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2016 DIGILAW 1093 (RAJ)

Hadman Ram v. State of Rajasthan

2016-07-29

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. Heard the learned counsels for the parties. Instant revision petition has been filed by the petitioner against the order dated 18.08.2015 passed by learned Additional Sessions Judge No.3, Bikaner (for short, "the trial Court" hereinafter) in Sessions Case No. 18/2015, whereby the trial Court determined the age of accused Vikram (for short, "the accused-respondent" hereinafter) below 18 years on the date of alleged commission of the offence and declared him as juvenile and directed to be tried by the Juvenile Justice Board, Bikaner. 2. Brief facts of the case are that a FIR came to be lodged on 06.04.2015 by the complainant petitioner against the accused respondent upon suspicion of murder of his son as he was last seen with the accused respondent going on motorcycle. The police after investigation filed charge sheet against the accused respondent for offence under Section 302, 201, 120B IPC. 3. After filing of the charge sheet, the accused had preferred an application before the trial Court stating therein that he is minor on the date of occurrence, therefore, matter may be referred to Juvenile Justice Board, Bikaner. The trial Court on the basis of admission form and scholar register of school so also the statement of Principal Azad Kumar, allowed the application and declared the accused respondent as juvenile. 4. Learned counsel for the petitioner submits that trial Court has committed an error in allowing the application filed by accused respondent as the respondent or his family members did not submit the source for mentioning the date of birth of accused in scholar register and in absence of evidence of source of information pertaining to the entry, the same cannot be relied upon. It is argued that the learned trial Court did not examine Smt. Leela who has submitted the admission form in the school. Learned counsel for the petitioner further argued that merely on the basis of statement of Principal of concerned school, the impugned order was passed by the learned trial Court whereas, the trial Court was required to record the statement of the parties and send the matter for medical examination of the accused for determination of age. Learned counsel for the petitioner further argued that merely on the basis of statement of Principal of concerned school, the impugned order was passed by the learned trial Court whereas, the trial Court was required to record the statement of the parties and send the matter for medical examination of the accused for determination of age. It is contended by the learned Counsel for the complainant petitioner that so far as the school record are concerned, they have not been proved by producing the person before whom the admission form was submitted at the time of petitioner's admission to the school. Learned counsel for the petitioner also argued that the impugned order was passed by the trial Court without giving any opportunity of hearing to the petitioner complainant or to cross-examine the witness Azad Kumar, Principal of the school, therefore, the impugned order is not sustainable in the eye of law and same is liable to be set aside. Learned counsel for the petitioner placed reliance on the judgment of Hon'ble Apex Court in the case of Biradmal Singhvi v. Anand Purohit reported in AIR 1988 SC 1796 , judgment of Delhi High Court in case of Morpal v. State (Cr. M.C No. 3962/2002) and Lukman Ram v. State of Raj reported in 2007 (23) R.Cr.D 395, Bajrang @ Brijlal v. State reported in (2005) 6 RDD 1965 . 5. On the other hand, learned counsel for the respondent submits that there is no infirmity or illegality in the order impugned as the learned trial Court has rightly taken into consideration the school record and statement of the Principal for arriving at the conclusion that the respondent is a juvenile. It is argued that Rule 12 of the Rules 2007 categorically envisages that when the matriculation certificate or school certificate is available, then it has to be given priority over any other certificate and same is a relevant piece of evidence. It is further argued that the complainant petitioner has no locus standi to file the present revision petition in a case filed on a police report, therefore, on this ground also, the revision petition is liable to be dismissed. It is further argued that the complainant petitioner has no locus standi to file the present revision petition in a case filed on a police report, therefore, on this ground also, the revision petition is liable to be dismissed. Learned counsel for the respondent placed reliance on judgment of Hon'ble Supreme Court in the case of Ranjeet Goswami v. State of Jharkhand reported in 2013 Cri.L.J. 4895, Ashwani Kumar Saxena v. State of M.P. reported 2012 Crl.L.J 4731, 2016 Crl.L.J 1340 Sheela Devi v. State of Haryana and 2016(1) Cr.L.R. (Raj.) 383 Mohammad Hussain v. State of Raj., 2001 Cr.L.J. 912 Bhopal Singh v. State of Raj., 1997 Cr.L.R (Raj.) 48 Amichand v. Krishna Kumar, 1997 Cr.L.R. (Raj.) 717. 6. I have heard learned counsel for the parties and perused the impugned order. 7. In the first instance, it would be appropriate to reproduce the relevant provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 which reads as under :- "7A. Procedure to be followed when claim of juvenility is raised before any Court- (1) Whenever a claim of juvenility is raised before any Court or a Court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the Court shall make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person and shall record a finding whether the person is a juvenile or a child or not stating his age as nearly as may be: Provided that a claim of juvenility may be raised before any Court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect." 8. (2) If the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1) it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a Court shall be deemed to have no effect." 8. In the case in hand, admittedly, the learned trial Court proceeded to declare the respondent as juvenile on the basis of date of birth mentioned in admission form and scholar register of the school so also on the statement of Principal of school, Azad Kumar. 9. In Birad Mal Singhvi v. Anand Purohit (supra), the Hon'ble 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 scholar's 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." 10. 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." 10. In Richpal alias Malia v. State of Rajasthan 2003 WLC 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. 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. 11. In the present case, neither the parents of the accused respondent were examined to prove that they got the respondent admitted in the school nor the person who filled the admission register and in whose knowledge the entries in the register were made at the time of admission of the accused respondent were produced as witness. Further the learned trial Court proceeded to hold the accused to be juvenile only on the basis of statement of Principal whereas for the determination of age, the inquiry under Juvenile Justice (Care and Protection of Children) Act is a part of judicial proceeding to decide whether an accused is a juvenile or not, an inquiry is a must to be made by the competent authority by giving an opportunity to the parties concerned. The date of birth mentioned in the scholar's register has no probative value unless either the parents are examined or the person on whose information the entry may have been made is examined. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value. 12. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value. 12. In view of above, it is clear that the learned Additional Sessions Judge did not make the inquiry in a proper manner and except Principal of the school, no other witness has been examined on behalf of accused respondent, hence the impugned order is not sustainable in the eye of law. Accordingly, the impugned order dated 18.08.2015 is set aside. The case is sent back to the concerned Court to hold an inquiry about the age of the accused on the basis of proof of all the contents or correctness of date of birth stated in the documents and thereafter proceed in accordance with law. The petition is allowed, as indicated above. Petition Allowed as above.