Criminal Revision No.2605 of 2006 :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Revision No.2605 of 2006
Date of Decision: September 17, 2008
Harish Kumar
...Petitioner
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers 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?
Present: Mr.N.S.Shekhawat, Advocate,
for the petitioner.
Mr.Yashwinder Singh, AAG, Haryana,
for the State.
*****
RANJIT SINGH, J.
This order will dispose of two Criminal Revision Nos.2605
of 2006 (Harish Kumar v. State of Haryana) and 2622 of 2006
(Ravinder v. State of Haryana).
The petitioner has impugned the order passed by
Addl.Sessions Judge, Rewari whereby his application filed under
Criminal Revision No.2605 of 2006 :2:
Section 49 of the Juvenile Justice (Care and Protection of Children)
Act, 2000 for declaring him juvenile has been declined. In support of
his plea, the petitioner had produced Umed Singh (AW-1), his father,
who deposed that petitioner is his son and his date of birth is
28.9.1987. AW-1 also produced on record photo copy of middle class
examination certificate, Exh.AW1/A. The respondent-State examined
Shri Lal Chand, SI/SHO as RW-1, who simply deposed that in the
course of investigation, verification was done and the petitioner-
accused himself claimed to be aged 19 years and did not make a
claim that he is a juvenile.
The Addl.Sessions Judge after considering and
assessing the evidence led by respective parties came to the
conclusion that the petitioner could not sufficiently establish that his
date of birth is 28.9.1987. If this date is taken to be the correct date
of birth of the petitioner, then he was below 18 years on the date of
occurrence, i.e., 6.8.2005. Accordingly, he is then required to be
treated as a juvenile and tried accordingly.
It really cannot be appreciated that as to how the court
made an observation that petitioner has not been able to place any
cogent evidence on the file about his exact date of birth. The trial
court has then gone on to make some suggestion that the petitioner
could have produced the entries regarding his birth in the relevant
record. Reference has also been made to certain judgments in this
regard.
Counsel for the petitioner would refer to Balkar Singh v.
State of Punjab, 2005(1) I.L.R.(Punjab) 356, where it is held that in
the absence of any other evidence, the school leaving certificate
Criminal Revision No.2605 of 2006 :3:
would be relevant material to be taken into consideration for
determining the age of the accused person. It is also observed that
school record is next best evidence in the absence of any entry in the
office of Registrar, Births and Deaths. It is required to be appreciated
that the State also could not adduce any substantial evidence on
record to rebut the evidence produced by the petitioner. Mere oral
account given by the Investigating Officer that the petitioner himself
has not claimed to be below 18 years is too vague a material to be
preferred over the evidence led by the petitioner in the form of school
leaving certificate.
The court has failed to appreciate that father of the
petitioner gave an oral evidence about the date of birth of his son. He
in fact is the best witness as could be expected to know at least the
date of birth of his child. He may be termed as an interested witness
but his account received support from school leaving certificate. Be
that as it may, it is seen that the trial court has not applied itself to the
evidence and the facts available on record while deciding the issue.
The court is, thus, required to re-do this exercise. It may need a
mention that this is a vital issue on which jurisdiction of the court
would depend to deal with this case. There is, thus, a need for re-
determining this prayer made by the petitioner for being declared as
a juvenile. The impugned order, as such, cannot be be sustained and
the same is set-aside.
Certain interim orders were passed directing the
Investigating Officer to procure the entries from the birth certificate
from a place where the petitioner was born. If the Investigating
Officer is able to procure such evidence, he would be at liberty to
Criminal Revision No.2605 of 2006 :4:
produce the same before the court. The petitioner would also be at
liberty to lead any further evidence in support of his claim. The court
would provide opportunity to the parties to lead further evidence and
then decide the issue in accordance with law.
Counsel for the petitioner further submits that in Criminal
Revision No.2622 of 2006, Ravinder petitioner has impugned the
order dated 26.9.2006 passed by Addl.Sessions Judge, Rewari in
which though the petitioner has been granted bail but his prayer for
declaring him as juvenile has been declined. It appears that Ravinder
petitioner through the present revision has impugned that part of the
order in which though his prayer to declare him as juvenile is
declined, but has been directed to be released on bail. The petitioner
in support of his case has examined Smt.Hans Kaur, his mother, who
deposed that date of birth of the petitioner is 30.12.1988. She also
produced a copy of ration card, Ex.AW1/A where age of the
petitioner is mentioned as 16 years. She has also produced copy of
matriculation examination certificate Ex.AW1/B containing entry of
date of birth. Prosecution in this case again relied upon the
statement of Lal Chand, SI/SHO, who stated that the petitioner
claimed himself to be 19 years at the time of verification by
investigating agency. This witness, however, conceded during his
cross-examination that this certificate was sent for verification to
Head Master, Mother India High School, Sunderehti, Jhajjar
whereupon the date of birth of the petitioner was verified as
30.12.1988. In this background, it is not understood as to how the
trial court has relied upon totally hear-say version given by the SHO
and has ignored the evidence of mother of the petitioner and also the
Criminal Revision No.2605 of 2006 :5:
entry in the school record. No doubt, it may be true that the entry in
school record is not an authentic proof of the age, but as already
noticed, in terms of the law laid down in Balkar Singh’s case
(supra), in the absence of other evidence, the school leaving
certificate would be relevant evidence for placing reliance in the
absence of other entries for determining the date of birth of juvenile.
It is possible to say that the birth entry in the school record has an
evidential value and may be relied upon if there is no other better
material available. It is, thus, seen that this part of the order passed
by the trial court cannot be sustained. This case also is required to
be sent back to the trial court to re-determine the prayer made by the
petitioner for being treated as juvenile.
Counsel for the petitioner further submits that the trial in
the present case is in progress, whereas prima-facie he has been
able to establish that the petitioner is a juvenile. The trial court
accordingly is directed to first determine the issue whether the
petitioner is a juvenile or not before further proceeding with the case.
The present petitions are accordingly disposed of.
September 17, 2008 ( RANJIT SINGH ) ramesh JUDGE