CRR No. 973 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 973 of 2011 Date of decision: 29.04.2011 Kuldeep ........ Petitioner Versus State of Haryana and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. K S Dhaliwal, Advocate for the petitioner -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This is a revision petition filed against the order dated 11.02.2011 passed by learned Additional Sessions Judge, Jind, whereby, the appeal filed by respondent No. 2 has been allowed and order dated 17.09.2009 passed by the learned Judicial Magistrate First Class, Narwana declaring the petitioner juvenile has been set aside. Learned counsel for the petitioner contended that FIR No. 198 dated 17.08.2009 under Section 376, 366, 506, 34 IPC, Police Station Narwana Sadar, District Jind has been registered on the statement of respondent No. 2 Santosh wife of Shayam against petitioner and others. The date of birth of the petitioner is 04.06.1992 and as such, the petitioner was CRR No. 973 of 2011 2 Juvenile at the time of alleged occurrence. Secondly, after the registration of the said case, the petitioner moved an application before the learned Judicial Magistrate First Class, Narwana for declaring him juvenile and sending his case before the Juvenile Justice Board. The application of the petitioner was allowed and the case of the petitioner was sent before the Principal Magistrate, Juvenile Justice Board, Jind, vide order dated 17.09.2009. Thereafter, Respondent No. 2 filed appeal before learned Additional Sessions Judge, Jind and the same was allowed by passing the impugned order dated 11.02.2011 (P1) without going through the facts and evidence produced by the petitioner. It was accordingly contended that the appellate Court has committed grave illegality while considering the evidence of the petitioner. The appellate Court has wrongly relied upon the certificate from the Registrar Death and Birth produced by respondent No. 2. Respondent No. 2 has not proved the certificate from the Registrar Death and Birth as per law. Lastly, the appellate Court has failed to follow the procedure laid under Rule 12 in the Juvenile Justice (Care and Protection of Children) Rules, 2007. Heard. The Judicial Magistrate Ist Class, Narwana, vide order dated 17.09.2009 simply relied on the copy of the matriculation certificate. No efforts were made to prove the matriculation certificate. Whereas, the complainant relied upon the certificate issued by the Registrar Death and Birth, wherein, date of birth of the petitioner is shown as 14.06.1986. The information was obtained even under the Right to Information Act. As per the said information, the date of birth is stated to be 14.08.1986. CRR No. 973 of 2011 3 Rule 12 (3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 reads as under :- “12. Procedure to be followed in determination of Age. (3) In every case concerning a child or juvenile in conflict with law, the age determination 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 certificates, 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) CRR No. 973 of 2011 4 shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” No doubt that the above Rule contemplates that in order to determine the age, the matriculation or equivalent certificates or the date of birth certificate issued by the School or birth certificate issued by the Corporation or a Municipal Authority shall be considered in that order, whereas, the fact remains that the Hon'ble Apex Court in number of cases has repeatedly held that the conclusive evidence for any persons age is his/her birth certificate. Thus, the short issue involved in the present case is as to whether the entry of the date of birth recorded in the School Certificate is to be given preference over the entry in the date of birth recorded in the Birth Certificate issued by the Registrar (Birth and Deaths) under the Deaths Registration Act, 1969 or not. Hon'ble the Apex Court in the case of Ravinder Singh Gorkhi vs. State of U.P. reported as 2006(3) R.C.R. (Criminal) 156 held that the entry of date of birth in school record is merely a piece of evidence and it is not a proof of age in absence of material on which age was recorded and further went on to held in para 21 as under :- “ 21. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business 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 CRR No. 973 of 2011 5 law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact; (iii) entry must be 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; and (iv) all persons concerned indisputably must have an access thereto.” Thus, the Birth Certificate issued by the Registrar (Birth and Deaths) under Section 17 of the Birth and Deaths Registration Act, 1969 is on the basis of official register and the said entry is made by a public servant in the discharge of his official duty. The said certificate satisfies all conditions under Section 35 of the Evidence Act. Hon'ble the Supreme Court in the case of Jabar Singh vs. Dinesh & another reported as 2010(2) R.A.J. 252, while referring to the School Records and Transfer Certificates, held that the said documents do not satisfy the conditions laid down in Section 35 of the Evidence Act by observing in para 12 as under :- “ 12. We are of the considered opinion that the High Court was not at all right in reversing the findings of the trial court in exercise of its revisional jurisdiction. The 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 CRR No. 973 of 2011 6 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 and, therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent No.1 at the time of commission of the alleged offence.” On the other hand, the Single Bench of Orissa High Court in the case of Bikram Ray vs. Smt. Jema Hembram and another reported as 2011(1) R.C.R.(Criminal) 584, held as under :- “ 6. xxx xxx In Mayadhar Nayak v. Sub Divisional Officer, Jaipur and others, 54 (1982) CLT 265, this Court has held that the entries in birth and death registers are public documents and are admissible under section 35 of the Evidence Act. The Court further held that it is not necessary to prove who made the entries and what was the source of information. The Court further held that the register being a public document, presumption of correctness attaches to it and heavy onus lies on the party who want to dispute the presumption. In Siba Prasad Jena v. Puspanjali Jena and another, 2007(59) AIC 734 (Ori.,H.C.) this Court further held that the birth certificate is the extract of the register of births and deaths maintained by the health centre. The register is maintained in Form No.11 in accordance with Rule 13 of the Orissa Registration of Births and Deaths Rules, 1970. Therefore, birth certificate is admissible as a public document. The Court further held that when birth certificate has been issued by the Registrar of CRR No. 973 of 2011 7 Births and Deaths, it should be treated as a public document issued on the basis of the register maintained under the Registration of Births and Deaths Act, 1969. Therefore, no formal proof is necessary.” Similar view was also held by the Rajasthan High Court in the case of Jeeta @ Jitendra vs. State (Rajasthan) reported as 2010(3) R.C.R. (Criminal) 608. The entry of the date of birth in the Birth Certificate issued by Registrar (Birth and Deaths) is a primary evidence. Moreover, Hon'ble the Apex Court in the case of Harpal Singh and another vs. State of Himachal Pradesh reported as 1981 Crl. L.J. 1, held that certified copy of entry of date of birth in the register of Births and Deaths is clearly admissible under Section 35 of the Evidence Act and, therefore, the examination of the official, where the certified copy of the Birth Certificate is produced, was not necessary. Para 3 of the said judgment is relevant and is reproduced as under :- “3. In the instant case the prosecution has proved the age of the girl by overwhelming evidence. To begin with, there is the evidence of Dr. Jagdish Rai (PW 14) who is a radiologist and who, after X-Ray examination of the girl found that she was about 15 years of age. This is corroborated by Ex.PF, which is an entry in the admission register maintained at the Government Girls High School, Samnoli (wherein the girl was a student) and which is proved by the Head Master. That entry states the date of birth of the girl as 13th October, 1957. There is yet another document, viz., Ex. PD, a certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence CRR No. 973 of 2011 8 was known as Ramesh during her childhood, was born to Lajwanti wife of Daulat Ram on 11.11.1957. Mr. Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence, the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly, we agree with judgments of the courts below and see no merit in this appeal which is dismissed.” It is not disputed, in the present case, that the petitioner had produced the original/certified copy of the Birth Certificate. As such, the same is admissible in evidence as per Section 35 of the Indian Evidence Act, 1872. It is apparent from the above that while framing Rule 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000, it could not have been the intention of the legislature to ignore the primary evidence in the form of Birth Certificate issued by its own appropriate authority under Section 17 of the Birth and Deaths Registration Act, 1969 in preference to the matriculation certificate. In fact, Rule 12 of the Juvenile Justice (Care and Protection of Children ) Act, 2000 has to be resorted to for determining the age of Juvenile in the absence of the certificate issued by the appropriate issuing authority under the Births and Deaths Registration Act, 1969 which CRR No. 973 of 2011 9 is a primary document of proof and admissible under Section 35 of the Indian Evidence Act, 1872. In view of the above discussion, there is ground to interfere in the order dated 11.02.2011 passed by the Additional Sessions Judge, Jind. Dismissed. (Nirmaljit Kaur) Judge 29.04.2011 mohan