1 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 713 OF 2009 Mohammad Javed Abdul Wahid ) Shaikh, residing at Flat No. 27/L/5) Shivaji Nagar,Govandi, Mumbai-43 (At present lodged in Arthur Road ) Central Prison, Mumbai. ) .. APPELLANT Versus THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. Rajendra Shirodkar for the appellant Mrs. M. M. Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED : 13TH JULY, 2010 JUDGMENT:-(Per Smt. Ranjana Desai, J.) In this appeal there is a challenge to the judgment and order dated 29/5/09 by the Additional Sessions Judge, Mumbai in Sessions Case No. 1138 of 2001. 2 2. According to the prosecution on 2/9/2001 one Papa was murdered by the appellant along with two others. C. R. No. 125 of 2001 was registered at Shivaji Nagar Police Station against all the three accused under Section 302 of the IPC. The appellant is original accused 2. 3. It appears that original accused 1 to 3 raised the plea during remand that they were juveniles when the offence was committed before the concerned Metropolitan Magistrate. The appellant produced birth certificate dated 6/8/84. The police submitted a report stating that their inquiry revealed that accused 1 to 3 were not juveniles . Learned Magistrate found that the appellant’s birth certificate was forged. He committed the case to the Sessions Court, Greater Bombay. 4. Accused 1 filed an application before the Sessions Court praying that since he was a juvenile when the offence was committed, he may be sent to the appropriate court. He produced documents. The police were directed to conduct inquiry. The police filed a report saying that the documents submitted by accused 1 were bogus. The police filed original documents which according to 3 them showed the age of accused 1 less than what he wanted the court to believe. 5. Accused 1 challenged the said order in this court vide Criminal Revision Application No. 405 of 2005. By order dated 7/12/05 learned Single Judge of this court (Khanwilkar, J.) allowed the revision application. Learned Single Judge observed that respondent 1 was a juvenile and this fact is supported by the School Leaving Certificate given by the Principal of Noor Raza Memorial Urdu Medium Academy, Saidpur (Badaun) as well as the affidavit dated 18/10/05 of the owner of the said school. Learned Single Judge observed that even if the said documents were to be discarded as manipulated documents there was no reason for the lower court to reject the claim of the prosecution which was supported by certificate issued by the Health Officer, Badaun, mentioning the fact that accused 1 was born on 5/10/1985. Learned Single Judge observed that taking that document as it is, the applicant ought to succeed in his contention that he was a juvenile on the date of incident being less than 16 years at the relevant time. Learned Single Judge, therefore, quashed the order passed by the Sessions Judge and transferred the case of accused 1 to the court of competent 4 jurisdiction. 6. It appears that accused 3 also made an application to this Court. His claim that he was a juvenile at the time when the offence was committed was accepted by this court. His trial was also separated and direction was given that his case may be transferred to the court of competent jurisdiction. 7. We are informed that after the claim made by the present appellant i.e. original accused 2 before learned Metropolitan Magistrate was rejected, he did not raise the claim of juvenility anywhere. He underwent the trial and was convicted by the impugned order and was sentenced for life imprisonment. He preferred the instant appeal which was admitted on 5/11/03. He amended the appeal memo on 12/8/09 and raised the claim of juvenility. On 5/12/09 the Division Bench presided over by Justice J. N. Patel, directed the trial court to examine the claim of the appellant that he was a juvenile when the offence was committed and submit a report to this court within three months. Accordingly a report has been submitted to this court. The report is dated 26/2/2010 - 3/3/2010. The report indicates that after perusing the evidence 5 learned Judge came to a conclusion that the appellant had not completed 18 years of age on the date of incident i.e. on 2/9/01 and was a juvenile in conflict with law on that day as defined in Section 2(1) of The Juvenile Justice (Care and Protection of Children) Act, 2000 (“the said Act”). Mr. Shirodkar, learned counsel for the appellant submitted that he is relying on the said report and restricting his argument to the claim of juvenility made by the appellant. He submitted that he is not pressing the appeal on merits. 8. Gist of the report dated 26/2/2010 - 3/3/2010. a) The appellant’s case is that he was born on 20/8/85 and was of 16 years and 13 days on the date of commission of offence i.e. on 2/9/2001. In support of his case the appellant produced school leaving certificate issued by the Principal of Noor Raza Memorial Urdu School Academy, Saidpur. The Senior Police Inspector of Shivaji Nagar Police Station, who made inquiry regarding birth record of the appellant submitted a report on 22/2/2010. He did not dispute record of Noor Raza Memorial Urdu School Academy. He, however, stated that birth extract produced by the appellant before learned Metropolitan Magistrate claiming his birth date as 6/8/84 was not 6 authentic. He stated that there is no other record with other government offices regarding the appellant’s exact birth date. He did not lead any oral evidence. The appellant examined 2 witnesses. PW 1 Mr. Anup Babu Saxena was working as a clerk with Noor Raza Memorial Urdu School Academy, Saidpur. He maintains record of the school. He produced original Admission Register and original admission form. In the true copy of admission form (Exh.-5) produced by him it is stated that the birth date of the appellant is 20/8/85. In the true copy of admission form (Exh.-5) produced by him it is stated that the birth date of the appellant is 20/8/85. In the xerox copy of the Admission Register (Exh.-4) produced by him at Sr. No. 91, there is an entry to the effect that the appellant was enrolled in the said school on 8/6/89. Mr. Saxena stated that record regarding admissions in the school is maintained regularly and in the ordinary course of business. He further stated that the appellant was admitted in nursery class on 8/6/89. b) PW 2 Mr. Jahid Hussain was the Head Master of Noor Raza Memoridal Urdu School Academy in 1988. He stated that he had issued certificate (Exh.-7) stating that the birth date of Javed, son of Wahid Khan is shown in the school record as 20/8/85. He stated that 7 on visiting the school parents used to state birth date of the pupil and accordingly it used to be mentioned in the school record. He stated that it was necessary to verify birth record of the pupil while admitting him in the school. He explained that Badaun hospital was started in the year 1992 and at the relevant time no one used to report the birth of a child to the Grampanchayat. He denied that Noor Raza Memorial Urdu School Academy had accepted incorrect birth date. c) The Academy has maintained the record in its ordinary course of business and it was prepared much prior to the date of commission of offence, therefore, no doubt can be raised about the birth date entered in the school record. The prosecution has not disputed the school record. It is not the case of the prosecution that the school record is of some other pupil. Therefore, birth date of the appellant will have to be accepted as 20/8/05. d) It is true that before learned Magistrate the appellant had produced a certificate which was found to be forged. However, what is material is what was the age of the appellant on the date of offence and, if the school record prepared much prior to the date of offence indicates that the appellant was a juvenile on the date of offence that 8 will have to be accepted and the fact that a forged certificate was produced by him would not deprive him of the benefit of the fact that he was a juvenile when the offence was committed. 9. We find the above reasoning of learned Sessions Judge to be proper and legally sound. In Jabar Singh v. Dinesh and Another, (2010) 3 SCC 757, the Supreme Court has affirmed the view taken by it in Ravinder Singh Gorkhi v. State of UP, (2006) 5 SCC 584 and Jyoti Prakash Rai v. State of Bihar, (2008) 15 SCC 223 that age of a person is a question of fact which has to be decided on the evidence brought on record before the court. Such determination on a question of fact made by the trial court could not be disturbed by the High Court in exercise of its revisional powers. Though, we are dealing with an appeal and not with a revision, we are not inclined to reject the report submitted by learned Sessions Judge because, we do not find the findings recorded by him to be either perverse or based on no material or resulting in manifest injustice. 10. Heavy reliance was placed by learned APP on Jabar Singh’s case . Learned APP submitted that the documents produced by the appellant were not admissible in evidence. He referred to Section 35 9 of the Indian Evidence Act and contended that entries produced by the appellant cannot be taken into consideration in view thereof. 11. Section 35 of the Evidence Act reads as under: “35. Relevancy of entry in public (record or an electronic record) made in performance of duty. - An entry in any public or other official book, register or (record or an electronic 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 or an electronic record) is kept, is itself a relevant fact.” Section 7 of the said Act and Rule 12(3) of rules framed under the said Act will also have to be kept in mind. 12. In Birad Mal Singhvi v. Anand Purohit 1988 Supp. SCC 604 the Supreme Court has while dealing with Section 35 of the Indian Evidence Act observed as under: 10 “To render a document admissible under Section 35 three conditions must be satisfied, firstly, entry that is relied upon 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 fact, 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. 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 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.” 13. In Ravinder Singh Gorkhi’s case, the Supreme Court reiterated the same view. In that case the school leaving certificate was not issued in the ordinary course of business of the school. There was nothing on record to show that the 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 Indian Evidence Act. No statement was made by the Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or 11 submitted any proof in regard thereto. In fact entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. The Headmaster had not verified the age when he made entries in the register. The register was not produced in the court. The Supreme Court observed that, if any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced. In the circumstances the Supreme Court did not accept learned Sessions Judge’s report declaring the appellant to be a juvenile in conflict with law. 14. In Jabar Singh’s case respondent 1 therein examined AW1 Shivraj, who stated that, he looked after the administrative work of the Public School and this work was previously done by his son who had expired. He further stated that date of birth of respondent 1 was mentioned in the admission form as 5/10/88 and in this admission form the uncle of respondent 1 had put his signature which was marked by the court and on the basis of this information in the admission form an entry was made in the school register that the birth date of respondent 1 was 5/10/88. AW 1 in his cross- examination, however, could not say who had filled up the admission 12 form and on what basis the date of birth of respondent 1 was written as 5/10/88 and he had admitted that the school admission was not in his handwriting. In view of these facts the Supreme Court while concurring with its view in Rajinder Singh Gorkhi’s case held that the entry of the birth of respondent 1 in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Indian Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and, therefore, was not relevant under Section 35 of the Indian Evidence Act for the purpose of determining the age of respondent 1 at the time of commission of the alleged offence. 15. The question is, if in a given case there is absence of any evidence which is relevant under Section 35 of the Indian Evidence Act, how should the age be determined. 16. In Jyoti Prakash’s case (supra) the Supreme Court has held that in the absence of any evidence which is relevant under Section 35 of the Indian Evidence Act, the age of a person has to be 13 determined keeping in view the factual matrix involved in each case. 17. We have no hesitation in coming to the conclusion in the light of the above judgments that in the absence of any evidence which is relevant under Section 35 of the Indian Evidence Act, factual matrix of each case has to be seen and the evidence has to be appreciated applying the settled principles of appreciation of evidence. 18. In this case original Admission Register and original admission form is produced. Xerox copies of relevant extracts thereof are on record. PW 1 Mr. Saxena clerk from the appellant’s school has produced them. The birth date of the appellant in admission form (Exh.-5) is 20/8/85. In the xerox copy of the Admission Register (Exh.-5) the appellant is shown to have been enrolled in the school on 8/6/89. According to Mr. Saxena the said record was maintained regularly and in the ordinary course of business. The Head Master of the appellant’s school has stepped in the witness box and confirmed that he had issued Exh.-7 certificate stating that the appellant’s date of birth is shown in the school record as 20/8/85. When the Head Master has stepped in the witness box and deposed about the school record and when originals are produced in the court and when it is 14 stated by the clerk of the school PW 1 Mr. Saxena whose duty was to maintain school record, that the said record was maintained regularly and in the ordinary course of business, it is difficult to hold that the record is fabricated. Besides this record pertains to a period much prior to 2/9/2001 when the murder was committed. Therefore, it cannot be said that it is manipulated. Moreover the prosecution has not disputed that the record produced in the court was not that of the appellant. No witness has been examined by the prosecution. 19. We also have on record a document titled as “Radiological estimation of age certificate” issued by Civil Hospital, Nashik on 2/1/10. It pertains to the appellant. It indicates the X-Ray findings and states that the radiological age of the appellant as on 2/1/10 was 19 to 20 years. There is obviously some inconsistency between this certificate and the school record. If, we take this certificate into account then the appellant’s age as on 2/9/01 i.e. on the date of offence must have been 10 years. In any event this much is certain that even the medical record indicates that the appellant was a juvenile in conflict with law when the offence took place. 20. In the peculiar factual matrix of this case, therefore, assuming that the documents filed by the appellant do not fall exactly within the 15 parameters of Section 35, they still support the appellant’s contention that he was a juvenile in conflict with law at the time of commission of offence. 21. In Arnit Das v State of Bihar (2000) 5 SCC 488 after considering the relevant judgments on the point the Supreme Court has held that a hypertechnical 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 are possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The Supreme Court has further held that the provisions of the said Act are mandatory and while implementing them, those charged with responsibilities of implementation should show sensitivity and concern for a juvenile. We draw great support from this observation of the Supreme Court. 22. We, however, find some substance in learned APP’s submission that the appellant’s father is guilty of sharp practice. During remand the appellant had raised the claim of juvenility. He had relied on birth certificate dated 6/8/84 issued by the Health 16 Officer in Badaun (U.P.). The Magistrate directed an inquiry. The police found that certificate to be forged. That certificate was obviously filed by the father of the appellant. The appellant’s father has now produced certificate dated 20/8/85. Though, we concur with learned Sessions Judge that the appellant was a juvenile in conflict with law when the offence was committed, the appellant’s father’s conduct needs to be deprecated. We were of the view that prosecution should be initiated against him, but looking to his age and the ultimate finding of the Sessions Court with which, we concur that the appellant was indeed a juvenile in conflict with law when the offence was committed, we refrain from doing so. We, however, feel that the appellant’s father should be saddled with costs of Rs.5000/- to be paid to the Maharashtra Legal Services Authority so that right signal is sent to people who indulge in such practices. 23. As we have already noted, so far as accused 1 and 3 are concerned, their trial is separated and they are being dealt with by the Juenile Justice Board. Unfortunately the appellant has been wrongly tried by the Sessions Court and sentenced to life imprisonment. Section 16 of the said Act clearly states that no juvenile in conflict with law shall be sentenced to death or any 17 imprisonment for any term which may extend to imprisonment for life, or committed to prison in default of payment of fine or in default of furnishing security. In case it is found that he has indeed committed an offence as per Section 15 he can be inter alia allowed to go home after advice or admonition. He can be directed to participate in group counselling. He may be directed to perform community service or an order may be made directing him to be sent to Special Home for a period of three years. In the circumstances of the case considering the fact that cases of the other two juveniles in conflict with law are pending and considering the nature of the crime and the fact that a forged birth certificate was used by the appellant, we feel that it would be inappropriate to send the appellant home. In our opinion, as per Section 15(1)(g) he should be sent to a Special Home and kept under the supervision of a probation officer. He should stay there for three years. That would be in conformity with Section 15(1) (g). 24. Mr. Shirodkar relied on Satish alias Dhana v. State of Madhya Przadesh & Ors., (2010) 1 SCC (Cri.) 1320. In the facts of that case the Supreme Court observed that on the date of occurrence the appellant had not completed 18 years of age. This fact was fully 18 established and, therefore, he cannot be denied the benefit of the said Act. Considering the time lapse the Supreme Court held that at this distant point of time to refer the appellant to the Juvenile Board would not be proper and, therefore, while sustaining the conviction for the offence for which the appellant was found guilty, the sentence awarded was restricted to the period already undergone. The facts of this case differ from those which were before the Supreme Court. In this case the trial of the other juveniles is not complete. Besides, we are not sending the appellant to the Juvenile Justice Board for a fresh trial. Considering that the Sessions Court has come to a conclusion that the appellant has committed murder which finding is not challenged by his counsel and considering the fact that an attempt was made to fabricate birth certificate to get the benefit of the said Act, we feel that the appellant must be sent to the Special Home to complete total period of three years as per Section 15(1)(g) of the said Act. He will have to be, however, given set off for the period already undergone by him. 25. Hence we pass the following order: The conviction of the appellant under the Impugned judgment 19 dated 29/5/09 is confirmed, however, the order sentencing the appellant to suffer RI for life and to pay a fine of Rs.1000/-, in default of payment of fine, to suffer R.I. for six months is quashed and set aside; Instead it is directed that appellant be kept in a Special Home under supervision of a probation officer for a period of three years as per Section 15(1)(g) of the said Act. Set off may be given to the appellant for the period already undergone by him. After the period so calculated is over he be released forthwith, unless required in any other case. Appellant’s father Javed Abdul Wahid is directed to deposit costs quantified at Rs.5000/- in this court within one week from today. The Registry shall then pay the said amount to the Maharashtra State Legal Services Authority. Appeal is disposed of. (Smt. Ranjana Desai, J.) (Smt. V. K. Tahilramani, J.) 20 mss IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPEAL NO. 713 OF 2009 MOHAMMAD JAVED ABDUL WAHID .. APPELLANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENT Mr. Rajendra Shirodkar for the appellant Mrs. M. M. Deshmukh, APP CORAM: SMT. RANJANA DESAI & SMT. V. K. TAHILRAMANI, JJ. DATED: 13TH JULY, 2010 OPERATIVE PART OF THE JUDGMENT: For the