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2013 DIGILAW 593 (MP)

Dilip Singh Gurjar v. State of M. P.

2013-05-03

D.K.Paliwal, S.K.Gangele

body2013
ORDER Paliwal, J. 1. This writ appeal has been preferred under section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 against order dated 27.2.2013 passed by learned Single Judge in writ petition No.4310/2012 (Habeas Corpus). 2. Brief facts of the case are that respondent No.4-Mahendra Singh filed writ petition No. 4310/2012 (Habeas Corpus) for production of her minor daughter Ku. Seema before this Court who is in the wrongful confinement of appellant (respondent No. 4 before the writ Court). She was missing since 11.10.11. Report of the incident was lodged at Police Station, Bhanwarpura, Distt. Gwalior and a case under sections 363 and 366 of IPC has been registered. In his return, the appellant submitted that Ku.Seema was major and he got married with her with her free consent under the Arya Samaj customs. It is further submitted that appellant and Ku.Seema had filed a writ petition No. 1998/2012 and vide order dated 28.3.2012 passed in the writ petition this Court granted them protection considering the ossification report of Ku.Seema. Appellant had filed a petition under section 482 of CrPC before this Court for quashing the criminal case registered against him and this Court after hearing the parties, directed the appellant to approach the Investigating Officer along with all the documents and proofs showing his innocence vide order dated 27.7.12. Thereafter, the police authorities got the ossification test of Ku.Seema conducted and it was found that Ku.Seema was major. It is submitted that police authorities have not submitted the ossification report along with the charge-sheet. It is further submitted that writ petition filed by respondent No. 4 came up for hearing on 27.2.13 and this Court holding that Ku.Seema is minor, handed over her custody to respondent No. 4. Being aggrieved, appellant has preferred this writ appeal. 3. It is submitted by Shri R.B.S. Tomar, learned counsel for the appellant, that the order passed by learned Single Bench is contrary to law, and therefore, deserves to be set aside. The Hon’ble Writ Court has not considered the fact that the mark-sheet submitted by respondent No. 4 is suspicious. No inquiry about the age of Ku. Seema has been held. It is further submitted that life of Ku.Seema is not safe in the custody of respondent No.4. It is prayed that order dated 27.2.13 be set aside and custody of Ku. No inquiry about the age of Ku. Seema has been held. It is further submitted that life of Ku.Seema is not safe in the custody of respondent No.4. It is prayed that order dated 27.2.13 be set aside and custody of Ku. Seema be given to him. The learned counsel for the respondents submits that Ku.Seema is minor, therefore, her custody has rightly been handed over to her father who is her natural guardian. 4. We have considered the rival submissions and perused the record. To prove that corpus is minor, school leaving certificate of Ku. Seema has been produced in which the date of birth of corpus has been mentioned as 5.12.1995. It has been verified by the police from the school admission register. The appellant has relied on the x-ray report in which the age has been reported as 18 years. This report has been issued by Kapoorchand Memorial Digital X-ray Clinic. The learned counsel for the appellant has submitted that police has also got the ossification test conducted regarding the age, but the ossification report has deliberately been suppressed. 5. Learned counsel for the respondents/State has submitted that the date of birth mentioned in the school register would prevail over the age determined by radiological examination. 6. In the case of Madan Mohan Singh and others v. Rajni Kant & another, AIR 2010 SC 2933 the Supreme Court has observed in para 16 as under :- “16. So far as the entries made in the official record by an official or person authorised in performance of official duties are concerned, they may be admissible under section 35 of the Evidence Act but the Court has a right to examine their probative value. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/ School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.” 7. The authenticity of the entries would depend on whose information such entries stood recorded and what was his source of information. The entry in School Register/ School Leaving Certificate require to be proved in accordance with law and the standard of proof required in such cases remained the same as in any other civil or criminal cases.” 7. In the matter of Babloo Pasi v. State of Jharkhand and another reported in (2008) 13 SCC 133 , commenting on the evidentiary value of the entry in the school register, it is held by the apex Court that section 35 of the Evidence Act lays down that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact made by a public servant in the discharge of his official duty especially enjoined by the law of the country is itself a relevant fact. In para 28 it is observed that it is trite that to render a document admissible under section 35, three conditions have to be satisfied, namely: (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be an entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Evidence 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. (See Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604). 8. (See Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604). 8. In the matter of Jabar Singh v. Dinesh and another, 2010 AIR SCW 1866, it has been held in para 12 that entry of date of birth of respondent No. 1 in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country, therefore, the entry was not relevant under section 35 of the Evidence Act for the purpose of determining the age of respondent No. 1. 9. Now we shall examine the evidentiary value of the date of birth recorded in school admission register / school leaving certificate in the light of above settled legal position. In the copy of the school admission register date of birth of Ku. Seema has been mentioned as 5.12.1995. In Annexure P/1 (school leaving certificate), it is mentioned that Ku. Seema was admitted in class 3rd on 11.11.2006. The school leaving certificate is said to have been issued on 13.10. 2011. A bare perusal of the said certificate would show that the appellant was admitted on 11.11.2006 and her name was struck off from the roll of the institution on 25.6.2009. The said school leaving certificate was not issued in ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in section 35 of the Evidence Act. There is no evidence that at whose instance and on what material the date of birth was recorded in the school admission register. Therefore, the entry regarding date of birth mentioned in the school admission register and in the school leaving certificate loses its evidentiary value. 10. The learned counsel for the appellant placing reliance on Om Prakash v. State of Rajasthan and another, (2012) 5 SCC 201 , submitted that the opinion of the doctor regarding the age based on radiological examination and ossification test, be treated as strong evidence. 11. 10. The learned counsel for the appellant placing reliance on Om Prakash v. State of Rajasthan and another, (2012) 5 SCC 201 , submitted that the opinion of the doctor regarding the age based on radiological examination and ossification test, be treated as strong evidence. 11. In the matter of Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714 , the Hon’ble apex Court has added an insight for determination of this issue when it recorded as follows:- “Of course the doctor’s estimate of age is not a sturdy substitute for proof as it is only his opinion. But such opinion of an expert cannot be sidelined in the realm where the Court gropes in the dark to find out what would possible have been the age of a citizen for the purpose of affording him a constitutional protection. In the absence of all other acceptable materials, if such opinion points to a reasonable possibility regarding the range of his age it has certainly to be considered.” 12. The radiological report of Kapoorchand Memorial Digital X-ray Clinic shows that the age of Ku. Seema was 18 years. On the direction of this Court passed in the writ petition, the police had got examined Ku. Seema and in that report it has been opined that the age of Ku. Seema is above 18 years and below 19 years on 2.2.2013. 13. In view of above, we find that when it is not proved that date of birth was entered in the school admission register in accordance with the provisions of Section 35 of the Evidence Act and also in absence of any material on the basis of which it was recorded, no reliance can be placed on it. In the light of medical opinion not only of a doctor of private clinic but also of a Government Medical Officer, in our considered opinion, Ku. Seema appears to be major. Therefore, only she can decide with whom she wants to live. 14. Resultantly the appeal is partly allowed. The impugned order is set aside. Corpus Ku. Seema is at liberty to live with whom she wants. Parties to bear their cost.