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2011 DIGILAW 570 (RAJ)

Vinod Singh v. State of Rajasthan

2011-03-15

R.S.CHAUHAN

body2011
JUDGMENT (1) AGGRIEVED by the order dated 17-8-2010, in Case No.25/2010, passed by Special Judge, SC/ST (Prevention of Atrocities) Act, cases, Sikar, whereby the learned Judge has rejected the application filed by the petitioner for declaring him as juvenile, the petitioner has approached this Court. (2) THE brief facts of the case are that with regard to an incident of 13-2-2010, a FIR No. 101/2010, for the offences under Sections 376 read with 511, IPC, and Section 3 (1) (xi), SC/ST (PA) Act was registered against the petitioner at Police Station Ranoli. THE petitioner filed an application before the learned trial Judge for determination of his age, as he claimed that on the date of occurrence, he was merely 16 years, 11 months, 10 days old. In order to buttress his contention he has examined four witnesses: Vimla Devi (C.W.I), his mother, Shiv Singh (C.W.2), his father, Bhagwan Singh, (C.W.3), the Headmaster of the school, where allegedly the petitioner studied till first class, and Dr. Hardev Singh (C.W.4). He has also submitted a copy of the Scholar Register to prove the fact that his date of birth was recorded as 20-3-1993. However, after going through the oral and documentary evidence, vide order dated 17-8-2010, the learned trial Judge has dismissed the application, and concluded that the petitioner in fact, was 19 years old, on the date of occurrence. Hence, this petition before this Court The learned counsel for the petitioner has vehemently contended that Rule 12 of the Juvenile Justice (Care and Protection of children) Rules (for short 'the Rules'), duly prescribes the procedure to be followed for determination of the age. According to the said rule, the Court or the Board is required to obtain the date of birth from the certificate issued by the school, where the juvenile first studied. It is only in absence of the school certificate that the Court or the Board is permitted to seek medical opinion with regard to the age of the offender. According to the learned counsel, the school record is relevant under section 35 of the Evidence Act. Moreover, the scholar register was not only produced as documentary evidence, but was also proven by Bhagwan Singh (C.W.3). Therefore, it was conclusive proof to prove the date of birth of the petitioner as 20-3- 1993. According to the learned counsel, the school record is relevant under section 35 of the Evidence Act. Moreover, the scholar register was not only produced as documentary evidence, but was also proven by Bhagwan Singh (C.W.3). Therefore, it was conclusive proof to prove the date of birth of the petitioner as 20-3- 1993. Further, even if the medical evidence were to be taken as true, it is subject to a variation of one year. The incident occurred on 13-2-2010, and the medical examination was conducted on 27-7-2010. Thus, according to medical evidence also the petitioner was less than 18 years on the date of occurrence. Hence, the petitioner was a minor on the date of the occurrence. Therefore, the learned Judge has erred in declaring the petitioner as an adult. (3) ON the other hand, Mr. Laxman Meena, the learned Public Prosecutor, has contended that there is contradiction in the testimony of Vimla Devi (CW.1), and Shiv Singh (CW.2), as both of them claimed that they had individually taken the petitioner for admission in the school. Therefore, the learned Judge is justified in relying upon the medical evidence for determining the age of the petitioner. Moreover, the scholar register is not a conclusive proof to establish the petitioner's date of birth. According to learned Public Prosecutor, Section 35 of the Evidence Act does not treat a document as conclusive proof of a fact. It merely makes the document relevant for the purpose of admission. Lastly, according to the medical report, the petitioner was 19 years old. Therefore, the learned Judge was justified in passing the impugned order. (4) HEARD learned counsel for the parties and perused the material available on record. Section 35 of the Evidence Act is as under:- 35. Relevancy of entry in public record made in performance of duty - An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. A perusal of the said section makes it abundantly clear that the public document so produced is deemed to be relevant to fact in issue. A perusal of the said section makes it abundantly clear that the public document so produced is deemed to be relevant to fact in issue. The said section nowhere states that the contents of the said document should be taken as conclusive proof of the fact in issue. A distinction has to be made between the relevancy for the purpose of admission, and being a conclusive proof to a fact in issue. Merely because a document is relevant or admissible in evidence does not mean that the contents of the said document should be accepted as conclusive proof of the fact in issue. The evidentiary value of the document necessarily would have to be adjudicated upon by assessing the evidence in accordance with law. Therefore, merely because the scholar register is a public document, at best, it becomes relevant and, thus, admissible. But section 35 of the Evidence Act does not make contents of such a document to be conclusive proof of the age of the offender. (5) RULE 12 of the RULEs is as under:- 12. Procedure to be followed in determination of age.- (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be the committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenile or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (2) The Court or the Board or as the case may be the Committee shall decide the juvenile or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determining inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificate, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7 A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. RULE 12 (3) casts a duty on the Board or the Court to obtain certain documents, such as school record, and in the absence of school register, to obtain medical opinion. However, the evidentiary value of the document would have to be adjudged by the Court. (6) IN the present case, learned trial Judge has considered the fact that neither of the two parents, could give the date of birth of their other children. They have given only the date of birth of the petitioner as 20-3-1993. Therefore, the learned trial Judge was justified in concluding that the parents are not creditworthy witnesses. Moreover, even in testimony of Bhagwan Singh (C.W.3), he has not stated that he himself has made the entry in the scholar register, although he claims that he was Principal of the school in the year 1999, when the petitioner was admitted in the school. He has further stated that the date of birth recorded in the register is one that could have been told either by the guardian or by the parents. Thus, the basis on which date of birth was recorded in the register is unknown. Hence, the Court was certainly justified in obtaining the medical evidence. It is a settled position of law that medical evidence is always subject to variation of two years. However, Dr. Hardev Singh (C.W.4), has testified that the medical evidence is subject to a variation of one year. Even if, mis statement is taken to be true, the medical examination was done on 27-7-2010, while the incident occurred on 13-2-2010, even than on the date of incident the petitioner would be less than 18 years. However, Dr. Hardev Singh (C.W.4), has testified that the medical evidence is subject to a variation of one year. Even if, mis statement is taken to be true, the medical examination was done on 27-7-2010, while the incident occurred on 13-2-2010, even than on the date of incident the petitioner would be less than 18 years. Moreover, in catena of cases, the Hon'ble Supreme Court has observed that while determining the age of a juvenile, the Court should not be hypertechnical, specially in cases, which are on border line. According to the Apex Court, it is better to err in favour of the juvenile, than to pass an order against him. (7) CONSIDERING the fact that on the date of the incident, the petitioner was on the border line of being a major, as he was slightly less than 18 years, in the interest of justice, it is better to treat him as a juvenile. Hence, this court quashes and set aside the order dated 17-8-2010, and directs that the petitioner be treated as juvenile and his trial be conducted by the Juvenile Justice Board, instead of by a regular court of law. (8) WITH these observations, the revision petition stands allowed. Order accordingly.