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Monday, July 29, 2013

Evidence Act, 1872-Section 32 Clause (5)-Date of birth-Proof of-Horoscope-Evidentiary value of-Held : Horoscope is a weak piece of evidence to prove age of a person and cannot be relied upon unless its authenticity is proved by cogent evidence-Cannot be given primacy over the school leaving certificate-Service Law. At the time of appointment as Patwari, respondent disclosed his date of birth to be 1.10.34. On a complaint, an enquiry was conducted and it was found that his actual date of birth was 25.11.31. Thereupon, Deputy Commissioner dismissed him from service. He unsuccessfully preferred appeal before Commissioner. Thereafter, Respondent filed suit for declaration that the correct date of birth is the one recorded in service book i.e. 1.10.34 and in support submitted his horoscope. Trial Court dismissed the suit holding that there was no ground to interfere with the orders of Deputy Commissioner. First appellate court allowed the appeal accepting the date of birth as mentioned in the horoscope. High Court dismissed the Second appeal on the ground that no substantial question of law was involved. In appeal to this court, appellant contended that school register and the connected records were produced which showed that the date of birth was 25.11.1931. The evidentiary value of these documents was discarded by the first appellate court primarily on the ground that a horoscope was produced according to which the date of birth was 1.10.1934.- Allowing the appeal, the Court HELD : 1. The school records have more probative value than a horoscope. Where no other material is available, the horoscope may be considered but subject to its authenticity being established. These aspects were not considered by the first appellate court and the High Court. The High Court was, therefore, not justified in dismissing the Second Appeal by observing that there was no substantial question of law involved. [764-D-E] 2. Respondent claimed that both school leaving certificate and the horoscope were produced and the date of birth was recorded by relying on the horoscope. It has not been explained as to how varying dates remained and why no steps were taken to get the school records corrected. On enquiry, the school leaving certificate was found to be forged one. There was no effort to reconcile the discrepancy in the so-called horoscope and the school record as taken note of by the Trial Court. The first Appellate Court took a different view without any plausible reason. [762-G-H; 763-B] 3. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 Clause (5) Evidence Act, 1872, must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. No evidence was led by the respondent to prove authenticity of the same. In any event the same was not to be given primacy over the school leaving certificate. It was not shown as to how the entry therein was wrong. The onus was on the respondent to prove that the same was not correct, which was not discharged. [763- E-F, C-D] Ram Narain Vallia v. Monee Bibi, ILR 9 Cal. 613; Mst. Biro v. Atma Ram, AIR (1937) PC 101 and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak, ILR 97 Cal. 849, relied on. 4. The statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative, is more authentic evidence under Section 32 Clause (5) unless it is established that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one' age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5). Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the need of a particular situation. Entires in the school register and admission form regarding date of birth constitute good proof of age. [763-G-H, 764-A, B-C] Uttam Chandra v. State of Rajasthan, [1982] 2 SCC 202, relied on. Atul Nanda, A.A.G. for the State of Punjab, Arun K. Sinha for the Appellant. Nidhesh Gupta, Vinod Shukla and Ms.S. Janani, for the Respondent.- 2005 AIR 1868, 2005(2 )SCR758 , 2005(3 )SCC702 , 2005(3 )SCALE173 , 2005(3 )JT220

CASE NO.:
Appeal (civil)  1730 of 2005

PETITIONER:
State of Punjab

RESPONDENT:
Mohinder Singh

DATE OF JUDGMENT: 14/03/2005

BENCH:
ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:
J U D G M E N T

(Arising out of SLP (C) No. 22477/2003 


ARIJIT PASAYAT, J.



Leave granted.

Appellant-State calls in question legality of the judgment 
rendered by a learned Single Judge of the Punjab and Haryana High Court 
dismissing the Second Appeal filed by it under Section 100 of the Code 
of Civil Procedure, 1908 (in short the 'Code') holding that no question 
of law was involved.

The background facts are as under:

The respondent (hereinafter referred to as the 'plaintiff') was 
appointed as a Patwari on 5.2.1958.  At the time of appointment he 
disclosed his date of birth to be 1.10.1934. Complaints were received 
and preliminary enquiry was conducted and it was held that his actual 
date of birth is 25.11.1931.  A suit was filed by the respondent for 
declaration to the effect that his date of birth as recorded in service 
book i.e. 1.10.1934 is the correct date of birth and plaintiff is 
entitled to all benefits and privileges which would have accrued to him 
had he continued on that basis till the date of superannuation i.e. 
30.9.1992 and for setting aside the punishment awarded for allegedly 
manipulating records and disclosing wrong date of birth.  

Following issues were framed by the trial Court:

"1. Whether the High Court was justified in 
observing that no substantial question of law arises 
in the second appeal, whereas the substantial 
question of law was/is whether interpretation of the 
expression "Government" in Rule 2.5 Note 1 of Punjab 
Civil Service Rules is not competent/appointing 
authority, who is the Deputy Commissioner in this 
Case?

2. Whether as per Rule 2.5 Note 1 of Punjab Civil 
Service Rules, the date of birth entered in the 
Service Book of an employee cannot be changed by the 
Competent Authority after conducting a regular 
enquiry and giving proper opportunity of hearing to 
the said employee?

3. Whether submission of wrong date of birth at 
the time of joining service amounted to misconduct on 
the part of the said employee?

4. Whether the date of birth entered in the 
matriculation certificate shall not prevail over the 
date of birth mentioned in the horoscope?

5. Whether entering a correct date of birth in 
service book after valid enquiry qua the correct date 
of birth of the Respondent can be challenged, which 
was entered after affording proper opportunity of 
hearing and which is final and never challenged as 
bad?
6. Whether the respondent, who is literate and was 
qualified to be appointed as Patwari was supposed to 
know the admissibility of document in respect of date 
of birth, did not tamper with documents by submitting 
a wrong date of birth i.e. 1.10.1934 instead of 
25.11.1931?
7. Whether a long span of 33 years ought to be 
allowed to come in the way to correct a false entry 
regarding date of birth made on wrong and tampered 
documentation of an employee, which undoubtedly being 
the date of birth shall seriously affect the services 
of the colleagues of the said employees in the same 
cadre?"

Learned Civil Judge (Senior Division) dismissed the suit holding 
that there was no ground to interfere with the orders of the Deputy 
Commissioner who, on the basis of the enquiry conducted, had observed 
that the date of birth was 1931 and not 1934 and if he had given actual 
date of birth he would have been over age and would not have been 
eligible for the post of patwari. The enquiry report of the Additional 
Deputy Commissioner was submitted on 21.5.1985.  The Sub-Divisional 
officer, Sangrur who hold the enquiry held that the charge regarding 
change of date of birth from 25.11.1931 to 1.10.1934 was proved.  The 
Deputy Commissioner dismissed the respondent from service with effect 
from 27.7.1988 after granting opportunity of hearing. An appeal was 
filed before the Commissioner who by order dated 18.6.1990 dismissed 
the same.  He, however, reduced the punishment by observing that ends 
of justice would be met if he is reduced by one stage in his running 
grade with effect from the date on which he was charge-sheeted till 
retirement and he will not earn any increment during the period of this 
reduction till the date on which respondent was superannuated from 
service.  

Against the order passed by the trial court an appeal was 
preferred before the District Judge who held that the materials on 
record do not show that there was any change in the true date of birth 
and the claimed date of birth i.e. 1.10.1934 is the actual date of 
birth as recorded.  Second Appeal filed by the appellant as noted above 
was dismissed on the ground that no substantial question of law was 
involved.

Learned counsel for the appellant submitted that the approach of 
the first Appellate Court is not proper. On the basis of materials on 
record and after enquiry it was held that the date of birth was 
25.11.1931 and not on 1.10.1934 as claimed.  School register and the 
connected records were produced which clearly show that the date of 
birth was 25.11.1931. The evidentiary value of these documents was 
discarded by the first Appellate Court primarily on the ground that a 
horoscope was produced according to which the date of birth was 
1.10.1934.

In response, learned counsel for the respondent submitted that on 
evaluation of evidence the first Appellate Court held that the date of 
birth was 1.10.1934 and when a horoscope is available merely because a 
different date is indicated in the school record same is of no 
consequence.  

During the course of hearing of the matter we directed the 
respondent to produce the original school leaving certificate which was 
sought to have been brought from the Government High School, Gujjarwal. 
It was filed by the respondent. A perusal thereof shows that the date 
of birth has been clearly indicated to be 25.11.1931.  Stand of the 
respondent as noted above was that the date of birth was entered in the 
service record by relying on the horoscope.  It is to be noted that 
respondent claimed that both school leaving certificate and the 
horoscope were produced and the date of birth was recorded by relying 
on the horoscope.  It has not been explained as to how varying dates 
remained. If according to the respondent, the horoscope reflected the 
actual state of affairs it has not been explained as to why no steps 
were taken to get the school records corrected.  The first Appellate 
Court was not justified in its conclusion that there was no material 
adduced by the present appellant to substantiate its stand regarding 
the date of birth.  One thing further significant is that a school 
leaving certificate was produced at the time of appointment.  On 
enquiry it was found that the same was forged one. Apart from the fact 
that there was no effort to reconcile the discrepancy in the so-called 
horoscope and the school record is a factor which has rightly been 
taken note of by the Trial Court.  Without any plausible reason the 
first Appellate Court took a different view.  

In terms of Section 32, clause 5 of the Indian Evidence Act, 1872 
(in short the 'Evidence Act'), the evidentiary value of a horoscope has 
to be considered.  No evidence was led by the respondent to prove 
authenticity of the same.  In any event the same was not to be given 
primacy over the school leaving certificate.  It was not shown as to 
how the entry therein was wrong. The onus was on the respondent to 
prove that the same was not correct, which was not discharged.  Two 
photostat copies of the school leaving certificate were produced before 
the enquiry officer.  He compared them and found that even to naked eye 
change of figure "31" to "34" was visible.  Interestingly in the said 
copies the date of birth was indicated even after the change to be 
25.11.1934 and not 1.10.1934 as claimed.
       
Horoscope is a very weak piece of material to prove age of a 
person. In most cases, the maker of it may not be available to prove 
that it was made immediately after the birth.  A heavy onus lies on the 
person who wants to press it into service to prove its authenticity.  
In fact, a horoscope to be treated as evidence in terms of Section 32 
Clause (5) must be proved to have been made by a person having special 
means of knowledge as regards authenticity of a date, time etc. 
mentioned therein.  In that context horoscopes have been held to be 
inadmissible in proof of age. (See Ram Narain Vallia v. Monee Bibi (ILR 
9 Cal.613), Mst. Biro v. Atma Ram (AIR 1937 PC 101), Satish Chandra 
Mukhopadhya v. Mohendra Lal Pathak (ILR 97 Cal. 849).
     
On the contrary, the statement contained in the admission 
register of the school as to the age of an individual on information 
supplied to the school authorities by the father, guardian or a close 
relative is more authentic evidence under Section 32, Clause (5) unless 
it is established by unimpeachable contrary material to show that it is 
inherently improbable. The time of one's birth relates to the 
commencement of one's relationship by blood and a statement therefore 
of one's age made by a person having special means of knowledge, 
relates to the existence of such relationship as that referred to in 
Section 32 Clause (5).

As observed by this Court in Umesh Chandra v. State of Rajasthan 
(1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to 
determine the correct age of a person, and the question, therefore, 
would largely depend on the documents and the nature of their 
authenticity. Oral evidence may have utility if no documentary evidence 
is forthcoming.  Even the horoscope cannot be reliable because it can 
be prepared at any time to suit the needs of a particular situation.  
Entries in the school register and admission form regarding date of 
birth constitute good proof of age. There is no legal requirement that 
the public or other official book should be kept only by a public 
officer and all that is required under Section 35 of the Evidence Act 
is that it should be regularly kept in discharge of official duty.  In 
the instant case the entries in the school register were made ante 
litem motam.    

Therefore, the school records have more probative value than a 
horoscope. Where no other material is available, the horoscope may be 
considered but subject to its authenticity being established.  These 
aspects were not considered by the first appellate Court and the High 
Court. 
        
The High Court was, therefore, not justified in dismissing the 
Second Appeal by observing that there was no substantial question of 
law involved.  

Since the first appellate Court acted on irrelevant materials and 
left out of consideration relevant materials question of law was 
involved. The suit that was filed was rightly dismissed by the Trial 
Court.
   
Accordingly the appeal is allowed.  No costs. 

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