC 1057 ). Learned counsel for the complainant-petitioner has relied on the decision in Smt. Sudesh Chaudhary vs. The Civil Judge (Senior Division) & Additional Chief Judicial Magistrate, Raisinghnagar & Anr. (1998 WLC (Raj.) UC 136; Bajrang alias Brijlal vs. State of Rajasthan, 2005(5) RDD 1965 (Raj.); Pratap Singh vs. State of Jharkhand & Anr. ( 2005 (3) SCC 551 ) Birad Mal Singhvi vs. Anand Purohit (1988 (Supp) SCC 604) and Imtiyaz vs. state of Rajasthan, 2005(4) RDD 978 (Raj.). (13). In Umesh Chandra vs. State of Rajasthan (supra), the Honble Supreme Court held that it could not be said that the admission forms as also the schools register both of which were, according to the evidence, maintained in due course of the business were not admissible in evidence because they were not kept or made by any public officer, under Section 35, all that is necessary is that the document should be maintainable regularly by a person whose duty it is to maintain the document and there is no legal requirement that the document should be maintained by a public officer only. Therefore those documents would be admissible under Section 35 and Sections 73 and 74 would be irrelevant. (14). In Santenu Mitra vs. State of West Bengal (supra), the Honble Supreme Court held that once an entry was recorded by an official in performance of his duties, it cannot be doubted on the mere argument that it was not contemporaneous with the date of the suggested date of birth of the offender. In the case of Santenu Mitra (supra), the offender therein strongly relied on an entry made in the register of Birth and Deaths and the supportive evidence of the clerk of Calcutta Municipal Corporation who had brought such register in the Court. (15). In the case of Santenu Mitra (supra), the offender therein strongly relied on an entry made in the register of Birth and Deaths and the supportive evidence of the clerk of Calcutta Municipal Corporation who had brought such register in the Court. (15). In the instant case, neither the scholar register nor the admission form of the school wherein the date of birth of the accused-petitioner is mentioned on the basis of which Ex. 1 and Ex. 2 are alleged to have been prepared and on which the accused- petitioner relies, have been produced. No official from the alleged school has appeared as a witness and proved the contents of Ex. 1 and Ex. 2. There is absolutely no evidence that the admission form and the school register, on the basis of which the accused-petitioner claims his date of birth, were maintained in due course of business and, therefore, the genuineness of those documents is doubtful. At any rate, it can be concluded that these documents have not been proved in accordance with law, keeping in view the law laid down by the Honble Supreme Court Court in Birad Mal Singhvi vs. Anand Purohit ( AIR 1988 SC 1796 ). (16). In Umesh Chandra (supra) as also in Ram Deo Chauhan alias Raj Nath Chauhan vs. State of Assam (2001 Cr.L.J. 2902), the Honble Supreme Court held that the entry in the school register is admissible when there is an evidence that it was maintained by a public servant in discharge of his official duty or by any person in performance of the duty specially enjoined by the law of the country in which such register is kept. The Honble Apex Court observed as under:- ``It is not shown, that the school register was maintained by a public servant in the discharge of his official duty or by any other person in the performance of a duty specially enjoined by the law of the country in which such register is kept. Thus, the entry in the school register remains away from the range of acceptability as proof positive regarding the date of birth of the petitioner. (17). Thus, the entry in the school register remains away from the range of acceptability as proof positive regarding the date of birth of the petitioner. (17). In Birad Mal Singhvi vs. Anand Purohit (supra), 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 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. (18). 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. 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. (19). In this view of the matter, the inescapable conclusion which can be arrived at is that on the relevant day of the incident, the accused-petitioner was above 16 years of the age and as such, in view of the provisions of Section 2(h) of the Juvenile Justice Act, 1986, he was not a juvenile. Therefore, the impugned order dated 3.4.2000 passed by the trial Court cannot be sustained in the eye of law and deserves to be set aside. (20). Consequently, S.B. Civil Revision Petition No. 199/2005 filed by the accused-petitioner challenging the impugned order dated 1.2.2005 framing charges against him, is dismissed. S.B. Criminal Revision Petition No. 165/2000 filed by the complainant petitioner challenging the impugned order dated 3.4.2000 passed by the trial Court is allowed and the impugned order dated 3.4.2000 passed by the trial Court is set aside. (21). The ad-interim stay order dated 17.7.2000 passed in S.B. Criminal Revision Petition No. 165/2000 is vacated. The stay petitions filed in both these revision petitions stand dismissed.