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2008 DIGILAW 737 (PNJ)

Santokh Singh v. Harkirat Singh alias Kirat

2008-03-20

HARBANS LAL

body2008
JUDGMENT Harbans Lal, J. - This petition has been moved by Santokh Singh for setting aside the order dated 6.8.2007 rendered by the Court of learned Additional Sessions Judge, Ambala, whereby he declared Harkirat Singh alias Kirat, a juvenile and gave a direction to the Juvenile Justice Board, Ambala, to inquire into the matter and further gave a direction to the prosecution to file supplementary challan qua juvenile Harkirat Singh alias Kirat on 20.7.2007. 2. The facts giving rise to this petition are that Saranjit Singh, aged about 18 years son of the petitioner Santokh Singh was allegedly murdered by Harkirat Singh respondent and his brother Harvinder Singh. The fatal shot was fired by Harkirat Singh. FIR No. 227 dated 25.12.2006 under Section 302/120- B/34 of Indian Penal Code and 25 of Arms Act was got registered by the petitioner at Police Station Sadar, Ambala. After about 5 months of the occurrence and registration of the case, an application was moved by respondent Harkirat Singh for declaring him a juvenile. In support of his application, he examined his father Balbir Singh, who deposed that 4 sons were born from his loins and his first son was born in the year 1985. He died about 2-3 months of his birth. The second son was born in the year 1986. He expired within a few days in his birth. The third son Harvinder Singh was born in the last month of 1987 or the early month of 1988. The 4th son Harkirat Singh was born on 21.10.1989. According to this witness, this date of birth was mentioned in the School record of Harkirat Singh. The certificates issued by the School Education Board, Haryana were placed on the file as Exh. A-1. On the basis of the same, he was declared a juvenile by the learned Additional Sessions Judge vide the impugned order. This witness has admitted that respondent No. 1 was not got admitted in school by him. He also could not tell as to by whom his age was got recorded in the school record. His mother was, however, not examined as a witness. According to the Registrar, Births and Deaths, three sons were born from the loins of Santokh Singh and his wife. The first one was born on 10.10.1984. The second one was born on 12.1.1986. The third one was born on 21.9.1987. His mother was, however, not examined as a witness. According to the Registrar, Births and Deaths, three sons were born from the loins of Santokh Singh and his wife. The first one was born on 10.10.1984. The second one was born on 12.1.1986. The third one was born on 21.9.1987. In his cross-examination, father of Harkirat Singh has admitted that his first son was born in Dr. Minochas Hospital but he was not born in 1984. He was falsified by the record maintained by the Registrar, Births and Deaths, according to which three sons were born to the concerned couple on 10.10.1984, 12.1.1986 and 21.9.1987. The inquiries by the petitioner have revealed that his first son was born on 10.10.1984, who died in infancy. The other two sons are Harvinder Singh and Harkirat Singh. No fourth son was born to the couple. Father of Harkirat Singh did not give names of all the three sons born in the hospital and by interpolation got the name of his son Harkirat Singh entered showing his date of birth as 21.9.1987 though Harvinder Singh was born on 12.1.1986 and Harkirat Singh was born on 21.9.1987. The father of Harkirat Singh has, therefore, committed perjury by giving wrong dates and years of birth of his children. According to the record, the respondent Harkirat Singh was the last issue of his parents and was born on 21.9.1987 and not on 21.10.1989 as mentioned in the school record. In view of the above circumstances, the respondent Harkirat Singh was declared juvenile on the basis of false evidence given by his father and that being so, this petition may be accepted and the impugned order may be set aside. 3. I have heard the learned counsel for the parties besides perusing the record with due care and caution. 4. Mr. Puran Singh Hundal, Sr. Advocate, appearing on behalf of the petitioner, eloquently urged that in view of the reasons mentioned in the petition as well as the record of the Registrar, Births and Deaths, Harkirat Singh was born on 21.9.1987, thus, the order under challenge suffers from illegality being in teeth with record. Sequelly, it is liable to be set aside. 5. To controvert this submission, Mr. Sequelly, it is liable to be set aside. 5. To controvert this submission, Mr. S.S. Dinarpur, Advocate, counsel for respondent No. 1 pressed into service that as would be apparent from the order to which challenge has been posed, the State did not adduce any evidence worth the name operating as rebuttal to the evidence adduced on behalf of Harkirat Singh, respondent. Thus, the same has gone unrebutted. He further pressed into service that the petitioner did not produce any evidence showing the dates of birth of the sons of Balbir Singh, AW-1 as alleged in this revision petition. As such, no fault can be found with the findings returned by the learned Additional Sessions Judge on the basis of Middle as well as Secondary Examination certificates wherein the date of birth of Harkirat Singh as been mentioned as 21.10.1989. 6. On a careful consideration of the matter, I am of the view that the contentions raised by Mr. Hundal do not find support from any documentary evidence on record. 7. Mr. Hundal maintained with full force that the copy of the statement of Balbir Singh, AW-1, father of Harkirat Singh placed on the record, reveals that the date of birth of his son Harkirat Singh was not got recorded by him in the Municipal or police station or hospital records and that at the time of admission of his son Harkirat Singh, he had not accompanied for his admission to the Primary School. This evidence leaves no room for doubt that the alleged date of birth is based on mere conjectures and surmises which cannot take the place of proof. This contention cannot be agreed to. In the absence of documentary evidence, nullifying the date of birth of Harkirat Singh, respondent as 21.10.1989 in his Middle as well as Secondary Examination Certificates, no holes can be picked in the observations made by the learned Additional Sessions Judge in his order. The petitioner did not produce any evidence worth mention before the learned Additional Sessions Judge. It was not the case of the prosecution or the petitioner before the learned Additional Sessions Judge that the certificates, Exh. A-1 and A-2, which came into being well before this occurrence, were forged or fabricated documents. As has been reflected in the impugned order, no attempt was made by the prosecution to get the ossification test of Harkirat Singh alias Kirat carried out. A-1 and A-2, which came into being well before this occurrence, were forged or fabricated documents. As has been reflected in the impugned order, no attempt was made by the prosecution to get the ossification test of Harkirat Singh alias Kirat carried out. In such circumstances, the next best evidence available before the Court was the certificate, Exh. A-1 and A-2. 8. In Re : Sunil v. The State of Haryana, 2003(2) RCR(Crl.) 313, the school record showed that the prosecutrix was below 16 years. The Division Bench of this Court held that it is not the law of the land that as and when the date of birth has been recorded in the school record, it must be found false, every case will depend upon its facts." 9. A glance through the copy of statement of Balbir Singh, AW-1 placed on record would reveal that it has not been put to him in his cross-examination that the certificates, Exh. A-1 and A-2 are forged and fabricated documents. As observed in Re : Sunils case (supra), when the factum has not been challenged in the cross-examination, the law will presume that the fact stands proved. So, Exh. A-1 and A-2 are presumed to be valid documents. As per the Secondary (Matric) Examination Certificate, Exh. A-1 purportedly issued by the Board of School Education, Haryana, the date of birth of Harkirat Singh is 21.10.1989. Similar position exists in the Middle Examination Certificate, Exh. A-2 issued by the Board of School Education, Haryana. In the face of this unrebutted documentary evidence, the contention raised by Mr. Hundal pales into insignificance. As observed in Re : Rajinder Chandra v. State of Chhattisgarh, 2002(1) RCR(Crl.) 586, the accused was apprehended for an offence under Section 302/34 of Indian Penal Code. He claimed himself to be a juvenile and, therefore, entitled to the benefit of Juvenile Justice Act. On inquiry, he was found to be a juvenile. His birth certificate, School record and ossification test showed that his age was just on border of 16 years under the unamended Juvenile Justice Act when the offence was committed. He claimed himself to be a juvenile and, therefore, entitled to the benefit of Juvenile Justice Act. On inquiry, he was found to be a juvenile. His birth certificate, School record and ossification test showed that his age was just on border of 16 years under the unamended Juvenile Justice Act when the offence was committed. It was held that "while dealing with the question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hypertechincal approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in border line case." Thus, in the instant case, if it is assumed for a little while that on the given evidence, two views are possible, though strictly speaking, it is not so, the Court has to lean in favour of holding the respondent-Harkirat Singh to be a juvenile. Exh. A-1 and A-2 are the next best evidence in the absence of any entry in the office of the Registrar, Births and Deaths. As noted supra, there is no evidence to show that Exh. A-1 and A-2 were not genuine. Had these been ingenuine, such fact might have been got clarified from the Board of School Education, Haryana, In the absence of any independent material rendering the authenticity of these certificates issued by the above mentioned Board to be doubtful, nothing should prevail thereover. As a sequel of the above discussion, this petition being meritless, is dismissed. Petition dismissed.