Jabar Singh vs Dinesh & Anr

Jabar Singh ...... Appellant

Versus

Dinesh & Anr. ...... Respondents

ORDER

A.K. PATNAIK, J.

Leave granted.

2. The appellant is the father of Prahalad Singh, who is

alleged to have been murdered by the Respondent No.1, and

he has filed this appeal against the order dated 18.08.2006 of

the High Court of Rajasthan in S.B. Criminal Revision Petition

No. 166 of 2006 in which the High Court has held that the

Respondent No.1 was a juvenile on the date of commission of

the offence and has directed that the matter will be remitted

for trial under the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2000 (for short, "the Act"). 2

3. The relevant facts very briefly are that on 11.07.2004 one

Bhomaram lodged a complaint in Pratap Nagar Police Station,

Jodhpur, against the Respondent No.1 and others alleging the

offence under Section 302 of the Indian Penal Code (for short,

"the IPC") along with other offences under the IPC. A criminal

case was registered and after investigation, the police filed

chargesheet against inter alia the Respondent No.1 and the

case was transferred by the Sessions Judge to the Special

Judge, SC/ST (Prevention of Atrocities) Cases, Jodhpur, for

trial. Before the charges could be framed in the case, an

application was filed on behalf of Respondent No.1 under

Section 49 of the Act, stating therein that the date of birth of

Respondent No.1 was 05.10.1988 and, therefore, on

11.07.2004, when the offence is alleged to have been

committed, the Respondent No.1 was less than 18 years of age

and he was, thus, a juvenile and has to be tried separately

from the other accused under the Act. The State of Rajasthan,

in its reply, stated inter alia that the Respondent No. 1 did not

disclose that he was a juvenile at any time during the

investigation of the case or during the trial of other criminal 3

cases for which he was being tried and that he has taken this

plea for the first time to avoid the trial for the heinous crime

and that the application of Respondent No.1 should be

rejected. The Respondent No.1 examined witnesses and

produced documents in support of his claim that he was a

juvenile. The State of Rajasthan did not produce any

evidence. The trial court, after hearing the parties and

considering the evidence, rejected the application of the

Respondent No.1 by order dated 14.02.2006. Aggrieved, the

Respondent No.1 filed S.B. Criminal Revision Petition No. 166

of 2006 before the High Court and by the impugned order

dated 18.08.2006, the High Court allowed the Revision

Petition, set aside the order dated 14.02.2006 passed by the

trial court and remitted the matter to the trial court for trial of

the Respondent No.1 treating him to be a juvenile on the date

of commission of the alleged offence in accordance with the

provisions of the Act.

4. Mr. M.R. Calla, Senior Counsel appearing for the

appellant, submitted that this Court has held in Jyoti

Prakash Rai @ Jyoti Prakash v. State of Bihar [(2008) 15 4

SCC 223] that the beneficial provisions of the Act are to be

applied only for the purpose of the interpretation of the Act

and not for arriving at a conclusion whether a person is

juvenile or not and the question whether an offender was

juvenile on the date of commission of the offence or not is

essentially a question of fact which is required to be

determined on the basis of the materials brought on record by

the parties. He submitted that in Ravinder Singh Gorkhi v.

State of U.P. [(2006) 5 SCC 584] this Court has further held

that Section 35 of the Evidence Act, which provides that an

entry in a register maintained in the 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 law of the country in which such register is

kept, would be a relevant fact, will only apply if the conditions

mentioned in Section 35 are fulfilled. He submitted relying on

the aforesaid decisions of this Court that Section 35 of the

Evidence Act could not be applied to the entry of date of birth

of Respondent No.1 in the school records produced on behalf

of Respondent No.1 before the trial court and on the evidence 5

as produced, the trial court rightly held that the date of birth

of the Respondent No.1 cannot be believed to be 05.10.1988.

He submitted that the trial court after scrutinizing the

evidence, oral and documentary, produced by the Respondent

No.1 has held that the evidence produced by Respondent No.1

have been created by the Respondent No. 1 for escaping

conviction for a grave offence such as murder and was not

believable and by physical appearance, Respondent No.1 looks

to be over 18 years of age and on 11.07.2004 he was an adult

and not a juvenile. He submitted that this finding of the trial

court on a question of fact with regard to the age of

Respondent No.1 could not be disturbed by the High Court in

a Revision because it is well-settled that the High Court

cannot re-appreciate evidence produced before the trial court

and arrive at a conclusion different from that of the trial court. In support of this proposition, he relied on Chandavarkar

Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] in

which this Court has held that the High Court, while

exercising its jurisdiction under Articles 226/227 of the

Constitution, should not interfere with a finding of fact of the 6

inferior court or tribunal, except where the finding was

perverse and not based on any material evidence or has

resulted in manifest injustice. He submitted that in this

decision, this Court has further taken the view that if the trial

court came to a conclusion which was possible on the

evidence, the High Court will not disturb the conclusion

arrived at by the trial court merely because the High Court is

of the view that a different conclusion is also possible on the

same evidence. He vehemently argued that the High Court

has lost sight of these limitations of its jurisdiction and on the

basis of its own appraisal of the evidence taken a view that the

Respondent No.1 was a juvenile on the date of the commission

of the offence and has set aside the order of the trial court.

5. Dr. Manish Singhvi, learned counsel appearing for the

State of Rajasthan, submitted that the Juvenile Justice (Care

and Protection of Children) Rules 2007 (for short, "the Rules"),

which have come into force on 26.10.2007, provide in Rule 12

the procedure to be followed in determination of age and Sub-

Rule (3) of Rule 12 provides that the age determination inquiry

shall be conducted by the Court or the Juvenile Justice Board 7

or, as the case may be, the Child Welfare Committee by

seeking evidence by obtaining the matriculation or equivalent

certificate, if available, and in the absence of such certificate,

the date of birth certificate from the school first attended, and

in the absence of such certificate, the birth certificate given by

a corporation or a municipal authority or a panchayat, and

only in the absence of these three kinds of certificates the

medical opinion could be sought from a duly constituted

Medical Board which will declare the age of the juvenile or

child. He, however, submitted that these rules had not come

into force when the trial court considered and rejected the

application of Respondent No.1 claiming juvenility by its order

dated 18.08.2006. He submitted that the reasons given by the

trial court in the order dated 18.08.2006 were very sound and

the High Court ought not to have set aside the findings of the

trial court merely on the basis of entries in the school records

relating to the date of birth of Respondent No. 1, particularly

when there was over-writing on these entries. He cited Birad

Mal Singhvi v. Anand Purohit [1988 (Supp) SCC 604 = AIR

1988 SC 1796] in which this Court, referring to its earlier 8

decisions, has held that the date of birth mentioned in a

school register or a school certificate has no probative value

unless either the parents are examined or the persons who

have special knowledge of the date of birth of the person and

on whose information the entry has been made have been

examined.

6. Mr. Kumar Karthikey, learned counsel appearing for

Respondent No.1, on the other hand, supported the impugned

order passed by the High Court and submitted that the High

Court has considered the evidence adduced by Respondent

No. 1, both oral and documentary, and has rightly come to a

finding that the date of birth of Respondent No.1 was

05.10.1988. He submitted that the proviso to sub-section (1)

of Section 7A of the Act is clear that a claim of juvenility may

be raised before any court and it shall be recognised at any

stage, even after final disposal of the case, and such claim

shall be determined in terms of the provisions of the Act and

the Rules even if the juvenile has ceased to be so on or before

the date of commencement of the Act and, therefore, the

argument on behalf of the State of Rajasthan that at the stage 9

of investigation Respondent No.1 did not take a plea that he

was a juvenile at the time of commission of the alleged offence

has no merit. He further submitted that under Section 49 of

the Act it is only the competent authority which has the

jurisdiction to make due enquiry as to the age of a person

brought before it and the competent authority in the present

case is the Juvenile Justice Board and it is for the Juvenile

Justice Board and not the court to determine the age of

Respondent No.1.

7. Section 49(1) of the Act is quoted herein below:

"Presumption and determination of age.--(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be."

The opening words of sub-section (1) of Section 49, quoted

above, shows that only when a person is "brought before the

competent authority" under any of the provisions of the Act, 1

the competent authority is required to make due enquiry as to

the age of that person and for that purpose take such evidence

as may be necessary and record a finding whether the person

is a juvenile or not. Section 49 is, therefore, attracted when a

person is brought before the competent authority and not

otherwise. In the present case, the Respondent No. 1 was not

brought before the competent authority, namely, the Juvenile

Justice Board. Hence, Section 49 was not attracted and the

competent authority had no jurisdiction to make enquiry as to

the age of Respondent No. 1 as provided under sub-section (1)

of Section 49.

8. In fact, Respondent No.1 was before the trial court when

he filed an application claiming juvenility and it was, therefore,

for the trial court to make an enquiry and take such evidence

as may be necessary to determine the age of Respondent No.1

and decide upon his claim of juvenility. Section 49 of the Act

contains no provision prohibiting the court before which a

claim of juvenility is raised, to determine the age of the person

before the court. The trial court, therefore, had the

jurisdiction to inquire into the age of Respondent No.1 and for 1

that purpose take such evidence as may be necessary and

record a finding whether Respondent No.1 was a juvenile or

not at the time of commission of the offence. As a matter of

fact, after the trial court in the present case determined the

age of Respondent No.1 and rejected his claim to juvenility by

the order dated 14.02.2006, Section 7A has been introduced

in the Act with effect from 22.08.2006 laying down the

procedure to be followed when claim of juvenility is raised

before any court. This insertion of Section 7A in the Act

indicates that Parliament never intended to oust the

jurisdiction of the court to decide a claim of juvenility raised

before it, and that the court always had the power to decide a

claim of juvenility raised before it. Hence, the contention

raised on behalf of Respondent No.1 that it was only the

competent authority which had the jurisdiction to decide

whether Respondent No.1 was a juvenile at the time of

commission of the alleged offence or not, has no merit.

9. The trial court passed the order on 14.02.2006 rejecting

the claim of Respondent No.1 that he was a juvenile at the

time of commission of the offence and Section 7A of the Act 1

laying down the procedure to be followed when claim of

juvenility is raised before any court had not come into force by

14.02.2006. When the trial court passed the order rejecting

the claim of Respondent No.1 of juvenility on 14.02.2006, the

Rules, including Rule 12 laying down the procedure to be

followed in determination of age of a juvenile in conflict with

law, had also not come into force. The trial court, thus, was

not required to follow the procedure laid down in Section 7A of

the Act or Rule 12 of the Rules. In the absence of any

statutory provision laying down the procedure to be followed in

determining a claim of juvenility raised before it, the court had

to decide the claim of juvenility of Respondent No.1 on the

materials or evidence brought on record by the parties and

Section 35 of the Evidence Act. This Court has held in

Ravinder Singh Gorkhi (supra) that in case of a dispute with

regard to the age of the person who is alleged to have

committed the offence, the Court has to appreciate the

evidence having regard to the facts and circumstances of the

case and it will be the duty of the court to accord the benefit to

a juvenile, provided he is found to be a juvenile and not to give 1

the same benefit to a person who, in fact, is not a juvenile and

cause injustice to the victim. Again in Jyoti Prakash (supra)

this 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 who has committed the offence must be

determined keeping in view the factual matrix involved in each

case.

10. On a reading of the order dated 14.02.2006 of the trial

court, we find that the trial court has found that AW1 Shivraj

examined on behalf of Respondent No.1 stated before the court

that he looks after the administrative work of Jesus Mary

Public School and this work was being previously looked after

by his son Anand, who had expired. AW1 has further stated

that Exhibit-1 was the admission form in relation to

Respondent No.1 in which the date of birth of Respondent

No.1 was mentioned as 05.10.1988 and in this admission form

the uncle of Respondent No.1 had put his signatures marked

by the court as Exhibit-1E to 1F and on the basis of this

information in the admission form an entry was made in the

scholar's register (Exhibit-2) that the date of birth of 1

Respondent No.1 was 05.10.1988. The trial court, however,

has taken note of the fact that AW1 in his cross-examination

could not say who had filled up the admission form and on

what basis the date of birth of Respondent No.1 was written as

05.10.1988. The trial court has further observed that AW1

has admitted that the scholar's register (Exhibit-2) was not in

his handwriting and that he had never seen the boy whose

name was mentioned in Exhibit-2. The trial court has held

that there was over-writing in the date of birth of Respondent

No.1 in Exhibit-1 and from a perusal of the document it was

not clear on what basis the date of birth of the Respondent

No.1 was written and for this reason the date of birth of the

Respondent No.1 cannot be believed to be 05.10.1988. The

trial court has also held that the father of Respondent

No.1 Sukhram was also examined before the court as AW4

and that he had stated that he got prepared the horoscope of

his son (Exhibit-12) from Pandit Jagdish Prasad Sharma who

had expired and that Respondent No.1 was born on

05.10.1988 in village Surpura, District Jodhpur. The trial

court has, however, held that according to the evidence of AW4 1

the horoscope (Exhibit-12) was approximately 17-18 years old

but by merely looking at the document it was clear that the

document was not so old and on the basis of Exhibit-12,

therefore, the date of birth of Respondent No. 1 cannot be said

to be proved as 05.10.1988. The trial court has further held

in its order that the uncle of Respondent No. 1 Pancharam

was examined as AW5 who is said to have furnished the date

of birth of Respondent No.1 in the admission form (Exhibit-1)

as 05.10.1988, but in his examination-in-chief AW5 has

clarified that he had mentioned the date of birth on the saying

of his brother Sukhram. The trial court has further held that

since the basis of the date of birth was not written in the

admission form (Exhibit-1), and no independent witness had

been produced before the court such as the mid-wife or nurse

who had participated in the birth of Respondent No.1 which is

said to have taken place on 05.10.1988 in village Surpura, the

court cannot believe that the date of birth of Respondent No.1

was 05.10.1988 particularly when in eight other criminal

cases pending in various courts relating to incidents of the

years 2002, 2003 and 2004, Respondent No.1 had not taken 1

the plea that on the date of the incident he was a juvenile and

cannot be tried by the ordinary courts but by the juvenile

courts in accordance with the Act. The trial court has also

held that the evidence, documentary and oral, produced on

behalf of Respondent No.1 in connection with his age,

appeared to have been created for escaping the punishment

for the alleged offence of murder and that from the appearance

of Respondent No.1, it looked that the Respondent No. 1 was

above 18 years of age on 11.07.2004 when the alleged offence

under Section 302 of the IPC was committed.

11. In the impugned order passed in revision, the High Court

reversed the findings of the trial court and held that even if

Respondent No.1 had not raised a plea that he was a juvenile

in other criminal cases or during the course of investigation of

the present criminal case, such a plea could be raised by him

at any stage during the course of trial and even at the

appellate stage. The High Court further held that the date of

birth of Respondent No.1 in the admission forms, school

records, and transfer certificates were good proof in relation to

the age of Respondent No.1 and simply because by physical 1

appearance the Respondent No.1 did not look like a juvenile,

the court cannot hold that Respondent No.1 was not juvenile

at the time of commission of the alleged offence. The High

Court concluded that the trial court has miserably failed to

appreciate the evidence in its correct perspective and the

findings recorded by the trial court in relation to the age of

Respondent No.1 were contrary to the established principles of

law in relation to appreciation of evidence and deserved to be

set aside.

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 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 1

of determining the age of Respondent No.1 at the time of

commission of the alleged offence. As has been held by this

Court in Ravinder Singh Gorkhi and Jyoti Prakash (supra)

the age of Respondent No.1 was a question of fact, which was

to be decided on the evidence brought on record before the

court and it was for the trial court to appreciate the evidence

and determine the age of Respondent No.1 at the time of

commission of the alleged offence and in this case, the trial

court has arrived at the finding that the claim of Respondent

No.1 that he was less than 18 years at the time of commission

of the alleged offence, was not believable. While arriving at

this finding of fact, the trial court had not only considered the

evidence produced by Respondent No.1 but also considered

the fact that either in the earlier cases or during the

investigation of the present case, the Respondent No. 1 had

not raised this plea. While arriving at this finding of fact, the

trial court had also considered the physical appearance of

Respondent No.1. Such determination on a question of fact

made by the trial court on the basis of the evidence or material

before it and other relevant factors could not be disturbed by 1

the High Court in exercise of its revisional powers.

13. A plain reading of Section 52 of the Act shows that no

statutory appeal is available against any finding of the court

that a person was not a juvenile at the time of commission of

the offence. Section 53 of the Act which is titled "Revision",

however, provides that the High Court may at any time, either

of its own motion or on an application received on that behalf,

call for the record of any proceeding in which any competent

authority or court of session has passed an order for the

purpose of satisfying itself as to the legality or propriety of any

such order, and may pass such order in relation thereto as it

thinks fit. While exercising such revisional powers, the High

Court cannot convert itself to an appellate court and reverse

the findings of fact arrived at by the trial court on the basis of

evidence or material on record, except where the High Court is

not satisfied as to the legality or propriety of the order passed

by the trial court. The trial court, as we have discussed, has

given good reasons for discarding the evidence adduced by the

Respondent No.1 in support of his claim that he was a juvenile

at the time of commission of the alleged offence and there was 2

no scope to hold that the order of the trial court was either

illegal or improper and the High Court should not have

substituted its own finding for that of the trial court on the age

of Respondent No.1 at the time of commission of the alleged

offence by re-appreciating the evidence.

14. In the result, we allow this appeal and set aside the

impugned order dated 18.08.2006 of the High Court in S.B.

Criminal Revision Petition No. 166 of 2006 and remit the

matter to the trial court for trial of Respondent No.1 in

accordance with law treating him not to be a juvenile at the

time of the commission of the alleged offence.

..........................J. (Harjit Singh Bedi)

..........................J. (A. K. Patnaik) New Delhi, March 12, 2010.