N Criminal Appeal No 439 of 1976
Appeal by special leave from the judgment and order dated the 23rd April 1976 of the Rajasthan High Court in Criminal Revision No 300 of 1974
KK Venugopal SS Khanduja and GC Mishra for the Appellant
BD Sharma for the Respondent
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by special leave is directed against a judgment dated June 29 1974 of the Rajasthan High Court overruling a preliminary objection taken by the accused before the Sessions Judge to the effect that the Sessions Judge Tonk was not competent to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of the Rajasthan Children Act 1970 hereinafter referred to as the Act  on the date of the alleged occurrence
This Act appears to have been passed by the Rajasthan Legislature but after receiving assent of the President was enforced in various districts from time to time
Under the provisions of the Act any person below the age of 16 sixteen would be presumed to be a child and the trial of a delinquent child was to be conducted in accordance with the procedure laid down therein
The objection taken by the appellant was that as he was below the age of 16 at the time of the occurrence on 1231973 he could not be tried by the Additional Sessions Judge Tonk or the Additional Sessions Judge Jaipur city to whom the case was transferred or 171073 586 The Sessions Judge overruled the objection taken by the accused and therefore he filed a revision to the Rajasthan High Court against the order
The High Court after considering the oral and documentary evidence came to the conclusion that the Act was not applicable to the appellant for two reasons 1 that it was not brought into force in Tonk at the time of the offence and 2 that it was not proved by the accused that he was below the age of 16 on 1231973 the date of the occurrence
The accused was charged for offences punishable under sections 364 and 302 of the Indian Penal Code
Aggrieved by the order of the High Court the appellant moved this Court in special leave and at the time of granting special leave this Court directed the High Court to return a finding of fact on the actual date of birth of the accused so that this Court may determine the applicability of the Act to the facts of the present case
The High Court after reappraising the entire evidence oral and documentary by its Order dated 181176 came to a clear finding that the age of Umesh Chandra at the time when the offence was committed was 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be 2291956
After the finding of fact called for from the High Court was sent to this Court the appeal was placed for hearing before us
In support of the appeal the learned counsel for the appellant has assailed the finding of the High Court that the age of the appellant was above 16 years and it was contended that the High Court has based its decision on wholly irrelevant material and has also committed errors of law in appreciating important documentary evidence
Another point that was argued before us was as to the application of the Act to Tonk where the offence was committed
As however the Act has now been enforced in the entire State this question no longer survives because where a situation contemplated by section 26 of the Act arises an accused who is found to be a child has to be forwarded by the Sessions Court to the Children s court which can pass appropriate sentence
Where however proceedings against a child are pending before Sessions Judge section 26 of the Act enjoins a duty on the Court in which the proceeding in respect of the child is pending on the date on which the Act is extended to the area to act in the manner therein prescribed
In this eventuality the Court is under an obligation to proceed With the trial and record 587 a finding as if the Act does not apply
But after concluding the trial and recording a finding that the child had committed an offence the Court cannot pass any sentence but the Court is under a statutory obligation to forward the child to the Children s court which shall pass orders in respect of that child in accordance with the provisions of the Act as if it has been satisfied on inquiry under the Act that the child bas committed the offence
In view of this provision section 21 would be attracted and the Children s court will have to deal with the child under section 21
Thus the main point for consideration in this case is as to what is the exact date of birth of the appellant Umesh Chandra
The High Court appears to have brushed aside the documentary evidence produced by the appellant mainly on the ground that subsequent documents clearly proved that the father of the accused had not correctly mentioned the date of birth in the previous schools attended by him accused and later corrected his date of birth by an affidavit which was accepted by the High Court to be the correct date
The High Court also rejected the oral evidence adduced by the appellant as also the horoscope produced by his father
We agree with the High Court that in cases like these ordinarily the oral evidence can hardly be useful to determine the correct age of a person and the question therefore would largely depend on the documents and the nature of their authenticity
Oral evidence may have utility if no documentary evidence is forthcoming
Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation
To this extent we agree with the approach made by the High Court
Coming now to the facts on the basis of which the appellant sought protection to be tried only under the Act according to the testimony of the father of the appellant he was
born on 22657 and was aged 15 years 9 months on 1231973 the date of the occurrence
It is however not disputed that at the time when the appellant was born his father was posted in a small village Dausa where the maternal grandfather of the appellant had lived and perhaps he was not meticulous enough to report the birth of his children
There is nothing to show the birth of the appellant nor any evidence has been produced on this aspect of the matter
There is also nothing to show that the dates of birth of the other children of 588 Gopal the father were registered in any Municipal register or in chowkidar s register
We have mentioned this fact because the High Court seems to have laid special stress and great emphasis on the non production of any reliable record to prove that the birth of the appellant had been entered therein
It is common knowledge that in villages people are not very vigilant in reporting either births or deaths and therefore an omission of this type cannot be taken to be a most damaging circumstance to demolish the case of the appellant regarding his actual date of birth
The first document wherein the age of the appellant was clearly entered is Ext
D 1 which is the admission form under which he was admitted to class III in St Teressa s Primary School Ajmer
In the admission form the date of birth of the appellant has been show a as 2261957
The form is signed by Sister Stella who was the Headmistress
The form also contains the seal of the school DW Ratilal Mehta who proved the admission form has clearly stated that the form was maintained in the ordinary course of business and was signed only by the parents
The evidence of Ratilal Mehta DW 1 is corroborated by the evidence of Sister Stella DW 3 herself who has also endorsed the fact of the date of birth having been mentioned in the admission form and has also clearly stated on oath that the forms were maintained in regular course and that they were signed by her
She has also stated that at the time when the appellant was first admitted she was the headmistress of St Teressa Primary School Ajmer
The High Court seems to have rejected this document by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous
The High Court seems to think that the admission forms as also the School s register Ext
D 3 both of which were according to the evidence maintained in due course of business were not admissible in evidence because they were not kept or made by any public officer
Under section 35 of the Evidence Act all that is necessary is that the document should be maintained 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
The High Court seems to have confused the provisions of sections 35 73 and 74 of the Evidence Act in interpreting the documents which were admissible not as public documents or documents maintained by public servants under sections 34 73 589 or 74 but which were admissible under section 35 of the Evidence Act which may be extracted as follows 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 books register or record is kept is itself a relevant fact Emphasis ours A perusal of the provisions of section 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty
This fact has been clearly proved by two independent witnesses viz DW 1 Ratilal Mehta and DW 3 Sister Stella
The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is section 35 of the Evidence Act which provides for relevancy of entry in the public record
In this connection we may refer to a decision of this Court in Mohd Ikram Hussain vs State of UP where Hidayatullah J speaking for the Court observed as under In the present case Kaniz Fatima was stated to be under the age of 18
There were two certified copies from school register which show that on June 20 1960 she was under 17 years of age
There was also the affidavit of the father here evidence on oath stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age
These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam This topic has been elaborately dealt with particularly in regard to the entries in School Register and the admission forms in the case of Abdul Majid vs Bhargavam
In these circumstances 590 the view of the High Court with regard to section 35 is plainly untenable and sections 73 and 74 are utterly irrelevant
Further the High Court was of the view that as the documents produced by the Teressa Primary School were kept in loose sheets no reliance can be placed on them
This fact is admitted but the headmistress has explained that the admission forms were bound much after the date of birth was recorded and hence it cannot be presumed that the documents were not kept in the regular course of business
Moreover the School where the documents were maintained was an English public school and the record maintained by it was undoubtedly unimpeachable and authentic and could not be suspected or presumed to be tampered with
At the time when the age of the appellant was first mentioned in the admission form there was absolutely no dispute about the date of birth or for that matter the exact date on which he was born and there could not have been any motive on the part of the parents of the accused to give a false date of birth because it was his first admission to a school at a very early age
Further the school to which the appellant was admitted being a Public School enjoyed good reputation of authenticity
In Ms Gannon Dunkerlay  Co Ltd vs Their Workmen this Court made the following observations In fact if the register had been prepared at one sitting for purposes of these cases the Company would have taken care that no suspicious circumstance comes into existence and if by chance any error was committed it could have  prepared another register in lieu of Ext
The fact that this was not done shows that this register is the register kept in the course of business and hence there is no reason to doubt the entries made in it
 These observations fully apply to the facts of the present case because if there had been any element of suspicion in giving the date of birth the admission register and the Scholar s register would have been corrected by the headmistress of the school
591 Exts
D 1 and D 2 mentioned above are corroborated by subsequent documentary evidence
It appears that an 1765 the boy was admitted to 3rd standard equivalent to 5th class in St Paul s school Jaipur after the appellant s father was transferred from Ajmer to Jaipur
Here also the document shows that the date of birth given was the same namely 2261957
Thus consistently on two occasions starting from 1963 and ending in 1965 the date of birth was mentioned in the relevant documents as 2261957
This Court in Mohd Ikram Hussain vs State of UP  Ors
Supra has held that copies of school certificates or the affidavit of the father constitute good proof of age vide observations extracted herein before
In the instant case also there are two documents of two different schools showing the age of the accused appellant as 22657 and both these documents have been signed by his father and were in existence ante litem motam
Hence there could be no ground to doubt the genuineness of these documents and the High Court committed a serious error of law in brushing aside these important documents
Another circumstance which weighed with the High Court was that when the boy was admitted in St Paul s school no transfer certificate appears to have been taken
This by itself is not sufficient to dislodge the case of the appellant unless a transfer certificate was taken and it had shown that the date of birth given there did not tally with the documents Exts
D 1 to D 4
It appears that as the father of the appellant was subsequently transferred from Jaipur sometime in June 1966 to Dhausa and he was admitted to the Sanskrit Pathshala in Dhausa for the first time in this school the date of birth of the appellant was changed from 22657 to 22956
The explanation given by his father is that as by this time the boy had become almost 10 years of age and as clause 10 of Chapter XVIII of the Rajasthan Board of Secondary Education Regulations required that no candidate could take the Higher Secondary Examination until he had attained the age of 15 years on the 1st of October of the year in which the Examination was held he had to give an affidavit to change this fact in order to enable his son appellant to appear in the Higher Secondary Examination
This position was not disputed by the State
The High Court seems to have made much of this lacuna and has gone 592 to the extent of labelling Gopal Sharma appellant s father as a liar having gone to the extent of making a false affidavit
Here also we think the High Court has taken a most artificial and technical view of the matter
In our country it is not uncommon for parents sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either under aged or ineligible
Thus the appellant s father has given a cogent reason for changing the date of birth and there is no reason not to accept his explanation particularly because the offence was committed seven years after changing the date of birth and therefore there could be no other reason why Gopal Sharma should have gone to the extent of filing an affidavit to change the date except for the reason that he has given
It was also argued that in the insurance policy the appellant s mother had shown his age as 10 years without giving the exact date of birth
The age of the appellant was given as a rough estimate in the insurance policy but as the policy was not in the name of the appellant nothing turns upon this fact particularly because by and large giving allowance for a few months this way or that way the boy was about 10 years old when the policy was taken
The High Court therefore was wrong in attaching too great an importance to this somewhat insignificant fact
For these reasons we are satisfied that these circumstances also do not put the case of the appellant out of court
These are the main reasons given by the High Court for distrusting what in our opinion seems to be unimpeachable documentary evidence produced by the appellant to show that his exact date of birth was 22657 and not 22956 as altered by his father later
Another question argued at the Bar was as to what is the material date which is to be seen for the purpose of application of the Act
In view of our finding that at the time of the occurrence the appellant was undoubtedly a child within the provisions of the Act the further question if he could be tried as a child if he had become more than 16 years by the time the case went up to the 593 court does not survive because the Act itself takes care of such a contingency
In this connection sections 3 and 26 of the Act may be extracted thus 3
Continuation of inquiry in respect of child who has ceased to be child
Where an inquiry has been initiated against a child and during the course of such inquiry the child ceases to be such then notwithstanding anything contained in this Act or in any other law for the time being in force the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a child
xx xx xx 26
Special provision in respect of pending cases
Notwithstanding anything contained in this Act all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area shall be continued in that court as if this Act had not been passed and if the court finds that the child has committed an offence it shall record such finding and instead of passing any sentence in respect of the child forward the child to the children s court which shall pass orders in respect of that child in accordance with the provision of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence
 A combined reading of these two sections would clearly show that the statute takes care of contingencies where proceedings in respect of a child were pending in any court in any area on the date on which the Act came into force
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the children s court for passing orders in accordance with the Act
As regards the general applicability of the Act we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place
Children Act was enacted to protect young children from the consequences of their 594 criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult
This being the intendment of the Act a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place
It is quite possible that by the time the case comes up for trial growing in age being an involuntary factor the child may have ceased to be a child
Therefore sections 3 and 26 became necessary
Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence
We are clearly of the view that the relevant date for applicability of the Act so far as age of the accused who claims to be a child is concerned is the date of the occurrence and not the date of the trial
The High Court has failed to take notice that the Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and therefore its provisions should be liberally and meaningfully construed so as to advance the object of the Act
Bearing this in mind we have construed the documents in the instant case
We therefore allow the appeal to the extent that while setting aside the judgment of the Sessions Judge as affirmed by the High Court we direct the Additional Sessions Judge Jaipur to try the accused and if he gives a finding that the accused is guilty he shall forward the accused to the Children s court for receiving sentence in accordance with the provisions of section 26 of the Act
HLC Appeal allowed


Summary:
The Rajasthan Children Act 1970 provides that any person below the age of 16 years should be presumed to be a child and that a delinquent child should be tried by a Children s court in accordance with the procedure laid down therein
The appellant was charged under sections 364 and 302 IPC in connection with an occurrence that took place in Tonk district on March 12 1973
A preliminary objection that the Sessions Judge was not competent to try the case of The appellant as he was a child under the provisions of the Children Act was overruled by the trial court
The revision filed by the appellant against the decision of the trial court was dismissed by the High Court which held that the Children Act was not applicable to the appellant as that Act had not been enforced in Tonk district on the date of the occurrence
The High Court further held that the appellant had failed to prove that he was below the age of 16 years
On being directed by this Court to ascertain the actual date of birth the High Court held that the date of birth of the appellant was September 22 1956 and therefore he was over 16 years on the date of the occurrence
The High Court rejected the documents produced from the first two schools attended by the appellant which showed his date of birth to be June 22 1957 for the reason that those documents had not been kept or made by a public officer it relied on an affidavit furnished by the father of tho appellant while admitting him to the third school in which the date of birth had been changed to September 22 1956
The explanation of the appellant s father that the date of birth had been changed to fulfil the requirement of age under the Rajasthan Board of Secondary Regulations to enable the appellant to appear in the Higher Secondary Examination at the appropriate time was not accepted
Allowing the appeal 584  HELD 1
a The relevant date for applicability of the Rajasthan Children Act 1970 so far as the age of the accused who claims to be a child is concerned is the date of the occurrence and not the date of the trial as is clear from the provisions of sections 3 and 26 of the Act
594 C b At the time of the occurrence the appellant was undoubtedly a child within the provisions of the Act
592 H c The question whether the appellant could be tried as a child if he had become more than 16 years by the time the case went up to the court does not survive as the Act has now been enforced in the entire State
A combined reading of sections 3 and 26 clearly shows that the statute takes care of contingencies where proceedings in respect of a child were pending in any court on the date on which the Act came into force
Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but is obliged to forward the child to the Children s court for passing orders in accordance with the Act
592 H 593 A 593 F G d The judgment of the Sessions Judge as affirmed by the High Court be set aside and the Additional Sessions Judge Jaipur be directed to try the accused and if he gave a finding that the accused was guilty he shall forward the accused to the Children s court for receiving sentence in accordance with the provisions of the Act
594 E 2
There is no legal requirement under section 35 of the Evidence Act that the public or other official book should be kept only by a public officer all that is necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document
588 G 589 C Mohd
Ikram Hussain vs State of UP 1964 5 SCR 86 100  Abdul Majid vs Bhargavam AIR 1963 Ker 18 referred to
The Rajasthan Children Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and therefore its provisions should be liberally and meaningfully construed so as to advance the object of the Act
The Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult
524 D 593 H 594 A In the instant case there are two documents of two different schools showing the date of birth of the appellant as June 22 1957 and both these documents have been signed by his father and were in existence ante litem motam
Hence there could be no ground to doubt the genuineness of these documents
At the time when the age of the appellant was first mentioned in the admission form there was absolutely no dispute about the date of birth and there could Dot have been any motive on the part of the parents to give a false date of birth because it was his first admission to a school at a very early age
The school to which the appellant was admitted enjoyed good reputation of authenticity
585 there had been any element of suspicion the admission register and the scholar s register would have been corrected by the headmistress of the school
591 D 590 D 590 H Ms Gannon Dunkerlay  Co Ltd vs Their Workmen referred to
The appellant s father has given a cogent reason for changing the date of birth and there is no reason for not accepting his explanation particularly because the offence was committed seven years after changing the date of birth
592 C