IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. R. No.1469 of 2009 Date of Decision:7.10.2010 Dalip Singh .... Petitioner Versus State of Punjab and another .... Respondents CORAM: Hon'ble Ms. Justice Nirmaljit Kaur Present: Mr. Salil Bali, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G. Punjab. Mr. K.S. Sidhu, Advocate for respondent No.2. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? NIRMALJIT KAUR, J. The facts in short are that on the basis of the statement made by the petitioner-Dalip Singh, FIR No.196 dated 16.5.2006 under Sections 306/34 IPC at Police Station Sadar Fazilka was lodged. In pursuance to the investigation in the said FIR, the challan was presented in the Court on 23.7.2006. The name of Respondent No.2-Krishan Singh, who is one of the accused in the FIR was forwarded by the Investigating Agency for trial to the Trial Court. The case was committed to the Court of Sessions. Respondent No.2-Krishan Singh moved an application on the plea that his trial be conducted in accordance with the provisions of Juvenile Justice Act, 2000, as he was a juvenile. Learned Sessions Judge recorded evidence and in this enquiry respondent No.2 examined Gurdev Singh, Clerk of Govt. High School Behk Bodla Tehsil Fazilka as PW-1 and Jalan Bai w/o Nazar Singh as PW-2. From the prosecution side, a voter list for the year 2006 Halqa Jalalabad was sought to be proved as exhibit but the document was Crl. R. No.1469 of 2009 -2- only taken on record as Mark-A and the same could not be proved and exhibited. This voter list pertained to the year 2006 Halqa Jalalabad and showed the name of respondent No.2 Krishan Singh and his entire family at Sr. No.139. After the entire evidence was led, the learned Additional Sessions Judge, Ferozepur vide order dated 5.11.2008 rejected the claim of respondent No.2 of being Juvenile and dismissed his application. Feeling aggrieved, respondent No.2 Krishan Singh preferred Crl. Revision Petition No.282 of 2009 before the High Court. The High Court vide its order dated 18.3.2009 allowed the petition and remanded the case back to the Sessions Court with the direction to decide the application afresh in accordance with law. The Additional Sessions Judge recorded the evidence and after recording the evidence, the application of respondent No.2 claiming himself to be juvenile was allowed. Aggrieved against the said order dated 20.5.2009 vide which the application declaring respondent No.2 as juvenile was accepted, the present revision petition is preferred. The only ground raised by learned counsel for the petitioner is that the prosecution made an application before the learned Additional Sessions Judge for allowing additional evidence for proving the voter list already on record as Mark-A by examining concerned Election Kanungo office of SDM, Fazilka alongwith Assembly Election voter list of constituency of Jalalabad (General) Village Behak Khas, prepared for the year 2006 (Bhag No.075). The learned Additional Sessions Judge on this application so made by the prosecution, issued Dasti summons. The petitioner took these summons to the office of SDM and on the summons SDM made the report that the concerned record was lying at Jalalabad. The Crl. R. No.1469 of 2009 -3- petitioner again took dasti summons to Jalalabad but as election process was going on, the SDM/Jalalabad did not receive the dasti summons. Since the proving of the voter list was very essential for the prosecution case, therefore, a request for adjournment and fresh notice was made but since there was direction from the High Court to complete the entire process in one month, therefore, fresh notice was not issued and the prosecution had to again tender the voter list as Mark-A1. Due to this, the prosecution lost its valuable right of producing this evidence which was very much essential. Secondly, the learned Additional Sessions Judge also took into account the Matriculation certificate exhibited as Ex.PX which could not have been taken into consideration as no witness from the Board of Education was ever summoned to prove the authenticity of the certificate, and therefore, no reliance could be placed on the certificate. Further, the deposition of Gurdev Singh-PW-1, who brought the register was also doubtful as earlier he had stated that there was no entry in the same, whereas, it was found in the register that the date of birth duly entered as 14.5.1989. Learned counsel for the parties are heard. It is admitted that as per the register of Govt. High School Behk Bodla Tehsil Fazilka, respondent No.2-Krishan Singh had studied from 6th standard up to 10th standard. It is also an admitted fact that Gurdev Singh PW-1 had brought along with him the register showing the name of respondent No.2 stood entered at serial No.1705 and his date of birth was recorded as 14.5.1989. Thereafter, the record pertaining to 6th standard was also summoned. As per the said record, the date of birth was mentioned as 14.5.1989. The mother too had appeared and deposed that respondent No.2 was born to her 5-6 months after the floods of the year 1988. It is also an Crl. R. No.1469 of 2009 -4- admitted position that the prosecution was not able to lead any other evidence showing the date of birth to be otherwise. However, reliance is being placed on the voter's list to show that the age of respondent No.2 was recorded as 18 years for the year 2006. It is the own admission of the petitioner that the said voter's list could not be proved. This Court is of the opinion that even if the voter's list was proved, the same shall have no bearing on the findings recorded by the learned Sessions Judge that the date of birth of respondent No.2 Krishan Singh is 14.5.1989. The voter's list is normally prepared on the basis of oral statement by either the person concerned or any family member. There is no mention that on the basis of which document and on the basis of what evidence the date of birth is normally recorded while preparing the voter's list. Thus, the school certificate will have more evidentiary value vis a vis the voter's list especially in the facts of the present case. In fact, the mother Jallan Bai appeared and stated that the vote of respondent No.2-Krishan Singh was not prepared till now. In the present case, respondent No.2-Krishan Singh had tendered his original certificate of Punjab School Education Board Ex.PX, the school record, the certificate issued by Block Primary Education Officer, Fazilka II (District Ferozepur and another certificate Ex.A-3. In all these documents, the date of birth was shown as 14.5.1989. Learned counsel for respondent No.2 has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Rajinder Chandra v. State of Chhattisgarh 2002(1) RCR (Criminal) 586 wherein it is held in para 5 as under: Crl. R. No.1469 of 2009 -5- “It is that the age of the accused is just on the border of sixteen years and on the date of the offence and his arrest he was less than 16 years by a few months only. In Arnit das v. State of Bihar, 2000(3) RCR (Crl.) 17 (SC):2000(5) SCC 488, this Court has, on a review of judicial opinion, held that while dealing with question of determination of the age of the accused for the purpose of finding out whether he is a juvenile or not, a hyper-technical 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 may be possible on the said evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. The law, so laid down by this Court, squarely applies to the facts of the present case.” Accordingly, in the facts of the present case, even if, it is held that there are two views possible, the benefit will have to go to the view which supports the accused. Thus, there is no merit in the present revision petition and the same is accordingly dismissed. 7.10.2010 ( NIRMALJIT KAUR ) rajeev JUDGE