High Court Punjab-Haryana High Court

Harish Kumar vs State Of Haryana on 17 September, 2008

Punjab-Haryana High Court
Harish Kumar vs State Of Haryana on 17 September, 2008
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